Citation and Court Information

CITATION: Murtaza v. Registrar of the Association of Professional Engineers of Ontario, 2016 ONSC 1745

DIVISIONAL COURT FILE NO.: 53/15 DATE: 20160309

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. WILSON, STEWART AND CONLAN JJ.

BETWEEN:

GHULAM MURTAZA Appellant

– and –

THE REGISTRAR OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent

In Person Leah Price and Nick W. Hambleton, for the Respondent

HEARD at Toronto: March 9, 2016

Oral Reasons for Judgment

J. WILSON J. (ORALLY)

The Appeal

[1] This is a statutory appeal under s.31 of the Professional Engineers Act, R.SO. 1990, c. 28 by Mr. Ghulam Murtaza, the appellant, from the January 13, 2015 decision of the Association of Professional Engineers of Ontario (“PEO”) Registration Committee (the “Registration Committee”). The Registration Committee refused to issue the appellant a licence to practice professional engineering in Ontario, on the basis that the evidence presented did not meet the requirement in s.33 of Regulation 941 under the Act of having at least twelve months of supervised engineering experience in Canada (“Registration Decision”).

[2] The appellant asks that the Registration Decision be set aside and seeks orders directing a Registrar to issue him a provisional and permanent licence.

This Court’s Jurisdiction

[3] This Court has jurisdiction under s.31 of the Act to hear an appeal from a decision of the Registration Committee on questions of fact or law. Under s.31(3) this Court may affirm or rescind the decision, may exercise all powers of the Registration Committee and may substitute an opinion of the Registration Committee or refer a matter back for a rehearing.

Standard of Review

[4] The appellant argues that correctness is the appropriate standard of review on both the Charter challenge and the Canadian Experience question. The respondent agrees that correctness is appropriate for the Charter challenge but argues that reasonableness is the appropriate standard for the remaining issues. We agree with the submissions of the respondent on this issue.

Background Facts

[5] The appellant applied to the PEO for a licence in May 2011.

[6] He obtained a Bachelor Degree in Civil Engineering from the University of Engineering and Technology in Pakistan in November 1997. After graduation he worked as an engineer in Pakistan. He has been working in Canada since 2001.

[7] Under s.33(1) of Regulation 941 under the Act, an applicant is eligible for a license in Ontario upon meeting the following criteria:

(i) A Bachelor’s degree in an engineering program from a recognized institution (“Academic Requirement”);

(ii) 48 months of experience in the practice of professional engineering, at least 12 months of which is obtained under the supervision of a licensee in a Canadian jurisdiction (“Experience Requirement); and

(iii) Successful completion of the Professional Practice Examination (“PPE”).

[8] The Academic Requirements Committee accepted the recommendation of the Experience Requirements Committee (the ERC) after interviewing the appellant as to his understanding of engineering principles. After interviewing the appellant, the ERC noted that the appellant’s Canadian experience was unclear and needed to be evaluated. They accepted his engineering experience abroad.

[9] The appellant has therefore met all requirements to obtain his license as an engineer, except for proof of 12 months of practice of professional engineering under the supervision of an appropriate licensee. In furtherance of demonstrating that he met the Canadian portion of the Experience Requirement, the appellant subsequently provided the PEO with examples of projects he worked on in Canada. The ERC took the view that the appellant’s work on those projects consisted primarily of building inspection and site supervision, rather than engineering work, and invited him for an interview with the ERC to discuss his experience and provide evidence that he applied engineering principles and design principles in his Canadian work experience.

[10] The appellant refused to attend for a second interview to assess whether he met the Experience Requirement, on the basis that the ERC had already interviewed him and he had already provided sufficient evidence including work samples and six reference letters to satisfy the Experience Requirement.

[11] The appellant invited the PEO to refer to the experience record on his file for proof of engineering experience in Canada and indicated that he had submitted a request to the Registrar to issue a licence, or to issue a Notice of Proposal to Refuse which would then trigger a hearing.

[12] The Registrar refused the application for failing to meet the Canadian Experience Requirement and the appellant exercised his right to request a hearing before the Registration Committee.

The Decision of the Registration Committee

[13] There were two issues before the Committee:

(i) Whether the appellant’s Charter 2(d) right to freedom of association is violated by the PEO’s requirement limiting licensing when the Building Code Act is already in place to administer the Ontario Building Code (the “Charter Challenge”); and

(ii) Whether the appellant met the Canadian Experience licence requirement under the Act (“Canadian Experience”).

[14] The Registration Committee rejected the Charter Challenge on the basis that the Charter does not protect the right to practice engineering. After hearing the evidence the Registration Committee concluded that the appellant did not meet the Canadian Experience Requirement. Finally, the Registration Committee refused to allow the introduction into evidence of reference letters that the appellant sought to introduce on the first day of the hearing as they were hearsay and as the authors of the letters were not available to be cross-examined.

The Issues in this Appeal

[15] Three issues arise:

(i) Is the Registration Committee incorrect in finding that the appellant’s s.2(d) Charter right of association was not infringed?

(ii) Did the Registration Committee err in finding that the appellant did not meet the Canadian Experience Licensing requirements?

(iii) Did the Registration Committee err by not admitting reference letters sought to be introduced by the appellant?

Issue 1: The Charter Issue

[16] The respondent referred to and relied upon the decision of the Ontario Court of Appeal in Mussani v. College of Physicians and Surgeons of Ontario. That case establishes the principle that s. 2(d) of the Charter will not be engaged unless the state precludes activity because of its associational nature. Where the impugned restrictions are put in place for the purpose of regulating the profession, s.2(d) of the Charter has no application.

[17] We conclude that clearly the Charter does not apply to evaluating the qualifications for professional membership. The Committee correctly rejected this argument.

Issue 2: Whether the Appellant Met the 12 Month Canadian Experience Requirement

[18] At this hearing the appellant testified on his own behalf and called one further witness. This witness testified as to his experience as an engineer in Pakistan and had little first-hand knowledge of his Canadian engineering experience.

[19] The Committee found, based upon the evidence called, that the appellant’s work in Canada appears to have been primarily involved in managing of building projects rather than engineering planning and design, or engineering problem solving. We find that conclusion reasonable based upon the evidence.

Issue 3: Whether the Committee Erred in Failing to Admit the Reference Letters

[20] The Committee accepted the argument of counsel for the PEO that the letters of reference prepared at the request of the appellant were inadmissible hearsay, without the authors of the letters attending to be cross-examined. Amongst the letters were at least two from supervisors of the appellant who could shed light on the appellant’s Canadian engineering experience.

[21] As the appellant had been warned that counsel would object to the admissibility of the letters without the attendance of the authors, this discretionary decision of the Committee was reasonable. In any event, even if the letters had been admitted into evidence, they were not sufficiently detailed to answer the concerns of the Committee, and without cross-examination, these letters were of questionable weight.

[22] For these reasons, the appeal is dismissed.

[23] Counsel for the PEO confirms that the appellant is free to reapply based upon his current situation to the Experience Requirements Committee of the PEO to update his information and to provide further information to clarify whether he has fulfilled the requirement of twelve months engineering experience in Canada.

[24] The acceptance of his academic qualifications and his experience abroad has been established and need not be reviewed. He need not write any qualifying exam.

[25] Counsel for the PEO makes it clear that to meet the Experience Requirement it requires specific details in writing of engineering projects, designs and engineering problem solving performed in Canada for a twelve month cumulative period, (i.e. not consecutive twelve months).

[26] The details of what is required are outlined in the letter from the PEO to the appellant dated September 4, 2013. Evidence from supervisors of details of this type of engineering work would be of assistance if they are sufficiently detailed.

[27] We thank the appellant and counsel for submissions.

Costs

[28] After providing our decision, we asked for submissions on costs. We order costs to the respondent in the amount of $1,200, payable at the rate of $100 per month.

___________________________ J. WILSON J.

STEWART J.

CONLAN J.

Date of Reasons for Judgment: March 9, 2016 Date of Release: March 11, 2016

CITATION: Murtaza v. Registrar of the Association of Professional Engineers of Ontario, 2016 ONSC 1745 DIVISIONAL COURT FILE NO.: 53/15 DATE: 20160309

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. WILSON, STEWART AND CONLAN JJ.

BETWEEN:

GHULAM MURTAZA Appellant – and – THE REGISTRAR OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent

ORAL REASONS FOR JUDGMENT

J. WILSON J.

Date of Reasons for Judgment: March 9, 2016 Date of Release: March 11, 2016