Court File and Parties
Citation: Katsoulakos v. P. Eng., 2014 ONSC 3591 Divisional Court File No.: 578/12 Date: 2014-06-12 Superior Court of Justice – Ontario Divisional Court
Re: Sotiros Katsoulakos, P. Eng. and Micro City Engineering Services Inc., (Appellants/Responding Parties) And: Association of Professional Engineers of Ontario (Respondent/Moving Party)
Before: Then J.
Counsel: Brian P. F. Moher, for the Appellants (Responding Parties) Leah Price, for the Respondent (Moving Party)
Heard: June 4, 2014
Endorsement
[1] The appellant, Sotiros Katsoulakos, has appealed to this court from a decision of the Discipline of Committee of the Association of Professional Engineers of Ontario which found him guilty of incompetence.
[2] The moving party, respondent on the appeal, moves before me to strike certain factual references from the factum of the appellant and from the factum of the respondent on the cross-appeal on the basis that there is no evidence on the record to support the factual references.
[3] The appellant’s factum, in paragraph 2 states “the appellant, Mr. Katsoulakos, is a structural engineer who practices in the subspecialty of agricultural engineering in rural Ontario”.
[4] Paragraph 10 states inter alia “… the type of engineering work engaged in by the appellants, namely, agricultural engineering.”
[5] The appellant, as respondent on the cross-appeal tendered the following sentence in paragraph 5 of his factum: “the appellants specialize in the agricultural sector, designing such things as farm buildings and manure tanks, such as the one in issue.”
[6] The moving party, respondent on appeal, submits that the appellant did not testify at the Discipline Hearing nor was any evidence adduced on his behalf.
[7] Accordingly, the respondent submits that since there is no evidence on the record to support the factual assertion in the appellants’ factum on the appeal and the factum as respondent on the cross-appeal that the appellant specializes in agricultural engineering or that he practices predominantly in that area, all such references must be struck from the respective facta.
[8] The moving party relies upon Rules 6.11(1)(c) and 61.12(3)(b) of the Rules of Civil Procedure which stipulate that a factum generally contains “such reference to the transcript of evidence and the exhibits as is necessary”.
[9] In circumstances where a particular fact is controversial, as in the instant case, the moving party relies upon the statement of Cameron J.A. in KPMG Inc. v. Mann 2001 Carswell Sask 121, 6 C.P.C. 5th 102 at para. 17:
Accordingly, the factum, which is basically a concise argument of the issues of law and fact based on the record, should not contain references to matters of fact or evidence that are beyond the record and have yet to be accepted by the court.
(See also Gulick v. Ottawa Police Service, 2012 ONSC 5536 (Div. Ct.) at para. 7, Kingswood Estates v. Hildebrand, 1995 Carswell Man 7237 (Man. C.A.) at para. 6)
[10] The appellant argues that this court should go beyond the record and accept the references at issue because prior to the June 2012 Discipline Hearing, the respondent submitted various renewal applications which were accepted by the Professional Engineers of Ontario (“PEO”) which noted his practice, and, indeed, specialization in the field of “agricultural engineering”.
[11] The appellant also argues that it is an abuse of the process to assert at para. 83 in the moving party’s factum on the cross-appeal that there is no evidence of such specialty as agricultural engineering in the face of explicit knowledge from the renewal applications that the appellants’ area of subspecialty and expertise is in the area of agricultural engineering.
[12] However, it is the position of the moving party that while the respondent has self-identified as providing structural engineering in the agricultural sector, but also in other sectors, the renewal of his applications as a structural engineer by the PEO does not constitute an acceptance by the PEO that he is indeed a specialist in agricultural engineering or that he is predominantly engaged in agricultural engineering. Accordingly the renewal applications do not constitute evidence much less proof of these assertions as the impugned references in the respondent’s factum appear to claim.
[13] In my opinion, if the appellants’ concern is that the panel will be misled by the moving parties’ assertion on the cross-appeal that there is no evidence of the existence of a subspecialty of agricultural engineering as claimed in para. 83, it will be for the Divisional Court panel to determine what if any “evidence” is required to be adduced (and by whom) before the Discipline Committee as to the existence or otherwise of a subspecialty in “agricultural engineering” as a prerequisite to the Discipline Panel requiring expertise in that area before allowing a tendered witness to give expert evidence.
[14] I fail to see why the appellant who elected not to testify or to otherwise adduce evidence on the issue of whether the appellant is a specialist in agricultural engineering or is predominantly engaged in that practice should now be permitted to endow himself with those attributes without giving the moving party an opportunity to at least impose limits on those claims either by way of cross-examination or by adducing evidence to the contrary. In my view the respondent was not bound to accept the appellants’ statements in the renewal applications wherein he self identified himself as a specialist in agricultural engineering and predominantly engaged in that practice as conclusive of those factual assertions.
[15] It seems incongruous that in the circumstances of this case the expert tendered by the PEO was not permitted to testify with respect to matters of agricultural engineering because his qualifications to do so were not established whereas this court is asked to consider the appellant as a specialist in agricultural engineering merely because he said he was in his renewal application. That latter fact, if of importance, should have been established fairly to both sides on the record without compromising the appellant’s right not to testify and the respondent’s right to challenge the assertion.
[16] While it may be appropriate for an appellate court to accept facts beyond the record in the interest of justice, I am not persuaded that it is appropriate to do so in the circumstances of this case.
[17] Accordingly, the impugned references in the appellants’ factum on the appeal will be struck as well as the reference in the factum of the appellant, respondent on the cross-appeal.
[18] Counsel for the respondent may make brief written submissions with respect to the issue of costs (no more than 3 pages excluding the bill of costs) within 15 days of the release of this decision. The appellant shall file his submissions (no more than 3 pages) 10 days thereafter.
THEN J.
Date: June 12, 2014