The Petitioner, the Association of Professional Engineers and Geoscientists of British Columbia (the “APEGBC”) had standing to bring the Petition since the enabling legislation separated the investigative, prosecutorial and adjudicative functions of the APEGBC. The clear purpose of the Act was to establish the independence and impartiality of the three functions. The Petitioner was not seeking to recover judgment against itself; rather it was seeking a determination of the correctness of a ruling made by a statutorily created panel with distinct functions and responsibilities. However, the court could not conclude that the panel’s decision represented an error on the face of the record.

Administrative law – Engineers – Governance – Functions of a self-governing body – Discipline committee decisions – Statutory provisions – Judicial review – Compliance with legislation – Remedies – Certiorari

Assn. of Professional Engineers and Geoscientists of British Columbia v. Visser, [2004] B.C.J. No. 1053, British Columbia Supreme Court, May 25, 2004, Cullen J.

The APEGBC sought, by Petition, an Order in the nature of certiorari to quash the decision of a panel of the Discipline Committee of the APEGBC (the “Panel”) made in relation to Mr. Visser, a professional engineer and member. The Petition was commenced pursuant to the provisions of the Judicial Review Procedure Act (the “Act”) and attacked the Order of the Panel made in September 2003 which dismissed summarily the notice of inquiry brought against Mr. Visser.

The Respondent submitted that the Petitioner was not a “person aggrieved” by the impugned decision and accordingly had no standing to challenge it under the Act. However, in the present case, the court held that the enabling legislation separated the investigative, prosecutorial and adjudicative functions of the APEGBC. The clear purpose of the Act was to establish the independence and impartiality of the three functions. Thus, the investigative function was represented by the Investigation Committee, which had the exclusive power to conduct an investigation and, if appropriate, initiate a hearing; the adjudicative function was represented by the Discipline Committee which had the exclusive power to conduct a hearing and, if appropriate, determine sanction; the prosecutorial function was performed by counsel retained by the Association. In this case, the Petitioner was not seeking to recover a judgment against itself; rather it was seeking a determination of the correctness of a ruling made by a statutorily-created panel with distinct functions and responsibilities. Therefore, the court found that the Petitioner did not lack standing on the basis that it was seeking a review of its own decision. The court found the Petitioner to be a “person aggrieved”, thus giving it standing under the Act to bring the Petition. It followed that the APEGBC also had the authority to bring such a Petition and doing so did not constitute an abuse of process.

However, the court found no rational basis for concluding that the Panel erred in appreciating the relevant issue. All that could be definitively taken from the Order granted was that the Panel concluded that the Code of Ethics was not applicable in the circumstances. That was not a sufficient basis to find the error asserted by the Petitioner on the face of the record.

The Petition was therefore dismissed.

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