Administrative law – Engineers – Disciplinary proceedings – Competence – Professional misconduct or conduct unbecoming – Evidence – Penalties – Suspensions – Judicial review – Administrative decisions – Hearings – Natural justice – Disclosure – Standard of review – Correctness – Reasonableness simpliciter
Familamiri v. Assn. of Professional Engineers and Geoscientists of British Columbia,  B.C.J. No. 995, British Columbia Supreme Court, May 14, 2004, Masuhara J.
The Appellant was a professional engineer with over 20 years of experience. He was retained to design and supervise the construction of a private residence. He submitted an application for a building permit to the City of Coquitlam on June 14, 2000. These designs, however, were incomplete.
In October 2002, a Discipline Panel of the Association of Professional Engineers and Geoscientists of British Columbia (the “APEGBC”) made a finding of unprofessional conduct on the part of the Appellant as a result of his signing, sealing and submitting structural drawings for a building permit and preparing support design calculations which did not conform to the B.C. Building Code. The Appellant appealed the decision under section 39 of the Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 seeking to have it quashed.
The Court held that the standard of review on issue number 1, a question of procedural fairness, was correctness. On issue number 2, the finding of professional conduct, the standard of review was that of reasonableness simpliciter. On issue number 3, the determination of penalty, the standard of review was that of reasonableness simpliciter.
With respect to the first issue, whether or not the principles of natural justice were breached, the Appellant argued that the Panel failed to make the prerequisite finding that the plans did not comply with the Code. The court, however, concluded that the charge was sufficiently particularized and there was no merit to the allegation that the Panel found misconduct based on elements not enumerated in the charge. Although the charge did not particularize the sections of the Code allegedly violated, it was indisputable that the charge was intrinsically linked to the Code. The Code, and whether the Appellant had breached it, were squarely before the Panel in the viva voce evidence of the witnesses as well as their supporting documents. The court found that although the Panel did not specifically reference sections of the Code in its reasons, in considering all of the evidence before it, the Panel found that the designs did not conform to the Code.
The second issue, whether or not the Association violated the Appellant’s rights to full disclosure, arose when it became apparent that a witness had generated written calculations which were not disclosed to the Appellant until the second day of the hearing, during the course of that witness’s cross examination. A 10-minute adjournment was provided but no further mention of concerns regarding non-disclosure were made. The Court held that when an applicant claims a remedy for non-disclosure, a two-pronged test must be applied: (1) the Appellant must demonstrate that the undisclosed information meets the Stinchcombe threshold and that (2) on a balance of probabilities the right to make full answer and defence was impaired as a result of the failure to disclose. In this case, the Respondent breached its duty to disclose. However, the Appellant’s right to make full answer and defence was not impaired as a result of the failure to disclose. It was incumbent upon the Appellant’s counsel to request an adjournment if it was required at the time that the documents came to light.
With respect to the finding of unprofessional conduct, the Court noted that this term was not defined in the Act. However, the Court held that it would be incongruous to suggest that a material breach of the Code could not also amount to professional misconduct. The Panel also had a clear statutory mandate to look beyond breaches of the Code to the more amorphous factors of “incompetence, negligence or unprofessional conduct”. The Panel made several specific determinations of what it considered to be unprofessional conduct. The court held that the Panel conducted a thorough examination of the evidence and considered the specific statutory obligations incumbent on a civil engineer pursuant to the Code as well as the more general obligations incumbent on all engineering professionals. The court held that it was not unreasonable for the Panel to find that the Appellant demonstrated unprofessional conduct.
The penalty of an interim suspension and costs were not so unreasonable or oppressive as to warrant interference by the court.
To stay current with the new case law and emerging legal issues in this area, subscribe here.