The Alberta Association of Architects (the “Association”)’s attempt to permanently enjoin Mr. Zul Boga (“Boga”) from practising architecture in future was found to be premature

27. September 2011 0

Administrative law – Decisions of administrative tribunals – Association of Architects – Architects – Disciplinary proceedings – Public interest – Competence – Training requirements – Remedies – Self-governing professions – Injunctions – Judicial review – Compliance with legislation

Alberta Assn. of Architects v. Boga, [2011] A.J. No. 869, 2011 ABQB 482, Alberta Court of Queen’s Bench, July 26, 2011, D. Lee J.

In 2010, Boga was removed from the Alberta architects’ register (the “Register”) for failure to complete continuing competency requirements pursuant to s. 27(3) of the Architects Act (the “Act”). Boga did not contest the removal decision, nor was he seeking reinstatement. The Association contended that Boga was given notice of cancellation of his registration in accordance with s.62 of the Architects Act General Regulation (the “Regulation”).

Boga was asked to return his seal, certificate of registration, and the license for his Boga Group Architects. Boga failed to comply. The Association contended that Boga continued to hold himself out as an architect, including using signage and a website claiming that he continued to be an architect.

The Association applied for a permanent injunction requiring Boga to return his seal, certificate and license, and preventing him from practising architecture or holding himself out as an architect.

On an application for an interlocutory injunction, the test is whether there is (a) a strong prima facie case, (b) a balance of convenience favouring the grant of the injunction and (c) irreparable harm that will occur in the absence of an injunction. However, if a permanent injunction is being sought, the applicant must establish its legal rights first (Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396 at paragraph 28). The balance of convenience and existence of irreparable harm may be considered, even if they are not necessarily relevant.

The Act allows the Court to grant an injunction to stop anyone from practising architecture, using the exclusive name architect, or affixing an architect’s seal except when authorized. The Act contains authority for cancellation of registration if an architect fails to fulfil their continuing competency requirements.

The Association argued that Boga had been served with notice of cancellation of his license by delivery of five pieces of correspondence between May 2010 and April 2011, variously using regular mail, registered mail, process server and pre-paid courier. There was some evidence that Boga attempted to evade service. An Association representative called Boga and personally attended at his office.

In response to the personal visit, Boga claimed that he provided a March 25, 2011 letter to the Association by delivering it to “the Palliser Hotel”. The letter was addressed to the Complaint Review Committee Chair and claimed that Boga had been ill, hospitalized, and that his mother had passed away in Nairobi. Boga claimed that he had been unable to read his mail or to respond in a timely manner as a result. The Court held that the March 25, 2011 letter was not a request for review of the Association’s decision to cancel Boga’s architecture registration. If it was delivered at all, the letter was delivered outside the review period and acknowledged the cancellation of his registration, rather than contesting it. The letter established that Boga had notice of the cancellation.

Boga made many arguments opposing the injunction. Chief among these was his contention that the termination of his registration was “tainted” because he had not been personally served with notice of the cancellation, as a result of his ill health. After a personal meeting with the Association’s representative, Boga paid the Association, by a cheque that they cashed, for his outstanding continuing education dues.

On the balance of convenience, Boga argued that he had a good reputation and a long history of “impeccable service.” Boga deposed that he had not been practising, and that he intended to commence a review or appeal of the cancellation decision. Boga argued there was no irreparable harm against the Association since he had not been practising.

The Association argued that public protection could not be maintained if Boga were allowed to keep his seal and certificate and to describe himself as an architect, where he was no longer permitted to do so.

The Court agreed that there was a risk of irreparable harm to the public and to the Association if Boga continued to hold himself out as a practising architect. The reputation of all architects and public trust in them could be undermined, and the profession’s integrity damaged if “unsuspecting members of the public approach Mr. Boga to provide architecture services to which he is not licensed.” (para. 30). The credibility of the statutory regime and the Association’s ability to self-regulate could also be jeopardized if Boga were permitted to continue to hold himself out as a licensed architect.

However, the Court declined to grant the injunction because the Association had not proved that Boga’s termination was “properly done.” Boga had legal counsel on the injunction application, for the first time. Whether or not Boga had effective personal knowledge of notices of cancellation from the Association was “debatable” given his health issues. Since his cheque for outstanding continuing competency fees was cashed by the Association, he assumed his registration remained valid.

“If the Association’s termination or service on Mr. Boga is problematic, then the injunction would aggravate the situation, disadvantage Mr. Boga, and damage his reputation causing him further expense and possible irreparable harm.” (para. 36)

Particularly in light of his recent health issues, Boga had to respond to the permanent injunction application rather than commencing his appeal or judicial review application in respect of the cancellation decision. The Court held that it was arguable that Boga might have a reasonable chance of success on a review or appeal of the termination decision, and/or that he might be reinstated once he completed his continuing education responsibilities. Boga should not be unduly punished for his health problems.

Boga had offered a commitment not to practice architecture until this matter was resolved. There was no evidence that Boga was unethical or incompetent. Thus, the Association would still meet its statutory responsibilities.

The application for a permanent injunction was premature, and was adjourned for 60 days pending the commencement of Boga’s appeal or judicial review of his termination.

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