The appellant engineer argued that his appeal of the Discipline Committee’s professional misconduct findings should be an appeal de novo, and not an appeal on the record. The Council of the Association determined the appeal would be based on the record, and the judicial review application judge upheld that decision. The Court of Appeal dismissed the appellant’s interlocutory appeal of the application judge’s ruling because it did not meet the criteria of “exceptional circumstances” to justify the Court’s interlocutory intervention in the ongoing administrative process.

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Rules and by-laws – Hearing de novo – Judicial review – Appeals

Dorn v. Assn. of Professional Engineers and Geoscientists of Manitoba, [2014] M.J. No. 63, 2014 MBCA 25, Manitoba Court of Appeal, March 3, 2014, H.C. Beard, D.M. Cameron and C.J. Mainella JJ.A.

The appellant, an engineer, was convicted of two counts of professional misconduct after a hearing before the Discipline Committee (the “Committee”) of the Association of Professional Engineers and Geoscientists (the “Association”). Pursuant to s. 53(1) of the Engineering and Geoscientific Professions Act (the “Act”), the appellant appealed the Committee’s findings of misconduct to the Council of the Association. Before getting to the merits of his appeal, the appellant sought a preliminary ruling that his Council appeal would be heard by way of a de novo appeal, as opposed to an appeal based on the record.

The Act is silent on this point; however, by-law 15.7.6.3 of the Association bylaws confirms that any professional misconduct appeal to Council pursuant to s. 53(1) of the Act is based on the record of the Committee hearing. The Council made an interlocutory ruling that the appeal would be based on the record. The application judge dismissed the appellant’s judicial review application, noting that where a statute was silent, the presumption as to the right of an appeal in an administrative law context is that of a “true appeal” on the record.

The Court of Appeal dismissed the appellant’s appeal of the application judge’s decision. The Court invited submissions from the parties as to whether this was an instance where there are “exceptional circumstances” to justify an interlocutory appeal, as the general rule is that the administrative process should be allowed to run its course except where there are exceptional circumstances such that there is no effective alternative remedy to deal with the alleged error. The Court noted that a court will not lightly intervene in an administrative process before it is complete and the threshold to do so is very high as such judicial intervention by definition delays and fragments the administrative process. The Court dismissed the appeal because it did not meet the criteria for proceeding with judicial review of the interlocutory ruling of the Council before the administrative process was complete.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review  her biography at http://www.harpergrey.com.

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