The Court allowed an Appeal of a decision of the Respondent Association which had found the Appellant guilty of unprofessional conduct on account of the Appellant’s failure to respond to client inquiries. The Court found that the Respondent had erred in law in finding that the Appellant’s actions amounted to unprofessional conduct – the authorities established that any omission to act was required to go beyond mere negligence to be considered unprofessional conduct.

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Professional misconduct – Judicial review – Standard of review – Reasonableness simpliciter – Evidence

Salway v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2009] B.C.J. No. 384, British Columbia Supreme Court, March 2, 2009, R.J. Sewell J.

The Appellant was a member of the Respondent Association and registered as a professional geoscientist. In connection with a proposed subdivision, a client requested preparation of a report in respect of a flood rating assigned by the regional district and attributed to a portion of his property. The Appellant delivered the report, following which the client requested a peer review. The Appellant telephoned the client on the same day and indicated that he would consult with a colleague regarding a peer review. Two months later, the client wrote and advised that he required the peer review to support the report. One month later, the client made further inquiries by e-mail. Two months later, the client contacted the Association and complained about the Appellant’s failure to respond to his communications. The Appellant stated that he made repeated efforts to have his official peer reviewer review the report without success. He stated that the peer reviewer subsequently resigned and he was unable to find a replacement reviewer. A discipline committee panel of the Association found the Appellant guilty of unprofessional conduct.

On Appeal, the Appellant argued that the panel had erred in (1) equating breaches of the Code of Ethics by the Appellant with unprofessional conduct on his part, (2) relying on the gravity, consequences and importance of a response without proper evidence as to what was in fact the gravity, consequences and importance of a response, and (3) finding the Appellant guilty of unprofessional conduct when the evidence demonstrated at most inadvertence or negligence on his part.

The Court first considered what standard of review should be applied to the decision of the panel. The Court noted that the Appellant had a statutory right of appeal and concluded that it should approach the decision of the panel in the same way that an appellate court would approach the decision of a court of first instance on an appeal. The panel’s findings of fact should not be disturbed unless they were made without any supporting evidence. The court should also pay particular deference to the panel’s views on questions of professional competence and standards as the Legislature had seen fit to vest a panel of professional engineers with the authority to rule on such matters. On the other hand, if the panel had made an error of law, it was the court’s duty to reverse the decision.

The Court moved to the first ground of appeal, that in arriving at its decision, the panel had erred in relying on the Code of Ethics in finding that the Appellant’s conduct amounted to unprofessional conduct. On a review of the records, the Court found that the basis for the panel’s finding against the Appellant was his failure to respond to his client’s communications in the circumstances in which the communications were made. The panel did consider the provisions of the Code of Ethics in reaching its decision, but the critical element which appeared to have caused the panel to find unprofessional conduct was the Appellant’s failure to communicate in the circumstance of the work being done in the context of the clients’ pending application for subdivision. The panel had not equated unprofessional conduct with a breach of the Code of Ethics. It merely made reference to the provisions of the Code to support its underlying conclusion that the failure to respond was unprofessional conduct.

The Court also rejected the Appellant’s submission that the panel erred in law in basing its decision on the gravity, consequences and importance of a response without a proper evidentiary foundation for that conclusion. In the Court’s view, there was evidence before the panel on which it could reasonably have reached the conclusion it did with respect to the significance of a timely response. The Court accepted the Appellant’s third principal submission that the panel erred in law in finding him guilty of unprofessional conduct when the record before it disclosed, at worst, an error of judgment or simple negligence on his part. The authorities provided that a finding of unprofessional conduct requires a finding of conduct which could reasonably be regarded as disgraceful or dishonourable. The Court concluded that in a case in which the conduct complained of is an omission to act, the omission must go beyond mere negligence if it is to be considered unprofessional conduct. The panel had found that the Appellant did not perform up to an acceptable standard of practice; it did not, however, make any finding that the Appellant’s conduct was anything other than negligent or deficient. In the circumstances, this finding was not sufficient to establish unprofessional conduct.

In the absence of a finding of something more than a failure or omission to respond on the Appellant’s part, the panel had no basis to find unprofessional conduct as opposed to negligence. In doing so, the panel equated simple negligence with unprofessional conduct and thereby erred in law. In the result, the Court allowed the Appeal and set aside the decision and penalty imposed by the panel.

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