CITATION: Rew v. Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043
DIVISIONAL COURT FILE NO.: 532/15 DATE: 20160616
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Paul Rew and Rubicon Environmental (2008) Inc. Applicants
– and –
Association of Professional Engineers of Ontario (Discipline Committee) Respondents
Arnold B. Schwisberg, for the Applicants David P. Jacobs, for Discipline Committee of The Association of Professional Engineers of Ontario Leah Price and Nick Hambleton for the Association of Professional Engineers
HEARD at Toronto: June 16, 2016
DAMBROT, J. (ORALLY)
Background
[1] Paul Rew and Rubicon Environmental (2008) Inc. (the “Applicants”) brought a motion before the Association of Professional Engineers of Ontario (Discipline Committee) (the “Committee”) for a permanent stay of certain discipline proceedings against them. On September 15, 2015, the Committee dismissed the motion. The Applicants seek judicial review of that dismissal. They bring two motions today in relation to their application for judicial review.
[2] On the motion before the Committee for a stay, the Committee heard the oral evidence of two witnesses, Mr. Slack, the Association’s investigator and Mr. Rew. The oral evidence was recorded as required by s.30(5) of the Professional Engineers Act R.S.O. 1990 c. P.28 (“PEA”) but has not been transcribed.
[3] The Committee has filed in this Court a record of proceedings for use on the judicial review application as required by s.10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. In it, the Committee included transcripts of portions of the proceedings that were obtained and filed by the parties. The Committee did not order a transcript of the remainder of the hearing and of course did not include any such transcript in the record.
[4] The Applicants bring their first motion today to compel the Committee to “complete” the record by including a transcript of the oral evidence of the two witnesses who testified at the hearing.
[5] The Applicants also brought a motion for a stay of the discipline proceedings brought against them pending their application for judicial review. This motion was refused by the Committee on May 25, 2016 with reasons to follow. As a result, the Applicants bring their second motion today for an interim stay of the continuation of the discipline proceedings against them pending the final disposition of the application for judicial review.
The Transcript Motion
[6] Pursuant to s.30(5) of the PEA, the oral evidence taken in proceedings before the Discipline Committee must be recorded and, if required, copies of a transcript of the evidence must be furnished to the parties upon the same terms as in the Superior Court of Justice. The statute does not require the Committee to order a transcript of the proceedings, far less does it require the Committee to base its determination on a transcription of the evidence.
[7] In this case, a court reporter was present at the hearing and made a recording of the oral testimony. Neither the Committee nor any of parties to the proceedings has ordered complete transcripts of the proceedings to date.
[8] When notice of an application for judicial review of a decision made in the purported exercise of a statutory power of decision which includes a decision of the committee is served on the person making the decision, that person is required by s.10 of the Judicial Review Procedure Act, to “forthwith” file the record of proceedings in which the decision was made. The content of such a record is prescribed by s.20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 which provides that a record of proceedings must include, among other things, “the transcript, if any, of the oral evidence given at the hearing [emphasis added].”
[9] In this case, there is no suggestion that the Committee otherwise failed to comply with s.20 of the Statutory Powers Procedure Act. The only question is whether s.10 of the Judicial Review Procedure Act requires a tribunal such as the committee to order, pay for and file the complete transcript of a proceeding before it that is the subject matter of judicial review.
[10] In my view, neither the simple and unambiguous words of s.20 nor the nature and scope of judicial review support the Applicants’ argument. If the words “if any” in s. 20 are to have any meaning, they must mean that a transcript must be included in the record if one exists. Where no transcript has been prepared, the words do not oblige the tribunal in question to order and pay for a transcript and include it in the record. Such an obligation would also be inconsistent with the obligation in s.10 to file the record “forthwith” after receiving notice of the application for judicial review.
[11] As for the nature of the judicial review, it must be remembered that an application for judicial review is not an appeal or trial de novo or a rehearing. On judicial review, courts must avoid undue interference with the discharge of duties delegated to administrative bodies by legislatures: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 para. 27. A routine requirement for tribunals to prepare and file transcripts as a part of their record of proceedings is inconsistent with the nature and scope of judicial review.
[12] Curiously, if the position taken by the applicants were correct, the requirements relating to transcripts would be broader on judicial review than on appeal. In ordinary appeal, the appellant, and not the Court is responsible for ordering, paying for and filing a transcript. Moreover, the Rules of Civil Procedure which apply to an appeal from the committee by virtue of s.31(1) of the PEA discourage the filing of a complete transcript: see Rule 61.05(8).
[13] This is not to say that the Applicants cannot avail themselves of any benefit they might obtain from the filing of a transcript on judicial review. They are free to obtain a transcript if they choose and, I have no doubt, the Court would receive it if satisfied that its admission is necessary to allow effective judicial review of findings of fact. Such an eventuality is contemplated by Rule 68.04(9), which obliges a party who intends to refer to a transcript of evidence at a judicial review application to file copies of the transcript with its application record and factum.
[14] As a result, I will not compel the Committee to “complete” the record by including a transcript of the oral evidence of the two witnesses who testified at the hearing.
The Stay motion
[15] As I have noted, the Applicants bring a second motion for an interim stay for the continuation of the discipline proceedings against them pending the final disposition of the application for judicial review.
[16] The test for a stay is well known. The Applicants must show:
• that there is a serious question to be determined;
• that the Applicants will suffer irreparable harm if the stay is denied; and
• the balance of convenience favours making the stay order.
[17] In this case the motion for a stay founders on the first leg of the test. Leaving aside the ultimate merits of the abuse of process ruling, judicial review has been brought prematurely. The Applicants will have a right to raise issues of fact and law including, issues relating to the abuse of process motion, on an appeal provided for by the PEA if they are found guilty. It is the strong policy of this court to discourage fragmentation of the administrative process and prevent the piecemeal litigation of tribunal proceedings by the bringing of applications for judicial review before the completion of hearings. Such piecemeal litigation undermines the deference we pay to administrative bodies and is both costly and inefficient. I addressed this issue in considerable detail in Minty v. Lucas, 2014 ONSC 3169 (Div. Ct.) at paras. 17-38. Specifically, I said, at para. 18:
18 This Court has consistently held that save in extraordinary circumstances, applications for judicial review of decisions of administrative tribunals should not be brought until the completion of the tribunals’ proceedings. The Court has consistently followed a well-established line of authority against a piecemeal approach to the judicial review of administrative action. In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before a tribunal and to consider the legal issues arising from the proceeding, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal (see Ontario College of Arts v. Ontario (Human Rights Commission), 1993 3430 (ON SCDC), [1993] 11 O.R. (3d) 798 (Div. Ct.) at 799-800; Lala v. College of Physiotherapists of Ontario, [2003] O.J. No.5062 (Div. Ct.) at paragraphs 1-3).
[18] For an example of the application of the prematurity principle to the refusal of a stay of proceedings by a tribunal at the outset of a hearing see Hamalengwa v. The Law Society of Upper Canada, 2014 ONSC 1759 (Div. Ct).
[19] The serious argument to be determined leg of the test for a stay is not limited to the substantive argument that is proposed to be advanced on the judicial review. It relates to the availability to the judicial review as well.
[20] In this case, as in Talarico v. The Law Society of Upper Canada, 2012 ONSC 2493 (Div. Ct.) the applicants have failed to show that there is an arguable basis for the availability of judicial review at this juncture of the proceedings, and accordingly they do not satisfy the first leg of the test for a stay.
[21] When an applicant fails the first leg of the test for a stay, there is no need to consider the other legs. The applicants conceded this point. There is no doubt that the applicants will suffer financial and reputational harm as a result of this proceeding, as do all professionals who undergo disciplinary proceedings. But this cannot outweigh a failure to satisfy the requirement to show that there is a serious question to be determined. In such circumstances, the balance of convenience inevitably favours a refusal of stay.
[22] Accordingly, I will not order a stay pending the application for judicial review.
Disposition
[23] Both motions are dismissed.
Costs
[24] I have endorsed the motion record as follows: “This motion and the second motion in the supplementary motion record were both dismissed for oral reasons delivered in court today. Costs to the Discipline Committee fixed at $6,000 all inclusive and to the Association fixed at $4,000 all inclusive. Costs of both motions are payable forthwith.”
___________________________ dambrot, J.
Date of Reasons for Judgment: June 16, 2016
Date of Release: June 21, 2016
CITATION: Rew v. Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043
DIVISIONAL COURT FILE NO.: 532/15 DATE: 20160616
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Paul Rew and Rubicon Environmental (2008) Inc. Applicants
– and –
Association of Professional Engineers of Ontario (Discipline Committee) Respondents
ORAL REASONS FOR JUDGMENT
DAMBROT, J.
Date of Reasons for Judgment: June 16, 2016
Date of Release: June 21, 2016