The Court dismissed the Appellant Architect’s appeal of a decision made by a discipline committee of the Respondent Ontario Association of Architects which found him guilty of two counts of professional misconduct by affixing a seal or permitting a seal to be affixed to a design not prepared under the personal supervision and direction of a member/holder of a temporary licence. Where the issue is integrity, there is no equivalent functional need for peer review or expert evidence as there would be for disputes concerning the standard of practice. The Discipline Committee did not err in law in concluding that the conduct of the member/holder was dishonourable and unprofessional without receiving peer or expert opinion on the issue. As well, there was no compelling reason to interfere with the Discipline Committee’s decision on penalty and costs.

Administrative law – Decisions of administrative tribunals – Association of Architects – Disciplinary proceedings – Supervision of trainee – Professional misconduct – Penalties and suspensions – Judicial review – Compliance with legislation – Jurisdiction – Evidence – Standard of review – Reasonableness simpliciter

Cheung v. Ontario Assn. of Architects, [2009] O.J. No. 2230, Ontario Superior Court of Justice, June 1, 2009, K.E. Swinton, W. Low and K.M. van Rensbrug JJ.

An architectural student was retained to prepare drawings and get approvals, including a building permit, to enlarge an existing restaurant in Toronto. The student prepared a set of drawings which formed the basis of a building permit application. The application was returned with 15 identified deficiencies, including lack of an architect’s stamp on the drawings (the student could not affix a stamp), and lack of at least one barrier free access and washroom due to owner’s wish to have an enclosed vestibule with French doors. The owner then retained the appellant architect who revised the student’s drawings to bring them to building permit standards. The French doors had already been deleted from the student’s drawings. The appellant added his own title blocks, affixed his seal and submitted the revised drawings for a building permit which was issued. During the construction, the appellant’s project coordinator observed that the French doors had been installed in contravention of the Building Code and not in compliance with the permit drawings. The project manager showed the photos of the French doors to the appellant and left it to the appellant and owner to deal with the issue. The appellant later wrote to the City’s Building Inspector to confirm that the work was constructed “in general conformance to the Ontario Building Code and to the approved permit drawing” and conducted a final site visit and signed and issued a site visit report with no mention of the presence of the French doors and the fact they violated the Building Code.

The architectural student complained to the respondent Ontario Association of Architects alleging that the appellant had affixed or permitted a seal to a design that was not prepared substantially under the personal supervision and direction of a member. The matter was referred to the Discipline Committee and the appellant was found guilty and found to have committed dishonourable and unprofessional conduct. The penalty imposed was 4-month suspension, reducible to 3 months if the appellant attended a cumulative total of one day of courses administered by the Association. The appellant was also ordered to pay costs of $20,000.00.

It was agreed on appeal that the standard of review was reasonableness. The Court found that the Discipline Committee had jurisdiction to deal with the matter in its entirety. The role of the Complaints Committee was to refer, not specific allegation, but rather to direct that “the matter” be referred, in whole or in part. The matter was the complaint by the student. The Court also found that the Discipline Committee correctly interpreted the s.42(19) of the Regulation, requiring the personal supervision and direction by the member or the holder of the preparation of the design in its entirety before that member/holder’s seal may be affixed. The words “supervision and direction” clearly refer to “the preparation” of the design. Preparation is an action. While an object may be reviewed and revised, the Court did not accept the Appellant’s suggestion that it can be supervised and directed. The Discipline Committee did not misinterpret s.42(19) in taking it to mean that the action of making the design had to have been supervised and directed, from inception to completion, by the member/holder.

The Court also found that the Discipline Committee did not err in law to arrive at the conclusion that the conduct of the member/holder was dishonourable and unprofessional without receiving peer or expert opinion evidence on the issue. Although there are compelling reasons for holding that where there is a dispute concerning standard of practice, opinion evidence should be received, there is no equivalent functional need for peer or expert evidence where the issue is one of integrity. The Committee had ample evidence upon which a reasonable inference could be drawn that misrepresentation to the Building Inspector about the French doors was not an oversight but made knowingly by the appellant with the complicity of the owner and contractor. The conduct could reasonably be regarded as dishonourable and therefore also unprofessional, a lesser and included type of misconduct.

Finally, the Discipline Committee was in the best position to gauge the seriousness of the misconduct and its impact on the profession and there appeared no compelling rationale for interfering with the penalty. Similarly, the Discipline Committee’s costs award is entitled to deference. The award was not excessive for a six-day hearing and the appellant had not shown any error of principle.

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