CITATION: Registrar of the Association of Professional Engineering of Ontario v. Gurpersaud, 2015 ONSC 804
DIVISIONAL COURT FILE NO.: 136/14 DATE: 20150203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, CORBETT AND GILMORE JJ.
BETWEEN:
THE REGISTRAR OF THE ASSOCIATION OF PROFESSIONAL ENGINEERING OF ONTARIO
Appellant
– and –
NARESH GURPERSAUD
Respondent
Leah Price, for the Appellant
Neil J. Perrier, for the Respondent
HEARD at Toronto: February 3, 2015
SACHS J. (ORALLY)
Nature of the Proceeding
[1] The appellant, the Registrar of the Association of Professional Engineers of Ontario (“PEO”) appeals a decision of the Registration Committee of the PEO (“the Committee”), which directed the appellant to issue Naresh Gurpersaud (“the Respondent”) a licence to practice professional engineering. The Committee held that the respondent had met the academic requirements for licensure specified in section 33(1)1(ii) of Regulation 941 made under the Professional Engineers Act¸ R.S.O. 1990, c. P.28 (“the Act”) as of the date he received his Masters of Applied Science degree from Carleton University in Ottawa.
[2] The appellant seeks an order that the Committee’s decision be set aside and a substitute order be issued directing the Registrar to refuse to issue a licence to the respondent. In the alternative, the appellant seeks an order allowing the appeal and remitting the matter for a rehearing before a differently constituted panel. The respondent seeks to have the appeal dismissed.
Background
[3] The respondent graduated in 2000 from the University of Guyana with a Bachelor’s degree in Civil Engineering. He immigrated to Canada in 2002 and applied to the PEO for a licence. His file was referred to the Academic Requirements Committee (“ARC”) because he did not have a bachelor’s degree from an accredited engineering program at a Canadian university. The ARC assessed the respondent’s application and determined that he was required to complete a total of four examinations: three technical examinations in the engineering discipline in which his academic qualifications were assessed and one non-technical examination.
[4] In 2003, the respondent became employed with GEO-Foundations, a subsidiary of a multi-national engineering firm, where he remained employed for what was 11 years at the time of the hearing. The respondent was notified by PEO that if he did not begin writing the examinations by May 2005 his application would be closed. As such, he elected to write two of the four required examinations in May 2005. He failed both examinations; he submitted at the hearing that this was due to working 70-75 hours per week and not having a chance to prepare for the examinations. His application was referred back to the ARC who determined that he would have to successfully complete a total of six examinations including re-writing the two failed ones. The respondent did not write the six examinations and his application expired.
[5] In 2008, the respondent applied again for licensure and he was again referred to the ARC who told him he would have to write the six examinations previously assigned. The respondent had read in the PEO Guidelines that a foreign applicant may be considered for a licence if he obtained a graduate degree in the same engineering discipline as his bachelor’s degree. The respondent decided to obtain a Master’s degree at Carleton University and advised PEO of this decision.
[6] In 2010, nearing the completion of his Masters in Applied Science (Civil Engineering) degree, the respondent requested that his application be reconsidered by ARC. Again, he was told by the ARC that he was required to complete the six examinations previously assigned. ARC stated, “Although numerous courses were undertaken for the MA.Sc. degree, they do not address the areas of deficiency previously assigned. In addition, two outstanding failures must be addressed.” The respondent’s file was again closed for time expiration.
[7] In 2011, the respondent reapplied for licensure. The ARC again advised that he must complete the six examinations previously assigned. The respondent requested a hearing before the Registration Committee, which took place over four days in November 2013.
[8] The Committee held that upon completion of his Master’s degree the respondent should have deemed to have fulfilled the academic requirements under s.14(1)(c) of the Act and s. 33(1)1(ii) of Reg. 941.
[9] Section 14 of the Act states:
14(1) The Registrar shall issue a licence to a natural person who applies therefore in accordance with the regulations and,
(c) has complied with the academic requirements specified in the regulations for the issuance of the licence, including passing such examinations as the Council sets or approves in accordance with the regulations, or is exempted by the Council from complying with the requirements;
[10] Section 33(1)1(ii) of Regulation 941 states:
33(1) Each applicant for a licence shall comply with the following rules:
- The applicant shall demonstrate that he or she has obtained,
i. a bachelor’s degree in an engineering program from a Canadian university that is accredited to the Council’s satisfaction, or
ii. equivalent engineering educational qualifications recognized by the Council.
[11] The main issue before the panel was whether the respondent acquired sufficient academic knowledge and training to meet the academic requirements as prescribed in the Act and the Regulations. After considering all of the evidence, the panel concluded that by obtaining his Master’s degree, the respondent demonstrated that “he had obtained equivalent educational qualifications within the meaning of s. 33(1)1(ii).”
[12] At the hearing a number of witnesses testified. The appellant called Dr. Shaikh, who was qualified as an expert to give evidence with respect to the academic requirements for licensure with the PEO. The appellant also called Dr. Nakhla, a member of the ARC who was involved with the respondent’s application. The respondent called five witnesses: two engineering colleagues, two professors who supervised his Master’s thesis, and himself.
[13] The Committee preferred the evidence of the respondent’s witnesses. They found that the respondent demonstrated a high level of achievement, he had admiration and respect from his professors and his work contributions were highly valued by his supervisors at the company. The Committee found that as the respondent’s witnesses interacted with him routinely, their evidence was persuasive and provided a meaningful assessment of his qualifications and experience.
Jurisdiction
[14] This Court has jurisdiction under s. 31 of the Act to hear a party’s appeal of a decision or order of the Registration Committee. The powers of this Court on appeal are set out in s. 31(3) and include the power to affirm or rescind the decision of the Committee, exercise all its powers and/or direct it to take any action which it may take and that he Court “considers proper”, including by substituting its own opinion for that of the Committee or referring the matter for rehearing, in whole or in part, in accordance with the Court’s direction.
Standard of Review
[15] The appellant takes the position that this appeal should be decided on a correctness standard of review. It does so on the basis that two of the three committee members were not engineers, that the tribunal in question is strictly an adjudicative tribunal that plays no role in administration or the development of policy within the PEO, that there is no privative clause protecting the decisions of the Registration Committee and that some of the questions raised by this appeal are questions of law involving the interpretation of legislation and the admissibility of opinion evidence.
[16] It is clear that in holding the hearing it did, the Registration Committee was administering and interpreting its home statute and regulations. The Supreme Court of Canada has held that there is a presumption that the standard of review is reasonableness where a tribunal is administering and interpreting its home statute. (See Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation), 2011 SCC 61, [2011] S.C.J. No. 61 at para. 39).
[17] In this case there is nothing in the legislation that would rebut that presumption. Further, the existing jurisprudence establishes that the standard of review of a decision of a Registration Committee of a professional regulatory body in Ontario is the standard of reasonableness regardless of whether all of the members of those committees are specialists in the field that they are regulating. (See Barbossa v. Ontario (Health Professions Appeal and Review Board), [2012] O.J. No. 2162 (Div. Ct.)).
[18] For these reasons we find that the appropriate standard of review is reasonableness.
Did the Registration Committee Fail to Consider or Properly Apply the Applicable Legislation or Did it Ask Itself the Wrong Question?
[19] The appellant submits that the Registration Committee`s decision is unreasonable because it failed to consider or properly apply the applicable legislation and that it asked itself the wrong question.
[20] In particular, according to the appellant, the Registration Committee completely ignored the provisions of subsections 14(3) and 14(6) of the Act, and sections 36 and 40 of the Regulations. These provisions deal with the composition of and the powers of the ARC. In making this submission the appellant states that in the decision under appeal the “ARC has been interpreted out of existence” and that the Committee in effect ignored the background of what had occurred before the ARC, most importantly the fact that the ARC had identified certain serious deficiencies in the appellant’s educational qualifications, deficiencies that were not addressed by the Master’s degree that the respondent obtained.
[21] The appellant also argues that the Registration Committee only addressed itself to the question of the respondent’s competence and integrity. It did not focus on the crucial question before it – namely whether the respondent met the requirements and qualifications of the Act and the regulations. In this regard the appellant directed us to subsection 33(1)1(ii) of Regulation 941 which is reproduced again for ease of reference. That subsection requires that an applicant demonstrate that he or she has obtained:
(i) A bachelor’s degree in an engineering program from a Canadian university that is accredited to the Council’s satisfaction, or
(ii) Equivalent engineering or educational qualifications recognized by the Council.
[22] According to the appellant, what the Registration Committee did was find that the respondent’s Master’s degree was the equivalent of a bachelor’s degree from an engineering program from a Canadian university, a finding that could not reasonably be supported by the evidence, especially if the Committee appropriately interpreted the word “Equivalent”. Furthermore, according to the appellant, instead of focusing on what it had to decide, the Committee made its decision because of its assessment that the respondent was a bright and competent man who could be trusted.
[23] In our view, the appellant’s submissions are based on a reading of the Registration Committee’s decision that does not accord with the reality of what the Committee did or concluded. First, it cannot be said that the Committee ignored what had occurred before the ARC. It thoroughly reviewed the respondent’s history with the ARC, heard from members of the ARC as to the reasons why the ARC had reached the conclusions it had and the Committee decided it did not agree with the ARC’s assessment of the respondent’s engineering educational qualifications and whether they were equivalent to a bachelor’s degree in an engineering program from a Canadian university. Further, in making this decision, the Committee placed greater emphasis (as they were entitled to) on the evidence of the people who had actually interacted with the respondent on a professional and educational basis, than on the evidence of the ARC members whom the Committee found had not taken the time to familiarize themselves with the details of the respondent’s educational accomplishments. There is no issue before us that the conclusions of the ARC were not binding on the Registration Committee and that in conducting its review that Committee was entitled to do so by way of a hearing de novo. Thus, the Committee was entitled to disagree with the ARC’s assessment of the respondent’s educational qualifications and to form its own opinion, based on the evidence that it heard, as to whether those educational qualifications were equivalent to a bachelor’s degree from an engineering program at a Canadian university.
[24] The reasons of the Committee indicate that it was acutely aware of the fact that the respondent had failed two examinations and took particular care to examine the question of whether those failures represented a true measure of the respondent’s ability in those areas or were rather reflective of the particular circumstances of the respondent when he wrote those examinations. In the end, the Committee was satisfied, based on the evidence it heard, that the respondent did have the necessary educational background in the areas that he had failed. This was a conclusion it was entitled to come to and the Committee’s decision on this point is entitled to deference.
[25] It is also unfair to characterize what the Committee did as deciding that the respondent’s Master’s degree was the equivalent of a bachelor’s degree in engineering from a Canadian university. The Committee looked at the respondent’s educational qualifications as a whole, which included a bachelor’s degree in engineering from a university outside of Canada. It then decided that the deficiencies in the respondent’s foreign bachelor’s degree were made up by the Canadian Master’s degree that he took. The Committee made this decision after hearing detailed evidence about the educational content of that Master’s degree. In the end the Committee concluded that by obtaining that Master’s degree the respondent had “demonstrated that he had obtained equivalent educational qualifications within the meaning of s. 33(1)1(ii).” (Page 21 of the Registration Committee’s Decision). To use the language of the Supreme Court of Canada, in reaching this conclusion the Committee employed a reasoning process that was justifiable, transparent and intelligible. Further, the conclusion it came to fell within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
Did the Committee Rely on Inadmissible Evidence?
[26] The appellant objects to the manner in which the Committee dealt with issues concerning expert evidence before it.
[27] The Committee heard the respondent’s witnesses testify about what they knew of the respondent’s academic and professional attainments based on their personal dealings with him. These were not expert opinions respecting the respondent’s qualifications. Rather, these were witnesses who explained what they knew of the respondent’s academic and practical capacities based on their professional and academic dealings with him. Thus these were fact witnesses and the Committee was entitled to consider their evidence.
[28] We agree that in some instances the Committee asked particular witnesses whether they felt the respondent should be required to write examinations, given his academic attainment. These questions, going to the ultimate issue before the Committee, should not have been asked. However, it is clear from the Committee’s decision, read fairly and as a whole, that the Committee came to its own decision as to whether the respondent had met the equivalency standard, and did not simply defer to views presented by any of the respondent’s witnesses. The Committee is not a court of law, and we are satisfied that the improper questions going to the ultimate issue did not taint the overall decision so as to render it unsafe or unreasonable. We would not give effect to this ground of appeal.
Did the Committee Engage in Impermissible Speculation?
[29] The appellant argues that the Committee engaged in speculation at page 20 of its reasons when it noted:
If the applicant had first applied after obtaining his postgraduate degree from a Canadian university, he likely might not have been required to write additional examinations. His postgraduate degrees might have been accepted and he may have been deemed to fulfill the academic requirements under the Act.
[30] The Committee is not a court and its reasons should not be parsed ungenerously. Read fairly and in context, this passage is not speculation but rather an observation that, in other cases, Master’s degrees from Canadian universities have been accepted as establishing academic equivalency to Bachelor’s degrees when the applicants have foreign Bachelor’s degrees. This observation was based on evidence before the Committee and was not speculation. And this observation was relevant because, in the absence of the respondent’s prior accreditation history, the Master’s degree combined with his foreign Bachelor’s degree, might have been sufficient all by itself. Because of the prior accreditation history, the Committee looked more deeply into the matter before it was satisfied that the respondent had shown that his Master’s degree combined with his foreign Bachelor’s degree, did establish equivalency in this case. Therefore, we would not give effect to this ground of appeal.
Conclusion
[31] For these reasons the appeal is dismissed.
[32] I have endorsed the Record as follows, “This appeal is dismissed for reasons given orally by Sachs J. The respondent, as the successful party, is requesting his costs on a substantial indemnity basis. He does so because he argues that the appeal was clearly devoid of merit and showed not have been brought. In our view, there is no basis for granting an award of substantial indemnity costs. Therefore we order that the appellant pay to the respondent his partial indemnity costs, fixed in the amount of $15,000, all inclusive.”
___________________________ SACHS J.
D. L. CORBETT J.
GILMORE J.
Date of Reasons for Judgment: February 3, 2015
Date of Release: February 9, 2015
CITATION: Registrar of the Association of Professional Engineering of Ontario v. Gurpersaud, 2015 ONSC 804
DIVISIONAL COURT FILE NO.: 136/14 DATE: 20150203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, CORBETT AND GILMORE JJ.
BETWEEN:
THE REGISTRAR OF THE ASSOCIATION OF PROFESSIONAL ENGINEERING OF ONTARIO
Appellant
– and –
NARESH GURPERSAUD
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 3, 2015
Date of Release: February 9, 2015