Alberta Court of Appeal upholds a decision from the Council of the Alberta Association of Architects (“Association”) that held: (i) an architect engaged in architectural practice without Association registration is not immune from regulatory discipline and (ii) an architect that de-registers with the Association after a complaint has been filed but prior to a disciplinary proceeding is not immune from prosecution and sanction

Administrative law – Decisions of administrative tribunals – Association of Architects – Architects – Governance – Disciplinary proceedings – Professional misconduct – De-registration – Unauthorized practice – Public interest – Judicial review – Compliance with legislation  – Procedural requirements and fairness – Bias

Ho v. Alberta Assn. of Architects, [2015] A.J. No. 186, 2015 ABCA 68, Alberta Court of Appeal, February 18, 2015, J. Watson, B.L. Veldhuis and R.S. Brown JJ.A.

The appellant registered with the Association in June 2011. In January 2012, a complaint about the appellant’s conduct was lodged and the complaint went through the Association’s complaint process. A hearing was held into the appellant’s conduct with respect to the following three complaint allegations, the appellant: (i) engaged in the practice of architecture in Alberta from March 2004 to May 2011 without being registered with the Association, (ii) entered into a contractual arrangement with a client that was inherently flawed and (iii) failed to take responsibility for and respond to issues arising from a failure of the initial contract arrangement including the rejection of scenarios that would respect the professional obligations for adequate professional involvement. The Complaint Review Committee found the appellant guilty of unprofessional conduct on the first and third counts. The second count was dismissed. Sanctions and costs were imposed. Prior to the disciplinary proceeding, the appellant applied for de-registration from the Association in December 2012.

Regarding the first count, the Association found the appellant engaged in the practice of architecture in Alberta, within the meaning of s. 1(1) of the Architects Act of Alberta, RSA 2000 cA-44 (the “Act”), from March 2004 to May 2011 without being registered with the Association. The appellant argued he was immune from professional discipline and sanction for any activity prior to his registration with the Association and, in any event, from all activity because of his de-registration. The Alberta Court of Appeal found these arguments incorrect; the appellant’s pre-registration conduct could be considered by the Association as s. 30 of the Act provided a wide jurisdiction which had objectives in the public interest. Although the Association did not expressly speak in relation to whether the conduct touched on the qualifications, capacity, eligibility or character of the appellant within the meaning of s. 30, the Court found it reasonable to infer that the Association addressed the substance of this. Moreover, the Court noted that the allegations in the first and third counts were intertwined.

Regarding the third count, the appellant argued that he became immune from the discipline imposed by the Association with his de-registration. The Appeal Court also found this incorrect noting that “if correct, it would seriously injure the ability of the Association to regulate the professions under its surveillance.” The Court also referred to s. 31(2) of the Act which provides: “A complaint respecting the conduct of an authorized entity whose registration was cancelled pursuant to this Act may, notwithstanding the cancellation, be dealt with…”

The appellant also attacked the validity of the complaint review process and the disciplinary proceedings on the grounds of procedural fairness and bias. The Appeal Court rejected these arguments and dismissed the appeal.

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