Saplys v. Ontario Association of Architects, 2019 ONSC 1679

CITATION: Saplys v. Ontario Association of Architects, 2019 ONSC 1679

DIVISIONAL COURT FILE NO.: 198/18

DATE: 20190415

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Wilton-Siegel and Emery JJ.

IN THE MATTER OF the Architects Act, R.S.O. 1990, c. A.26, as amended, and Ontario Regulation 27 under the Act, as amended

AND IN THE MATTER OF the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22;

AND IN THE MATTER OF a proceeding before the Discipline Committee of the Ontario Association of Architects pursuant to Sections 34 and 35 of the Architects Act, to hear and determine allegations of professional misconduct against Linas Saplys, Architect

BETWEEN:

LINAS SAPLYS

Appellant

– and –

ONTARIO ASSOCIATION OF ARCHITECTS

Respondent

M. Swadron and L. Leinveer, for the Appellant Linas Saplys

B. Miller, for the Respondent Ontario Association of Architects

HEARD at Toronto: February 20, 2019

Wilton-Siegel J.

REASONS FOR JUDGMENT

[1] The Appellant, Linas Saplys (the “Appellant”), appeals the decision of the Discipline Committee of the Ontario Association of Architects (the “Committee”) dated December 7, 2017, which found the Appellant guilty of four counts of professional misconduct contrary to the Architects Act, R.S.O. 1990, c. A.26 (the “Act”) (the “Decision”). The Appellant also appeals a decision of the Committee dated February 26, 2018 (the “Penalty Decision”) which imposed a penalty of a six-month suspension of his license and awarded $45,000 in costs against him. The Appellant seeks an order setting aside the Decision and the Penalty Decision and dismissing the proceedings against him or remitting the matter back to a differently constituted Discipline Committee.

Background

[2] The Appellant is an architect licensed by the Ontario Association of Architects (the “Respondent”), which is the licensing body for architects in Ontario continued by s. 2 of the Architects Act.

[3] The Appellant worked as an independent contractor for Chamberlain Architectural Services Limited (“CASL” or “Chamberlain”) from March 2006 to June 2010, when CASL terminated his contract.

[4] These proceedings commenced with a complaint of CASL to the Respondent dated March 20, 2013 regarding the Appellant. On August 12, 2014, the Respondent served the Appellant with a Notice of Hearing, which advised that charges of professional misconduct had been brought against the Appellant and the matter would proceed to a hearing before the Discipline Committee.

[5] In the amended notice of hearing dated October 27, 2016, the Appellant was alleged to have committed 14 acts of professional misconduct. The hearing was conducted over eight days before a panel comprised of two architects and a non-architect appointee of the Lieutenant Governor.

[6] In the Decision, the Appellant was found guilty in respect of the following four allegations:

2. During the years 2011, 2012 and 2013 you failed to maintain the standards of practice in the profession by failing to provide written notice to a holder of a certificate of practice that you had been engaged or employed for the same purpose by the same client, with respect to:

(a) the construction of a hotel, Heuther Hotel (sic), at 59 King Street N., Waterloo, Ontario;

(b) the renovation of a hotel, Holiday Inn & Express, at 320 Bay Street, Sault Ste. Marie, Ontario;

(e) the construction of a residential condominium project known as Capital Pointe at 2511 Victoria Avenue, Regina, Saskatchewan,

all contrary to Subsections (1) and (2) of Section 49 of the Regulation.

5. During the years 2012 and 2013 you provided architectural services with respect to the construction of a hotel, Hampton Inn & Suites at 12700 Hwy 50, Bolton, Ontario through “API International Marketing and Architecture & Planning Initiatives”, which does not hold a certificate of practice, contrary to Subsection 1 of Section 42 of the Regulation and contrary to Section 11 of the Act.

[7] In summary, in respect of allegations 2(a), 2(b) and 2(e), the Committee found that the Appellant failed to give written notice to CASL that he had been engaged or employed for the same project and for the same purpose by the same client as CASL previously. In respect of allegation 5, the Committee found that the Appellant offered architectural services through an entity that did not hold a certificate of practice. The circumstances of each allegation are described in greater detail below.

Applicable Law

[8] The following provisions of the Architects Act are relevant to the issues on this appeal:

1. “architectural services” means services that are part of or are related to the practice of architecture;

“practice of architecture” means,

(a) the preparation or provision of a design to govern the construction, enlargement or alteration of a building,

(b) evaluating, advising on or reporting on the construction, enlargement or alteration of a building, or

(c) a general review of the construction, enlargement or alteration of a building;

“design” means a plan, sketch, drawing, graphic representation or specification intended to govern the construction, enlargement or alteration of a building or a part of a building;

11(1) No person shall engage in the practice of architecture or hold himself, herself or itself out as engaging in the practice of architecture unless,

(a) the person is licensed under this Act;

(b) the person is the holder of a certificate of practice or the person is doing so as a member of a partnership that holds a certificate of practice; or

(c) the person is the holder of a temporary licence under this Act.

11(2) No person shall provide to a member of the public a service that is part of the practice of architecture except under and in accordance with a certificate of practice or a temporary licence.

[9] In addition, s. 42 of R.R.O. 1990, Reg. 27, General under the Architects Act (the “Regulation”), sets out a definition of “professional misconduct” and s. 49 of the Regulation establishes the standards of practice for holders of a certificate of practice. The relevant provisions read as follows:

42. For the purpose of the Act,

“professional misconduct” means,

1. Contravention of any provision of the Act, or the regulations.

2. The following are prescribed as standards of practice:

3. No holder or officer, director, employee or partner of a holder shall solicit or accept any work in respect of a building project knowing or having reason to believe that another holder has been engaged on the same building project for the same purpose by the same client.

4. Paragraph 1 does not apply to prevent a holder from,

i. advising or reporting on any aspect of the practice of architecture if an independent opinion is being sought and the other holder has been so informed in writing by the client, or

ii. undertaking the work after,

A. the client has given notice in writing to the holder that the engagement or employment of the other holder has been terminated, and

B. the holder has given notice in writing, by registered mail, to the other holder that he, she or it has been engaged or employed for the same purpose by the same client.

Jurisdiction of the Court

[10] The Court has jurisdiction to hear this matter pursuant to s. 36(1) of the Architects Act which provides for an appeal of a decision of the Discipline Committee to the Divisional Court.

[11] Section 36(3) further provides:

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.

Standard of Review

[12] The Appellant acknowledges that the appropriate standard of review for the issues on appeal is reasonableness, apart from the issue in respect of allegation 2(e) which it characterizes as a jurisdictional issue that should therefore be reviewed on a correctness standard.

[13] The Respondent argues that the appropriate standard of review, on all issues, is reasonableness. The Respondent argues that the issue in respect of allegation 2(e) should not be reviewed on a standard of correctness because the OAA has particular expertise in these matters, the OAA is interpreting its own statute, and the issue goes to the core of the OAA’s mandate, namely regulating the practice and membership of its profession in accordance with the public interest.

[14] It is well established that the standard of review of decisions of the Discipline Committee of the Respondent is reasonableness for the reasons enumerated by the Respondent: see Cheung v. Ontario Assn. of Architects, [2009] O.J. No. 2230 at para. 28. I do not accept that the issue in respect of allegation 2(e) falls within the jurisdictional issues referred to in paras. 58 to 61 in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 that compel a correctness standard. This issue does not engage a question of the jurisdictional lines between two competing specialized tribunals. Insofar as it engages the jurisdiction of the Respondent to apply its licensing regime to projects outside the Province of Ontario, it engages a question of statutory interpretation to which deference is given as the Committee was interpreting its home statute.

The Issues

[15] The Appellant raises the following issues:

(1) Did the Committee err by excluding the evidence of an expert put forward by the Appellant?

(2) Did the Committee err by relying upon the opinions of its architect members respecting whether the services provided by CASL in respect of allegations 2(a) and 2(b) and by the Appellant in respect of allegation 5 constituted architectural services in respect of a building project as defined by the Architects Act?

(3) Did the Committee err in its interpretation of the Architects Act and Regulation so as to bring development and marketing services within the definitions of the practice of architecture and building projects for the purposes of determining misconduct?

(4) Did the Committee err in interpreting the notice provisions in the Regulation as applying to architectural services being provided in Saskatchewan?

(5) Did the Committee err in the penalty assigned to the Appellant?

(6) What are the appropriate remedies?

[16] I will address the first four of these issues after setting out the Committee’s principal findings in respect of allegations 2(a), 2(b) and 5. Given the disposition of the first four issues, it is not necessary to address the two remaining questions.

The Committee’s Principal Findings

[17] Allegation 2(a) related to work done by the Appellant in respect of a hotel project in Waterloo, Ontario for the Huether Hotel Group (“Huether”) after he ceased working for Chamberlain. The Committee preferred the evidence of the Huether witness to that of the Appellant in finding that “Saplys produced artist’s renderings of the project to assist in the planning exercise”. It also found that his work “in relation to the co-ordination of planning services is work that is also typically carried out by architects.” The Committee found that Saplys’ work in respect of this project was for the same purpose as the work that had been done by Chamberlain.

[18] In summary, therefore, the Committee found that the Appellant provided two services: (1) artist’s renderings of the project; and (2) co-ordination of planning services. The Committee held, for the purposes of s. 49(1) of the Regulation, that such services constituted work in respect of the same building project for the same purpose that CASL had been engaged on by the same client.

[19] Allegation 2(b) related to work done by the Appellant in respect of the renovation of a hotel in Sault Ste. Marie from a Days Inn to a Holiday Inn Express. Chamberlain provided conceptual services, which were used to submit a marketing proposal to a hotel brand. The Appellant was subsequently engaged to complete design services for the same hotel. The Committee held, for the purposes of s. 49(1) of the Regulation, that such services constituted work in respect of the same building project for the same purpose for which CASL had been engaged by the same client.

[20] The Committee rejected the Appellant’s position that his design work on this project was for a different project or purpose from the work done by Chamberlain. The Committee held that “[w]hile the design work carried out by Chamberlain may have been more conceptual than the design work continued by Saplys, the work done by each was part of a continuum of design work to be carried out in order to renovate the hotel…” It concluded that the Appellant’s approach entailed an unduly narrow interpretation of ss. 49(1) and (2) of the Regulation that was inconsistent with the ordinary meaning and purpose of those provisions.

[21] Allegation 5 related to the practice of architecture regarding the construction of a Hampton Inn & Suites hotel in Bolton, Ontario through AP International Marketing and Architecture & Planning Initiatives (“API”). API does not hold a certificate of practice pursuant to s. 11 of the Architects Act.

[22] This allegation related to the first four sets of drawings in evidence which were completed pursuant to a letter agreement dated April 14, 2011 between API and AOne Construction (the “API Agreement”). The API Agreement was signed by “Linus Saplys, B. Arch., OAA, MRAIC” on behalf of API with a hand-written note on the agreement that it was completed in June 2012.

[23] The Committee rejected the Appellant’s submission that “the production of these drawings should not be considered the practice of architecture because they were produced at an earlier stage of the design process, when the client was seeking marketing and brand approval.” The Committee stated that it considered the Appellant’s distinction between the services it provided and services that fell within the practice of architecture entailed an “unduly technical interpretation of the professional obligations governing the practice of architecture”. It held that the Appellant provided architectural services through a company that did not hold a certificate of practice in violation of s. 42(1) of the Regulation and s. 11 of the Architects Act.

[24] I note that the Committee also held that the four sets of drawings “are typical of those offered by architects in the progression of a design of a building from initial concept to complete design.”

Did the Committee Err in Excluding the Evidence of an Expert Put Forward by the Appellant?

[25] The Appellant sought to call Robert Chiotti (“Chiotti”), an architect and assistant professor at OCAD University, as an expert witness on two matters which pertained to the allegations at issue on this appeal.

[26] The Appellant proposed Chiotti as an expert on the forms of contracts between architects and their clients, in particular the scope and purpose of the contracts entered into by Chamberlain and the Appellant with the clients involved in allegations 2(a), (b) and (e). The Committee rejected this evidence on the grounds that the scope of these contracts was a question of fact and the question of the scope and purpose of these contacts was the ultimate question of mixed fact and law before the Committee.

[27] Second, the Appellant proposed to call Chiotti on the distinction between architectural services and planning services or feasibility studies. The Committee rejected this evidence on the basis that it was also primarily a question of fact and that the issue of whether the Appellant’s work constituted the practice of architecture, and whether he thereby breached his professional obligations, were questions for the Committee to decide on which it was neither necessary nor appropriate for an expert to opine.

[28] In his factum, the Appellant says that specialized knowledge was required to appreciate and apply the evidence of the Appellant’s conduct for two reasons: first, in order that all panel members would have the specialized knowledge that a well-informed architect would have, including the non-architect member of the panel, and, second, in order that this knowledge would be in evidence. At the hearing, the Appellant withdrew his submission of the need for expert advice based specifically on the presence of a non-architect member of the Tribunal.

[29] The Appellant argues that the Discipline Committee erred in characterizing Chiotti’s evidence as unnecessary and should therefore have admitted the expert evidence. The Appellant suggests that the members of the Discipline Committee were not entitled to rely on their specialized knowledge as architects themselves. The Appellant argues that each member’s expertise in these areas is unknown, and Chiotti’s evidence was necessary so that “all panel members would benefit from the specialized knowledge that a well-informed architect would have and so that this knowledge would be in evidence.”

[30] The Committee correctly identified the test for admissibility of expert evidence as the test in R. v. Mohan, [1984] 2 S.C.R. 9. The Committee rejected the evidence on the basis that it was not necessary to assist the trier of fact.

[31] I think this conclusion was not only reasonable but correct for the following reasons.

[32] Chiotti’s proposed evidence did not relate to the standard of care of an architect. Nor did it involve any technical or scientific knowledge that could only be understood by the Committee with the assistance of an expert. The evidence which the Appellant sought to have admitted pertained to aspects of the practice of architecture and other activities in which architects may engage. Such evidence did not involve knowledge that the panel members could not understand or appreciate on the basis of their own experience, including the non-architect member of the panel. Insofar as the evidence pertained to Chiotti’s view of the understanding of architects regarding the dividing line between architectural services and other services, the Committee observed that Chiotti acknowledged that “his expertise on the subject on which it was proposed that he testify was in many respects similar to the knowledge many architects in Ontario, including those on the panel, would have.”

[33] The issues in these proceedings turn principally on whether the activities of the Appellant were caught by the language of s. 49(1) of the Regulation or s. 11(1) of the Architects Act. The question in each case is whether these provisions, as properly interpreted, would extend to the Appellant’s activities. These are not matters on which expert evidence regarding usual practice or an alleged common understanding is relevant. As the Committee rightly notes, these are the very questions upon which the Committee must reach a conclusion. Accordingly, I find that the Committee’s decision to exclude the proposed evidence of Chiotti on the grounds that it failed to satisfy the test for necessity was reasonable. This ground of appeal is therefore dismissed.

[34] I would also add that, as discussed below, the findings of the Committee to which the Appellant objects regarding whether or not certain services provided by CASL constituted architectural services as commonly understood in the profession, were not relevant to the issues before the Committee given the statutory tests set out in s. 49(1) of the Regulation.

Did the Committee Err in its Interpretation of the Architects Act and the Regulation so as to Bring Development and Marketing Services within the Definitions of the Practice of Architecture and Building Projects for the Purposes of Determining Misconduct?

[35] I propose to deal next with the Appellant’s ground of appeal pertaining to the Committee’s interpretation of the relevant provisions of the Regulation and the Architects Act, as this raises the fundamental issues on this appeal.

[36] As set out above, the Committee determined that, in respect of allegations 2(a) and 2(b), the Appellant accepted and provided work “in respect of the same building project for the same purpose by the same client” as Chamberlain had previously, and therefore fell within the provisions of s. 49(1) of the Regulation. With respect to allegation 5, the Committee determined that the delivery of the four sets of drawings at issue constituted the “practice of architecture” for the purposes of s. 1 of the Architects Act. Although the Committee did not make it express, this latter determination must have been based on a finding that the delivery of these four sets of drawings fell within clause (a) of the definition of the “practice of architecture” which describes the “preparation or provision of a design to govern the construction, enlargement or alteration of a building.” These are issues of mixed fact and law in respect of which the Committee’s interpretation of the relevant provisions of the Architects Act and the Regulation is at the heart of this appeal.

[37] The guiding principle of statutory interpretation is the “modern” approach as expressed by the Supreme Court in Bell ExpressVu Limited Partnership v. Rex, [2002] SCC 42 at para. 26 as follows:

In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[38] The Appellant submits that the Committee’s interpretations of the relevant provisions of the Architects Act and the Regulation that form the basis of its findings of the Appellant’s contravention of s. 49(1) of the Regulation and s. 11 of the Architects Act are too broad, and are therefore unreasonable. I will deal first with the Committee’s determinations in respect of allegations 2(a) and 2(b) together as they both deal with the Committee’s interpretation of s. 49 of the Regulation and will then address the Committee’s determination in respect of allegation 5.

The Committee’s Interpretation of s. 49(1) of the Regulation

[39] In reaching its determination in respect of allegations 2(a) and 2(b), the Committee was required to interpret the meaning of the provisions of s. 49(1) of the Regulation. The Committee correctly understood that the issue before it was whether the work that the Appellant undertook in each case was on the same building project and for the same purpose as Chamberlain’s previous work.

[40] In each case, the Appellant says that CASL was engaged under a limited scope contract to provide development and design services only, rather than architectural services. The Appellant submits that such work does not constitute the provision of “architectural services” or the “practice of architecture” as defined in section 1 of the Architects Act. He submits that these terms are only engaged when an architect provides services that include the preparation of documentation for construction or planning approval purposes. The Appellant argues that this interpretation is consistent with OAA Regulatory Notice R.3, which addresses when an architect is required to give notice to a prior architect. The Appellant argues that the Regulatory Notice contemplates notice only when the prior architect held a full service contract which includes the preparation of construction documentation. On this basis, the Appellant argues that the work that he provided was not in respect of the same “building project” or that it was not for the same purpose as Chamberlain previously.

[41] On a plain reading of s. 49(1), the Committee’s determination on these issues was reasonable for the following reasons.

[42] The issue before the Committee was not whether the services that Chamberlain provided in respect of each of these projects were “architectural services” or fell within the “practice of architecture”. The issue was simply whether the Appellant and CASL undertook “work” in respect of a “building project”. There are no definitions in the Regulation of “work” or of a “building project”. The Committee proceeded on the basis that the “building project” in respect of allegation 2(a) was the construction of a hotel and in respect of allegation 2(b) was the renovation of an existing hotel to be rebranded as a Holiday Inn Express. It determined that the services provided by the Appellant were for the same purpose in respect of the same project, that is, in respect of the proposed construction of a hotel in the first case, and in respect of the proposed renovation and rebranding of a hotel in the second case. These are reasonable findings of mixed fact and law given the record before the Committee.

[43] Insofar as the Committee implicitly may have found that the term “work” is broader than “architectural services”, such an interpretation was also reasonable based on the plain meaning of the word “work”. There is nothing in the Architects Act or the Regulation that requires that “work” be restricted to work which falls within the “practice of architecture” as the Appellant effectively argues in his submission based on OAA Regulatory Notice R.3. Such an interpretation is also consistent with the broad definition of “architectural services” which, although not directly engaged, includes services that are “related to the practice of architecture”. In this respect, the Committee noted in respect of allegation 2(a) that the co-ordination of planning services provided by the Appellant is “work that is also typically carried out by architects” and in respect of allegation 2(b) that the “work done by each [of CASL and the Appellant] was part of a continuation of design work to be carried out in order to renovate the hotel” to a Holiday Inn Express.

[44] With respect to allegation 2(b) in particular, the Appellant’s alternative argument is that, pursuant to its proposal dated November 2, 2009, CASL was only engaged to provide a concept for brand approval and its engagement was therefore not in respect of a building project so that no notice was required. CASL’s proposal provided that the design drawings to be produced thereunder would not be sufficient to obtain a building permit or for construction. As mentioned, the Appellant relied on OAA Regulatory Notice R.3 as support for his position that such services did not constitute architectural services that should be caught by s. 49(1).

[45] For the reasons set out above, the Committee could reasonably find that the services provided by CASL with respect to allegation 2(b) were in respect of a “building project”. As the Appellant’s reliance on the OAA Regulatory Notice demonstrates, the Appellant’s real issue is whether the services provided by CASL constituted “work”, which has been dealt with above.

[46] In addition, the Committee could reasonably find that the work provided by the Appellant was in each case in respect of the same “building project” as CASL. In the case of allegation 2(a), this does not appear to be in dispute. In the case of allegation 2(b), the Committee could reasonably find that the building project continued to be renovation of a hotel to be rebranded as a Holiday Inn Express, rather than a fresh project as the Appellant argued, even if the Appellant was retained to prepare a revised design concept that was to be less expensive than the design concept provided previously by CASL.

[47] The Appellant takes issue with the Committee’s finding that the Appellant’s work “in relation to the co-ordination of planning services” is “work that is also typically carried out by architects.” However, given the language of s. 49(1) of the Regulation, this finding is neither required for a finding of a contravention of s. 49(1) nor relevant to such a finding. Similarly, insofar as the Appellant argues that the services that he provided in respect of this project did not constitute “architectural services”, such a determination is also neither required for a finding of a contravention of s. 49(1) nor relevant to such a finding.

The Committee’s Interpretation of s. 11(1) of the Act

[48] In reaching its determination in respect of allegation 5, the Committee was required to interpret the meaning of the term “practice of architecture” for the purposes of s. 11(1) of the Architects Act. The Committee concluded that the Appellant had engaged in the “practice of architecture” as defined in the Act through API which did not hold a certificate to practice architecture. On this basis, the Committee held that the Appellant had committed an act of “professional misconduct” under item 1 of s. 42 of the Regulation – being, the contravention of s. 11(1) of the Architects Act.

[49] The Appellant says API provided planning, planning development, development consulting and site evaluation services primarily for hotel brands but did not provide services where the contract included architectural services. He says the drawings in question were prepared for marketing and brand approval purposes only and were neither intended nor suitable for site plan approval or construction. In particular, the Appellant argues that his drawings were not intended “to govern the construction, enlargement or alteration of a building or part of a building” and therefore did not fall within the “practice of architecture” as it is defined in s. 1 of the Architects Act. On this basis, he says that the finding that delivery of the drawings by API constituted the “practice of architecture” was therefore unreasonable.

[50] The Appellant relies on the definition of a “design” as a component of the “practice of architecture” as set out above. Section 1 of the Architects Act defines a “design” as “a plan, sketch, drawing, graphic representation or specification intended to govern the construction, enlargement or alteration of a building or a part of a building.” [emphasis added] He says that the relevant intention for such purposes is the intention of the maker of the design. In this case, the Appellant says that he did not intend the four sets of drawings at issue to govern any construction. As evidence, among other things, he notes that the drawings did not contain any dimensions for the rooms contemplated in the design and did contain proposed furniture arrangements. The Appellant says that, as this was the only evidence respecting the intended purpose of the drawings at issue, there was no evidence before the Committee which could support a finding that the drawings were intended to govern any construction.

[51] I am of the opinion that the Committee’s determination in respect of allegation 5 was unreasonable for the following reasons.

[52] First, the formal finding of the Committee is that “[the Appellant] provided architectural services through a company that did not hold a certificate of practice.” However, the prohibition in s. 11(1) is triggered by engaging in the “practice of architecture”, not providing “architectural services”. The Committee therefore appears to have erred in law by applying the wrong legal test. Insofar as the Committee relied on the broader language in the definition of “architectural services” – “related to the practice of architecture” – in reaching its determination, it committed a further error of law.

[53] Second, insofar as the Committee decision is based on a determination that API engaged in the “practice of architecture”, the Committee failed to address the requirements of the “practice of architecture” in reaching its decision. In particular, the Committee failed to address the question of whether any of the four sets of drawings constituted a “design”.

[54] In particular, the Committee did not find that the drawings were “intended to govern the construction, enlargement or alteration” of the proposed Hampton Inn & Suites hotel. Further, I do not think that there is any basis in the Decision for the Respondent’s position that the Committee “implicitly” found that each of the four sets of drawings at issue was a “design” as defined in s. 1 of the Architects Act. The fact that the drawings were “typical of those offered by architects in the procession of a design of a building from initial concept to complete design” does not by itself constitute any of the drawings to be a “design”. Nor does the fact that they could be used to generate construction drawings later nor the fact that the drawings were used by the client to obtain construction management proposals.

[55] Accordingly, I conclude that the Committee’s decision in respect of allegation 5 was unreasonable in that it failed to address whether any of the four sets of drawings at issue constituted a “design” as defined under s. 1 of the Architects Act and therefore could not support a conclusion that Appellant’s actions constituted the “practice of architecture” by API in contravention of s. 11(1) of the Architects Act.

[56] I note, however, that the Court is not in a position to substitute its own opinion on the question of whether any such drawings constituted a “design” as defined under s. 1 of the Architects Act. I address the implications of this conclusion below in the context of the disposition of this application.

Disposition of This Ground of Appeal

[57] Based on the foregoing, this ground of appeal in respect of the determinations in respect of allegations 2(a) and 2(b) is dismissed but the appeal in respect of the determination regarding allegation 5 is granted.

Did the Committee Err by Relying upon the Opinions of its Architect Members Respecting Whether the Services Provided by CASL in Respect of Allegations 2(a) and 2(b) and by the Appellant in Respect of Allegation 5 Constituted Architectural Services in Respect of a Building Project as Defined by the Architects Act?

[58] The Appellant argues that the determinations of the Committee in respect of allegations 2(a), 2(b) and 5 were based on findings of the Committee that the services provided by CASL or the Appellant constituted or involved “architectural services” within the meaning of the Architects Act. He submits that the Discipline Committee did not, however, have sufficient evidence before it to determine that the Appellant’s work in respect of allegations 2(a), 2(b), and 5 is properly considered “architectural services” within the meaning of the Architects Act. Having not admitted the evidence of Chiotti, the Appellant says that he was the only architect who testified as to the meaning of “architectural services”. In each case, he testified that the services in question did not meet the definition of “architectural services”. He says that, in effect, the Committee was bound to adopt this evidence. However, the Committee rejected the Appellant’s characterization.

[59] The Appellant submits that, in doing so, the Committee improperly substituted its own opinions on these matters by making findings that are neither sourced from, nor capable of being sourced from, the record. The Appellant says that, in doing so, the Committee breached s. 35(6) of the Architects Act and the rules of natural justice and thereby erred in law.

[60] S. 35(6) of the Architects Act reads as follows:

Despite the Statutory Powers Procedure Act, nothing is admissible in evidence before the Discipline Committee that would be inadmissible in a court in a civil case and the findings of the Discipline Committee shall be based exclusively on evidence admitted before it.

[61] The Appellant relies on two decisions in support of his position. He relies on the decision in Re Reddall and College of Nurses of Ontario (1983), 1983 1947 (ON CA), 42 O.R. (2d) 412, 149 D.L.R. (3d) 60 (C.A.) for the proposition that a tribunal may not substitute their own opinions in the place of evidence. He also refers to Swart v. College of Physicians and Surgeons of P.E.I., 2014 PECA 20 for the principle that tribunal members may not rely on their own personal knowledge and expertise in support of the tribunal’s decision. I do not find either of these decisions to be useful in the present circumstances for the reason that each dealt with the absence of specialized medical evidence pertaining to the standard of care expected of a medical professional. The present circumstances cannot be construed as the Committee relying on its own personal knowledge regarding the standard of care expected of an architect.

[62] This ground of appeal is rejected for the following reasons.

[63] First, as discussed above, the issue in respect of allegations 2(a), 2(b) and 5 did not involve whether or not the services provided by the Appellant constituted “architectural services” as defined under the Architects Act. The issues before the Committee pertained to the tests set out in s. 49(1) of the Regulation and s. 11(1) of the Architects Act, neither of which refers to the provision of “architectural services”.

[64] Second, as described above, the issues before the Committee were questions of mixed fact and law involving a statutory interpretation of s. 49(1) of the Regulation and s. 11(1) of the Architects Act. The Committee did not require any specialized knowledge to address these issues. In this context, factual evidence regarding what any particular architect considers to constitute “architectural services” is not relevant. In particular, the Appellant’s evidence was no more than his personal belief, which is not a relevant consideration in the interpretation of the relevant provisions. For this reason, the Committee was not required to accept the Appellant’s evidence regarding the meaning and operation of these provisions, whether or not in the context of the interpretation of the term “architectural services”. It is therefore incorrect to suggest that the Committee substituted its own evidence for that in the record in reaching its decision.

Did the Committee Err in Interpreting the Notice Provisions in the Regulation as Applying to Architectural Services Being Provided in Saskatchewan?

[65] Allegation 2(e) related to the design of a residential condominium project in Regina, Saskatchewan referred to as “Capital Pointe”. The Appellant initially worked on the project when Chamberlain was engaged to do design work and was subsequently retained to continue that design work after he left Chamberlain.

[66] The Appellant was also licensed under the applicable legislation in Saskatchewan. It is not disputed that there was no notice requirement under the licensing regime in Saskatchewan. The only requirement was that the Appellant determine that CASL was no longer engaged. It is also not disputed that CASL had terminated its involvement and had been released from the project well before the Appellant was engaged.

[67] The Committee held that the professional obligations described in the Architects Act and the Regulation apply to members of the Respondent so long as they remain members regardless of where they carry out their work. The Committee therefore concluded that it had jurisdiction over the Appellant as a licensed member of the Respondent notwithstanding that he was also licensed, and compliant, in Saskatchewan at the time of the relevant events.

[68] In reaching this conclusion, the Committee relied on the principles articulated by the Supreme Court in Global Securities Corp. v. British Columbia (Securities Commission, 2000 SCC 21; [2000] 1 S.C.R. 494 at paras. 42 and 43 as follows:

Two different courts of appeal have also acknowledged that provincial regulatory bodies may have jurisdiction to investigate violations of foreign law. In Re Legault and Law Society of Upper Canada (1975), 1975 706 (ON CA), 58 D.L.R. (3d) 641, the Ontario Court of Appeal upheld the Law Society's authority to entertain a complaint about the conduct of an Ontario lawyer in another jurisdiction. As the court noted at p. 643"the jurisdiction of the Law Society over its member is a personal one, which extends to the member's conduct without territorial limitation". In Re Underwood McLellan & Associates Ltd. (1979), 1979 2222 (SK CA), 103 D.L.R. (3d) 268 (Sask. C.A.), the court similarly upheld the power of the Association of Professional Engineers to examine conduct outside the province in making its licensing decisions.

Both these cases recognize that provincial regulatory bodies governing professions with a strong interjurisdictional aspect must be able to take into account events occurring abroad. …

[69] The Appellant disputes that he was required to give notice to CASL under s. 49(2) of the Regulation in respect of a project in Saskatchewan. The Appellant says that he was licensed to practice architecture in Saskatchewan before his involvement in the Capital Pointe project and that he has complied with all his obligations under applicable Saskatchewan legislation. The Appellant argues that it was unreasonable for the Committee to rely on Global Securities because that case dealt with interprovincial financial transactions which are highly distinguishable from the practice of architecture. Moreover, unlike the cases the Committee relied on, there was no allegation that the Appellant had committed misconduct according to Saskatchewan’s rules.

[70] The Appellant further argues that the Regulation provides for findings of professional misconduct that occur outside of Ontario, insofar as s. 42(3) provides that it is professional misconduct to “Knowingly contravening any federal, provincial or municipal law, regulation or by-law relating to the construction, enlargement or alteration of buildings.” Since the Appellant did not contravene any provision in Saskatchewan, he argues that there is no basis for the Respondent to extend its jurisdiction extra-provincially. The Appellant also argues that application of the Architects Act to work done wholly in Saskatchewan offends provincial sovereignty.

[71] This ground of appeal is rejected for the following reasons.

[72] First, there is nothing in the Architects Act that supports a limitation on the Respondent’s jurisdiction over members to matters of professional misconduct involving building projects in Ontario.

[73] Second, the case law establishes that the jurisdiction of a professional regulatory body is a personal one which extends to a member’s conduct without territorial limitation: see Legault and Law Society of Upper Canada, (1975), 1975 706 (ON CA), 8 O.R. (2d) 585 at para. 5 in which the Court of Appeal addressed the jurisdiction of the Law Society of Upper Canada as follows:

In the opinion of this Court, the jurisdiction of the Law Society over its member is a personal one, which extends to the member's conduct without territorial limitation; with respect to this we would refer to Bunny v. Judges of Supreme Court of New Zealand et al. (1862), 15 Moo. 164, 15 E.R. 455. Having entered upon the investigation properly, the Law Society did not lose jurisdiction to conclude its investigation and make a decision upon the complaint merely by the fact that there might be proven before it (and I am not satisfied that it was so proven before it) that the solicitor was a member of the Quebec Bar, that the transaction was a Quebec transaction and that the rules of conduct to be observed by a member of the Quebec Bar were such that the conduct of the solicitor was within those rules. Even assuming that the foregoing had been proven, in my opinion, these circumstances constitute, at best, a defence upon which the Law Society would have had to decide if professional misconduct alleged against the solicitor had been proven.

[74] I see no basis for distinguishing the jurisdiction of the Law Society from the jurisdiction of the Respondent. Moreover, in Legault, all of the member’s actions took place outside of the Province of Ontario. In this case, it is certainly arguable that certain of the Appellant’s actions took place in Ontario to the extent that is relevant. Further, the domicile of both CASL and the client was in Ontario.

[75] Third, I do not agree that either Legault or the Architects Act provides a complete defence in the event of compliance with the licensing laws of the jurisdiction in which a building project is located. In particular, the dicta in para. 5 of Legault is obiter dicta and has not been applied in any subsequent decisions. At best, in my opinion, such compliance might be a consideration in any decision of an appropriate penalty for failing to comply with the Architects Act and the Regulation.

[76] Fourth, the Appellant submitted that a distinction should be drawn between the acts constituting professional misconduct in s. 42 of the Regulation which involve moral turpitude, or engage a concern for the protection of the public in Ontario, and those that do not. He submitted that there was no basis for the Respondent’s jurisdiction in respect of actions or building projects outside of Ontario not involving moral turpitude, or that do not raise a concern for the protection of the public in Ontario, such as the requirement to comply with s. 49(1) of the Regulation. In his view, any circumstances of concurrent jurisdiction of licensing bodies in respect of the architectural profession should be restricted to actions involving moral turpitude.

[77] Whatever the merits of this distinction, there is no basis for it in either the Architect Act or the case law. Moreover, the alleged merit of avoiding multiple sets of rules requiring compliance by architects practicing in more than one jurisdiction has not been established on the evidence in record. There is no evidence that compliance with jurisdictional requirements in more than one jurisdiction is materially burdensome. In fact, in this case, the Appellant did not provide any such evidence in respect of his own practice. More significantly, he does not suggest that he was unaware that the Respondent considered that s. 49(1) of the Regulation applied to his actions in respect of the Capital Pointe project, merely that he does not believe that it should apply as a matter of law.

[78] Lastly, the Appellant suggests that the Committee’s interpretation of the Respondent’s jurisdiction offends Saskatchewan’s exclusive legislative authority to govern property and civil rights under s. 92(13) of the Construction Act, 1867. The Respondent does not, however, purport to assert jurisdiction over property and civil rights of individuals in Saskatchewan. It asserts jurisdiction over the professional conduct of its members who are licensed under the Architects Act in that capacity. Nor does the Respondent’s jurisdiction conflict with that of Saskatchewan. The jurisdiction of the licensing body for architects in the Province of Saskatchewan can co-exist with the jurisdiction of the Respondent in respect of its members to the extent they practice architecture in that province.

Conclusion

[79] Based on the foregoing, the appeal is dismissed except in respect of the finding regarding allegation 5 which is set aside as unreasonable and remitted to the Tribunal for a determination of whether any of the four sets of drawings at issue constitutes a “design” for the purposes of section 1 of the Architects Act. With respect to penalty, the Appellant conceded that the penalty imposed in the Penalty Decision is entitled to deference if the Committee’s findings of misconduct are upheld. In the circumstances, any consideration of the reasonableness of the penalty must await the foregoing determination of the Tribunal as to allegation 5 and any concomitant revision of the penalty consequential upon such determination.

Costs

[80] The Appellant seeks costs of $37,492.72 and the Respondent seeks costs of $42,169.93, in each case on a partial indemnity basis. The Appellant was partially successful. Costs are awarded in favour of the Appellant in the amount of $9,000 on an all-inclusive basis.

Wilton-Siegel J.

I agree _______________________________

Dambrot J.

I agree _______________________________

Emery J.

Released: April 15, 2019

CITATION: Saplys v. Ontario Association of Architects, 2019 ONSC 1679

DIVISIONAL COURT FILE NO.: 198/18

DATE: 20190415

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Wilton-Siegel and Emery JJ.

BETWEEN:

LINAS SAPLYS,

Appellant

– and –

ONTARIO ASSOCIATION OF ARCHITECTS

Respondent

REASONS FOR JUDGMENT

Wilton-Siegel J.

Released: April 15, 2019