Administrative law – Engineers – Disciplinary proceedings – Professional misconduct – Penalties and suspensions – Decisions of administrative tribunals – Association of Professional Engineers – Judicial review – Evidence – Standard of review – Reasonableness simpliciter
Ellwood v. Assn. of Professional Engineers of Yukon,  Y.J. No. 49, Yukon Territory Supreme Court, June 19, 2006, Veale J.
The Appellant Engineer had been charged with unprofessional conduct for, inter alia, refusing to comply with the direction of a client to make changes to specifications and drawings for a boiler room upgrade project and, second, preparing substandard reports on ventilation concerns at three Whitehorse schools. The Association’s Discipline Committee found that the Appellant’s refusal to follow the directions of the client had breached ss. 27(1)(b) and (c) of the Engineering Profession Act in that he contravened the Code of Ethics of the profession requiring fairness to clients and devotion to high ideals of personal honour and professional integrity. With respect to the air quality reports, the Discipline Committee accepted the expert evidence of a mechanical engineer that the reports did not represent good engineering practice. The Discipline Committee imposed a penalty on the Appellant, which required him to retake the Association’s professional practice exam, enter a two-year period of supervised practice, and pay a $2,500 fine.
The Discipline Committee’s decision was appealed to the Council. The Council determined that the standard of review would be based on reasonableness. The Council also made a legal finding, based on the case of Evans v. Association of Professional Engineers and Geoscientists of B.C.,  B.C.J. No. 1599, that the standard of care for an engineer required that quantitative data be produced and a qualitative analysis completed, with a record thereof provided to the client. The Council upheld the findings of the Discipline Committee.
On appeal, the Supreme Court considered the appropriate standard of review for the Council to apply to the Discipline Committee on the correctness standard. Applying the pragmatic and functional approach, the Court held that the appropriate standard of review was reasonableness.
Applying the reasonableness standard of review to the Council’s first decision regarding the Appellant’s refusal to follow directions from the client, the Court held that it was reasonable to interpret the Appellant’s actions and words to have been an outright refusal, without justification.
On the second issue before Council, regarding the air quality reports, the Court did not agree with Council’s statement of the law requiring the Appellant to provide quantitative data and a qualitative analysis to fulfil his contract with the client. The appropriate standard of practice for engineers in these circumstances cannot be derived from case law, as Council had done. The Discipline Committee and the Council were entitled to apply their own expertise to the assessment at the evidence; however, they were not entitled to use their expertise to establish the standard of practice to be met by the Appellant.
The Court also found that the Council had unreasonably relied on the evidence of an expert. The Court held that the expert’s evidence did not provide a Yukon standard of practice that should be adopted by the Discipline Committee, but rather simply provided the format that his own firm had adopted in reporting to clients. Moreover, the Appellant had no contractual obligation to provide solutions to the client, as his retainer had been expressly limited. In the result, the Court held that the Council had not applied the reasonableness standard properly to the Discipline Committee’s decision. Had they done so, they would have dismissed the complaint about the air quality reports prepared by the Appellant.
The Court found that the penalty that had been imposed on the Appellant was directed to the air quality reports and therefore, it was appropriate to cancel the supervision condition completely. The additional costs assessed by Council were also ordered to be returned to the Appellant.
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