The appeal by a geoscientist (“Salway”) from a decision dismissing his application for judicial review of a Stipulated Order under which he admitted unprofessional conduct and agreed to a disciplinary regime other than the one provided for in the Engineers and Scientists Act, R.S.B.C. 1996, c. 116 was allowed where the Court found that the Association had no jurisdiction to adopt the Stipulated Order procedure

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Governance – Functions of a self-governing body – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Judicial review – Jurisdiction of Association – Compliance with legislation

Salway v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2009] B.C.J. No. 1570, British Columbia Court of Appeal, August 6, 2009, J.E. Prowse, I.T. Donald and H. Groberman JJ.A.

In 1991, the Council of the Association of Professional Engineers and Geoscientists of British Columbia (the “Association”) adopted a new complaint procedure which amplified and supplemented the procedures set out in the Act. The complaint procedure allowed for a Stipulated Order as an alternative to the formal inquiry prescribed by the statute. There were no provisions in the Act that authorized the Stipulated Order procedure. In 2005, Salway was the subject of disciplinary proceedings before the Association. In accordance with the Association’s policy, Salway was given the opportunity to avoid a disciplinary inquiry by entering into a Stipulated Order under which he admitted unprofessional conduct and agreed to a disciplinary regime other than one provided for in the statute. Salway accepted the offer. However, as matters developed, the regime became more protracted and more expensive than Salway had anticipated. Therefore, Salway sought judicial review seeking an Order declaring the Stipulated Order unenforceable as being outside the jurisdiction of the Association. The chambers judge dismissed that judicial review application holding that while the Stipulated Order was not specifically authorized by statute, it was a valid contract that was binding on the parties. Salway appealed that decision.

The Court of Appeal held that the chambers judge erred in finding that the Stipulated Order procedure was a lawful one within the jurisdiction of the Association. The procedure directly contravened provisions of the Act and amounted to an improper delegation of the Association’s disciplinary functions. Therefore, the Association had no jurisdiction to adopt the procedure. Once the Association’s Investigation Committee recommended that the Discipline Committee conduct an inquiry, the Act required the Discipline Committee to cause an inquiry to be conducted. The complaint, at that stage, was within the exclusive jurisdiction of that Committee and the Association had no authority to compromise it, or to shunt it off to some other forum. The Association had no power to discipline its members apart from that which was given in the statute. A person did not, by virtue of becoming a member of the self governing profession, grant that profession’s governing body contractual rights to impose disciplinary sanctions. The Public law nature of the Association’s powers prevented it from entering into agreements with respect to their use, except as expressly authorized in the statute. The Court noted that, in 2007, the Act was amended to allow members who were subject to disciplinary inquiries to enter into Consent Orders or to follow a system of alternative complaint resolution. However, as the Salway disciplinary proceedings pre-dated the 2007 amendments, the new legislation was inapplicable.

In the result, the Court allowed the appeal and declared the Stipulated Order to be void and unenforceable.

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