The Appellant Engineer, and his engineering firm, appealed the decision of the Respondent regulatory body’s discipline committee, which found that the Appellants engaged in unprofessional conduct

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter – Evidence – Failure to provide reasons

Assn. of Professional Engineers of Ontario v. Caskanette, [2009] O.J. No. 3591, Ontario Superior Court of Justice, August 28, 2009, J.M. Wilson, S.N. Lederman and K.E. Swinton JJ.

The Appellant Engineer, Rene Caskanette, and the engineering firm that he belongs to (“CACE”) (collectively, the “Appellants”) were retained to provide expert assistance in a lawsuit arising out of a motor vehicle accident. The Municipality of Hamilton-Wentworth, a Defendant in a civil action brought by a motorist, retained the Appellant and he wrote a report commenting on the speed of a Camaro involved in the accident (the “Report”).

The Report outlined his opinion, based on his expertise as an engineer, as to the speed the Camaro was travelling. A fellow engineer complained to the Association of Professional Engineers of Ontario (the “APEO”) alleging that the Report was unsatisfactory in several respects.

As a preliminary matter, the Discipline Committee found that the Report related to the practice of professional engineering. The Discipline Committee then considered the allegations and found that there was no evidence that the Appellant acted negligently because his approach to the work was not inappropriate. Further, the Discipline Committee found that there was no evidence that the Report prejudiced the interests of the parties in the civil action and, as such, he was not guilty of failing to safeguard life, health or property of people who may be affected by his work.

The Discipline Committee found that the Appellant was guilty of unprofessional misconduct because there were shortcomings in the Report. The applicable provision from the Professional Engineers Act (the “Act”) defined unprofessional misconduct to include conduct that would reasonably be regarded by the engineering profession as “disgraceful, dishonourable or unprofessional.” One of the particular concerns about the Report is that it did not articulate how assumptions were substantiated by other physical evidence.

The Appellants brought the within appeal alleging that the Discipline Committee made two unreasonable findings in deciding that the Report fell within the scope of the practice of professional engineering and deciding that the shortcomings in the Report amounted to unprofessional conduct.

The Court first considered what the appropriate standard of review was in respect of the two decisions at issue. The Appellants argued that the preliminary decision of the Discipline Committee was a jurisdictional issue but the Court did not accept that submission. The Court found that both of the issues before the Court were subject to a reasonableness standard of review.

On the first issue, the Appellants argued that the scope of work at issue did not fall within the definition of “the practice of professional engineering” as defined in the Act because the work did not involve the application of engineering principles. The work involved the application of physics principles concerning the conservation of momentum. Further, the Appellants argued that the work did not concern the “safeguarding of the life, health, property or the public welfare”. The Court agreed with the Respondent in part because the Appellant applied his engineer’s seal to the Report and it was not his practice to do that for documents with no engineering content. The Report itself was also referred to as an engineering assessment.

On the second issue, the Appellants argued that the shortcomings in the report did not constitute unprofessional misconduct. The Court reviewed the reasons for the Discipline Committee’s decision on this issue. The Court found that the reasons were unclear in respect of the Discipline Committee’s crucial findings. In its reasons, the Discipline Committee failed to identify the particular areas of the Report that caused it concern and it failed to discuss the meaning of “unprofessional conduct”. The Discipline Committee did not sufficiently outline the basis for its decision and there was a lack of evidence on crucial issues that needed to be considered in order to conclude that the Appellants’ conduct amounted to unprofessional conduct. The decision was unreasonable given that reasonableness is concerned with “justification, transparency and intelligibility” and the decision did not sufficiently outline the basis for the decision. Further, given the absence of express findings about the deficiencies in the Report, the conclusion did not fall within the range of reasonable outcomes.

The appeal was allowed and the APEO’s decision was set aside.

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 smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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