CITATION: Saplys v Ontario Association of Architects, 2021 ONSC 2784
DIVISIONAL COURT FILE NO.: 731/19
DATE: 20210428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ.
BETWEEN:
LINAS SAPLYS
Appellant
Appellant
– and –
ONTARIO ASSOCIATION OF ARCHITECTS
Respondent
Marshal Swadron and Arooba Shakeel for the Appellant
Barbra Miller for the Respondent
HEARD: April 8, 2021
PENNY J.
Overview
[1] This is an appeal under the Architects Act, R.S.O. 1990, c. A.26, from a decision of the Discipline Committee of the Ontario Association of Architects.
[2] Section 11 of the Act prohibits the “practice of architecture” by any person who is not a licensee or a holder of a certificate of practice. The practice of architecture includes the provision of a “design” to govern the construction of a building. Design includes a “plan, sketch, drawing, graphic representation or specification intended to govern” the construction, of a building.
[3] The narrow issue raised on this appeal concerns whether certain drawings and plans prepared by the appellant’s service corporation, API (which is admittedly neither a licensee nor the holder of a certificate of practice under the Act) were designs intended to govern the construction of a building within the meaning of the Act. The Committee found that they were. The appellant maintains they were not.
Background
[4] This case arises out of a project undertaken by the appellant concerning the location, design and construction of a Hampton Inn & Suites on Hwy 50 in Bolton, Ontario. The appellant is an architect and member of the OAA.
[5] The appellant was charged with 15 counts of professional misconduct. Following an eight-day hearing before the Discipline Committee of the OAA, 11 counts were either withdrawn or dismissed. Findings of guilty issued on the remaining four counts.
[6] The Committee, in a second hearing on penalty and costs: imposed a six-month suspension of the appellant’s licence, ordered him to pay $45,000 in respect of the OAA’s costs, and ordered the publication of the Committee’s decision, including the appellant’s name.
[7] On the first appeal from these decisions, the Divisional Court (2019 ONSC 1679) upheld the convictions on three counts relating to the appellant’s failure to give his former employer written notice that he had been engaged on three of its former projects. The Court set aside the finding that the appellant had practiced architecture through API, an entity that did not hold a certificate of practice (this allegation is referred to as “Count 5”), and remitted Count 5, as well as the issue of penalty and costs, back to the Committee with certain directions.
[8] The Court found that in reaching its determination in respect of Count 5, the Committee was required to interpret the meaning of the term “practice of architecture”, as defined in s. 1, for the purposes of determining whether there had been a breach of s. 11(1) of the Act.
[9] The Court concluded that the Committee’s determination regarding Count 5 was unreasonable because it failed to address whether any of the drawings at issue constituted a “design” as defined under s. 1 of the Act. The Committee, therefore, could not support its conclusion that the appellant’s actions constituted the “practice of architecture” through API in contravention of s. 11(1). There were two reasons advanced by the Court for this conclusion.
[10] First, the Committee found the appellant guilty of professional misconduct because he provided architectural services through a company that did not hold a certificate of practice. However, the prohibition in s. 11(1) is triggered by engaging in the “practice of architecture”, not by providing “architectural services”. The Court found that the Committee erred in law by applying the wrong legal test. The definition of “architectural services” includes anything related to the practice of architecture and thus is different from, and broader than, the “practice of architecture”.
[11] Second, by focussing on architectural services instead of the practice of architecture, the Committee failed to address the requirements of the definition of “practice of architecture” in reaching its decision. In particular, the Committee failed to address the question of whether any of the four sets of drawings prepared by API constituted a “design”, i.e., whether they were intended to govern the construction of a building.
[12] The Committee did not expressly find that the drawings were “intended to govern the construction, enlargement or alteration” of the proposed hotel. Nor was there any basis to conclude that the Committee “implicitly” found that the four sets of drawings at issue constituted “designs” as defined the Act. The Court went on to say that merely because the drawings were “typical of those offered by architects in the procession of a design of a building from initial concept to complete design” did not, by itself, make the drawings a “design”. Nor did the fact that they could be used to generate construction drawings later or that the drawings were in fact used by the client to obtain construction management proposals necessarily mean that they were “designs”.
[13] In conclusion, the Court allowed the appeal regarding the finding of guilt on Count 5 and set aside that finding as unreasonable. The matter was remitted back to the Committee for a determination of whether any of the four sets of API drawings at issue constituted a “design” for the purposes of s. 1 of the Act. Any reconsideration of the reasonableness of the penalty and costs was also remitted to the Committee, depending on its conclusions about Count 5.
[14] At the outset of the continued hearing to reconsider Count 5, the parties advised the Committee that they did not intend to call any witnesses or provide any additional documentary evidence. The parties made their further submissions based only on the existing record. Both parties cited the Cambridge English Dictionary definition of “govern” as meaning “to have a controlling influence on something”.
[15] The Committee, in its November 26, 2019 decision on the Count 5 reconsideration (the Decision), concluded that the four sets of API drawings at issue in Count 5 were “designs” within the meaning of the Act.
[16] The Committee rejected the appellant’s argument that a plan, sketch or drawing can only be said to be intended to govern construction if it is prepared with the intention that it be submitted for the issuance of a building permit. The Committee held that this interpretation of the word “design” was too narrow.
[17] The Committee found that pre-building-permit drawings could also have a controlling influence on the construction of the building. The Committee held that “design” includes “everything in the process from initial concept to final construction documentation.”
[18] Based on these conclusions, the Committee found that each of the four sets of drawings at issue in Count 5 were prepared with the understanding that the ultimate intended product of the design was the construction of a building. While these drawings were issued for branding approval rather than to obtain a building permit, “the content of these drawings and the circumstances surrounding their production demonstrate to us that they were produced on the understanding that the ultimate intended purpose of these designs was construction of a Hampton Inn & suites in Bolton”. In coming to this conclusion, the Committee reviewed the drawings and found that they “establish the parameters for and had a controlling influence on the subsequent drawings” which were used for building permit purposes.
[19] Given the Committee’s determination on Count 5, there was no reason to alter the penalty previously imposed. The Committee did, however, on the agreement of counsel, adjust the amount of costs to take into account the Divisional Court’s award of costs to the appellant. No further award of any costs of the reconvened hearing were assessed against the appellant.
Issues
[20] The following issues are raised on the appeal:
(a) What is the applicable standard of review?
(b) Did the Committee err in its interpretation of s. 11 of the Act by finding “everything in the process from initial concept to final construction documentation” to constitute a “design” within the meaning of the Act?
(c) Did the Committee err by supporting its interpretation of s. 11 of the Act by citing the existence of standard contracts (not in evidence) that cover services from initial concept to final construction documentation or the fact that insurance coverage is mandatory? and,
(d) If the appeal is granted:
(i) Should liability under Count 5 be determined by the Court or referred back to the Committee for a third attempt?
(ii) Should the appropriate penalty be determined by the Court or referred back to the Committee? and
(iii) If the court is prepared to assign a penalty, what should that penalty be?
Standard of Review
[21] An appeal lies to the Divisional Court from a decision or order of the Discipline Committee, without leave, pursuant to s. 36(1) of the Act. Section 36(3) establishes the court’s powers on appeal:
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.
[22] The Supreme Court of Canada has made clear, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37, that where the legislature has provided for an appeal from an administrative decision to a court, the court hearing the appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to the Court’s jurisprudence on appellate standards of review. Where a court is hearing an appeal from an administrative decision, therefore, it must, in considering questions of law including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37.
Analysis
Statutory Framework
[23] The finding of the Committee under Count 5 was a finding of professional misconduct.
[24] Section 42(1) of O. Reg. 27 under the Act defines professional misconduct to include the “contravention of any provision of the Act or the regulations.”
[25] Section 11 of the Act restricts the practice of architecture to licensed architects and entities holding certificates of practice. Section 11 provides:
No person shall engage in the practice of architecture or hold himself, herself or
itself out as engaging in the practice of architecture unless,
(a) the person is licensed under this Act;
(b) the person is the holder of a certificate of practice or the person is doing so as a member of a partnership that holds a certificate of practice; or
(c) the person is the holder of a temporary licence under this Act.
[26] The practice of architecture is defined in s. 1 of the Act as follows:
“practice of architecture” means
(a) the preparation or provision of a design to govern the construction, enlargement or alteration of a building,
(b) evaluating, advising on or reporting on the construction, enlargement or alteration of a building, or
(c) a general review of the construction, enlargement or alteration of a building.
[27] The term “design” used in subparagraph (a) of the definition of the “practice of architecture” is further defined in s. 1 the Act as follows:
“design” means a plan, sketch, drawing, graphic representation or specification intended to govern the construction, enlargement or alteration of a building or a part of a building.
[28] Count 5 reads as follows:
During the years 2012 and 2013 you provided architectural services [all parties concede that this was meant to say ‘engaged in the practice of architecture’] with respect to the construction of a hotel, Hampton Inn & Suites at 12700 Hwy 50, Bolton, Ontario, through “API International Marketing and Architecture & Planning Initiatives”, which does not hold a certificate of practice, contrary to Subsection 1 of Section 42 of the Regulation and contrary to Section 11 of the Act.
[29] Thus, the finding of the Committee under Count 5 was founded on the conclusion that the appellant, by using his service corporation, API (which held no licence or certificate of practice) to produce “designs” intended to govern construction of the Hampton Hotel, had caused API to engage in the practice of architecture, contrary to s. 11(1)(b) of the Act.
The Appellant’s Argument
[30] The appellant makes two basic arguments on the core question of whether the appellant breached s. 11(1) of the Act as alleged in Count 5.
[31] First, the appellant says the Committee made a legal error in its interpretation of ss. 1 (definitions of “practice of architecture” and “design”) and 11 of the Act by finding that “everything in the process from initial concept to final construction documentation” is a “design” within the meaning of the Act. This, he submits, is a blatant misinterpretation of ss. 1 and s. 11 of the Act, inconsistent with the Divisional Court’s prior direction to the Committee, and, therefore, a clear error of law. The appellant also argues that the Committee made a palpable and overriding error of fact when, having apparently accepted the appellant’s evidence that the four sets of API drawings were made for the purpose of obtaining branding approval from the hotel chain, the Committee nevertheless found that the drawings were “intended to govern” the construction of the hotel.
[32] Second, the appellant argues that the Committee erred by supporting its interpretation of ss. 1 and 11 of the Act by relying on the existence of standard contracts (that were not in evidence) that purport to cover services from initial concept to final construction documentation and certain other generalized concerns about protection of the public.
The Scope of What Constitutes a “Design”
[33] I agree with the Committee’s conclusion that the relevant intention in the definition of “design” is not the subjective intention of the particular architect involved. This is conceded by the appellant.
[34] Rather, the task in applying the definition of “design” is to determine, on the basis of all the relevant evidence including the drawings themselves and the context in which they were prepared, whether the drawings were intended to govern (i.e., to exert a controlling influence on) the construction of the hotel. The test is not, as the appellant would have it, whether the drawings were entirely sufficient to construct the hotel. Nor is it the test, as is also submitted by the appellant, that the drawings must be for the purpose of obtaining a building permit. These interpretations artificially narrow and displace the meaning of “design” set out in section 1 of the Act.
[35] The test is whether the drawings were intended to govern (i.e., to exert a controlling influence on) the construction of the hotel.
[36] I tend to agree with counsel for the appellant when he submits that “design” cannot mean, as a matter of law and necessity, “everything in the process from initial concept to final construction documentation”. Just because a drawing falls within a spectrum from initial concept to final construction does not mean (as the Divisional Court said previously), standing alone, that the drawing is necessarily “intended to govern” construction. However, reading the Decision as a whole, this is not what the Committee meant. The paragraph from the Committee’s Decision which is held out as containing the error of law reads as follows:
The requirement that a “design” be ‘intended to govern the construction, enlargement or alteration of a building or part of a building’ refers not to the intention of the architect to prepare the submission of a design to governing authorities, but instead to the intention that earlier stages of the design have a controlling influence on subsequent stages and the ultimate intended product of the design, that being, “construction, enlargement or alteration of a building”. Therefore a ‘design’ includes everything in the process from initial concept to final construction documentation, and ultimately to the final constructed product [emphasis added].
[37] It must be remembered that professional discipline committees are not made up of trained lawyers and judges. They are, in this case at least, made up of members in good standing of the profession (the majority) and members of the community appointed by the Lieutenant Governor in Council. As the Supreme Court said in Vavilov, at para. 92:
Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.
[38] While this was said in the context of a discussion of what constitutes reasonableness review, it is equally applicable, in my view, to the court’s approach to the form and language of a professional discipline committee’s reasons in the context of a statutory appeal. I say this, of course, recognizing that questions of law – which include the interpretation of the tribunal’s “home” statute – must be reviewed on a standard of correctness. But correctness review goes to the content of the tribunal’s reasoning on the legal issue, not necessarily to the form which that reasoning takes or the language used to express it.
[39] In order to properly understand what the Committee meant by the passage cited above, it must also be considered in the context of the findings of fact made by the Committee in both its earlier decision (there was no new evidence on the reconsideration; the parties accepted, and based their arguments on, the record as it was) and in the Committee’s analysis in the Decision itself. Those are best summarized by the following passage from the Decision which follows the passage cited above:
In this case, each of the four sets of drawings at issue in Allegation 5 was prepared with the understanding of both the Architect and his client that the ultimate intended product of the design was the construction of a building. As described in more detail in our first Reasons for Decision in this matter, these four sets of drawings were prepared between April 2011 and January 2012 and followed in October 2012 and April 2013 with drawings issued for building permit and construction respectively. While the initial four sets of drawings were issued for brand approval rather than to obtain a building permit, the content of these drawings and circumstances surrounding their production demonstrate to us that they were produced on the understanding that the ultimate intended product of those designs was the construction of a Hampton Inn &Suites in Bolton. Our review of the content of the six drawings also shows that the designs in the first four sets of drawings established the parameters for and had a controlling influence on the subsequent drawings, as one would expect in the design process. As a result, in our view each of these four sets of drawings can be properly regarded as “designs” within the meaning of s. 1of the Act [emphasis added].
[40] I read this paragraph as constituting a finding of fact that the API drawings in question were intended to govern (exert a controlling influence on) the construction of the hotel. Thus, although I would have articulated the legal question in the earlier paragraph quoted from the Committee’s Decision differently, the result of the Committee’s analysis of the evidence shows that the “intended to govern” test was, in fact, actually applied.
[41] Thus, in my view, there is exhibited within the Committee’s reasons a line of analysis that leads the Committee from the definition of “design”, through the evidence before it, to the conclusion which it reached. Not every element of the reasoning must independently pass muster as legally “correct”. A reviewing court should not seize on one or more mistakes or elements of the decision unless they demonstrably affect the decision as a whole. The question is whether the analysis, taken as a whole, supports the decision: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 SCR 247 at paras. 55 and 56.
[42] Whether these drawings referred to in Count 5 were intended to govern the construction of the hotel is a question of fact or mixed fact and law. There is no extricable legal issue. In order to supplant this finding of the Committee, the appellant must show a palpable and overriding error. A palpable error is one that is readily or plainly seen. An overriding error is one that must have altered the result or may well have altered the result. The appellant has not shown that the Committee committed any palpable and overriding errors of fact.
[43] There was evidence before the Committee to support its conclusion. It had the contracts with the appellant’s client. It had the drawings themselves. It had the appellant’s evidence and evidence adduced by the OAA. It was open to the Committee to reject the evidence of the appellant’s subjective intention. It was open to the Committee to review the drawings and surrounding circumstances for itself and to make an assessment of whether these drawings were intended to exert a controlling influence on the construction of the hotel. The Committee was not obliged to accept the appellant’s argument that only drawings in support of a building permit could ever be “intended to govern” construction. Indeed, the Committee was, in my view, correct in not doing so. Nor was the Committee obliged to accept the appellant’s argument that, because the drawings were initially used for branding approval by Hampton Hotels, the drawings could not have been intended to govern construction. These are not mutually exclusive purposes or intentions. There is, therefore, no contradiction or illogicality in the Committee’s apparent acceptance that the drawings were submitted for branding approval and its conclusion that the drawings were, in addition, intended to exert a controlling influence on the hotel’s construction. Indeed, this conclusion accords with common sense in the circumstances.
[44] I am unable to conclude there was any error of law or palpable and overriding error of fact committed by the Committee. For these reasons, I would not give effect to the appellant’s argument on this point.
The Reference to ‘Standard’ Contracts Used by the Profession
[45] The Committee observed that its interpretation of the definition of “design” was “consistent with the development phases of a design outlined in the GC2 Architect’s Scope of Services section of the Standard Form of Contract for Architect's Services OAA 600.”
[46] I do not read this passage of the Committee’s Decision as having any material impact on the outcome. It is, at its highest, more in the nature of a makeweight.
[47] Similarly, I do not regard the Committee’s reference to the scope of insurance coverage and the statutory aim of protection of the public, in conjunction with its observation that if the appellant’s narrow interpretation of “design” were to be accepted, much of the work currently carried out by architects as part of the design process would be exempt from regulatory scrutiny, as constituting any sort of reversible error on the Committee’s part. Again, these observations do not form the core of the analysis. There is nothing inappropriate, in any event, with testing controversial interpretations against common practice or the overall context and purpose of the Act.
[48] For these reasons, I would not give effect to this argument either.
Conclusion
[49] In conclusion, I would dismiss the appeal on the main ground associated with the finding of misconduct against the appellant based on Count 5. That being the case, it is unnecessary to address the remaining issues of whether liability, penalty and costs should be decided by this court or remitted once again to the Committee and, if decided by the court, what the findings of liability, penalty and costs should be.
Costs
[50] The parties agreed that all-inclusive costs of $28,000 should be awarded to the successful party. It is so ordered.
Penny J.
I agree _______________________________
Lederer J.
I agree _______________________________
Sheard J.
Released: April 28, 2021
CITATION: Saplys v Ontario Association of Architects, 2021 ONSC 2784
DIVISIONAL COURT FILE NO.: 731/19
DATE: 20210428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ.
BETWEEN:
LINAS SAPLYS
Appellant
– and –
ONTARIO ASSOCIATION OF ARCHITECTS Respondent
REASONS FOR JUDGMENT
Released: April 28, 2021