CITATION: Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527
DIVISIONAL COURT FILE NO.: DC-17-071
DATE: 20180817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Harvison Young, Thorburn, Conway JJ.
BETWEEN:
ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO
Appellant
– and –
SIU H.E. LEUNG and JIT Professional Services Inc.
Respondents
Leah Price and Nick Hambleton, for the Applicant
Siu H.E. Leung, in person
Ian C. Matthews and Laura M. Wagner, Amicus Curiae
HEARD at Toronto: July 17, 2018
Harvison Young J.
REASONS FOR JUDGMENT
[1] The Appellant, the Association of Professional Engineers of Ontario (the “Association”), appeals the decision of the Discipline Committee (the “Panel”), dated January 23, 2017. That decision dismissed all the allegations made by the Association against the Respondent Mr. Leung’s professional corporation, JIT Professional Services Inc. (“JIT”), because it had not been a holder of a Certificate of Authorization from the Association at the time that the contract with the complainant had been made. The Panel also dismissed two of the three allegations made against the Respondent Mr. Leung after concluding that there was insufficient evidence against him to support those allegations.
Factual Background
The Project
[2] Ms. Aphantitis retained Mr. Leung and JIT to prepare and submit plans to the City with a view to obtaining a building permit. The contract, on JIT letterhead, was dated August 31, 2011 and comprised only one page. It specified that the scope of work was “to prepare a set of permit drawings” for the price of $2,100 (with the cost of the permit fee to be extra). The only reference to the scope of work in the contract was the statement that the addition is approximately 24’x14’, with full basement.
[3] There was no mention in the document of making changes to the garage or building a new front porch.
[4] On September 28, 2011, Mr. Leung submitted an Application for a Permit to Construct or Demolish (the “Application”). In the box entitled “Description of proposed work”, Mr. Leung stated:
ONE STOREY REAR ADDITION & CONCRETE PORCH
[5] The Application was accompanied by drawings entitled “New One Storey Rear Addition”.
[6] Over the next few months, there was correspondence between Mr. Leung and the City relating to the City’s concerns with respect to the project’s compliance with zoning by-laws concerning setbacks and the proportion of the lot that would be occupied by the building. In response to the first of these, Mr. Leung filed an additional set of drawings on October 26, 2011. These included the following notations:
EXISTING GARAGE TO BE REMOVED
PROPOSED CONCRETE PORCH
PROPOSED ONE STOREY ADDITION.
[7] On November 15, 2011, the City’s Committee of Adjustments approved Ms. Aphantitis’ application to proceed with the renovations despite being non-compliant with the City’s by-laws.
[8] On December 7, 2011, Mr. Leung filed another set of drawings. These drawings showed changes to the project that included changes to the front porch, the garage, the rear addition and a new side concrete patio. The Association submitted that this shows that the scope of the contract was broader than that specified in the contract dated September 28, 2011. Mr. Leung submitted that this work was just done as a favor for no additional fees.
[9] On May 18, 2012, the City again wrote to Mr. Leung with a notice of deficiency, stating that the drawings were insufficient to allow the City to determine whether the renovations complied with municipal zoning by-laws and seeking additional drawings. Initially, Mr. Leung did not respond, and the City followed up with another request dated June 25, 2012. Mr. Leung responded on July 30, 2012 with two additional drawings showing the requested measurements. On October 11, 2012, the City approved the variance application, allowing for the proposed additions to exceed the usual setback and coverage restrictions.
[10] By this time, the construction on all the renovations including the rear addition, garage and front porch had been completed. They started in October 2011 and were completed in March 2012.
The Complaint
[11] On April 25, 2014, the complainant, Ms. Aphantitis, registered a formal complaint against Mr. Leung and JIT. She alleged that Mr. Leung had breached their contract by failing to deliver an additional two sets of drawings requested by the City. She also alleged that Mr. Leung had acted unprofessionally by failing to respond to her inquiries. According to the complaint, she had contracted Mr. Leung to provide drawings for the garage, front porch and rear extension.
[12] She claims that after receiving the Deficiency Notice on June 25, 2012, Mr. Leung had failed to remedy the deficiency and was now evading her calls:
I hired Mr. Leung in late summer 2011 for home renovation plans. Plans for rear extension on the home were received, however, I did not receive construction drawings for the garage and front porch.
Repeated attempts to contact Mr. Leung via email and phone did not prove fruitful and no response received from Mr. Leung re: submission of Drawings for the garage and front porch extension to the City of Toronto.
I have now received Notice from the City of Toronto to submit the drawings for the garage and front porch extension as soon as possible “to avoid further court action.”
[13] The complaint was directed to the Complaints Committee.
[14] On May 7, 2014, the City of Toronto asked the complainant to submit “as built” drawings showing the newly renovated garage, front porch and rear extension. The City claimed that they needed this information in order to complete a Building Code review.
[15] The complainant was unable to reach Mr. Leung to respond to this request. After receiving no response, the complainant contracted another engineer, Daniel Wong, P. Eng., who completed the drawings.
[16] Following an investigation, the complaint was referred to the Discipline Committee.
[17] The Association alleged that Mr. Leung was guilty of professional misconduct for the following:
a. Failing to remedy deficiencies in a building permit application;
b. Failing to complete contracted work and failing to respond to a client’s inquiries regarding the work, and;
c. Providing engineering services to the public without a Certificate of Authorization.
The Discipline Committee’s Decision
[18] There is no dispute that JIT did not hold a Certificate of Authorization (“COA”) at the time the alleged misconduct occurred. The Committee found that it has no jurisdiction against JIT for conduct that occurred before it held a COA:
The Act does not explicitly address whether the Discipline Committee has jurisdiction over the alleged misconduct committed by a member or holder before they were issued a license or Certificate of Authorization. In this case, because Leung was a member when he used JIT to sign the Contract and he was the President and Director at JIT, the panel would assess Leung’s conduct on this basis. The panel, after reviewing the submissions from the Association and the advice and references from the Independent Legal Counsel, decided that the Association and the panel have no jurisdiction over JIT for its actions prior to it obtaining a Certificate of Authorization.
The panel’s decision was informed by, and is consistent with, the Discipline Committee’s recent decision in PEO v. Wood (issued on August 3, 2016) in which the Committee concluded that the Association did not have jurisdiction over the conduct of a former member during the period of license suspension (Reasons for Decision at p. 10).
[19] The Committee also dismissed two of the three allegations against Mr. Leung.
[20] First, it found that there was insufficient evidence to demonstrate that the scope of drawings included the “as built” drawings required by the City on May 7, 2014. The Committee, in referring to the Contract dated September 28, 2011, stated as follows:
The Contract did not stipulate any work related to “as-built” drawings. Although Ms. Aphantitis contacted and expected JIT and Leung in 2014 to prepare “as built” drawings required by the City, she did not testify that she offered to pay JIT and Leung to perform additional work.
Because Ms. Aphantitis had completed the construction of the front porch extension and new garage without an approved building permit, the City needed “as-built” drawings to process the application for a variance to the by-law ground coverage and setback requirements. The only option for Ms. Aphantitis was to submit “as-built” drawings so that the City might approve the completed construction and not ask her to demolish it.
The panel found that there is insufficient evidence to show that Leung or JIT was hired to do more than what had been done as defined by the written contract. The rear addition to the house had been completed; the area of which was in reasonable agreement with the 24’ x 14’ area specified in the contract. No evidence was presented to show that work related to a new garage to replace the original garage demolished to allow construction equipment access to the back yard and a front porch extension was included in the contract with Leung (Reasons for Decision, at p. 11).
[21] With respect to the allegation that Mr. Leung had failed to respond to the client’s repeated inquiries, the Committee expressed its disapproval but concluded that there was insufficient evidence to satisfy it that this conduct had risen to the level of professional misconduct. It also dismissed the allegation that Mr. Leung had failed to remedy a deficient building permit allegation, noting that it saw this allegation as closely related to the allegation that he had failed to complete contracted work.
[22] The Committee did uphold the allegation that Mr. Leung had provided engineering services to the public while JIT was not a holder of a COA. Neither party appeals from this finding.
The Issues
[23] The Association appeals from the Panel orders dismissing the allegations against JIT and Mr. Leung. Its submissions can be summarized as follows. First, it argues that the Panel committed a fundamental error of law in finding that the Committee has no jurisdiction over members for conduct taking place pre-licensure. While Mr. Leung was a member at the time the contract with Ms. Aphantitis was formed, JIT was not.
[24] Second, the Association submits that the Panel committed “an extricable error of law” in concluding that there was insufficient evidence to support the allegation that Mr. Leung and JIT had failed to perform his duties under the contract, or (relatedly) that he had failed to address deficiencies in the plans submitted to the City of Toronto.
Was the Committee’s finding that it did not have jurisdiction over JIT’s pre-licensure conduct wrong and/or unreasonable?
[25] The Respondent, Mr. Leung, was not represented during the appeal and did not file any materials. For this reason, amicus curiae was appointed to prepare and file materials addressing this jurisdictional issue only. Although Mr. Leung did appear at the hearing before this Court, he did not make any submissions on this issue.
Standard of Review
[26] Both the Appellant and amicus curiae submit that the applicable standard of review in this case is that of correctness because, in their submissions, this is one of those rare cases of true jurisdiction. With respect, I disagree.
[27] The amicus’ factum cites both Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.R. 190 [“Dunsmuir”] and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 [“Alberta Teachers”] in support of its position on standard of review. In referring to Dunsmuir, it refers in its factum to para. 50 of the decision where it notes that the principle underlying the reasonableness standard is that “certain questions that come before an administrative tribunal do not lend themselves to one specific, particular result.” Amicus submits that that is not the case for the question on this appeal, which is “binary” in the sense that, it argues, either the Committee does or does not have jurisdiction over pre-licensure conduct.
[28] With respect to the Alberta Teachers decision, amicus acknowledges that the Supreme Court held that a tribunal’s interpretation of its home statute “should be presumed to be a question of statutory interpretation subject to deference on judicial review” (para. 34). Amicus notes that the Supreme Court did not foreclose the possibility that a true question of jurisdiction could be identified, describing such questions as “narrow” and “exceptional”, and imposing an onus on the party seeking a correctness review of an asserted jurisdictional question to rebut the presumption.
[29] This is not one of those is one of those rare cases. The test of reasonableness does not reflect simply the nature of the question before a tribunal. Rather, it also reflects the specialized expertise tribunals are presumed to employ when interpreting their home statute, which is the case here. Thus, they are entitled to a margin of appreciation or deference with respect to their decisions: see Dunsmuir, at para. 47. In this case, while the question of whether or not the Committee had jurisdiction may be binary, it depends on an interpretation of the statute and its context as it addresses the regulation of the engineering profession. A reasonableness standard is more than sufficient to fulfil the courts’ supervisory role with regard to the jurisdiction of the executive: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, at para. 40; McLean v. British Columbia (Securities Commission), 2013 SCC 67, at para. 38, [2013] 3 S.C.R. 895.
[30] The consequentialist argument that this would result in uncertainty is not well founded because, once a given tribunal has rendered such a decision, that decision will have to be considered when the next case comes along, and will be part of the reasonableness inquiry undertaken by a reviewing court. The point is that the reasonableness standard focuses squarely on the tribunal in question as the locus of the decision-making in circumstances where it is interpreting its home statute, as it is here.
[31] The applicable standard is therefore reasonableness.
[32] Amicus concludes, however, that the Committee’s decision that it did not have jurisdiction was correct. The Appellant disagrees, submitting that it was wrong or unreasonable.
The Jurisdictional Issue
[33] Given that my focus will be on the reasonableness of the Committee’s interpretation of the applicable statutory provisions, it will be helpful to set out the most pertinent provisions here.
[34] Section 12 of the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “PEA”) is entitled “when licenses or certificates required” and reads as follows:
12 (1) No person shall engage in the practice of professional engineering or hold himself, herself or itself out as engaging in the practice of professional engineering unless the person is the holder of a licence, a temporary licence, a provisional licence or a limited licence.
(2) No person shall offer to the public or engage in the business of providing to the public services that are within the practice of professional engineering except under and in accordance with a certificate of authorization. [Emphasis added.]
[35] Section 28 of the Act is entitled “Duties and Powers of Discipline Committee”:
28 (1) The Discipline Committee shall,
(a) when so directed by the Council, the Executive Committee or the Complaints Committee, hear and determine allegations of professional misconduct or incompetence against a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence;
(b) hear and determine matters referred to it under section 24, 27.1 or 37; and
(c) perform such other duties as are assigned to it by the Council.
Professional misconduct
(2) A member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence may be found guilty of professional misconduct by the Committee if,
(a) the member or holder has been found guilty of an offence relevant to suitability to practise, upon proof of such conviction; or
(b) the member or holder has been guilty in the opinion of the Discipline Committee of professional misconduct as defined in the regulations. [Emphasis added.]
[36] Section 40 is also relevant to an understanding of the statutory scheme and an interpretation of the jurisdiction of the Committee. It creates certain offences and penalties as follows:
40 (1) Every person who contravenes section 12 is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $25,000 and for each subsequent offence to a fine of not more than $50,000.
(2) Every person who is not a holder of a licence or a temporary licence and who,
(a) uses the title “professional engineer” or “ingénieur” or an abbreviation or variation thereof as an occupational or business designation;
(a.1) uses the title “engineer” or an abbreviation of that title in a manner that will lead to the belief that the person may engage in the practice of professional engineering;
(b) uses a term, title or description that will lead to the belief that the person may engage in the practice of professional engineering; or
(c) uses a seal that will lead to the belief that the person is a professional engineer,
is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $10,000 and for each subsequent offence to a fine of not more than $25,000.
[37] The Committee began its reasons on the jurisdictional issue by stating that there was no question that JIT held a COA by the time the complaint was made on April 25, 2014, when the matter was referred to the Committee on July 15, 2014, and when the hearing was held. The question was whether its jurisdiction extended to JIT’s conduct prior to the point at which it was issued a COA, which coincided with the impugned conduct.
[38] The Committee began by noting that the Independent Legal Counsel had advised that the Committee had no such jurisdiction, supporting his opinion with reference to jurisprudence as to the jurisdiction of professional discipline bodies, including Rivard v. Alberta Dental Hygienists’ Association, 2000 ABCA 212. It referred to ss. 12(2) and 40 of the Act, noting that the sanctions set out under s. 40 are not included in the statutory powers given to the Discipline Committees, and observing that it would be open to the Association to commence a court proceeding against JIT under s. 12(2) of the Act.
[39] The Committee also noted that the Act does not explicitly address whether the Discipline Committee has jurisdiction over the alleged misconduct committed by a member or holder before being issued with a COA. The Committee also referred to its earlier decision in PEO v. Wood in which the Committee had decided that it did not have jurisdiction over the conduct of a former member during a period of licence suspension.
[40] The Appellant Association submits that the Discipline Committee does have jurisdiction over current members and license holders whose misconduct took place before they became a licensee or certificate holder. In support of this argument, counsel submits that s. 2(3) of the PEA states that the Association is the governing body for all members and holders who provide professional engineering services to the public. Because JIT eventually became a COA holder, it fell within the Discipline Committee’s jurisdiction.
[41] Furthermore, it submits that there is nothing in the wording of ss. 24(1), 27.1, 28, or 28(2) of the PEA that limits the temporal scope of the Discipline Committee’s jurisdiction. If the Court were to decide against it, the Association states that it would potentially lose the ability to govern its membership simply because the misconduct of a member or holder occurred prior to licensing or issuance of the COA.
[42] The Appellant challenges amicus’ statement that professional discipline legislation should be strictly construed. In particular, the Appellant challenges the case law that amicus relied on. The Appellant also notes that recent authority from appellate courts has explicitly determined that regulatory legislation should not be narrowly construed. Rather, the approach should be broad and purposive as remedial legislation and not doing so “could have serious public policy ramifications. For example, if a current member badly designed a building before licensure, and it collapses, PEO could not seek revocation of the member’s licence – no professional discipline could be imposed”.
[43] Amicus submits that the Discipline Committee lacks jurisdiction over members’ pre-membership conduct, arguing that it would be an absurd result if a member could be found guilty of professional misconduct for pre-membership conduct that occurred decades ago.
[44] It submits that while s. 28(2) could, by itself, be interpreted as granting jurisdiction over misconduct whenever it occurred, a proper, contextual interpretation of that provision does support the conclusion that it does not confer jurisdiction to discipline pre-membership conduct. Other sections of the PEA explicitly provide authority over past conduct and the principle of consistent expression supports the view that, had the Legislature intended to cover pre-licensing conduct, it would have so provided explicitly.
[45] In addition, amicus points out that the sections that provide for consideration of pre-licensing conduct (see ss. 14(2)(a), 15(8)(a), 18(2)(a)) do so in the context of the assessment of fitness to engage in the practice of professional engineering.
[46] In my view, the Committee’s decision that it did not have jurisdiction is both reasonable and correct for a number of reasons.
[47] First, an interpretation of a statute must include its context, that is, the entire statute and not just the section in isolation: see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. While s. 28(2), read alone, is capable of the interpretation advanced by the Appellant, this interpretation is not supported by a consideration of the statute as a whole. In particular, s. 40 provides that certain conduct constitutes an offence subject to conviction and fines. Section 40(1) expressly includes any “person” who contravenes s. 12 of the PEA. It does not use the more restrictive language of “member of the Association or a holder of a certificate of authorization” as do the provisions which cover the duties and powers of the Discipline Committee. This, as well as the fact that the PEA expressly provides for the consideration of past conduct when assessing a person’s fitness for licensing (see e.g. s. 14(2)(a)), supports the argument that this use of language was conscious and deliberate in drawing a distinction between “members or holders of certificates of authorization” and “persons” or “applicants”.
[48] Second, it is not the case that a person who holds herself out as an engineer who has never been licensed and who, for example, designs a building that collapses, can do so with impunity. As the Committee observed, such a person may be charged under s. 40 of the Act, and could also be subject to civil liability. Moreover, if the Legislature considers this to be a significant “gap” in the regulatory scheme governing engineers, it can amend the PEA.
[49] Third, I do not agree with the Appellant that the interpretation of s. 28(2) remains ambiguous after a proper, contextual interpretation. Even if that were to be the case, I do not agree with the Appellant’s submissions that the question of the interpretation of s. 28(2) should be broadly interpreted to extend to pre-licensing conduct.
[50] There is a long-recognized approach to professional discipline legislation which requires that such legislation be narrowly interpreted by the courts in favour of the professional being disciplined: see Alto v. Insurance Council of British Columbia, 1982 CarswellBC (S.C.). This arises from the consequences for a person’s livelihood that flow from being subject to a regulatory scheme: see Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146 (C.A.). It is also consistent with the principle that penal legislation is to be strictly construed because of the serious consequences that may result: see Ruth Sullivan, Statutory Interpretation, 3rd ed. (Concord, ON: Irwin Law, 2016) at paras. 15.24-15.25; R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668 at para. 50.
[51] The case law relied upon by the Appellant Association in support of its argument that professional regulators have disciplinary jurisdiction over their members’ pre-membership conduct falls into two general categories, neither of which applies to the present case. The first is conduct that may be seen as “continuing” into the time of membership, and the second is conduct that resulted in the fraudulent procurement of a licence which negatively affected the individual’s fitness to practice (see Bunny v. Judges of the Supreme Court of New Zealand and Ward (1862), 15 Moore, P.C. 164; Knox; a Solicitor (Re), (1914), 20 D.L.R. 546 (Alta. S.C. App. Div.) or both.
[52] The cases to which the Appellant referred this Court do not assist it. In the Supreme Court of Canada’s decision in Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, the Court upheld a recommendation that the Government revoke a judge’s commission on the basis of criminal conduct he had engaged in before he was appointed as a judge and his failure to disclose that record during the appointment process, which constituted an ethical breach and called the judge’s integrity into question. However, that decision was specifically tied to the particular provisions of the Courts of Justice Act, R.S.Q., c. T-16, and the Judicial Code of Ethics, R.R.Q. 1981, c. T-16, r. 4.1. Justice Gonthier stated as follows at para. 58:
In addition, as I said in Ruffo, the committee of inquiry is responsible for preserving the integrity of the whole of the judiciary. Accordingly, it must be able to examine the past conduct of a judge, if it is relevant to the assessment of his candidacy [….] [T]he process of selecting persons qualified for appointment as judges is so closely related to the exercise of the judicial function itself that it cannot be dissociated from it. [Citations omitted.]
[53] In my view, this decision does not bear on the present case given the significant difference in the statutory framework and the issues in question.
[54] In Harcourt and Association of Professional Engineers of the Province of Ontario (Re) (1931), 39 O.W.N. 462 (Div. Ct.), the Court found that the procuring of registration by a false and fraudulent representation was unprofessional conduct, not merely antecedent to his acceptance, but “continuing unprofessional conduct in retaining membership of an association thus procured by fraudulent means”.
[55] The Appellant also cites Ho v. Alberta Association of Architects, 2015 ABCA 68. In that case, the Court upheld findings of professional misconduct against an architect who had not been a member at the time the first allegation occurred but was by the time the second occurred. The Appellant also had apparently argued that he was not subject to the jurisdiction of the Committee when the hearing took place, having advised the Association that he wished to cancel his membership after a number of months of dealing with the complaints process.
[56] The Court held that, under the applicable legislation, which is not the same as the PEA, the Committee had reasonably found that it had jurisdiction over the pre-member conduct. However, it also held that the first and third counts were intertwined such that the appellant’s conduct carried forward from the period when he was not registered into the period when he was. The Court stated at paras. 29 and 34:
We do not need to decide what would be the reach of jurisdiction if the conduct alleged against the appellant in the two counts had occurred entirely and exclusively prior to his registration with the Association … [because] it is reasonable to infer that the Committee and the College addressed the substance of the first count on the basis of determining the current qualifications, capacity, eligibility or character of the appellant as a member.
[57] The Court in Ho was careful to emphasize the particular facts of that case, stating at para. 36:
This decision should not be taken beyond the factual confines of the present case, nor beyond the obligation of this Court to show deference to a reasonable interpretation by a tribunal of its governing and authorizing statute.
[58] Given the particular factual circumstances in Ho, as well as the different statutory context, I do not find it to be helpful to the Appellant in the present case.
[59] In summary, the proper and contextual construction of the statute supports the view that the Discipline Committee does not have jurisdiction over the actions of persons before they were members or holders of certificates. The Discipline Committee’s jurisdiction is entirely statutory, and the statute is clear that it has jurisdiction in respect of allegations of the misconduct or incompetence of members or holders. As discussed above, the use of broader language of the provisions addressing the assessment of applicants’ fitness to be members, and the offences and penalties provisions provide the context for the interpretation that the Discipline Committee’s jurisdiction does not extend to pre-licensing conduct.
Was the Committee’s decision with respect to the scope of the contract unreasonable?
Standard of Review
[60] The Appellant submits that that Discipline Committee applied the incorrect law of contractual interpretation and that the decision therefore attracts a correctness standard of review. In particular, the Appellant submits that the Discipline Committee incorrectly applied the parol evidence rule to exclude oral evidence where it ought to have considered the oral and written evidence together as one inclusive contract. The Appellant argues that this constitutes an “extricable error of law” and is therefore reviewable on a standard of correctness.
[61] I disagree. It is clear that professional misconduct decisions under the PEA are reviewed on a standard of reasonableness: Katsoulakos v. Assn. of Professional Engineers of Ontario, 2014 ONSC 5440, at para. 7. The issue in this case was whether there was evidence amounting to professional misconduct. The breach of contract analysis used by the Discipline Committee was the path to this analysis because whether Mr. Leung was found to have been deficient in the performance of his duties to his client was dependent on what he had agreed to do in the first place.
[62] The standard of review is reasonableness.
The Discipline Committee’s Decision on the Contract
[63] The Discipline Committee dismissed the allegations that Mr. Leung had failed to complete contracted work for a client and failed to respond to a client’s inquiries regarding the work. It also dismissed the allegations that Mr. Leung had failed to remedy deficiencies in a building permit application. These conclusions turned on the Committee’s interpretation of the contract and its scope. It found that the contract was comprised of the one-page contract dated September 28, 2011. It noted that it did not specify that Mr. Leung was to prepare “as built” drawings, and also that there was no evidence that the complainant had at any point offered to pay Mr. Leung more than the $1,200 set out in that document.
[64] The Appellant argues that the Committee misapplied the parol evidence rule and failed to consider the complainant’s evidence that the contract properly understood included more than was captured by the one-page written contract dated September 28, 2011. It submits that the Committee ignored the uncontradicted oral and documentary evidence in concluding that the contract was comprised only of the one-page document.
[65] The Appellant also submits that the reasons given are insufficient because it lacks justification and falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: Dunsmuir, at para. 47.
[66] I do not agree that the Committee misapplied the parol evidence rule in this case. Rather, it is clear that it did not find the complainant’s evidence entirely reliable in that while she expected JIT and Mr. Leung in 2014 to prepare “as built” drawings as required by the City at that point, it noted that there was no evidence that she ever offered to pay for the performance of work in addition to the $1,200 specified in the one-page contract. The need for the “as built” drawings arose in 2014, much later than 2011, because she had completed the construction of the front porch extension and new garage without an approved building permit. In short, while the complainant may have understood the contract to be broader, the Committee clearly did not agree, based on an objective interpretation of the written contract.
[67] In reviewing the evidence before it, the Committee noted that the one-page contract referred to an area that was to be 24’x14’, an area that was significantly less than the ultimate total area of the rear addition, front porch extension and new garage. The initial permit application sought a building permit to add a one-storey rear addition. While the drawings do show a front porch, there is some material in the record to suggest that at this point, it was not contemplated that it would be covered, which attracted particular requirements by the City.
[68] Mr. Leung did not appear at the committee hearing. Nor did he submit any materials at the hearing of the appeal before this Court, although he did appear. He was unrepresented. He submitted that the initial contract did capture the agreement between the parties and that he only submitted additional drawings as a favour to the complainant. He acknowledged that he had not been responsive to her calls, citing personal and family problems at the time.
[69] While the Committee’s decision is brief, it is clear that it did not find the complainant’s evidence that she expected that Mr. Leung would prepare “as built” drawings to have formed part of the contract.
[70] While Ms. Price submitted during oral argument that the Committee should have given reasons for finding her “incredible”, I do not agree that there is any basis for concluding that the Committee considered her evidence lacking in credibility. Rather, the Committee did not find that there was sufficient evidence that the contract had contemplated more than the initial building permit application. This was supported by the wording of the contract and the fact that it did not include the garage and was only 24’x14’, as well as the fact that there was no evidence of an agreement or offer to pay him more than the initial $1,200.
[71] With respect to the failure of Mr. Leung to respond to the complainant’s inquiries, the Committee noted that there was evidence that Mr. Leung did not respond to her repeated inquiries. It stated the following at page 12 of its reasons:
Although the panel disapproves of the Member’s failure to respond, there is insufficient evidence to find professional misconduct on this basis.
[72] This very brief conclusion follows immediately upon the discussion of the scope of the contract. Read in context, it is clear that the “insufficient evidence” related at least in part to the findings that the scope of the contract was captured by the one-page contract. Thus, the finding that the scope of the contract was restricted to the rear addition and front porch as contemplated at that point informed its conclusions that his failure to respond did not constitute professional misconduct. That is because as time went on, the project expanded beyond the contract as agreed to. It is clear from the record that Mr. Leung became less responsive to the complainant over time.
[73] In summarizing the complainant’s complaint in the proceeding, the Committee noted at page 5 of its reasons that she had complained that Mr. Leung had failed to provide the final construction drawings for the new garage and the front porch extension. It is clear from its reasons that it did not accept that Mr. Leung was obliged under the contract to perform this work. Thus, it was reasonable for the Committee to find that the failure to respond to requests that were not clearly related to Mr. Leung’s contractual obligations did not rise to the level of professional misconduct.
[74] The Appellant is, in essence, asking this Court to weigh evidence differently than the Committee did. That is not the function of this Court on an appeal where the tribunal in question has heard the evidence and reached its conclusions. The record, including the contract and the evidence before it, supports the conclusion of the Committee dismissing the allegations that Mr. Leung had failed to complete contracted work for a client and failed to respond to a client’s inquiries regarding the work, so as to amount to professional misconduct.
[75] In addition, I do not accept the Appellant’s submission that the reasons are insufficient. First of all, it is important for reviewing courts to remember that the standard of review is reasonableness, not perfection: see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 18; R. v. B. (H.S.), 2008 SCC 5, at para. 2; Bhatia v. Canada (Citizenship and Immigration), 2017 FC 1000 at para. 29; McCormick v. Greater Sudbury Police Service, 2010 ONSC 270, 6 Admin L.R. (5th) 79, (Div. Ct.) at para. 116. As the Supreme Court stated in Dunsmuir, the concept of deference as respect requires “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: Dunsmuir, para. 48, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law, (1997) at p. 279 (emphasis added).
[76] This case is distinguishable from the case of College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155 (Div. Ct.) to which the Appellant’s counsel (or Ms. Price) referred in support of her argument that the reasons in the present case are insufficient. There, the Committee held that it did not find Dr. Hanif to be credible and preferred the complainant’s evidence. It then went on to acquit him of the allegations without any explanation of how it came up with conclusions that were inconsistent with its findings. That is not the case here, where the conclusion does flow from and is consistent with the Committee’s interpretation of the scope of the contract.
[77] Second, read as a whole, the Committee’s decision on these allegations are sufficiently justified, transparent and intelligible, and fall within a range of possible, acceptable outcomes: see Dunsmuir, at para. 47. It is clear that the Committee concluded, on the evidence before it, that the contract was comprised of the one-page contract dated September 28, 2011. This conclusion was open to it on the evidence before it, particularly given the fact that the Association has the burden of proof on a balance of probabilities.
[78] For the foregoing reasons, the appeal is dismissed.
Harvison Young J.
I agree _______________________________
Thorburn J.
I agree _______________________________
Conway J.
Released:
CITATION: Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527
DIVISIONAL COURT FILE NO.: DC-17-071
DATE: 20180817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Harvison Young, Thorburn, Conway JJ.
BETWEEN:
ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO
Applicant
– and –
SIU H.E. LEUNG
Respondent
REASONS FOR JUDGMENT
Released: August 17, 2018