This catalogue provides a collection and summary of case law decided across Canada that are of interest to regulators and the engineering profession. This catalogue will be supplemented as relevant cases are decided at the various court levels in Canada.
Case law catalogue
In dismissing Mr. Green’s appeal, the Supreme Court of Canada affirmed that professional regulators can rely on a general authority to make rules to fulfill their stated purposes. Had the Supreme Court decided otherwise, agreeing that the Law Society didn’t have the authority to impose mandatory CPD without express statutory wording, the effect would have been to invalidate the requirements virtually everywhere in Canada, unless and until legislative amendments were made. Instead, the Court’s decision suggests that mandatory CPD is here to stay and administrative sanctions, including an automatic suspension, can remain effective tools for enforcement of these requirements.
In this case, the regulator decried its own independent panel’s “demonstrably unfit” punishment of the Respondent and sought intervention from the Court. Among the purposes of imposing penalties in discipline proceedings for a self-regulated profession are to protect the public and maintain public confidence in the integrity of the profession. In cases where unduly lenient penalties have been imposed, and where there is a potential that the public is (or may be) at risk, the regulator may need to seek recourse through the courts. Further, this decision shows that, while consistency with prior cases is relevant and desirable, disciplinary penalties need to progress alongside evolving social standards and tolerances. Penalties that follow prior penalties now shown to be unfit in light of clear social change will be found to be unfit.
Ontario Public Service Employees Union v Ontario (Training, Colleges and Universities), 2016 ONSC 6348
With respect to an employee's invasion of privacy, in this case the court found the employer not vicariously liable for an employee committing the "tort of intrusion upon seclusion" upon a co-worker.
The possibility of having an even number of tribunal members is an issue in various jurisdictions. In this case, tie votes render tribunal decisions void if statute requires they “shall be by a majority.”
This decision stands out as one of the more comprehensive appellate court considerations of the Charter values framework.
The Divisional Court’s decision clarifies an important point about a tribunal’s obligations. Tribunals should be aware of any obligations imposed upon them by their home statutes. In this case, the Professional Engineers Act did not require the Committee to order a transcript of the proceedings.
This decision addresses important questions about standards of civility for lawyers and the relative responsibilities of courts and law societies in regulating in-court misconduct.
This case will be of interest to regulators and practitioners alike because it provides helpful guidance on the factors relevant to a determination of costs. This case serves as a powerful reminder that professional discipline proceedings may be accompanied by significant cost liability and that one faces an uphill battle when challenging such a decision on appeal.
The Court found that regulators deserve significant deference in exercising its public interest discretion in this area. The Court also found that mobility trade agreements were not directly enforceable against regulatory bodies and it was up to the government to change any laws necessary to implement such agreements.
This case suggests regulators have continuing jurisdiction over their members, including the authority to impose the entire range of penalties (even revocation) on a no longer existent certificate of registration. Regulated professionals cannot avoid the disciplinary consequences of professional misconduct by unilaterally resigning.
The Court agreed that Murtaza had not qualified for a licence due to his lack of Canadian experience. Furthermore, the Court accepted and confirmed PEO’s requirement of Canadian experience as a necessary requirement to obtain licensure in the province.
This decision suggests that regulators cannot refuse to consider these direct approval requests. The Court did not appear to consider that any degree of deference should be given to the regulators' choice of approval processes, and the decision may be open to challenge on that basis. Regulators will have to review information provided by an applicant school and decide whether the information is sufficient to warrant approval. If the information is insufficient, the regulator should provide reasons explaining why the information is insufficient and why approval cannot be granted.
First, it recognizes the latitude regulators ought to be given when enacting bylaws. Second, it clarifies the nature of the evidence that regulators will need to provide when their bylaws are challenged on judicial review. On the whole, the decision comes as a welcome confirmation of the deference that courts will show to regulators when they enact by-laws in the bona fide exercise of their authority
The Court affirmed that professional regulators have the right to require foreign-trained applicants to fulfil registration requirements, including standardized tests, to ensure they are competent to practise the regulated profession safely. Furthermore, the Court found that it is not prima facie discriminatory to require foreign-trained applicants to obtain one year of Canadian professional engineering experience, even if they have difficulty finding a position in Canada.
Regulators should ensure that the step of referring complaints to discipline is not treated as a rubber stamping exercise – otherwise, there may be cost consequences.
An appeal from an administrative tribunal usually results in the matter being referred back to the tribunal for a new hearing. However, in this case the court found no reason to send the matter back, as the only reasonable conclusion is that Vernon is "disentitled to registration" due to the false information provided on his application and that, due to his past conduct, there was no reasonable grounds for the belief that he would conduct business in accordance with the law and with honesty and integrity.
The Court provided guidance concerning how regulators should implement incapacity-related regimes. Incapacity-related issues will vary from one case to another. The decision shows that regulators have some flexibility in how they implement their respective incapacity regimes. Going forward, regulators will have to engage in a case-by-case analysis in order to determine what level of procedural fairness is required before engaging their incapacity regimes.
Regulators’ primary duty remains to serve and protect the public interest. Serving and protecting the public interest includes being transparent, objective, impartial and fair, but also includes ensuring registration applicants are qualified to become members of the profession. As regulators are responsible for the regulation of their members and protection of the public as a whole, there is no “proximity” between a regulator and its members, registration applicants, or members of the public sufficient to create a private law duty of care.
The Court upheld ICRC’s interim suspension order pending an investigation - deemed it reasonable and sufficiently explained. The court considered when it was reasonable to allow an interim suspension pending an investigation.
Regulators can take comfort that where their investigators are acting in their capacity as investigators and within the scope of their duties, they will not be vulnerable to civil claims for defamation. The case reaffirms that: 1. Investigators acting within the scope of their authority are protected from defamation actions; 2. The common law principle of absolute privilege as it extends to regulatory investigations will not be superseded by statutory requirements where the statute does not “clearly and unambiguously” require this.
The Tribunal ordered the BCVMA to pay between $2,000 and $35,000 to each of the veterinarians for “injury to dignity, feelings and self-respect”, which totalled $219,500. In addition, the BCVMA was ordered to pay approximately $45,000 for lost wages and expenses. The Tribunal also ordered non-monetary remedies: the BCVMA was required to cease the discrimination and to refrain from committing the same or a similar contravention, and to take specified steps to address the effects of its discriminatory practices. This case is an example of what punishment a regulator may face as a result of questionable conduct in a human rights context.
The case suggests that the obligation to disclose the particulars of professional misconduct allegations in the Notice of Hearing may be quite onerous. The Court ruled that PEO's Discipline Committee in this case could not rule on conduct that was not referred to in the Statement of Allegations by virtue of the fact that it fell within the broader subject matter of the referral. Rather, PEO was required to provide reasonable notice of the conduct of the member and its relation to the allegations of professional misconduct in a highly particularized manner.
For more information
For more information contact Evelyn Spence, Legal Counsel at Evelyn.Spence@engineerscanada.ca