Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Disciplinary proceedings – Investigations – Judicial review application – Parties – Standing in judicial review – Procedural requirements and fairness
Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia,  B.C.J. No. 1663, British Columbia Supreme Court, September 2, 2008, S. F. Kelleher J.
The Petitioner, a member of the Association of Professional Engineers and Geoscientists of British Columbia (the “Respondent Association”), made a complaint to the Respondent Association regarding Mr. S, a fellow member of the Respondent Association. Mr. S is a member of the Discipline Committee of the Respondent Association.
The complaint related to construction of the Blarney Stone Pub building in downtown Vancouver (the “Building”). The Building suffered damage in 1996 when excavation took place immediately adjacent to the Building. The City of Vancouver consulted Mr. S about the damage done to the Building and he advised the City that the Building should not be occupied. Mr. S. applied for a permit to replace the collapsed foundation of the Building and install a temporary plywood sheathed wall. The City of Vancouver granted him the permit and he performed the work in June 1996. At some point in the next three years, another unknown person attached a masonry wall to the temporary sheathed wall. The Petitioner purchased the Building after 1999 and complained to the Respondent Association alleging that Mr. S took responsibility for the temporary wall and then failed to complete it.
Mr. Miller, who was not a member of the staff at the Respondent Association, reviewed the complaint and referred the matter to the Investigation Committee because Mr. S did not provide a prompt response to him. Mr. S responded to the complaint and the Petitioner responded to the response. The Investigation Committee then appointed a sub-committee to look into the complaint. The sub-committee concluded that the complaint was without merit and the Investigation Committee, therefore, did not proceed any further with the complaint. The Petitioner brought a petition for judicial review of the Investigation Committee’s decision and the Respondent Association alleged that the Petitioner, being a complainant, did not have standing to bring the Petition.
The Petitioner had to show he had an interest in the proceeding. The Court first noted that, generally speaking, in cases of discipline by a committee the complainant does not have an interest in the proceedings unless the statute confers such an interest. For example, in one case, the legislation granted a right of appeal to a “person aggrieved”.
The Court considered the decision in Pound v. Lunney, 2007 BCSC 85, 281 D.L.R. (4th) 470, where Mr. Justice Halfyard drew the distinction between situations where the disciplinary body fails to follow the proper procedure and situations where the disciplinary body follows the proper procedure but comes to a conclusion that the complainant does not agree with. In the present case, the legislation did not grant any right of appeal to a “person aggrieved” to appeal the decision of the Investigation Committee and, therefore, the Petitioner did not have standing to bring an application for judicial review.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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