CITATION: The Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018

DIVISIONAL COURT FILE NO.:028/19

DATE: 2020/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Pattillo and Penny JJ.

BETWEEN:

The Association of Professional Engineers of Ontario

Appellant

– and –

Paul Douglas Rew, P.ENG. and Rubicon Environmental (2008) Inc.

Respondents

Andrew Faith and Avram Spatz, for the Appellant

Arnold B. Schwisberg and Kaleigh Sonshine, for the Respondents

HEARD by videoconference at Toronto: June 24, 2020

Sachs and Pattillo JJ.

Overview

[1] This is an appeal by the Association of Professional Engineers of Ontario (“PEO”) from a decision of a Discipline Panel of the PEO (the “Panel”) in which the Panel found that the PEO failed to prove the allegations of misconduct against the Respondents, Paul D. Rew and Rubicon Environmental (2008) Inc. (collectively referred to as “Rew”).

[2] The events giving rise to the appeal arose from a report in 2008 by a homeowner of a furnace oil leak to her insurer, Algoma Mutual Insurance Company (“Algoma”). The insurer retained an engineering firm, D.L. Services Inc. (“DLS”), who concluded that the soil and the groundwater at the property had been contaminated and recommended that the house be demolished. Algoma sought a second opinion from Rew. Rew investigated, did some remediation work, and signed a report certifying that the property “posed no significant risk” and warranted “no further environmental investigation”.

[3] The PEO received a complaint about Rew’s work, which resulted in the four allegations of misconduct that were heard by the Panel. Originally, the Panel consisted of five members, but by the end of the proceedings one member had left. Ultimately, the Panel issued two sets of reasons, each signed by two members. The first set of reasons was delivered on November 16, 2018 (the “November Reasons”) and the second set was issued on December 18, 2018 (the “December Reasons”). The December Reasons concurred in the result with the November Reasons. The stated purpose of issuing the December Reasons was to conform “to the established format”. It is fair to say that the November Reasons (which were over 160 pages long) were unusual, both in their structure and their content.

[4] According to the PEO, the Panel (a) demonstrated a reasonable apprehension of bias in favour of Rew and against the PEO; (b) articulated and applied the incorrect standard of proof; (c) gave reasons that do not allow for meaningful review by an appellate court; and (d) committed several other errors of law and fact that either individually or cumulatively require that the Panel’s decision be set aside.

[5] For the reasons that follow, we would allow the appeal, set aside the Panel’s decision and remit the matter to be reheard by a differently constituted panel, if so considered. We have come to this conclusion with great reluctance as we are acutely aware that this matter has now extended over 11 years.

FACTUAL BACKGROUND

The Events Giving Rise to the Complaint to the PEO

[6] On November 12, 2008, the owner of a residential property at 55 Dole Avenue, Spanish, Ontario (the “Property”) reported a furnace oil leak in her above ground storage tank (which was located outside and adjacent to the house) to her insurance company, Algoma. The leak had been discovered during a filling inspection conducted by the fuel company. That company estimated that the leak was between 15 and 20 litres and took steps to dig up the soil beneath the tank to a depth of two feet. They placed that soil on a tarpaulin.

[7] This was not the first oil leak that the Property had sustained. In 1997, there was a 700-litre oil spill.

[8] On November 14, 2008, Algoma’s adjuster Algom Insurance Adjusters (“Algom”) retained DLS to conduct an investigation and proper remediation. After conducting their investigation (which included drilling eight wells from which samples were taken and tested), DLS estimated, based on their experience, that the size of the leak was between 100 and 150 litres and found that the soil and the groundwater at the Property had been contaminated. They recommended that the house be demolished and that the soil under and adjacent to the house be excavated.

[9] On April 14, 2009, Algom retained Rew to review the work of DLS, conduct their own assessment and propose a remediation of the Property. When Mr. Rew attended at the Property, he found that the owner’s furnace was being fuelled by temporary barrels. The owner, who was an elderly woman, had been hospitalized during the winter with pneumonia. Mr. Rew became concerned and arranged at his own expense to replace the temporary barrels with a fibreglass above ground storage tank. According to Mr. Rew, the owner was very anxious not to have her house demolished.

[10] On April 29, 2009, Rew issued their first report (“Rew Report 1”). Among other things, Rew Report 1 concluded that “the proposed demolition of the house and shed is not required”. In order to address the soil impairment that Rew concluded existed, Rew arranged for remediation with the use of hydrogen peroxide injections over a three-day period in May 2009. On the day the injections were completed, soil samples from the affected areas were taken and subsequently tested. During the remediation period, Rew arranged an excavation to visually inspect the groundwater in the area where his first inspection had detected some contamination. During the inspection a 1 litre container of outboard motor oil was found approximately six feet below ground and below the water table. The container was found to be punctured, and 70 ml of outboard motor oil remained in the container.

[11] In a report dated June 8, 2009 (“Rew Report 2”), Rew reported to Algom that the oil spill from the motor oil container could account for the contamination observed in that area. He also reported that any contamination had been satisfactorily remediated and that given that the original spill was under 20 litres it did not have to be reported to the Spills Action Centre. The Executive Summary to Rew Report 2 concluded with the following:

The property is suitable for ongoing petroleum use meeting MOE Regulations for residential land use. No further environmental investigation is warranted at this time. At the time of the investigation the site posed no significant risk in owning, financing or developing.

[12] On July 10, 2009, Rew provided what they called their “Summary Report” regarding the Property to Algom (“Rew Summary Report”). The Rew Summary Report concluded with the same words as the Executive Summary to Rew Report 2.

[13] An acrimonious relationship developed between the daughter of the homeowner and Rew during the period of Rew’s engagement with the Property. This resulted in Rew being barred from the Property on August 21, 2009.

[14] After receiving the Rew Summary Report, the homeowner’s daughter contacted DLS to review Rew’s work. DLS in turn retained Red Lea, another engineering firm, to oversee their review work. Dr. Kevin Ridley is the engineer with Red Lea. Dr. Ridley was the person who ended up filing a complaint with the PEO that culminated in these proceedings.

[15] Five days after DLS retained Red Lea, Algom retained DST Consulting Engineer Inc. (“DST”) to peer-review Rew’s work and the work of DLS.

[16] In October of 2009, DST issued a report that concluded, among other things, that Rew:

(1) Provided “no description of the procedures for the collection of groundwater samples”;

(2) Conducted groundwater sampling one to two days after completing hydrogen peroxide injections which meant that the “results of verification … may not have been representative of actual groundwater condition”, and should have collected a minimum number of verification samples in connection with remediation;

(3) Supervised the decommissioning of monitoring wells installed by DLS but “provided no rationale for the action taken”; and

(4) Should have implemented a Quality Assurance/Quality Control (“QA/QC”) program.

[17] DST also gave the opinion that the work of both DLS and Rew suffered from a lack of soil and groundwater verification and QA/QC protocols.

[18] In December of 2009, Red Lea issued a report that concluded, among other things, that Rew provided “misleading” and “inaccurate” conclusions; “recommended and oversaw a ‘premature’ remedial program”; and designed and implemented a field program that neglected to investigate potential contaminated soil beneath the house on the Property. Further, Red Lea found that the Property remained contaminated following Rew’s remedial work.

[19] In the fall of 2010, the house on the Property was demolished. In January 2011, DLS produced a final report that confirmed that the soil under the house was contaminated.

History of the Proceedings Leading Up to the Hearing Before the Panel

[20] On November 25, 2010, Dr. Ridley filed a complaint with the PEO alleging, among other things, that Rew’s work was negligent.

[21] On April 24, 2013, the PEO commenced a registrar’s investigation into the complaint.

[22] On February 10, 2014, the Complaints Committee referred the matter to the Discipline Committee to hear four allegations of misconduct.

[23] On January 27, 2015, Rew brought a motion seeking a permanent stay of the proceedings. That motion was denied.

[24] On October 21, 2015, Rew issued a notice of application for judicial review. Seven months later Rew brought a motion seeking a stay of the discipline hearing pending the hearing of the judicial review application. That motion was denied.

[25] On June 16, 2016, Rew brought two motions to Divisional Court. Both motions were denied.

[26] On November 14, 2016, Rew abandoned their application for judicial review.

[27] The hearing before the Panel commenced on February 17, 2017. At the outset of the hearing Rew brought a motion seeking to stay the discipline proceedings on the basis of delay. The Panel denied that motion.

The Allegations of Misconduct

[28] The Statement of Allegations issued by the Complaints Committee against Rew alleges, among other things, that:

10. The assessment, sampling and remediation work carried out by Rew and REI failed to meet the minimum standards of a responsible and prudent professional engineer, including:

a. by failing to adequately sample and monitor the affected soil and groundwater both prior to and after the attempted remediation;

b. by using hydrogen peroxide injections that failed to adequately remediate the contamination; and

c. by failing to properly document the work.

[29] As a result, Rew was charged with the following four counts of professional misconduct:

1. Conducting environmental assessment, sampling and remediation of a residential property that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined by section 72(2)(a), (d) and (j) of Regulation 941;

2. Producing a signed and sealed report [the Rew Summary Report] that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined by section 72(a) and (j) of Regulation 941;

3. Failing to take adequate measures to protect the welfare of the public, including the current and subsequent owners of a residential property, from soil and groundwater contamination, amounting to professional misconduct as defined by section 72(2)(b) and (c) of Regulation 941; and

4. Providing engineering services to the pubic while not being the holder of a certificate of Authorization contrary to s. 12(2) of the Professional Engineers Act, amounting to professional misconduct as defined by section 72(2)(g) of Regulation 941.

[30] The relevant sections of Regulation 941 passed pursuant to the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Act”) read as follows:

Professional misconduct-definition

72. (1) In this section,

“negligence” means an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

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

“professional misconduct” means,

(a) negligence,

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

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

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

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

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

[31] Section 12(2) of the Act states that no person shall provide professional engineering services to the public without a certificate of authorization.

The Hearing Before the Panel on the Allegations

[32] The hearing occurred over 14 days, on March 6-9, 2017; August 21-25, 2017; January 29-31, 2018; and February 5-6, 2018.

[33] The PEO called the following witnesses: the homeowner’s daughter; the complainant Dr. Ridley of Red Lea; Kevin McClintock, the project engineer for DLS; Steven Garrett, the director of the lab that did testing work for DLS during the 2008-2009 period; Dr. Eric Hood, a professional engineer; and David Flynn, a professional engineer. The latter two witnesses gave opinion evidence only.

[34] Rew called Brian McFadden, a building official who had retained Rew in the past; David Hopper, a professional engineer and a member of the PEO committee that drafted the PEO’s environmental site guideline, to give opinion evidence; and Mr. Rew.

[35] As already noted, in their concurring decisions, dated November 16, 2018 and December 18, 2018, the Panel found that the PEO failed to meet their onus of proving any of the allegations of professional misconduct against Rew.

THE PANEL’S DECISION

The November Reasons

[36] Given the format and content of the November Reasons (that were authored by the lay member of the panel, who is a lawyer) it is difficult to summarize the significant findings. However, the reasons do contain a section, as part of its conclusions, entitled “The Prosecutions Failed Proofs”, which summarizes part of the thinking of the members of the panel who signed the November Reasons. In that section the panel puts together a collection of concerns that they had with the PEO’s case. These included:

(a) “A ‘Competitor Animated’ & ‘Assisted’ Prosecution” – The November Reasons accepted Rew’s position that the prosecution was driven by DLS, who was a known competitor of Rew’s.

(b) “Algom-the-Client, its Instructions” – The November Reasons drew an adverse inference from the fact that the PEO failed to call anyone from Algom to testify about its instructions to Rew. Therefore, they concluded that there was nothing improper about those instructions and that Algom instructed Rew “to concentrate on the November 2008 spill (which presumably was the subject of the Insurance Claim against them), but as there had been a so-called ‘historic’ spill some 10 years earlier: To be aware of it, and to take it into consideration as appropriate.”

(c) “DST’s Peer-Review of DLS and Rew initiated by Algom” – The November Reasons state “We consider this very important; and we do note that it found some fault with both DLS and Rew, more or less in balance. And we take an inference against PEO on this issue. More so, because this is perhaps the one report in this ‘proceeding-of-many-reports’: where there is no suggestion of partisanship.”

(d) “Confusion as to where the Registrar’s Investigation fits in all this vis a vis the Complaint” – According to the November Reasons, this was important and should have been within the knowledge of the PEO. Given that it was unexplained “this unclearness must ‘lie’ at the Prosecution’s ‘feet’, as it were.”

(e) “The Complainant, Dr. Ridley’s initial unawareness of [Rew Report 1 and Rew Report 2]” – The November Reasons discounted the weight of Dr. Ridley’s testimony because he did not review Rew Reports 1 and 2 and because they viewed Dr. Ridley as lacking in independence.

(f) “Mr. Flynn’s complicating ‘hybrid’ (and ‘earlier expert’ status)” – The November Reasons viewed it as a concern that Mr. Flynn was an expert for the Complaints Committee and for the hearing on the merits. They were also concerned that Mr. Flynn had provided expert evidence against Mr. Rew on another PEO prosecution for negligence, “where Mr. Rew was acquitted.” On this basis, the November Reasons gave Mr. Flynn’s “views significantly less weight”.

(g) “The ‘Missing’ Witnesses” – According to the November Reasons, there were some people who should have had significant relevant information that the PEO did not call as witnesses. These included people from Algom, the adjuster from the insurer of the oil company who discovered the spill, the adjuster for the leaking oil tank insurer, an OPP officer who ordered Mr. Rew from the Property in August of 2009, the homeowner, and anyone with personal knowledge of the historic spill. These were gaps that the “Prosecution…should have helped fill. But did not. And this, in the end: worked to its own detriment.”

(h) “Ms. Kearsey’s very “problematic’ evidence” – Ms. Kearsey is the homeowner’s daughter. The November Reasons found that she had a clear animus towards Mr. Rew and an economic interest in having the house demolished. They also found that her evidence was unreliable and unconvincing. They were disturbed by the fact that her initial statement was provided with the assistance of DLS’s lawyers. According to the November Reasons, Ms. Kearsey’s animus and economic interest “served to tend to taint the Prosecution’s case overall.”

(i) “PEO’s Instructions and Materials Provided to its Experts” – The November Reasons found that these were insufficient and these insufficiencies “serve to further undercut the Prosecution’s evidence that relies on their views.”

(j) “DLS’s probable ‘directing mind’” – The November Reasons found that neither Mr. McClintock nor Dr. Ridley served as DLS’s “directing mind”. They may have supervised, but they were not in fact in control. The person in control was Mr. LeBlanc, and “able, as he must have been, to build & run a company as large and successful as DLS, he was not a Professional Engineer. Presumably he had the sorts of ‘logs’ and analyses and other supervisory records that Mr. Rew had. But we will never know. And, again, this must work against the Prosecution’s case” (emphasis in original).

(k) “The central feature of this case was Alleged Negligence” – The November Reasons found that the negligence alleged was the failure to detect the contamination under the residence. However, according to the November Reasons, not all of the “key features” of negligence “were addressed”. In particular, the PEO failed to establish harm or causation. With respect to the homeowner, DLS had confirmed that the home was habitable after their inspection. The only harm the homeowner suffered was pneumonia and this was not Rew’s fault. While in the Regulation “negligence” does not require proof of harm, “in the real world, and in all lines of work; acts and omissions occur. Big ones. Small ones. Lots of them. All the time. Most of these (fortunately) effectively hang in ‘mid-air’ without negative consequence. Without complaint. It is the few that do have negative consequences that typically trigger complaints – usually from the client. In this Case, there were no negative consequences from any supposed acts or omissions by Mr. Rew. The only negative consequences in the matter were Ms. Deschamps’ [the homeowner] ill health caused by inadequate heat. And, to the extent there could be said to be causation: Mr Rew was, actually ‘the cure’ not ‘the cause’. Moreover, it was not the Client or the Home-Owner that made the Complaint here. It was another P. Eng., who had been employed by Mr. Rew’s competitor, DLS, in the post-Rew work on the Site.”

(l) “Lack of ‘Perfection’ is not Negligence. Nor, by itself, is simply being Wrong. Nor, by itself, is a Breach of Proper Standards” – According to the November Reasons, requiring engineers to adhere perfectly to any standard is impractical and unrealistic. It only encourages “defensive engineering”, which, in turn, leads to unnecessary and expensive tests and procedures. As put by the Panel in the November Reasons, “‘Good enough’, will be just fine.”

[37] The November Reasons found that the PEO failed to “connect-the-dots” on a number of points, including such things as providing full details of the historic spill and how “it fit in”. Included in this section were a few points that have not yet been referred to. First, the November Reasons accepted that on the site of the property in question the ground-water flowed away from the house. They also found that the soil on the Property was porous and sandy. Thus, according to the November Reasons “Science” would dictate that any fuel oil spilled onto the soil “very quickly hits the ground-water, and floats on it (again, the evidence) in the direction of the ground-water flow.” Since this ground-water flow was away from the house, the November Reasons found that this was a “bombshell” and “a big problem, a very big problem for the theory of the Prosecution”. Second, the November Reasons found that since no one from Algom testified, and there was no evidence that Algom complained after Mr. Rew was removed, Algom must have acquiesced in his removal, and that, regardless of whether Mr. Rew knew it or not, his meaningful participation had ended once he delivered his Summary Report on July 10, 2009. Third, in August of 2009 the OPP ordered Mr. Rew to stay off the Property. The November Reasons found that this was a “‛gratuitous’ gesture” that left a “bad taste” in their mouths and “reinforces lingering questions, doubts, uneasiness in our mind.”

[38] The November Reasons also contain a list of what are referred to as “The Defence’s Reasonably Effective Explanations/Rebuttals.” These included:

(a) One of the criticisms of Rew’s work by the experts was the lack of detail contained in the Rew Summary Report. The November Reasons found that Rew Reports 1 and 2 contained the necessary detail and could have been provided to Dr. Ridley and Mr. Flynn if Mr. Rew had been asked for them.

(b) Mr. Rew provided a Statutory Declaration in which he responded to all of the alleged “faults”. The November Reasons found that these explanations were “reasonable” and “unless then replied to effectively (which, in our view, was not proved to us) … persuasive”.

(c) Rew’s work was in accordance with Algom’s instructions.

(d) Some of the PEO’s experts had issues “surrounding Independence & Impartiality”. Dr. Ridley was employed as a consultant by DLS, Rew’s “bitter competitor”. He was also the complainant in the case. Therefore, he could neither be considered independent nor impartial. They also had concerns with the evidence of Mr. Flynn, whose evidence they gave “significantly less weight”, and with Dr. Hood.

(e) “Some Prosecution Evidence was Just Plain Wrong” – According to the November Reasons, the clearest example of this concerned the issue of the “Third Spill”. In April of 2009, Rew had its technician install a fibreglass tank. This tank was partially filled with the oil remaining in the temporary barrels and, according to the November Reasons, would then have been topped up with more fuel. After DLS took over the Property again, they had their agent disconnect this tank. Mr. Rew alleged that DLS improperly disconnected the tank that he had installed, which in turn caused an oil leak, which could explain the fact that there was contaminated soil found on the Property after he was removed from the Property. The November Reasons found that this explanation “made sense” to them.

(f) Some of the PEO’s evidence amounted to no more than a difference of opinion that could be put down to matters of “professional judgment”. One example of this was “the second-guessing of Mr. Rew on whether, in his Professional Judgment, he should replace DLS monitoring devices.” According to the November Reasons, Mr. Rew answered this criticism “adequately” in his evidence. Another example of this was the “second-guessing of Mr. Rew on his supposed failure to anticipate and address possible re-bound after the hydrogen-peroxide injection by his remediation contractor. Indeed, it was said that the Defence’s ‘own expert’, Mr. Hopper, clearly saw this as a failure.” The November Reasons found that “[i]f there were – as Mr. Rew’s investigations proved to his satisfaction as an expert in his field – no contaminants above scientifically acceptable/officially acceptable levels: then any remediation he would undertake (would, by definition), be for marginal fine-tuning. And, for completeness and ‘out of an abundance of caution’ (as is often said) he did so.” In other words, the November Reasons accepted that the remediation that Rew did was not necessary, given the amount of contaminant that he had found at the site. Even if it was necessary, and there should have been more testing after the remediation, it was not Rew’s fault that the testing had not been done. They had been effectively removed from the Property after they delivered the Summary Report in July of 2009.

[39] The November Reasons also addressed what they identified as “PEO’s Process-Based Apparent Failures in Fairness & Possible Lacks in Due Process.” This included the fact that the public interest required fairness as well as public safety. Further “[p]ublic Safety rests, at least in part, on Justice. Justice, not simply the achievement of a high Conviction-Rate”. The November Reasons found that there was always an imbalance of power “in favour of any Prosecution as against any Defendant”. In this case, the PEO was the “State”, with all of its power and authority and Rew, as the member, was alone. According to the November Reasons, this “power imbalance” should not be a “determining factor.” The November Reasons also found that there was “almost always a Money Imbalance between Prosecution and Defence” and “justice cannot be, should not be… ‘For Sale’.” The November Reasons expressed the opinion that the PEO “prosecutors” should function like Crown Attorneys, with the discretion to decline to pursue charges that may have been “properly preferred.”

[40] The November Reasons made note of certain “system” problems that concerned them. These included what they identified as the things that had led to the length and the expense of the proceedings before them – which, in turn, caused Mr. Rew great stress and prejudice. These included the fact that Mr. Rew had been exonerated in the earlier proceeding against him by the PEO; the fact that the PEO was allegedly late in making disclosure to Rew; and the fact that, in spite of Rew’s consent to have his hearing proceed before one member (thereby consenting to a procedure that would likely be more efficient), the PEO refused to proceed in this manner. The November Reasons were careful to make no criticisms of the PEO staff or prosecutors who participated in the proceeding before them, all of whom they found did “a top-notch job.”

[41] With respect to the fourth allegation against Rew – practising without being the holder of a Certificate of Authorization – the November Reasons found that there was no lapse and if there was, they would exercise their authority to cure it. They also found that Mr. Rew “reasonably believed he did everything he could to maintain proper registration” and even if he was wrong “[t]hat would not justify our making a finding of guilt against him…in fact, we simply will not do so. We must, first and last, be Fair, and Fairness and (its twin) Conscience will not permit it” (emphasis in original).

The December Reasons

[42] The December Reasons noted that they were troubled by the fact that the “matter concerned three bitter, competing environmental firms.” They also noted that the independent environmental consultant (DST) had identified shortcomings in the work of both Rew and DLS.

[43] With respect to the first allegation – Rew’s alleged failure to meet the standards of a reasonable prudent practitioner in how he assessed, sampled and remediated the property – the December Reasons found that the PEO had not proved its case. The December Reasons held that Rew’s actions were “based upon his assessment of the site and his estimate of the actual spill. The standards and regulations in 2009 were followed accordingly.” The December Reasons held that there was no evidence that the spill had migrated beneath the house as there was no odour “or olfactory readings within the dwelling to suggest same.” The December Reasons found that the root of the difference in opinion between DLS and Rew was their different estimates of the size of the oil spill. The reasons noted the evidence of DLS’s engineer that their estimate of the spill was not supported by data, just by field experience. In this regard “[t]he Panel noted that the increased estimate of the fuel could benefit the firm that made the inflated spill volume estimate, while Rew’s lower spill estimate was not to his business’ advantage. Therefore, the Panel accepted Rew’s estimate as credible.”

[44] With respect to the second allegation – the alleged production by Rew of a signed and sealed report that failed to meet the standards of a reasonable and prudent practitioner – the December Reasons found that this allegation was not proven. According to the December Reasons, the PEO experts considered the Rew Summary Report in isolation from the other two reports that were prepared. While Rew’s logbooks that documented his field work were not attached to the reports, they were available. The Panel accepted what they found to be the evidence of Mr. Hopper, Rew’s expert, that Rew’s reports satisfied the standards in place in 2009.

[45] With respect to the third allegation that Rew failed to take adequate measures to protect the welfare of the public, including the current and future owners of the property, the December Reasons found that Rew “had every regard for the home owner’s well being, having been concerned with the state of the site left all Winter by the first consultant, DLS.” In particular, the December Reasons noted that Rew provided a new fuel tank to replace the “hazardous fuel delivery system using temporary barrels for five months.” The December Reasons also found that Rew restored the site to a reasonable state. Rew’s estimate of the size of the original oil spill was “deemed more appropriate than DLS’ estimate, that was not based on any facts.” The panel found that Rew knew of the 1997 oil spill and that Rew’s failure to follow up with further testing was not a failure to take a required action. First, Rew had been barred from the site. Second, if the injections were not necessary in the first place, there was no need to do follow-up testing.

[46] The December Reasons also found that the PEO had failed to prove the fourth allegation of misconduct, Rew’s alleged provision of engineering services without a Certificate of Authorization. The December Reasons stated that they were “not convinced that Rew did anything wrong if his Certificate of Authorization did lapse”. Due to extenuating circumstances in his personal life, Rew had to re-register his new firm and “it appears that written communications with the Association went awry. If there was any guilt, it was not intentional, but was administrative in nature.” The Panel went on to hold that regardless of their finding on this count, they would not impose a penalty as whether Rew was a “Holder for this situation is not material.” They also found that “[t]here was insufficient evidence to prove that non-payment of said annual fee was solely Rew’s fault, and may have been also caused by the Association.”

[47] The December Reasons expressed concern with the assessments made of Rew’s work by two of the engineers called by the PEO – Mr. McClintock (of DLS) and Dr. Ridley (of Red Lea) – since “they represented adversarial firms against [Rew]”. The December Reasons also found that the decisions made by Mr. McClintock and Dr. Ridley could benefit their firms, while Rew’s decisions were “more consistent with protecting the home owner.” The December Reasons held that the other two PEO experts, Dr. Hood and Mr. Flynn, “applied environmental standards (adopted in 2011) for an investigation in 2009.” This was in contrast to Mr. Hopper, Rew’s expert, whom the panel found “put Rew’s actions into the proper context for 2009.”

[48] With respect to the November Reasons, the December Reasons state the following: “We have read the separate Decision and Reasons submitted by our Panel colleagues and agree with the disposition of the matter. However, we provide this Decision and Reasons, which conforms to the established format, and which delineates a concise and direct record of our reasoning.”

THIS COURT’S JURISDICTION

[49] Pursuant to ss. 33(1) and (3) of the Act, the Divisional Court has jurisdiction to hear an appeal from a decision or order of the Discipline Committee on questions of law, fact or both:

Appeal to court

31 (1) A party to proceedings before the Registration Committee or the Discipline Committee may appeal to the Divisional Court, in accordance with the rules of court, from the decision or order of the committee.

Powers of court on appeal

(3) 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

[50] Given the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, there is no issue with respect to the standard of review to be applied in this case.

[51] As s. 31 of the Act provides for an appeal to this court on questions of law or fact or both, the standard is correctness for questions of law; palpable and overriding error on questions of fact and mixed fact and law, except where the legal principle is readily extricable in which case the standard is correctness. See Vavilov, at para. 37 and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[52] With respect to the PEO’s ground of appeal concerning reasonable apprehension of bias, there is no standard of review to be considered. The question is whether the duties of procedural fairness and natural justice have been met.

THE ISSUES

[53] The PEO raises a number of issues on this appeal, including: reasonable apprehension of bias; inadequate reasons for decision; failure to apply the correct standard of proof; improper drawing of adverse inferences; incorrect application of the test for negligence; and making palpable and overriding errors of fact.

ANALYSIS

Reasonable Apprehension of Bias

[54] The PEO submits that the Panel violated its duties of procedural fairness and natural justice by demonstrating a reasonable apprehension of bias in favour of Rew and against the PEO which tainted their entire decision. It further submits that this bias is demonstrated in the December Reasons but more particularly in the November Reasons by the Panel’s failure to focus on the public interest; its application of the wrong standard of proof and in the biased level of scrutiny it applied to the PEO’s case.

[55] The test for reasonable apprehension of bias in the administrative law context is whether a reasonably informed bystander could reasonably perceive bias on the part of the adjudicator: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623 at 636.

[56] The PEO submits that the November Reasons display a pattern in favour of Rew and against it. It points specifically to what it submits is the Panel’s singular focus on the rights of Rew together with the failure to acknowledge the equal and competing rights of the PEO to protect the public.

[57] When both the November and December Reasons are read in their entirety, we do not agree they display a reasonable apprehension of bias. First and foremost, there is no evidence of pre-judgment. While there is no question the Panel is very critical of many aspects of the PEO’s prosecution, particularly in the November Reasons, they are also complimentary at times of the PEO, its staff and counsel. In fact, many of the Panel’s procedural rulings during the hearing favoured the PEO.

[58] As a result, we do not consider the Panel’s strong criticism of the PEO’s prosecution to indicate bias towards the PEO. The criticism, in our view, stems from the Panel’s view that the matter was more properly a dispute between three competing engineering firms rather than one which required regulatory oversight.

[59] Nor do the Reasons fail to take into account the public interest. In fact, the public interest is often referred to by the Panel, particularly in the November Reasons. The fact that it may not be as clear as the PEO would like does not equate to bias.

[60] Finally, to the extent the PEO’s allegation of bias relies on its allegation that the Panel applied the wrong standard of proof, we consider that issue to be more appropriately dealt with as a substantive ground of appeal. Either the Panel was correct in its application of the law or it was wrong, in which case it can be corrected. In either case, it is not evidence of bias.

[61] Accordingly, we would not give effect to this ground of appeal.

Adequacy of Reasons

[62] The PEO submits that the November Reasons are unintelligible, prolix and prevent meaningful appellate review due to their length, structure, and failure to link particular findings of fact and law to each of the allegations the Panel was to consider. They further submit that the December Reasons inadequately justify the conclusions reached and fail to clarify, make intelligible or cure the deficiencies in the November Reasons.

[63] The November Reasons, for the first 144 pages, contain a detailed, day by day summary of the evidence, often by questions and answers verbatim from the transcripts, detailing both direct and cross-examination, often with side commentary in a box entitled “Panel’s Comments” (in all, there are 75 Panel Comments). Many of the excerpts are italicized. Following the evidence summary, there is a brief summary of the parties’ arguments (2 pages), followed by the Panel’s conclusions and the section entitled “Failed Proofs”.

[64] The December Reasons, as they note, “conforms to the established format”. They set out the allegations, briefly summarize the evidence and then deal with the disposition of each allegation. They conclude with a discussion of various legal issues which arose during the 14 days of hearings.

[65] While we agree that the November Reasons are far too long and prolix, that does not by and of itself mean that they are inadequate for appellate review. While we noted that the format and content make the November Reasons difficult to summarize, in our view they are sufficient (particularly given the conclusion section) to permit appellate review.

[66] As noted, the December Reasons are much shorter and focused and clearly permit review.

[67] The fact that the PEO has raised numerous substantive grounds of appeal arising from the Reasons further confirms, in our view, that appellate review is available.

[68] We would also not give effect to this ground of appeal.

Standard of Proof

[69] The PEO submits the Panel generally articulated and applied a higher standard of proof than the applicable one of balance of probabilities.

[70] In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the Supreme Court of Canada confirmed that there is only one standard of proof in civil proceedings – proof on a balance of probabilities. In McDougall, the Supreme Court discussed the attempts made in prior Canadian jurisprudence to “reconcile the tension between the civil standard of proof on a balance of probabilities and cases in which allegations made against a defendant are particularly grave” (para. 26). Such cases included allegations of professional misconduct. The various “intermediate” approaches used by prior courts in civil cases, where criminal or morally blameworthy conduct was alleged, were summarized by the Supreme Court in para. 39 and included “[n]o heightened standard of proof in civil cases, but the evidence must be clear, convincing and cogent.”

[71] The Court rejected all of the “intermediate approaches” identified in para. 39, and held that “it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities” (at para. 40). The Court went on to discuss the reasons why the criminal standard could not be imported into civil proceedings and why any suggestion of an intermediate standard presents practical problems. The criminal standard of beyond a reasonable doubt is linked to the presumption of innocence and, “in civil cases, there is no presumption of innocence” (at para. 42). Further, “suggesting that the standard of proof is ‘higher’ than the ‘mere balance of probabilities’ inevitably leads one to inquire: what percentage of probability must be met? This is unhelpful because while the concept of ‛51 percent probability’ or ‘more likely than not’ can be understood by decisionmakers, the concept of 60 percent or 70 percent probability cannot” (at para. 43, citation omitted). Finally, to somehow suggest that a higher level of scrutiny applies to the evidence in a civil case involving serious allegations implies that in less serious cases the evidence must be scrutinized with less care. Evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para. 46).

1) The Standard Applied in the November Reasons

[72] The November Reasons comment on the applicable standard of proof numerous times. Although many of these comments describe the standard as “balance of probabilities”, it is clear that the November Reasons applied that standard in a manner that ran contrary to the court’s direction in McDougall.

[73] A glaring example of this is the Panel’s comment at p. 20 of the November Reasons:

How can it, nevertheless, here be more than enough: Not only to result in a negative Peer Review, but also to establish that degree of “much more than enough” to tip the “Balance of Probabilities”, rebut the “Presumption of Innocence”, and meet the “Prosecution’s Onus”: to establish Mr. Rew’s Negligence? [Emphasis in original.]

[74] The phrase “much more than enough” suggests something more than a mere “balance of probabilities” is required. As noted above, one of the main points of McDougall is that the civil burden of proof means “more likely than not” or “51 percent probability”; not more than that.

[75] The November Reasons also explicitly violate the holding in McDougall that the severity of the alleged conduct does not change the burden of proof in a civil case by, on several occasions, equating the burden on the PEO to that of the Crown in a criminal context. The November Reasons repeatedly refer to the proceedings before them as “quasi-criminal”, “penal” or “penal-disciplinary” and state that Rew enjoyed the presumption of innocence. As McDougall makes clear, in civil cases there is no presumption of innocence and, therefore, the criminal burden of proof has no application. Examples of this error include the following:

• “However, it was not Mr. Rew’s task here, as Member-Defendant in this Case, to prove his innocence – that, in Law, was presumed” (November Reasons, p. 3, emphasis in original).

• “with the Presumption of innocence in favour of the Defendant-Member” (November Reason, p. 27, emphasis in original).

• “DISCIPLINE POWERS: ‘PENAL’ POWERS REQUIRE FAIRNESSS, PRESUMPTION OF INNOCENCE” (November Reasons, p. 45).

• “Balance of probabilities means more probable than not [on a] preponderance of evidence. The fact that this ‘test’ of ‘balance of probabilities’ is the so-called ‘civil test’ (as opposed to the ‘criminal test’ of ‘beyond a reasonable doubt’) does not make this a ‘civil case nor mean that we have the ‘level playing field’ of a civil case, involving we two private parties [sic]. PEO is in essence a ‘prosecutor’. Moreover, PEO is a governmental body constituted and authorized by statute, with substantial institutional power and money to make it a daunting adversary…” (November Reasons, p. 46, emphasis in original).

• “Words matter. Details often matter. Especially in (what are widely, and, according to McRuer: properly called) ‘penal’ proceedings. Defendant-Members are entitled to know what they are up against. Exactly” (November Reasons, p. 52).

• “There is always a Power Imbalance in favour of any Prosecution as against any Defendant. PEO is, for these purposes: The State. With the power and authority of the State. The Member-Defendant is essentially alone” (November Reasons, p. 157).

• “The Prosecutor, properly regarded, is a Minister of Justice. We question whether prosecutors situated as they are in PEO processes, have now, or should have (as we understand Crown Attorneys do), the ‘discretion’(by whatever name: the ability to authoritatively decide) to decline (or recommend declining) to pursue Charges that he or she feels ought not to be pursued, even though those Charges have been properly preferred” (November Reasons, p. 157, emphasis in original).

[76] The November Reasons also repeatedly make reference to the need for “clear, convincing and cogent evidence”. Taken in context, it is clear that for the panel who wrote the November Reasons, this meant that they were applying one of the intermediate standards of proof rejected by the court in McDougall.

2) The Standard Applied in the December Reasons

[77] The December Reasons adopt the standard of proof of balance of probabilities, based on clear, convincing and cogent evidence. They also make reference to McDougall and to the advice of Independent Legal Counsel. The concern is that the December Reasons do not in any way reject or explain the reasoning in the November Reasons. Further, they agree with the November Reasons that the PEO did not satisfy its onus to prove the allegations against Rew. In the November Reasons, the repeated reference to clear, convincing and cogent evidence was a way of articulating one of the intermediate standards of proof adopted in the earlier Canadian jurisprudence for scrutinizing the evidence in more serious cases, an approach that was explicitly rejected in McDougall. Without some comment on, or rejection of, the standard of proof the November Reasons adopted, we can have no confidence that when the December Reasons refer to “clear, convincing and cogent evidence” they too are not applying a higher standard of proof than the civil standard of “balance of probabilities.”

[78] For the above reasons, we find the Panel erred in law in applying the wrong standard of proof in respect of allegations 1, 2 and 3.

Did the Panel Err in Failing to Treat the Fourth Allegation as a Strict Liability Offence?

[79] The fourth allegation alleged that Rew was guilty of professional misconduct pursuant to s. 72(2)(g) of the Regulation by providing engineering services to the public while not being a holder of a Certificate of Authorization contrary to s. 12(2) of the Act.

[80] Section 12(2) of the Act provides that no person shall provide professional engineering services to the public without a Certificate of Authorization. Section 72(2)(g) of the Regulation defines “professional misconduct” to mean a breach of the Act.

[81] The PEO submits that the Panel erred in dismissing the fourth allegation by failing to treat the requirement in s. 12(2) of the Act as a strict liability offence.

[82] In his cross-examination, Mr. Rew admitted that the respondent, Rubicon Environmental (2008) Inc. did not have a Certificate of Authorization when it provided professional engineering services at the Property in 2009. The evidence established that Rubicon did not receive its Certificate of Authorization until February 2011.

[83] In dismissing the fourth allegation, the Panel held, in its November Reasons, that it did not agree it amounted to a “strict liability” offence with no chance to defend. Further, it found there was no lapse by Rew and if there was, it was de minimis and should be cured. The Panel further held that it had no jurisdiction to hear the allegation as the complainant, Dr. Ridley, could not have known about the lapse.

[84] The December Reasons, on the other hand, concluded there was a lapse but exonerated Rew on the basis that there was no intention to practice without a certificate.

[85] In our view, the Panel erred in dismissing the fourth allegation in the manner it did.

[86] Section 40(1) of the Act provides “every person who contravenes section 12 is guilty of an offence.” In our view, s. 12 is a strict liability offence. Proof of the prohibited act on a balance of probabilities is all that is required from the PEO. Further, the only the defences available are due diligence or mistaken belief. Intention is not relevant.

[87] In our view, in dismissing the fourth allegation in the manner in which it did, the Panel erred in law. In the November Reasons, it misdirected itself by wrongly holding that s. 12(2) of the Act was not a strict liability offence with no defence. It further compounded the error by concluding there was no lapse by Rew in having a Certificate of Authorization despite Rew’s uncontradicted evidence to the contrary, and then purporting to cure any error on the ground it was de minimis without considering the defences of due diligence and mistaken belief.

[88] The December Reasons similarly fail to consider the fourth allegation as a strict liability offence. While they found that Rew did not have a Certificate of Authorization during the relevant period, they erred in dismissing the allegation on the basis that Rew had no intention to practice without a Certificate. As noted, intention is not relevant in a strict liability offence.

Adverse Inference

[89] The November Reasons draw an adverse inference against the PEO for failing to call Mr. Boilard, the insurance adjuster from Algom, to testify concerning his instructions to Rew. The November Reasons also state that this figured “prominently among our reasons.”

[90] After saying that it did not have to authoritatively determine exactly what Algom’s instructions were, the Panel states it would have been “very helpful here to have had them.” The November Reasons then state: “We, accordingly, as we are entitled to: We take an inference against PEO on this issue.”

[91] Later in the November Reasons, the Panel states in relation to the PEO’s failure to call the insurance adjuster:

Accordingly, PEO cannot be allowed to benefit from this, its own choice. We infer (as we are entitled to) that Mr. Boilard's testimony would probably have been unfavourable to the Prosecution and favourable to the Defence. So, we don’t have Algom as a witness, and Mr. Rew varied a bit. It wasn't written down. That, it seems, was how Algom did business (at least here). Many people do. They generally are entitled to. They rely on relationships and understandings and professionalism and trust and judgment.

[92] The drawing of an adverse inference is discretionary. It requires three conditions to be met: the witness must be within the exclusive control of the party against whom the inference is sought to be drawn; there must be an adequate explanation for the failure to call the witness; and the witness must have key evidence. See: Parris v. Laidley, 2012 ONCA 755 at para. 2.

[93] In our view, the Panel erred in drawing the adverse inference against the PEO for two reasons. First, it failed to consider whether the necessary preconditions were present to enable it to draw the adverse inference. Second, there was no basis in the evidence to enable it to draw the adverse inference it did.

[94] The proposed witness was an insurance adjuster for Algom and not within the PEO’s exclusive control. Nor was the adjuster’s evidence key. Further, the PEO’s explanation for not calling the adjuster was that Rew testified as to what his instructions were from the adjuster and the PEO took no issue with that evidence.

[95] Although the December Reasons make no mention of an adverse inference, as noted, they do state that they have read the November Reasons “and agree with the disposition of the matter.”

[96] The Panel’s error in improperly drawing the adverse inference against the PEO clearly had a negative effect on its assessment of the PEO’s case against Rew and its conclusion that the PEO had failed to prove the allegations against Rew.

Did the Panel Apply the Incorrect Test for Negligence?

[97] The PEO submits that the Panel erred in concluding that it had failed to establish allegations 1, 2 and 3 against Rew by applying an incorrect test for negligence.

[98] Allegations 1 and 2 rely on negligence to establish that Rew’s conduct amounted to professional misconduct.

[99] As noted, s. 72(2) of Regulation 941 provides that “professional misconduct” means, among other things, negligence. Section 72(1) of the Regulation defines “negligence” to mean “an act or omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.”

[100] In the Failed Proofs section of the November Reasons, the Panel lists what it considers to be 12 “problematic features” of the PEO’s prosecution. It states, in part:

The central feature of this case was Alleged Negligence: Alleged Negligence in not detecting contamination under the residence. But, not all the key features, all the material features, of Negligence – which are well-known – were addressed. Of course, the Prosecution did address (at length) applicable “Professional Standards” and Mr. Rew’s supposed failures (lacks in enough proper care/records) to meet those Standards ...

But the Prosecution did not really address – much less make a similar effort to actually prove – the other key features of what the Law normally calls Negligence: Either the supposed “Resultant Harm”, or the “Causation” (that would have led to that Harm).

Except (and we very much both acknowledge and appreciate this) to underline “Public Safety”; and, in this respect, the “Risks to Health” of the home-owner, Ms. Deschamps. These are of great importance. However, it is a true-ism that to allege is not to “prove”.

Of course, in our view, “Real Risk”, “Reasonable Apprehension” of Harm, is likely sufficient here. [Emphasis in original.]

[101] Further, after referring to what it perceived as failures to establish harm or causation against Rew, the Panel concluded:

Bottom Line: If, indeed, the Prosecution purported to present (much less prove) these two key features of normal Negligence – a “Causal Link” from, and “Harm” (or Real Risk/Reasonable Apprehension of Harm) attributable, to Mr. Rew – we didn't hear it.

[102] It is clear from the above excerpts that in considering whether Rew was negligent in respect of allegations 1 and 2, the Panel took into account the tort concepts of “harm” and “causation” rather than applying the definition of negligence in s. 72(1) of Regulation 941. In so doing, the Panel was in error.

[103] Nor, in our view is that error corrected by the Panel’s reference to the definition of negligence in s. 72(1) of the Regulation at the conclusion of its discussion on negligence. After noting the definition, the Panel goes on to state that in the “real world”, acts and omissions occur, most without negative consequences. It then states:

In this Case there were no negative consequences from any supposed act or omission by Mr. Rew. The only negative consequences in the matter were Ms. Deschamps’ ill health caused by inadequate heat. And, to the extent there could be said to be causation: Mr. Rew was, actually “the cure” not “the cause”. Moreover, it was not the Client or the Home-Owner that made the Complaint here. It was another P. Eng., who had been employed by Mr. Rew’s Competitor, DLS, in the post-Rew work on the Site.

[104] When the Panel’s discussion of negligence is read as a whole, it is clear that it focused on the tort concepts of “harm” and “causation” as a necessary requirement of negligence. In so doing, it erred in law by failing to apply the definition of negligence in s. 72(1) of Regulation 941.

[105] Further, the December Reasons do not correct this error in the November Reasons.

Did the Panel Err in Finding That the Third Allegation Was Not Proved?

[106] The PEO submits, in addition to applying the wrong definition of negligence, the Panel further erred in dismissing the third allegation on the basis of its finding of no negligence.

[107] The third allegation of professional misconduct relied on s. 72(2)(b) and (c) of Regulation 941 which concerns failure to make reasonable provision for the safeguarding of the life, health or property of a person who may be affected by the work for which the practitioner is responsible and failure to act or correct a situation which the practitioner believes may endanger the safety or welfare of the public. Negligence was not alleged.

[108] In finding that the third allegation was not proven, the November Reasons stated at p. 160, after similar findings in respect of allegations 1 and 2: “The reasons for our Decisions on the above charges are all interrelated. And all substantially turn on our finding that there was no Negligence and hence no Misconduct.”

[109] The finding that negligence was a requirement for a finding of misconduct in allegation 3 is an error of law. As noted, allegation 3 did not require a finding of negligence to establish misconduct.

[110] Further, and while the December Reasons do not focus on the necessity of a finding of negligence in respect of the third allegation, they do not correct the error, leaving the reasoning in the November Reasons to apply.

[111] As a result, we find the Panel further erred by dismissing the third allegation against Rew on the basis of its finding that Rew was not negligent.

Failure to Consider Evidence

[112] The PEO submits that in concluding that Mr. Rew did not commit professional misconduct in respect of allegations 1 and 2, the Panel committed a palpable and overriding error by failing to refer to or consider the evidence of Rew’s expert, Mr. Hopper, in cross-examination.

[113] The issue in question concerns Rew’s testing of soil on the Property the day following the completion of its remediation by injection of hydrogen peroxide in May 2009. It also concerns the Rew Summary Report on July 9, 2009, which concluded that no further environmental investigation was warranted and that at the time of the investigation, the site posed no significant risk in owning, financing or developing.

[114] Dr. Hood, the PEO’s expert, testified that while it was acceptable to do testing on or a day after the injections, at the very least, there should have been one follow-up round of testing and preferably two completed at least a month or two following the injections. In his opinion, it was both unreasonable and unwise to rely on testing results done at the same time as the injections. In his opinion, a reasonable and prudent engineer could not conclude based on such test results that the Property posed no significant risk.

[115] Mr. Hopper testified in chief that there was always a possibility of a rebound, but as far as he knew, Rew was barred from the site and so had no opportunity to do further testing. He testified that while a reasonable and professional engineer would conduct confirmatory sampling today, that was not necessarily the case in 2009 and that even today, confirmatory sampling is a judgment call.

[116] In cross-examination, Mr. Hopper agreed that it was unusual for a reasonable and prudent engineer to be satisfied with sampling performed on the same day as the injections, but he understood that Rew has been barred from the site. He agreed, however, that in 2009, a reasonable and prudent engineer would have done confirmatory sampling at least a month after the injections; that sampling immediately following the injections was not definitive; and based just on that sampling, one could not say the site posed no significant risk.

[117] In considering whether the PEO had proved allegations 1 and 2, the November Reasons fail to address or consider Mr. Hopper’s evidence on cross-examination to the effect that a reasonable and prudent engineer would not have opined that the Property posed no significant risk based on the sampling Rew conducted. In discussing the adequacy of Rew’s sampling, the Panel stated: “Indeed, it was said that the Defence’s ‘own expert’, Mr. Hopper, clearly saw this as a failure.” Unfortunately, however, having been alerted to the evidence, the Panel failed to consider it. Rather, in dealing with the adequacy of the sampling, the Panel deferred to the professional judgment of Mr. Rew.

[118] The December Reasons also fail to consider or address Mr. Hopper’s evidence on cross-examination. In concluding that the first allegation was not proved, the Panel relies in part on Mr. Hopper’s evidence, stating that he had “provided testimony that supported Rew’s conduct being within the expected standards of a reasonable and prudent practitioner.” While that was Mr. Hopper’s evidence in chief, his evidence in cross-examination was exactly the opposite.

[119] In concluding that the PEO failed to prove the second allegation, the December Reasons again rely on Mr. Hopper’s evidence in chief to the effect that the Rew Reports were appropriate for the nature of the spill for the site and date without referring to or dealing with his evidence on cross-examination to the effect that sampling immediately following remediation was not definitive and a reasonable and prudent engineer could not say the site posed no significant risk.

[120] Before us, Rew submitted that Mr. Hopper’s evidence in cross-examination had to be considered in context. The parties agreed to postpone Mr. Hopper’s cross-examination as only a brief “will-say” statement of his evidence had been provided to the PEO in advance of his testimony. As a result, it was agreed that Mr. Rew would testify in the interim. In his testimony, Mr. Rew explained why, in his professional judgment, both the sampling he conducted and his subsequent opinion that there was no risk to the Property were appropriate in the circumstances. When Mr. Hopper was subsequently cross-examined, he had no opportunity to be aware of Mr. Rew’s testimony.

[121] That explanation, in our view, does not have any effect on Mr. Hopper’s cross-examination testimony. More importantly, it has no bearing on the Panel’s failure to address the effect of Mr. Hopper’s evidence in considering allegations 1 and 2 against Rew. If Mr. Rew’s testimony had any relevance to Mr. Hopper’s testimony in cross-examination, it should have been put to him in re-examination. It was not.

[122] Mr. Hopper’s evidence in cross-examination was directly relevant to the determination of whether, in carrying out the sampling which he did on the Property and issuing the Rew Summary Report, Rew met the standard of a reasonable and prudent engineer for both allegations 1 and 2. The failure to consider it, in our view, constitutes a palpable and overriding error.

Conclusion

[123] For the above reasons, the PEO’s appeal is allowed and the decision of the Panel dismissing the four allegations of professional misconduct against Rew is set aside. The matter is remitted back to the PEO to be reheard by a differently constituted panel, if so determined.

[124] Both parties filed Cost Outlines in advance of the hearing. The PEO’s Cost Outline claims total substantial indemnity costs of $90,276.53 and partial indemnity costs of $61,451.53. Rew’s Cost Outline claims total substantial indemnity costs of $99,194.56 and partial indemnity costs of $82,035.52.

[125] At the conclusion of the hearing, as is our practice, the court inquired if the parties had discussed costs with a view to reaching an agreement on the amount to be awarded if the court awarded costs. In the absence of any discussions, the court adjourned the hearing for a brief time to permit a discussion. Upon resuming, counsel advised the court that they had agreed on partial indemnity costs of $55,000 plus HST but not on entitlement. Specifically, Rew reserved the right to claim substantial indemnity costs in the event they were successful on the appeal.

[126] Subsequently the parties each submitted brief written cost submissions.

[127] The PEO acknowledges that in situations where professional regulators have successfully appealed decisions of their own discipline committee, costs are not usually ordered against the respondent-member. See: College of Veterinarians of Ontario v. Choong, 2019 ONSC 946 (Div. Ct.); College of Veterinarians (Ontario) v. Hanif, 2011 ONSC 1155 (Div. Ct.).

[128] The PEO submits, notwithstanding the above, because the parties have agreed to costs of $55,000 plus HST, if the PEO is successful on its appeal it should receive costs in that amount. The only issue not agreed to by the parties was whether if successful, Rew was entitled to substantial indemnity costs.

[129] In response, Rew submits that if the PEO is successful on the appeal, it should receive no costs in accordance with the above cases which were successful appeals by a professional body from decisions of its discipline committee. The circumstances here do not differ from the above cases such that the PEO would be entitled to an award of costs. Further, the agreement reached by the parties was with respect to quantum only with the issue of entitlement left to the discretion of the court.

[130] Rew further submits that if successful, they should be entitled to substantial indemnity costs given the PEO’s actions, including the time this matter took to resolve.

[131] In the normal course, costs follow the result. In the circumstances of this appeal, however, and specifically the errors of the Panel, we are of the view that no costs should be awarded and the PEO’s costs of the appeal should be borne by each party. As entitlement to costs was not agreed to by the parties, we are not bound by their agreement on quantum.

[132] Accordingly, no order as to costs.

H. Sachs J.

Pattillo J.

I agree _______________________________

Penny J.

Released: October 22, 2020

CITATION: The Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018

DIVISIONAL COURT FILE NO.:028/19

DATE: 2020/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Pattillo and Penny JJ.

BETWEEN:

The Association of Professional Engineers of Ontario

Appellant

– and –

Paul Douglas Rew, P.ENG. and Rubicon Environmental (2008) Inc.

Respondents

REASONS FOR JUDGMENT

H. Sachs and Pattillo JJ.

Released: October 22, 2020