Truman v. Association of Professional Engineers of Ontario, 2016 ONSC 472

CITATION: Truman v. Association of Professional Engineers of Ontario, 2016 ONSC 472 DIVISIONAL COURT FILE NO.: 330-15

DATE: 20160120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. Sachs, J. Thorburn and B. Abrams JJ.

BETWEEN:

JEFFREY D. TRUMAN, P.ENG. and TRUMAN SERVICES INC.

Appellants

– and –

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO

Respondent

Neil Perrier, for the Appellants

Leah Price, for the Respondent

HEARD at Toronto: January 6, 2016

REASONS for decision

OVERVIEW

1The Association of Professional Engineers of Ontario Act, R.S.O. 1990, c. P.28 (“the Act”) provides that complaints against professional engineers are investigated by a Complaints Committee. The Complaints Committee investigates and then decides whether to refer the matter to the Discipline Committee. Allegations are articulated by the Complaints Committee, and where the Complainants Committee deems appropriate, referred to the Discipline Committee.

2After a Complaints Committee referral, a Discipline Committee proceeding was commenced against the Appellants, Jeffrey D. Truman, P. Eng. and his company, Truman Services Inc., pursuant to the Act. The Discipline Committee found that the Complaints Committee referral did not meet the necessary requirements to enable a Discipline Hearing to take place as it lacked sufficient detail to identify what the complaint was and enable the engineer to respond.

3The Discipline Committee of the Association of Professional Engineers of Ontario therefore stayed the disciplinary proceeding but thereafter, refused to award him costs of the proceeding.

4The Appellants appeal the decision of the Discipline Committee refusing them costs of the Discipline Committee proceeding. The Appellants claim the Discipline Committee’s decision to stay the proceeding on the basis that, “there are no clearly defined allegations of actions, or lack of actions, in the Statement of Allegations to which the Member can respond or mount a proper defence” is irreconcilable with the Discipline Committee’s later decision that no costs are payable to the Appellants for the Disciplinary Hearing because, “there was evidence before the Complainants Committee which, if proved, would have allowed a finding of professional misconduct to be made against the Member.” The latter decision was therefore unreasonable and this court should award the Appellants costs of the Discipline Hearing.

5The Respondent submits that the Discipline Committee did not find that the Complaints Committee had no substantive reason for referring the matter to the Discipline Committee, but rather, held that the form in which these concerns were presented was deficient. The Committee held that, “The lack of clarity in the referral and in the Statement of Allegations does not negate the reasoned considerations of the Complaints Committee…” As such, the hearing was not unwarranted and it was reasonably within the discretion of the Discipline Committee to refuse to award costs to the Appellants.

THE ISSUES

1. Did the Discipline Committee conclude on the stay application that the Discipline Committee proceedings against the Appellants were unwarranted?
2. Was the decision to deny the Appellants costs of the Discipline Committee Hearing reasonable?
3. If the decision to deny costs is unreasonable, does the Divisional Court have the jurisdiction to award costs to the Appellants of the Discipline Committee Hearing?

STANDARD OF REVIEW

6The parties agree that the standard of review to be applied on this proceeding is whether the decision of the Discipline Committee was reasonable.

THE COMPLAINT

7The Appellant, Jeffrey D. Truman, is a professional engineer. The Appellant, Truman Services Inc., is a company through which Truman does business.

8Between 2007 and 2009, the Appellants were retained to review a report on the condition of a residential roof. Truman examined the premises, prepared a report and made a number of recommendations including changes to the eavestrough. After the Appellants filed a report suggesting the property should share common roof eaves with the next door neighbour, the neighbour was informed of this proposal.

9On November 21, 2008, the neighbour filed a complaint against Truman with the Professional Engineers of Ontario. In the letter of complaint he set out the steps Mr. Truman took regarding the neighbouring property. He did not set out any specific act of misconduct within the meaning of Section 72 of the Regulations which defines professional misconduct. Attached as Appendix A is a copy of Section 72 of the Regulations.

REVIEW AND DETERMINATION BY THE COMPLAINTS COMMITTEE

10The matter was referred to the Complaints Committee of the Association of Professional Engineers of Ontario for investigation. There was no site visit. An engineer was appointed who spoke to the neighbour. Notes were taken of that meeting.

11On October 29, 2009, the Professional Engineers of Ontario produced a Complaints Summary and Allegations. This document includes a chronology of what took place. The only allegation is that the Appellants, “breached the Code of Ethics found in section 77 of Regulation 941 of the Act.” Professional misconduct is defined in the regulations as a breach of the Act or Regulations other than a breach that is solely a breach of the Code of Ethics. (emphasis added)

12On March 11, 2010, the Complaints Committee of the Professional Engineers of Ontario forwarded its Statement of Allegations to the Discipline Committee. The Statement repeats the actions taken by the Appellants, the conclusions of Truman’s report, the neighbour’s response as well as reference to a DVD made by the neighbour of the new eavestrough in operation. It concludes with the assertion that the Appellants “are guilty of professional misconduct as defined in section 28(2) of the Professional Engineers Act.” No allegations are articulated to indicate how or why the actions of the Appellants constitute professional misconduct.

DECISION OF THE DISCIPLINE COMMITTEE TO STAY THE PROCEEDINGS

13On April 4, 2011, at the outset of the hearing, the Appellants’ counsel raised the issue of whether the referral decision by the Complaints Committee was a sufficient and adequate basis for the matter to proceed before the Discipline Committee.

14On May 7, 2012, the Discipline Committee concluded that it was not and stayed the proceeding indefinitely. The panel held that,

“…the referral decision falls short of the spirit of fairness that is fundamental to the review by one’s peers in a self-regulating profession.

Surely, at the time of referral to the Discipline Committee, the Member is entitled to know, in substance, if not in precise terms, the matter or conduct which is of concern to the Complaints Committee and which would lead to the allegations which must be faced.

The panel also believes that the Statement of Allegations does not provide a clear listing of items that a typical engineer could identify as professional misconduct. Truman was entitled to know the substance of the matters or conduct which was of concern to the Complaints Committee at the time of the referral, even if they were not presented as final allegations.

There are no clearly defined allegations of actions, or lack of actions, in the Statement of Allegations to which the Member can respond or mount a proper defence.”

15The Association of Professional Engineers did not appeal the stay decision.

16Thereafter, on June 11, 2012, the Appellants sought costs of the Disciplinary Hearing as against the Association of Professional Engineers in accordance with section 28(7) of the Act. Section 28 provides that,

Where the Discipline Committee is of the opinion that the commencement of the proceedings was unwarranted, the Committee may order that the Association reimburse the member of the Association or the holder of the certificate of authorization, temporary licence, provisional licence or limited licence for the person’s costs or such portion therefore as the Discipline Committee fixes.

ANALYSIS OF THE ISSUES AND CONCLUSION

A. Did the Discipline Committee conclude that the Discipline Hearing was unwarranted?

17A referral to the Discipline Committee is warranted if any one element of the allegations, if proved, would have been sufficient for the panel to find that the Member and Holder had engaged in one of the acts of professional misconduct alleged. (emphasis added) (See Peo v. Lim Discipline Committee, May/June 2011).

18The Discipline Committee may only look at what is available to it at the time of the referral. (Shore v. Law Society of Upper Canada 2009 18300 (ON SCDC), 2009 96 O.R. (3d) 450 (Divisional Court)).

19At the time of the referral, the only allegation made against the Appellants was that they breached the Code of Ethics which, even if true, is specifically not a ground for a finding of misconduct. (Complaints Committee Referral Decision at p. 104).

20On the Stay Application, the Discipline Committee held that the Statement of Allegations,

a. did not allow the Appellants or the Discipline Committee to know the matters of conduct which were of concern to the Complaints Committee and which would lead to allegations of professional misconduct;

b. failed to confirm which allegations formed the basis of the referral decision by the Complaints Committee;

c. did not identify specific items giving rise to the allegation of professional misconduct;

d. did not provide a clear listing items that a typical engineer could identify as professional misconduct; and,

e. there were no clearly defined allegations of action, or lack of action, to which the Appellants could respond or mount a proper defence.

21It is clear from the above that on the Stay Application, the Discipline Committee decided to stay the proceeding indefinitely because the referral and the Statement of Allegations that supported it were so deficient that it was impossible to tell what the misconduct was. On the basis of the evidence before it, the Discipline Committee decided that the Discipline proceeding was unwarranted as it could not succeed.

22On the Stay Application, the Discipline Committee allowed the Association to seek clarification from the Complaints Committee to allow them to clarify what their concerns were. The Complaints Committee took up the Appellants’ file for another review after the Stay Decision. The matter was referred to a third party to review.

23The Complaints Committee decided to not refer any further allegations to the Discipline Committee.

B. Was the decision to deny the Appellants costs of the Discipline Committee Hearing Reasonable?

24Costs are a tool at the disposal of decision makers to encourage parties to behave in a fair and reasonable manner. As noted above, section 28(7) of the Act provides that where the Discipline Committee is of the opinion that the commencement of the proceedings is unwarranted, the Committee may order costs. (Lim v. Association of Professional Engineers (Ontario) 2011 CarswellOnt 3294, 23 Admin Law Review (5^th) 106 at para. 6). The Committee’s discretion must be exercised reasonably.

25The Appellants have the onus to show that the decision not to award costs was unreasonable.

26On May 15, 2015, the Committee found that the commencement of the proceedings was not unwarranted. The Discipline Committee concluded that, “the panel has considered the information that was before the Complaints Committee when the referral was made in this case. In particular, the panel has considered whether there was any evidence before the Complainants Committee which, if proved, would have allowed a finding of professional misconduct to be made against the Member and Holder with respect to one or more of the allegations in the Notice of Hearing. The panel finds that there was such evidence.”

27On the Stay Application, the Discipline Committee came to the opposite conclusion, stating that the referral by the Complaints Committee was so deficient that, “There are no clearly defined allegations of actions, or lack of actions, in the Statement of Allegations to which the Member can respond or mount a proper defence” and therefore, none of the allegations raised could be sufficient to find that the Appellants engaged in any of the acts of professional misconduct alleged.

28A decision to stay proceedings per se is not inconsistent with a decision not to award costs because a stay may simply mean the proceeding should not proceed because the engineer has not been given fair notice of the case he has to meet, not that there is no case to meet.

29The Discipline Committee reasons dealing with costs do not disclose any factual basis which, if provided, would have allowed the Discipline Committee to make a finding of professional misconduct. The only evidence the Discipline Committee referred to in its costs decision is the evidence disclosed in the Statement of Allegations in support of the Complaints Committee’s initial referral and Mr. Truman’s response to the complaint. In its Stay Decision, the Discipline Committee found that the Statement of Allegations did not identify any professional misconduct. In his response to the complaint (which the Discipline Committee agreed disclosed no identifiable misconduct) Mr. Truman provides his account of his interaction with the complainant and asks to be told what, if anything, he should do to “clear this matter.”

30If there were some material evidence for Mr. Truman to respond to, one wonders why he was not told what it was and why the Discipline Committee’s reasons as to costs do not identify this evidence or what the alleged “offence” was.

31The Discipline Committee’s reasons on the costs motion are flawed in the same way as the referral of the Complaints Committee: they draw a conclusion without providing any justification for the conclusion reached.

32It would therefore be unreasonable to deny the Appellants costs from the Association of Professional Engineers as the only two possible conclusions are that (a) the Complaints Committee chose to give the Appellants no idea of the case to be met or (b) there is no evidence to support any allegation of professional misconduct.

33Because the decision to deny the Appellants costs of the Discipline Committee Hearing in this case was unreasonable, the Appellants have met their onus and the court must consider whether the Divisional Court can order those costs paid.

C. Does the Divisional Court have the jurisdiction to award Costs to the Appellants of the Discipline Committee Hearing?

34Pursuant to Section 28(7) of the Act, cost awards are within the Committee’s discretion.

35Section 31(1) of the Act allows the Appellants to bring this present appeal before the Divisional Court.

36The powers of the Divisional Court are enumerated at section 31(3) of the Act:

An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and as the court considers proper, and for such purposes the court may substitute its opinion for that of the committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

37The Appellants have the onus of demonstrating that they deserve an award of costs. Costs are generally awarded to discourage unwarranted allegations.

38Given that the Discipline Committee itself said that a finding of professional misconduct could not succeed based on the allegations made against the Appellants, the decision to deny costs was unreasonable. The Appellants should therefore be awarded costs.

39In accordance with section 31(3) of the Act, this court can award costs of the Discipline Committee Hearing and if costs are to be awarded, it is agreed that the appropriate costs award for the Discipline Committee Hearing is $21,000.

40Moreover, it is agreed that the successful party on this Appeal should be awarded costs in the amount of $5000 for this hearing.

41The Appellants are therefore awarded a global costs award of $26,000 for costs of the Discipline Committee Hearing and the Appeal before the Divisional Court.

Sachs J.

Thorburn J.

Abrams J.

Released: January 20, 2016

appendix “A”

Professional Engineers Act, R.R.O. 1990, Regulation 941

72. (1) In this section,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome and that might reasonably be regarded as interfering in a professional engineering relationship;

“negligence” means an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances. R.R.O. 1990, Reg. 941, s. 72 (1); O. Reg. 657/00, s. 1 (1).

(2) For the purposes of the Act and this Regulation,

“professional misconduct” means,

(a) negligence,

(b) failure to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible,

(c) failure to act to correct or report a situation that the practitioner believes may endanger the safety or the welfare of the public,

(d) failure to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner,

(e) signing or sealing a final drawing, specification, plan, report or other document not actually prepared or checked by the practitioner,

(f) failure of a practitioner to present clearly to the practitioner’s employer the consequences to be expected from a deviation proposed in work, if the professional engineering judgment of the practitioner is overruled by non-technical authority in cases where the practitioner is responsible for the technical adequacy of professional engineering work,

(g) breach of the Act or regulations, other than an action that is solely a breach of the code of ethics,

(h) undertaking work the practitioner is not competent to perform by virtue of the practitioner’s training and experience,

(i) failure to make prompt, voluntary and complete disclosure of an interest, direct or indirect, that might in any way be, or be construed as, prejudicial to the professional judgment of the practitioner in rendering service to the public, to an employer or to a client, and in particular, without limiting the generality of the foregoing, carrying out any of the following acts without making such a prior disclosure:

1. Accepting compensation in any form for a particular service from more than one party.

2. Submitting a tender or acting as a contractor in respect of work upon which the practitioner may be performing as a professional engineer.

3. Participating in the supply of material or equipment to be used by the employer or client of the practitioner.

4. Contracting in the practitioner’s own right to perform professional engineering services for other than the practitioner’s employer.

5. Expressing opinions or making statements concerning matters within the practice of professional engineering of public interest where the opinions or statements are inspired or paid for by other interests,

(j) conduct or an act relevant to the practice of professional engineering that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional,

(k) failure by a practitioner to abide by the terms, conditions or limitations of the practitioner’s licence, provisional licence, limited licence, temporary licence or certificate,

(l) failure to supply documents or information requested by an investigator acting under section 33 of the Act,

(m) permitting, counselling or assisting a person who is not a practitioner to engage in the practice of professional engineering except as provided for in the Act or the regulations,