Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Investigations – Engineers – Disciplinary proceedings – Competence – Judicial review – Jurisdiction – Compliance with legislation – Procedural requirements and fairness
Puar v. Assn. of Professional Engineers and Geoscientists,  B.C.J. No. 2186, British Columbia Court of Appeal, November 5, 2009, P.D. Lowry, S.D. Frankel and K.E. Neilson JJ.A.
The Appellant Engineer (“Puar”) was the subject of a report made to the Respondent Association regarding a project that he worked on. Puar made recommendations to contractors involved in the construction on a residential property in the District of West Vancouver. The contractor failed to listen to some of Puar’s recommendations and a retaining wall collapsed. The District requested that the Association investigate Puar’s conduct. Mr. Thiele, the Associate Director of Regulatory Compliance, received the letter.
Mr. Thiele asked Mr. Nakai, a member of the Association’s Investigation Committee, to obtain additional information from the District and decide if an investigation was warranted. Mr. Nakai determined that an investigation was warranted and the Committee instructed Mr. Nakai to investigate the matter. Mr. Nakai asked Puar for his entire file and asked Puar several questions about his involvement in the project. Mr. Nakai submitted a report to the Investigation Committee and the Committee decided that the matter warranted a hearing. The Committee issued a Notice of Inquiry for the Discipline Committee to consider the matter.
The Notice of Inquiry alleged that Puar breached the code of ethics by failing to alert the contractor and the District of the danger posed by the contractor failing to follow his recommendations. At a hearing before the Respondent’s discipline committee (the “Committee”), Puar challenged the jurisdiction of the Committee on a broad range of grounds but the Committee rejected all of the challenges.
Puar then sought judicial review of the Committee’s jurisdictional decision and was unsuccessful. He alleged that the Association failed to follow the requirements of the legislation in receiving the letter from the District. Puar argued that the letter ought to have been viewed as a complaint and that triggered certain obligations on the part of the Association. Those obligations were not fulfilled by the Association. The Judge found, and the Court of Appeal agreed, that the investigation was statutorily authorized by the section that empowers the Association to investigate matters when the Investigative Committee determines it to be appropriate. Even if this was a complaint and strict compliance with the statute required the Association to proceed as outlined in the complaint, provisions the Judge found, and the Court of Appeal agreed, that there was no prejudice to Puar.
Puar argued that the Association lost jurisdiction because Mr. Nakai was only empowered to request records from him and was not empowered to ask him questions. The Court of Appeal held that the questions asked by Mr. Nakai were statutorily authorized and, as such, there was no jurisdictional error on that basis.
Puar argued that the Association breached the duty of procedural fairness in not giving him an opportunity to address the allegations against him before issuing the notice of inquiry. In particular, Puar argued that he was entitled to review Mr. Nakai’s report to the Investigation Committee before the Investigation Committee decided to issue and publish the notice of inquiry. Puar alleged that he was prejudiced because he should have been given an opportunity to avoid the stigma associated with the notice of inquiry being published.
The Court of Appeal held that Puar was not entitled to an opportunity to respond to the allegations during the investigative stage because the process involved an opportunity to respond. In this case, there was an adjudicative stage that had yet to take place and Puar would be given an opportunity to respond at that stage. He was not entitled to Mr. Nakai’s report before the notice of inquiry was published.
The appeal was dismissed.
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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