The appeal of a decision of the discipline body of the Association of Professional Engineers of Nova Scotia was dismissed by the Supreme Court and on the subsequent appeal the Court held that the Supreme Court did not err in assessing the degree of proof required or in finding that any breaches of natural justice or procedural fairness were waived by the Appellant

28. December 2004 0

Administrative law – Engineers – Disciplinary proceedings – Professional misconduct – Penalties and suspensions – Decisions of administrative tribunals – Association of Professional Engineers – Judicial review – Procedural requirements and fairness – Bias – Natural justice

Beaini v. Assn. of Professional Engineers of Nova Scotia, [2004] N.S.J. No. 383, Nova Scotia Court of Appeal, October 13, 2004, Bateman, Cromwell and Hamilton JJ.A.

The Council of the Association of Professional Engineers of Nova Scotia (“APENS”), sitting as a discipline committee, found the Appellant engineer guilty of unprofessional conduct and suspended him from practising engineering for three months. The Appellant appealed the APENS’ decision to the Nova Scotia Supreme Court. The Supreme Court dismissed the appeal except to the extent of quashing the requirement that notice be given to the public. The Appellant appealed further to the Court of Appeal on the grounds that the Supreme Court erred (1) in failing to find that a cogent and convincing degree of proof applied, (2) in finding that the breaches of natural justice or procedural fairness had been waived by the Appellant, and (3) in affirming the costs penalty imposed on the Appellant.

With respect to the burden of proof, counsel for APENS had submitted that the civil standard applied but that the cogency of evidence to reach that standard would vary with the nature and seriousness of the allegations to be proved. The court held that there was no error in counsel’s submissions and that the Supreme Court was correct to dismiss that ground of appeal.

The Appellant’s argument concerning breaches of natural justice or procedural fairness focused on (1) the inclusion in the exhibit book of an expert report which was critical of the Appellant’s work when the author of the report did not testify and (2) the involvement of a lawyer at the hearing and during APENS’ deliberations.

The expert report had been included in the exhibit book because APENS intended to call the author as a witness and to rely on the report. Shortly before the hearing, however, it became known that the author would not be available to testify. In light of this, counsel for both the Appellant and APENS agreed the report would remain in the exhibit book but that the author’s opinion would not be relied on. The court agreed with the Supreme Court judge that no procedural unfairness occurred as a result of the report remaining in the exhibit book given the Appellant’s consent and the indication to APENS that the substance of the report was not being relied on. The Supreme Court also concluded that the report had no influence on APENS’ decision. The Court of Appeal agreed with that finding.

With respect to the lawyer’s involvement, the Appellant submitted the lawyer was involved on APENS’ behalf in attempts to settle the complaint and later advised APENS at the hearing, which raised a reasonable apprehension of bias. The Supreme Court found that there was no breach of the rules of natural justice with respect to the lawyer’s involvement and that the Appellant knew what his involvement would be and consented to it. The Court of Appeal agreed with that finding.

With respect to the appeal regarding costs, the court held that the applicable legislation allowed the Council to order the Appellant to pay the costs that it did.

The appeal was dismissed.

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