CITATION: Sbrissa v. Ontario Association of Architects, 2021 ONSC 2087
COURT FILE NO.: 020/20
DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hackland, Penny and Favreau JJ.
BETWEEN:
OVIDIO SBRISSA
Appellant
– and –
ONTARIO ASSOCIATION OF ARCHITECTS
Respondent
John E. Smith for the Appellant
Rebecca Durcan for the Respondent
HEARD: January 25, 2021 by Videoconference
REASONS FOR JUDGMENT
C.T. Hackland J.
INTRODUCTION
[1] This is an appeal under sec. 36(1) of the Architects Act, R.S.O. 1990, c. A.26, (the Act), from a decision of the Registration Committee of the Ontario Association of Architects (the OAA) which directed the Registrar of the OAA to issue the appellant, Mr. Sbrissa, a license subject to certain conditions but refused to re-instate his certificate of practice.
BACKGROUND
[2] The appellant has practiced architecture in Ottawa and been a member of the OAA since 1981. He is the owner of McGee House, a 138 year old historic building in which he lived and from which he carried on his professional practice.
[3] On July 24, 2018 there was a partial collapse of the west wall of the building. McGee house is located on a busy commercial street and the events surrounding the wall collapse garnered considerable public attention. The appellant was not in the building when this occurred and no one was injured.
[4] The City of Ottawa issued an order to the appellant to ‘remedy an unsafe building’ and to demolish the west wall. A dispute then ensued between the appellant and the City as to whether the building was unsafe and as to the appropriate method of repair.
[5] At the time of the wall collapse the appellant’s license to practice architecture had been revoked by the OAA for nonpayment of his practice insurance premiums. The appellant subsequently paid the required premiums and in March 2019 applied for his license to be reinstated. The Registrar of the OAA notified the appellant in May 2019 that she proposed to refuse reinstatement of his license. In response the appellant exercised his entitlement to request a hearing before the OAA’s Registration Committee, under sec.25(3) of the Act.
[6] The Act provides that architects can practice with either a license, or a license and a certificate of practice. However only a holder of a certificate of practice can provide architectural services to the public, (sec.11(2)). The holder of a license alone can practice architecture, but only under the supervision of an architect who holds a certificate of practice. The grant of both a license and a certificate of practice is subject to a good character requirement (sec.13(1)(a)). The Registrar can refuse to issue a license or certificate if she is of the opinion, on reasonable and probable grounds, that the past conduct of an applicant suggests that they will not “engage in the practice of architecture in accordance with the law and with honesty and integrity” (sec. 13(2)).
[7] The Registration Committee, following a hearing held on September 10, 2019, reinstated the appellant’s license subject to certain terms but refused to reinstate his certificate of practice. This had the effect of precluding the appellant from being able to practice independently. The appellant brings this appeal from the Committee’s refusal to grant him a certificate of practice. The Committee’s imposition of terms on his license is not appealed.
Standard of Review
[8] This is an appeal pursuant to section 36(1) of the Act, which provides that an appeal may be brought to the Divisional Court from a decision of the Registration Committee or the Discipline Committee on a question of law or fact or both. As this is a statutory appeal, the appellate standard of review is applicable as prescribed by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33. The Court held that the standard of review for questions of law is ‘correctness’, while the standard of review for questions of fact is ‘palpable and overriding error’. On questions of mixed fact and law the standard of review is also palpable and overriding error, unless there is an extricable question of law, in which case the standard is correctness. The denial of procedural fairness/natural justice qualifies as an error of law.
Issues on Appeal
[9] The appellant, who was self-represented until the argument of this appeal, has set out in his factum the following issues he wishes to raise. There is substantial overlap between these issues.
a) Is the order of the Committee correct in fact and in law;
b) Did the Committee and the Registrar misapprehend the evidence by finding that there had been a collapse of the building in question when the evidence was clear that there was only a partial collapse of a wall and no further damage to the building occurred;
c) Did the Committee err in law by concluding that the failure of the Appellant to pay fees and other charges levied by the OAA in a timely manner was a proper ground for refusing to issue a certificate of practice to him;
d) Are the orders made by the Committee contradictory thereby nullifying its decision;
e) Did the Committee err in fact and law in concluding that the Appellant would not practice architecture with honesty and integrity;
f) Were the findings by the Committee that the Appellant had poor interactions with the OAA and other authorities and lack of professional decorum when dealing with the municipal authority and the media with respect to the partial building collapse and related issues proper grounds for its decision to uphold the Registrar’s decision; and
g) Was it proper for the Committee to base its decision on factors not taken into consideration by the Registrar in issuing a Notice of Proposal to refuse to issue a certificate of practice to the appellant.
Analysis
[10] For the reasons discussed below, I will give effect to grounds (c) and (g) concerning the Registration Committee’s reliance on the appellant’s history of default in payment of annual fees and insurance premiums and his discipline record as the primary basis for its refusal to reinstate his certificate of practice.
[11] Section 20 of the Act provides that the Registrar may refuse to issue a certificate of practice where she is of the opinion on reasonable and probable grounds that the applicant’s past conduct affords grounds for belief that the applicant “will not engage in the practice of architecture in accordance with the law and with honesty and integrity”.
[12] Section 25 of the Act sets out the procedural requirement for a proposed refusal to issue or revoke a license or to impose conditions on a license. The Registrar is required to serve on an applicant notice of the proposal together with written reasons therefore. The applicant is then entitled to require a hearing by the OAA’s Registration Committee.
[13] It is apparent that the requirement that the Registrar’s Notice of Proposal be supported by written reasons served on the applicant exists for the purpose of disclosing the basis for the Proposal and to allow the applicant to decide whether to request a hearing and to know the case he will be required to address at the hearing.
[14] In the present case the Registrar advised the appellant by letter dated May 15, 2019 of her proposal to refuse his application for a license based on two specified reasons pertaining to the wall collapse at McGee House and his subsequent filing of documents with the City representing that the building was safe to occupy. One such document displayed his architect’s seal suggesting he was an architect in good standing after his license had been revoked for nonpayment of insurance premiums.
[15] The Registrar’s Notice of Proposal made no mention of the appellant’s history of defaulting in payment of fees and insurance premiums or of the licence revocations imposed by the Registrar due to these defaults or of any concerns about his dealings with Association staff.
The Registration Committee’s Decision
[16] The Committee’s reasons disclose its understanding of the Registrar’s two grounds for refusing the appellant a re-instatement of his licence and certificate of practice, (at page 2):
Her letter outlined two grounds for her refusal:
she was concerned that he would reside in a building that collapsed and that he would do so without providing legal and sufficient notice to the municipal authority having jurisdiction with respect to the building;
she was concerned that Mr. Sbrissa attempted to file documents suggesting the building was safe to occupy after the municipal authority’s experts issued an order to demolish the property for public safety reasons. The documents Mr. Sbrissa filed with the jurisdiction having authority indicated that he was still an architect even though his licence and certificate of practice had been cancelled for non-payment of fees.
[17] At the hearing of the Registration Committee, the Registrar testified that her proposed refusal of the applicant’s license reinstatement was based on her belief that the applicant’s conduct with respect to the building collapse violated the good character requirement set out in sec.13(1) of the Act. However, the Registrar went on to testify that she also relied on “Mr. Sbrissa’s disciplinary record, and his record of delinquent payment of fees”. Association counsel then filed 8 documentary exhibits concerning the appellant’s past discipline record and licence revocations for non- payment of fees and undertakings he had provided concerning these defaults.
[18] The appellant, who was self represented at the hearing, testified and defended his conduct surrounding the wall collapse including his views as to the cause, the appropriate remediation and his communications with municipal officials. The appellant was also questioned by Association counsel about his license cancellation history and prior discipline findings with the Association and the undertakings he had signed with respect to payment of fees.
[19] Importantly, on the central issue of the building collapse, the Committee was unable to arrive at a conclusion concerning any relationship between actions or omissions on the appellants part and the building collapse. The committee explained (at p.4 of its reasons):
This has been a difficult case for the Committee to decide. Although the evidence presented by the OAA and Mr. Sbrissa to the Committee was helpful, it was not adequate for the Committee to determine certain questions, such as (a) the extent of any legal obligations Mr. Sbrissa might have had to report to the municipal authority that he was living in the building, (b) the cause of the collapse and whether Mr. Sbrissa’s interventions contributed to it, (c) whether Mr. Sbrissa ought to have realized that the wall was likely to collapse, and (d) whether and how the building might be made safe in the future.
Mr. Sbrissa acknowledged that he had noticed a crack in the wall that collapsed about one month before the collapse but had not consulted with a structural engineer to monitor the issue. He also admitted he had in prior years made structural reinforcements to the top floor where his office is located as well as exposing all the interior stone walls without hiring a licensed structural engineer or applying for a building permit. Maintenance of the building also seems to have been lacking. While all this conduct is troubling, the Committee does not have sufficient information to confirm whether there was a causal relationship between his conduct and the building’s collapse. Information from expert reports prepared after the collapse reached conflicting conclusions as to the cause of the collapse.
[20] The Registration Committee’s decision reflects that having determined that it could not arrive at a conclusion regarding the issues arising from the building collapse, it then went on to address concerns about the accused’s history of licence revocations for nonpayment of fees and insurance premiums. The appellant responded to these concerns explaining that he had experienced financial difficulties from time to time. The Committee clearly treated this issue as central to its decision. The Committee stated:
The Committee is also concerned about Mr. Sbrissa’s history of poor interactions with the OAA and other authorities. The evidence indicated that Mr. Sbrissa has reacted inappropriately toward members of the municipal authority and associated consultants in this case, and toward OAA staff and fellow members for a number of years. Mr. Sbrissa did not honour his undertaking to pay his fees following his August 2017 undertaking to the OAA and has failed to meet the payment deadlines on approximately ten occasions. During the hearing he showed a lack of remorse and took the position that these were administrative issues that did not affect his ability to practice architecture.
[21] The Committee also criticized the appellant for displaying in public a previous drawing he had prepared which displayed his architect’s seal, inspite of his earlier licence revocation and for displaying a “lack of professional decorum” in dealing with the municipality and the media with respect to the building collapse and “related issues”. These matters were also not mentioned in the Registrars Notice of Proposal.
[22] As noted, the appellant was self represented at this hearing. He did not object to the introduction of issues unrelated to either the building collapse or to the Registrar’s Notice of Proposal or about his past discipline and licence revocations for fee and insurance non-payments. He did not ask for further disclosure or an adjournment to deal with these issues.
[23] The Appellant also did not raise before the Committee a legal submission which his counsel pressed on this appeal, which is that section 28(4) of the Act mandates, in licence cancellation situations based on default of payment of fees or insurance premiums, the mandatory re-instatement of a licence and certificate of practice upon payment of all such fees. The section states:
Cancellation and reinstatement
Cancellation for default of fees
- (1) The Registrar may cancel a licence, certificate of practice or temporary licence for non-payment of any fee prescribed by the by-laws…
Reinstatement
(2) A person who was a member or a holder of a certificate of practice or temporary licence whose licence, certificate of practice or temporary licence was cancelled by the Registrar under subsection (1) is entitled to have the licence, certificate of practice or temporary licence reinstated upon compliance with the requirements and qualifications prescribed by the regulations.
Cancellation for failure to pay premiums, etc.
(3) The Registrar may cancel a licence, certificate of practice or temporary licence if the member or holder,
(a) has failed to pay a premium, levy or deductible in connection with insurance against professional liability as required by the by-laws; …
Reinstatement
(4) A person who was a member or a holder of a certificate of practice or temporary licence whose licence, certificate of practice or temporary licence was cancelled by the Registrar under subsection (3) is entitled to have the licence, certificate of practice or temporary licence reinstated upon payment of all unpaid premiums, levies and deductibles and upon satisfying any other requirements prescribed by the regulations.
[24] It is not necessary to decide on this appeal whether or in what circumstances repeated defaults in the payment of fees and insurance premiums may be relied on by the OAA to refuse re-instatement of a licence or certificate of practice once default in payment has been cured. The matter was not referred to in the Notice of Proposal nor was it raised before the Registration Committee at the hearing.
[25] The difficulty with the Registration Committee’s treatment of the issue of the appellant’s previous record with the OAA, including the fee and premium default matters, is that no notice of these issues was included in the Notice of Proposal. This resulted in a failure of fairness and due process and prejudice to the appellant who was placed in the position of dealing with these issues as they arose at the hearing. The lack of notice also effectively precluded the appellant from making an informed decision as to the need to obtain legal representation and from seeking the procedural accommodations he required.
[26] Importantly, once an applicant has requested a hearing by the Registration Committee the Committee is required by section 25 of the Act to provide direction to the Registrar…”following upon a hearing under this section in respect of a proposal by the Registrar…” This is a clear indication that the hearing will address the subject matter or concerns identified in the Registrar’s proposal.
[27] The OAA acknowledged in its factum and in argument that the Committee based its decision on factors that were not considered by the Registrar in her Notice of Proposal including the appellant’s interactions with the OAA and other authorities and the media, as well as on his licensure and discipline history with the OAA. However, the OAA submits that the Registration Committee hearing was a hearing de novo and therefore it was free to address matters outside the concerns identified by the Registrar.
[28] I would agree with this submission subject to the proviso that the applicant should have been provided with reasonable advance notice of any additional grounds on which the Association sought to rely to support the proposal to refuse to re-instate his licence or certificate of practice. As new allegations were to be raised, an adjournment of the hearing and service of an amended Notice of Proposal should have been afforded to the appellant.
[29] The OAA relies on a decision of this court in Zahariev v. Ontario (Registrar of Motor Vehicle Dealers), 2005 44815 for the proposition that the Registration Committee was not restricted to a consideration of the grounds relied on by the Registrar in her Notice of Proposal to refuse licence re-instatement. In Zahariev the court stated that it was an error of law for the Tribunal to have based its determination of whether a licence should be revoked on a consideration of whether the Registrar was in error in deciding that the applicant’s past conduct afforded reasonable grounds for belief that the applicant would not carry on business in accordance with law and with integrity and honesty. The court held that the tribunal erred in asking whether the Registrar was wrong when it was required to make an independent decision on that issue without according deference to the Registrar’s proposal.
[30] I accept that Zahariev supports the proposition that the Registration Committee was conducting a hearing de novo was not restricted to considering whether the Registrar’s reasons for proposal were right or wrong. The Committee was required to make an independent decision. However, the court did not suggest that the tribunal could proceed on grounds of which the applicant had no prior notice. In Zahariev the tribunal conducted its hearing into the issues raised in the Registrar’s Notice of Proposal and there was no suggestion of the addition of new issues of which the licence holder had not been notified. Zahariev therefore does not specifically address the lack of notice issue raised on this appeal.
[31] In Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, the Court of Appeal commented on the need to balance fairness to professionals with the protection of the public interest when interpreting professional discipline legislation. The court stated (at para.18), “while the discipline process against a health professional must recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide”. One would expect a similar approach to be followed by other professional regulatory tribunals.
[32] In summary, I find that the Registration Committee committed an error of law in conducting a hearing into the appellant’s history of payment defaults and other administrative and conduct issues not referred to in the Registrar’s Notice of Proposal or other prior notification and in basing its decision to not re-instate his certificate of practice primarily on such grounds. These actions violated the appellant’s entitlement to natural justice and deprived him of a fair hearing.
[33] The appellant also submits that the Committee proceeded under the factual misapprehension that the property suffered a ‘building collapse’. While this term was used loosely at several points in the proceeding, it is clear from the record that the committee was well aware that the incident involved the partial collapse of the west wall of the structure.
[34] The appellant submits that the Registration Committee’s order is inherently contradictory insofar as it granted him reinstatement of his license (with conditions), while at the same time denying him reinstatement of his certificate of practice. Given that the grant of a license or of a certificate of practice requires the Registrar and the Registration Committee to be satisfied the appellant would practice architecture with honesty and integrity, the submission is that it was inconsistent and unreasonable to grant him a licence but deny him a certificate of practice.
[35] I find that the Committee acted reasonably by granting the appellant a licence with conditions, which were that he meet with a practice advisor from the Association with respect to the Act and Regulations with particular reference to his disciplinary history, non-payment of fees, integrity and professionalism. In any event, this part of the order was not appealed. To the extent the grant of a licence implies an acceptance of the appellant’s honesty and integrity, it does not necessarily follow that a Certificate of Practice should be granted by which the appellant could practice without supervision.
Disposition
[36] For the foregoing reasons I would allow the appeal from the decision of the Registration Committee insofar as it directs the Registrar of the Association to refuse to issue a certificate of practice to the appellant. That decision is set aside. In the absence of further proceedings, s.28(4) of the Act would seem to require the reinstatement of the appellant’s certificate of practice. However, I would decline the appellant’s request to order the OAA to issue to him a certificate of practice and remit to the OAA the question of whether further proceedings, based on a proper notice of proposal, are necessary and justified in the circumstances.
[37] The parties have agreed that the costs of this appeal will be fixed in the sum of $10,000. payable to the successful party. Costs in that amount are awarded to the appellant.
Hackland J.
I agree
Penny J.
I agree
Favreau J.
Date: March 23, 2021
CITATION: Sbrissa v. Ontario Association of Architects, 2021 ONSC 2087
COURT FILE NO.: 020/20
DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hackland, Penny and Favreau JJ.
BETWEEN:
OVIDIO SBRISSA
Appellant
– and –
ONTARIO ASSOCIATION OF ARCHITECTS
Respondent
reasons for judgment
Released: March 23, 2021