The appeal by the Association of Professional Engineers and Geoscientists of British Columbia (the “Association”) from a decision allowing the application for judicial review of an engineer (“Salway”) and setting aside the Association’s finding that Salway was guilty of professional misconduct for failing to respond to a client’s correspondence in a timely way was allowed where the Court held that the proper standard of review was reasonableness and the Association’s determination was within the range of reasonable outcomes

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Functions of a self-governing body – Professional misconduct / conduct unbecoming – Penalties and suspensions – review – Standard of review – Correctness – Reasonableness simpliciter

Salway v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2010] B.C.J. No. 303, 2010 BCCA 94, British Columbia Court of Appeal, February 24, 2010, C.A. Ryan, K.J. Smith and D.M. Smith JJ.A.

Salway is a professional geoscientist and member of the Association. The Association is a self-regulating body that governs the conduct of professional engineers and geoscientists in British Columbia. Section 39(1) of the Engineers and Geoscientists Act R.S.B.C. 1996, c. 116 provides a member a right of appeal from a determination by a panel of the disciplinary committee of the Association. On January 31, 2008, a panel of the disciplinary committee of the Association (the “Panel”) found Salway guilty of unprofessional conduct for failing to respond to correspondence from his clients in a timely way. The Panel issued a reprimand and ordered him to pay the costs of the hearing. Salway appealed the determination and penalty to the British Columbia Supreme Court pursuant to Section 39(1) of the Act. The Chambers judge allowed Salway’s appeal and set aside the determination and penalty order concluding that while deference should be given to the Panel’s finding, the Panel had erred in law by finding that Salway’s conduct had risen to the level of unprofessional conduct. The Association appealed.

In determining the appropriate standard of review, the Court of Appeal noted that the Administrative Tribunals Act, S.B.C. 2004, c. 45 did not apply to the decision of the Panel as the Association had its own enabling legislation which did not specifically refer to the ATA. The standard of review was to be governed by the common law. The governing decision was Dunsmuir v. New Brunswick 2008 SCC 9 in which the Supreme Court of Canada created a system of judicial review comprised of two standards: correctness and reasonableness. Correctness is reserved for narrow questions of jurisdiction or questions of law. The standard of reasonableness inquires into the qualities that make a decision, referring both to the process of articulating the reasons and to outcomes. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. The standards of review of correctness and reasonableness apply to both judicial review and statutory appeals from decisions of administrative tribunals: Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 SCC 19. In this case, the reviewing judge had declined to follow the standard of review analysis in Dunsmuir and that failure was found to be an error of law.

The Court of Appeal held that had the reviewing judge followed the two-step Dunsmuir approach to judicial review, he would have first decided if the existing jurisprudence had determined the appropriate degree of deference to be given to the issue that was before the Panel. In this case, the issue was whether Salway’s admitted conduct of failure to communicate with his clients in a timely fashion constituted unprofessional conduct in the context of the profession of engineers and geoscientists in British Columbia. The Court found that jurisprudence dictated that courts adopt a significant degree of deference to disciplinary decisions of professional tribunals concerning the interpretation of their own professional standards. This degree of deference outlined in the jurisprudence accorded with the reasonableness standard of review.

The Court held that the second step of the standard of review analysis mandated by Dunsmuir led to the same conclusion. Although the Act did not contain a privative clause and included a statutory right of appeal, the remaining contextual factors in the analysis suggested a high degree of deference was appropriate. The purpose of the Association is to regulate the standards and practices of engineers. The disciplinary process plays a central role in enforcing the professional standards of the association. The nature of the question to be determined by the panel involved a highly fact-driven inquiry and the Panel was comprised of three professional engineers who had the expertise and experience to make the necessary findings under the Act. The Court concluded that based on the Dunsmuir standard of review analysis it was clear that the appropriate standard of review for the case was that of reasonableness. Reasonableness requires courts to give deference to a professional body’s interpretation of its own professional standards so long as it is justified, transparent and intelligible. In this case, the decision-making process was justified (there was a formal complaint), transparent (adjudicated upon in an open hearing), and intelligible (the decision was delivered through written reasons). Based upon the jurisprudence and the evidence before the Panel, the Court concluded that the determination was well within the range of reasonable outcomes. In the result, the Association’s appeal was allowed and the order of the reviewing judge was set aside. The original determination and penalty order of the Panel were reinstated.

To stay current with the new case law and emerging legal issues in this area, subscribe here.