Agnew v. Ontario Association of Architects

• Jurisdiction: Ontario
• Judge: Campbell, J.
• Date: 22 December 1987
• Citation: (1987), 26 O.A.C. 354 (DC),1987 CanLII 4030 (ON SC),64 OR (2d) 8,30 Admin LR 285,[1988] OJ No 1181 (QL),26 OAC 354
• Court: Superior Court of Justice of Ontario (Canada)

Agnew v. Architects Assoc. (1987), 26 O.A.C. 354 (DC)

MLB headnote and full text

Mark Baker Agnew (applicant) v. Ontario Association of Architects (respondent)

Indexed As: Agnew v. Ontario Association of Architects

Ontario Divisional Court

Campbell, J.

December 22, 1987.

Summary:

Agnew applied to be licensed as an architect. The Experience Requirements Committee of the Ontario Association of Architects ruled that Agnew needed more specified experience before he could be licensed. Agnew applied for judicial review to quash the Committee's decision and issued eight subpoenas to the members of the Committee. The Association applied to set aside the subpoenas.

The Ontario Divisional Court allowed the application and quashed the subpoenas.

Evidence - Topic 5607

Witnesses - Compellability - Boards and tribunals - Members of - Statutory tribunals - The Ontario Divisional Court held that members of a statutory tribunal are no more compellable about their decision-making process than are judges - Any party issuing a subpoena against a member bears the burden of establishing that the purpose of the subpoena and the actual questions to be asked under its authority, will not involve any aspect of the decision process - The court noted that statements or conduct outside the decision process, like expressing an opinion to the press, might render a tribunal member amenable to subpoena - If the evidence sought relates to some matter collateral to the decision, something not inextricably bound up with the decision itself, the decision maker may be amenable to subpoena - Tribunal members should not be asked questions for the purpose of proving how they arrived at their award or what terms are included or what meaning the tribunal intended at the time - See paragraphs 23 to 50.

Evidence - Topic 5607

Witnesses - Competency and compellability - Compellability - Boards and tribunals - Members of - Statutory tribunals - The Ontario Divisional Court quashed subpoenas issued to members of a statutory tribunal for the purpose of examining the members on an application for judicial review of their decision - The court held that the applicant should not be permitted to question the members concerning what they read and considered and how they prepared their decision, the status of a tribunal member and statements made to the tribunal, because these matters involved the decisionmaking process - The court also held that the subpoenas represented an abuse of process of the court - See paragraphs 41 to 54.

Evidence - Topic 5608

Witnesses - Competency and compellability - Compellability - Judges and justices of the peace - The Ontario Divisional Court stated that judges are not ordinarily compellable to testify about their decisions or the basis on which they reached them - The rule is not restricted to superior court judges and may extend to justices of the peace as well - Where a judge is subpoenaed to testify about something touching on his decision, the burden shifts to the party issuing the subpoena to show that the evidence sought does not seek to penetrate the mental process by which the judge came to his decision - See paragraphs 23 to 27.

Cases Noticed:

Clendenning and Board of Police Commissioners for City of Belleville, Re (1976), 33 C.C.C.(2d) 236 (Ont. H.C.), refd to. [para. 25].

R. v. Moran (1987), 21 O.A.C. 257, refd to. [para. 25].

Canada Metal Co. Ltd. et al. and Heap et al., Re (1975), 7 O.R.(2d) 185 (C.A.), not appld. [para. 32].

Ward v. Shell Mex and B.P., [1951] 2 All E.R. 904, consd. [para. 36].

Duke of Buccleuch v. Metropolitan Board of Works (1872), L.R. 5 H.L. 418, refd to. [para. 37].

Statutes Noticed:

Architects Act, S.O. 1984, c. 12, sect. 13(3)(b), sect. 13(4), sect. 13(5) [para. 6]; sect. 43(1) [para. 18]; sect. 43(2) [paras. 10, 12, 18-22].

Counsel:

P. John Brunner, for the moving party, the respondent Association;

Brian Duxbury, for the applicant, Mark Baker Agnew.

This appeal was heard before Campbell, J., of the Ontario Divisional Court, whose decision was released on December 22, 1987.