The Applicant, Mr. Dorn, unsuccessfully sought judicial review of a decision of the Respondent’s council. That decision said that his appeal of a discipline committee decision was on the record, and not a hearing de novo.

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Rules and by-laws – Engineers – Professional misconduct or conduct unbecoming – Disciplinary proceedings – Hearings – Hearing de novo – Judicial review – Appeals – Compliance with legislation – Standard of review – Reasonableness simpliciter

Dorn v. Assn. of Professional Engineers and Geoscientists of Manitoba, [2013] M.J. No. 259, 2013 MBQB 185, Manitoba Court of Queen’s Bench, July 19, 2013, G.L. Chartier J.

The Applicant, Mr. Dorn, is a registrant of the Respondent, Association of Professional Engineers and Geoscientists of Manitoba (the “Association”). The discipline committee of the Association found Mr. Dorn displayed conduct which constituted professional misconduct. Mr. Dorn initiated an appeal of that decision, pursuant to section 53 of The Engineering and Geoscientific Professions Act.

The council of the Association made a preliminary ruling in respect of Mr. Dorn’s appeal. The council ruled that the appeal was an appeal on the record and not an appeal de novo. In doing so, the council relied on the Association’s power to make bylaws in respect of certain matters. The Association had made a bylaw (15.7.6.3) specifying that an appeal pursuant to section 53 was an appeal on the record. Mr. Dorn brought an application for judicial review of that preliminary ruling. He alleged that the bylaw was inconsistent with section 53 of the Act and therefore ultra vires. He also alleged that section 53 of the Act required there to be a hearing de novo.

The Court reviewed the Act and held that section 53 does not explicitly provide for a hearing on the record or a hearing de novo. The Court then considered the standard of review and held that the standard was reasonableness.

The Court then decided that the council’s decision was reasonable. The Court held that the Act itself (without relying on the power to make bylaws) decided the issue. The Court held that it was significant that there was a full hearing before the discipline committee and that record would be available on appeal. The Court referred to the Pharmaceutical Act which contained virtually identical provisions and specifically indicated an appeal on the record in these circumstances.

In summary, the Court held the council’s decision was reasonable. The Court did not order costs.

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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