The appeal by an engineer (“Kaminski”) from a finding of unprofessional conduct against him by a discipline committee panel (the “Panel”) of the Association of Professional Engineers and Geoscientists of British Columbia (the “Association”) was dismissed where the court found that the decision had been reasonable and there had been no breaches of the principles of natural justice in the conduct of the matter

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Professional misconduct – Competence – Judicial review – Jurisdiction – Natural justice – Compliance with legislation – Standard of review – Reasonableness simpliciter

Kaminski v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2010] B.C.J. No. 623, 2010 BCSC 468, British Columbia Supreme Court, April 7, 2010, J.C. Grauer J.

On August 10, 2006, Kaminski was engaged by another engineer to perform a structural concept review of temporary structures for use in a one-day special event (Red Bull Flugtag) in False Creek, Vancouver. The structures included an approach ramp, a flight deck, judges’ tower, speakers’ tower and bleachers. The engineer of record had previously had two applications for building permits for the temporary structures rejected by the City and elected to engage Kaminski to assist in obtaining approval. Kaminski interviewed the engineer of record, reviewed the revised drawings, the geotechnical report concerning the structures and other supporting documentation with respect to the structural elements as part of his structural concept review. The engineer of record submitted Kaminski’s structural concept review to the City but the City once again declined to grant a building permit concluding that its concerns with the structural design had not been fully addressed.

On August 21, 2006, the Association’s Associate Director of Regulatory Compliance wrote to Kaminski indicating that the Association had received a complaint concerning the professional conduct of the engineer of record from an engineer at the City of Vancouver. The City’s engineer also advised the Association of the City’s concerns regarding Kaminski’s professional conduct as the concept reviewer of the design in question.

Over the following year, there were a number of exchanges of correspondence between the Association and Kaminski. On July 26, 2007 the Association served Kaminski with a Notice of Inquiry which included an allegation that Kaminski had demonstrated unprofessional conduct in his August 10, 2006 concept review. Kaminski then wrote to the Association requesting particulars of the alleged unprofessional conduct which were provided by the Association’s correspondence dated June 3, 2008.

A hearing was conducted by the Panel on June 20, 2008 and after reviewing the evidence, the Panel concluded that the charge that Kaminski had demonstrated unprofessional conduct had been proven to the requisite standard. Penalty and costs were assessed on August 29, 2008 and the Panel subsequently rejected Kaminski’s application to reopen the matter. Kaminski then appealed from the finding of unprofessional conduct pursuant to section 39 of the Engineers and Geoscientists Act RSBC 1996, c.116 (the “Act”).

Kaminski submitted that there had been a breach of the principles of natural justice by the Association. Kaminski argued that in the absence of any formal written complaint against him from a member independent of the Association, the Association had no jurisdiction to initiate a complaint on its own or to investigate and prosecute its own complaint.

The court disagreed noting that section 30(3) of the Act could investigate a member “whenever it considers it appropriate”. There is nothing in the statutory provision that required there to be a written complaint or a complaint from someone outside the Association.  The court further found that, in fact, a complaint concerning Kaminski had been received from the City’s engineer and that the statutory procedures were appropriately followed.

The court also disagreed with Kaminski’s assertion that the Association had failed to provide sufficient particulars. The court noted that the Association’s experts clarified that the deficiencies in the design should have been readily apparent had Kaminski followed the appropriate guidelines which he purported to have done. The court concluded that there was no want of justification, transparency and intelligibility in the process that was followed by the Association.

Based on the ruling in Salway v. Association of Professional Engineers and Geoscientists of British Columbia, 2010 BCCA 94, the court confirmed that the degree of deference to be granted to a disciplinary decision of the professional tribunal concerning whether or not a member had demonstrated unprofessional conduct, a category of question that was within the interpretation of the Tribunal’s professional standards, was one of reasonableness. In the case at bar, the panel heard the evidence of all of the experts and made findings within the scope of their professional expertise. The Panel’s conclusion was certainly within the range of possible, acceptable outcomes and, consequently, should not be disturbed. In the result, Kaminski’s appeal was dismissed.

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