Court File and Parties

CITATION: Houghton v. Association of Ontario Land Surveyors, 2019 ONSC 3909 DIVISIONAL COURT FILE NO.: 277/19 DATE: 20190625

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: WARD I. HOUGHTON, Appellant AND: ASSOCIATION OF ONTARIO LAND SURVEYORS, Respondent

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Robert C. Taylor, for the Applicant/Appellant Robert J. Fenn, for the Respondent

HEARD at Toronto: June 10, 2019

Endorsement

[1] The applicant, Ward Houghton (the “applicant”), seeks a stay of a decision dated May 21, 2019 (the “Penalty Decision”) of the Discipline Panel of the respondent, the Association of Ontario Land Surveyors (the “respondent”), (the “Discipline Panel”). The Penalty Decision followed an earlier decision dated December 18, 2018 of the Discipline Panel that found the applicant had committed acts of professional misconduct (the “Misconduct Decision”, and collectively with the Penalty Decision, the “Decisions”). The Penalty Decision ordered an immediate revocation of the applicant’s licence under the Surveyors Act, R.S.O. 1990, c. S.29 (the “Act”) even if an appeal were commenced. The applicant also seeks an order staying or enjoining publication of the Decisions by the respondent pending the hearing of his appeals of the Decisions scheduled for December 2019. The Penalty Decision also specifically directed the Registrar of the respondent to publish the Decisions in the respondent’s newsletter and web newspaper, and on the respondent’s website. In addition to opposing the application, the respondent brought a cross-application which is described below. I will address the application and cross-application in order.

The Application

[2] As mentioned, the applicant seeks a stay of the Penalty Decision and a stay of the direction in the Penalty Decision that the Registrar publish the Decisions pending a hearing of his appeals of the Decisions.

[3] There is no dispute that the test for a stay is the three-fold test that applies in respect of a request for an injunction: see College of Physicians & Surgeons (Ontario) v. Porter, [2003] O.J. No. 540 (S.Ct.(Div.Ct.)) at para. 6. I will address each of the parts of this test in turn.

Serious Issue to be Tried

[4] The first requirement of the test is that there be a serious issue to be tried. The threshold is not a high one. The Court must be satisfied that the application is neither vexatious nor frivolous. The applicant has raised a number of grounds of appeal restating jurisdictional issues which the Discipline Panel addressed and rejected in the Misconduct Decision. On the basis of the limited record before the Court on this application, which did not however include the applicant’s factum on the appeals, it is arguable that they fail to raise a serious issue to be tried, even taking into consideration the low threshold for demonstration of a serious issue.

[5] However, the appellant also suggests that the penalty of revocation of his licence was harsh and disproportionate. I conclude that this submission raises a serious issue for the following reason.

[6] The Discipline Panel imposed the revocation of the applicant’s licence based on its conclusion that the applicant “is fundamentally dishonest, unethical, and unprofessional and cannot be governed in a way that would protect the public interest.” This conclusion was, in turn, based on the Discipline Panel’s view that two prior disciplinary proceedings, together with the Discipline Panel’s findings of professional misconduct in the present proceedings and certain other factors including the Discipline Panel’s view that the applicant continued to minimize or mischaracterize his conduct, collectively demonstrated a pattern of dishonest behaviour.

[7] The applicant has raised a number of considerations which, given the low threshold for demonstration of a serious issue, satisfy the onus of a serious issue to be tried. In particular, the applicant points out that the Discipline Panel did not make any explicit findings of an intention to deceive in finding that the applicant had committed acts of professional misconduct in respect of the complaints that were before it. It is at least arguable that, in the absence of any such finding, the Discipline Panel could not reasonably rely on its findings in respect of the complaints before it together with the other matters referred to in the Penalty Decision to find that the applicant was fundamentally dishonest, even if they justified a strong sanction.

Irreparable Harm

[8] The second requirement of the test is demonstration of serious irreparable harm to the applicant if the stay is denied. The applicant is currently referring his business to another surveyor pending the appeals. Immediate revocation of his licence will put an end to this practice. The applicant argues that both revocation of his licence and publication of the Decisions will entail irreparable harm in the form of destruction of his professional practice, even if he were successful on his appeals. He says he lives in a small community, St. Thomas, where “news will travel quickly and his reputation and character will suffer irreparable damage that he will not be able to repair should his appeals succeed.”

[9] In assessing the adverse impact on his professional practice of both the revocation of his licence and the publication of the Decisions by the respondent, it is however necessary to take into consideration the fact that the Decisions have become known already to several surveyors, and to certain members of the public, in the applicant’s community.

[10] Specifically, it appears that the applicant personally disclosed the Decisions to at least three surveyors in his community in connection with arranging for referrals of his business pending his appeals. In addition, the applicant disclosed the Decisions to the legal counsel for a client on whose behalf he is scheduled to testify as an expert witness in litigation in which the client is the plaintiff. It must be assumed in these circumstances that the client is therefore also aware of the Decisions. Indeed, I think that the applicant has an obligation to ensure that his client is aware of the Decisions prior to testifying on his behalf. Further, the applicant’s counsel advised the Court that he understands the defendant in that litigation is also aware of the Decisions. It is perhaps the fact that the applicant does not know the source of the defendant’s knowledge that prompted correspondence from his counsel to the respondent’s counsel inquiring as to whether any of the Discipline Panel members disclosed the Decisions. In any event, the applicant failed to disclose the extent to which he has disclosed the Decisions, or the fact of the Decisions, to third parties as requested in the reply correspondence of the respondent’s counsel. The Court is entitled to draw an adverse inference regarding the likely extent of the applicant’s disclosure of the Decisions from the applicant’s failure to do so.

[11] I take it as given that the more widespread the public knowledge of the Decisions the more significant will be the negative effect on the applicant’s professional practice. However, the Decisions have already become public and it must be assumed that knowledge of their existence will continue to expand within the community, even without publication by the respondent. Accordingly, the issue for the Court is the incremental effect of an immediate revocation of the applicant’s licence and of publication of the Decisions by the respondent, in the event he is successful in his appeals.

[12] I conclude that there will be an adverse impact on the applicant’s professional practice if a stay of the immediate revocation of his licence is not granted because he will be required to cease referring work to other surveyors and must instead refuse further work. The extent to which he would be unable to rebuild his practice if he is successful on his appeals is unclear. I assume for this purpose however that there will be at least some irreparable damage that would flow from his inability to practice his profession for a period of six to nine months.

[13] I also conclude there will be an adverse effect on the applicant’s professional practice if the requested stay of the publication of the Decisions is denied but such adverse effect must be qualified by the fact that the applicant’s disclosure to date of the Decisions has had, and will continue to have, an independent adverse impact even if a stay were granted.

Balance of Convenience

[14] I propose to address the balance of convenience separately in respect of a stay of the revocation of the applicant’s licence and a stay of the publication of the Decisions.

Revocation of the Applicant’s Licence

[15] Consideration of the balance of convenience respecting a stay of the revocation of the applicant’s licence requires weighing the qualified adverse impact on the applicant’s professional reputation and practice discussed above against the risk to the public that the Discipline Panel considers that the applicant presents. In this regard, four factors are significant.

[16] First, as mentioned, the evidence provides at least some support for the Discipline Panel’s conclusion regarding the applicant’s character, notwithstanding that he can establish a serious issue to be tried for the purposes of this application. There is therefore a level of risk to the public if a stay of the revocation of his licence were granted that must be assessed.

[17] Second, based on the discussion in the preceding section, I accept that there would be some irreparable adverse impact on the applicant’s professional practice if his licence were revoked immediately. However, such adverse effect would be less than what would have been anticipated if the Decisions had not already been disclosed by the applicant as described above.

[18] Third, the applicant believes he has viable grounds of appeal and is actively pursuing his appeal. In these circumstances, if a stay were denied, there is a strong incentive for the applicant to avoid any actions pending the hearing of his appeals that would result in further complaints from any clients. As a related matter, it is also relevant that there have been no further complaints against the applicant in the past five years.

[19] Fourth, in addition, as the applicant has noted, the complaints addressed by the Discipline Panel principally arose out of the applicant’s use of a form of retainer agreement and a credit card agreement that he has stopped using.

[20] Based on the foregoing, I conclude that the balance of convenience favours the granting of a stay in respect of implementation of the Penalty Decision.

Publication Ban

[21] Consideration of the balance of convenience regarding a stay of the publication of the Decisions also requires weighing the qualified adverse impact on the applicant’s professional reputation discussed above against the risk to the public of granting a stay of the publication of the Decisions. In this regard, the following considerations are relevant

[22] First, it is important to note that the “open court” principle has been extended to administrative tribunals, including the Discipline Panel. This principle is reflected in s. 27(5) of the Act, as well as section 26(5) of the Act which provides as follows:

The Discipline Committee shall cause a decision of a discipline panel to be published, with or without the reasons for it, in an official publication of the Association and shall ensure that the member who was the subject of the disciplinary proceedings is named in the publication.

In this regard, it is significant that the applicant did not request, nor did the Discipline Panel order, that the hearing before it be closed to the public pursuant to s. 27(6) of the Act. In these circumstances, there must be a good reason for staying the publication order of the Discipline Panel in the Penalty Decision given that the Discipline Panel has found that the applicant presents a real risk of financial harm to the public.

[23] Second, the Court does not grant a stay of proceedings, or other injunctive relief, in circumstances in which there is good reason to believe that such relief will be ineffective. In this case, the evidence regarding the disclosure that has actually occurred indicates there is a reasonable probability that a publication ban will not prevent further publication of the Decisions even if that were a desirable objective.

[24] Third, in this case, the disclosure that has occurred resulted from the applicant’s own actions. Having taken those actions, it is not appropriate for the Court to enjoin the respondent from complying with its statutory obligations.

[25] Based on the foregoing, I conclude that the balance of convenience favours denial of a stay of the publication of the Decisions.

Disposition of the Application

[26] Based on the foregoing, the applicant’s request for a stay of the revocation of his licence as contemplated by the Penalty Decision pending the hearing of the appeals of the Decisions is granted and the request for a publication ban in respect of the Decisions is denied. Given the denial of the stay in respect of the publication of the Decisions, the parties should also contact the Divisional Court office to determine whether a date for the hearing of the appeals is available earlier than December 2019. On consent, the applicant’s request for a stay of payment of the fine and costs provided for in the Penalty Decision is also stayed pending such appeals. In addition, on consent, the appeals of the Misconduct Decision and of the Penalty Decision shall be heard at the same time.

The Cross-Application

[27] In its cross-application, the respondent sought orders of this Court: (1) to the effect that it is entitled to revoke the applicant’s licence effective immediately in accordance with the Penalty Decision; (2) directing the respondent and the Registrar to publish the Decisions; and (3) directing the Discipline Committee of the respondent to comply with s. 26(5) of the Act. Subsequent to the hearing of this motion, the Court was advised that the respondent wished to withdraw its motion on consent and that the applicant had consented thereto. Accordingly, this motion is withdrawn without costs.

Costs

[28] As neither party was completely successful on the applicant’s motion, no costs are awarded.

Wilton-Siegel J.

Date: June 25, 2019