A professional engineer (Visser) was successful in obtaining an Order prohibiting the Association of Professional Engineers and Geoscientists of British Columbia (the “Association”) from proceeding with a second inquiry in relation to a complaint made about Visser. The court held that permitting the Association to re-characterize the same conduct and then proceed with a second inquiry would represent an abuse of process.

27. December 2005 0

Administrative law – Engineers – Disciplinary proceedings – Professional misconduct – Decisions of administrative tribunals – Association of Professional Engineers – Estoppel and res judicata – Judicial review – Abuse of process

Visser v. Association of Professional Engineers and Geoscientists of British Columbia, [2005] B.C.J. No. 2108, British Columbia Supreme Court, October 5, 2005, Baker J.

On October 30, 2002, the Association’s Deputy Director of Professional Ethics received a letter of complaint from the Manager of Building Approvals Department for the City of Richmond expressing concern about Visser’s credibility and professionalism. The complaint related to sprinkler design drawings in relation to a new building proposed. The complaint alleged that the design drawings contained major contraventions. The complaint further noted that the deficiencies had been drawn to Visser’s attention and that he had acknowledged an error in his initial design. However, even after the drawings were revised, the complainant determined that there were other deficiencies on the revised drawings.

On December 27, 2002, the Deputy Director prepared a report for the Association’s Investigation Committee indicating that he had reason for concern and recommending that a Notice of Inquiry be issued with respect to Visser’s conduct. The Investigation Committee approved the Notice of Inquiry which alleged that Visser had breached the Code of Ethics of the Association, specifically his obligation to hold paramount the safety, health and welfare of the public.

On September 16, 2003, a Panel of the Discipline Committee was convened. Visser’s counsel sought summary dismissal of the Notice of Inquiry submitting that the charge was framed as an ethical issue rather than an issue of technical errors in a non-conforming design. Counsel for Visser argued that a charge of failing to hold the public interest paramount was essentially an allegation of intentional or reckless conduct rather than a consideration of negligence or incompetence. The Panel dismissed the Notice of Inquiry.

On October 3, 2003, the Association filed a Petition in the Supreme Court of British Columbia seeking an Order quashing the decision of the Panel. The Association asserted that the Panel had dismissed the charge as a “nullity” and that in doing so the Panel had erred in law. The Association’s application to quash the Panel’s decision was dismissed. Mr. Justice Cullen noted that the Panel had before it an Amended Notice of Hearing and Agreed Statement of Facts and that all that could be concluded from the Order granted by the Panel was that the Code of Ethics was not applicable in the prevailing circumstances.

On July 7, 2004, the Association’s Investigation Committee met again and directed that a second Notice of Inquiry be sent to Visser, containing identical particulars of non-compliance but also including an allegation that these particulars outlined unprofessional conduct on the part of Visser. Visser then applied to the court seeking an Order quashing the Notice of Inquiry and an Order prohibiting the Association from initiating any further action in respect of the matters referred to in the second Notice of Inquiry.

The court concluded that the doctrine of res judicata did apply. There was no dispute that the conduct of Visser that was sought to be examined in the new inquiry was the same conduct that was the subject of the previous inquiry. The parties were identical. All that had changed was the Association’s characterization of the “offence”. The court agreed that if the initial Notice of Inquiry had been dismissed merely as a “nullity”, the Association could proceed with the second Notice of Inquiry. However, based on the facts before it, it could not be said that the initial Notice of Inquiry had been dismissed as a “nullity”, and it was equally possible that a substantive determination had been made by the Panel. Given this finding, the court was of the view that to permit the Association to re-characterize the same conduct and proceed under a second Notice of Inquiry would constitute an abuse of process. In the result, the second Notice of Inquiry was quashed and an Order of Prohibition granted.

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