Ho v. Alberta Association of Architects, (2015) 599 A.R. 122

• Judge: Watson, Veldhuis and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 06, 2015
• Citations: (2015), 599 A.R. 122;2015 ABCA 68

Ho v. Architects Assoc. (2015), 599 A.R. 122; 643 W.A.C. 122 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.054

John H. Ho (appellant) v. The Alberta Association of Architects (respondent)

(1403-0030-AC; 2015 ABCA 68)

Indexed As: Ho v. Alberta Association of Architects

Alberta Court of Appeal

Watson, Veldhuis and Brown, JJ.A.

February 18, 2015.

Summary:

The Complaint Review Committee of the Alberta Association of Architects (the Association) found Ho guilty of engaging in the practice of architecture from March 2004 to May 2011 without being registered with the Association, and failing to take responsibility for, and respond to, issues arising from a failure of the initial contract arrangement with his client. The Council of the Association dismissed Ho's appeal. The Council imposed a penalty of $20,000 plus costs of $19,111.53 and ordered Ho to take a course on Practice Management of Communications. Ho appealed the findings of misconduct and the imposition of costs.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of hearing - Opportunity to present evidence - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of two counts of professional misconduct (counts 1 and 3) - Ho appealed and sought to call 13 witnesses that he had not called before the Committee - The witnesses had been named in the Association's disclosure to Ho prior to the Committee's hearing - Two of the witnesses were Committee members - The Association's Council refused to allow the 13 witnesses to be called, noting that Ho had clarified that none of the proposed witnesses had evidence relevant to his conduct or "Allegations One and Three" but, rather, he wanted to call them as he had "nagging suspicions" about the proceedings before the Committee - The Council dismissed the appeal - Ho appealed, asserting that the Council had denied him fairness by not permitting him to call the witnesses - The Alberta Court of Appeal dismissed the appeal - It was not apparent what evidential significance the witnesses would have had - While ss. 45, 55 and 57 of the Architects Act of Alberta allowed for evidence to be called before the Council, s. 57(3)(b) gave the Council discretion on whether or not to allow the evidence to be called - Ho did not point to any provision of the Act that made the calling of further witnesses a right, or to a provision that made it mandatory for the Council to permit that or to procure or accept evidence on demand - Any decision of the Council on whether to permit such was reviewable for reasonableness, unless there was a basis to conclude that there was a denial of basic fairness - There had been no denial of fairness - See paragraphs 75 to 77.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of engaging in the practice of architecture from March 2004 to May 2011 without being registered with the Association (count 1), and failing to take responsibility for, and respond to, issues arising from a failure of the initial contract arrangement with his client (count 3) - The Association's Council affirmed the decision - Ho appealed, asserting that with respect to count 1 he was immune from the professional discipline and sanction for any activity prior to his registration with the Association on June 20, 2011 - The Alberta Court of Appeal rejected the assertion - The conduct eligible for consideration by the Association included conduct outside of doing specific, professional acts - The Architects Act of Alberta defined professional misconduct in a manner that gave the Association "... a capacious margin of appreciation necessary to effectively regulate the members and to protect the public interest and that of the clients of the profession ... That margin of appreciation necessarily includes enforcement of the broad array of professional qualification and practice requirements and by-laws such as set out in ss 9 and 10 of the Act." - Section 30 gave the Committee and the Association a wide jurisdiction to determine what conduct constituted unskilled practice and unprofessional conduct - The Committee did not expressly address whether Ho's conduct touched upon his qualifications, capacity, eligibility or character as a member of the Association at the time of the complaint or the hearing - However, incompleteness of reasons, if any, did not constitute a basis for quashing the decision - It was reasonable to infer that the Committee and the Association addressed the count's substance - Moreover, count 1 was intertwined with count 3 - The two counts could be read together - Ho's conduct carried forward from the period before his registration into the period when he was registered - The wording of counts did not have to meet the standards of the "most meticulous Chancery pleader" - An association might err in specifying as a separate count some conduct which might not be supportable as a separate count, but was nonetheless supportable for its adjectival character as to a count which was properly within the association's jurisdiction - Moreover, it might be difficult to see a substantial wrong or miscarriage of justice in the end result, particularly where, as here, a global penalty was imposed - See paragraphs 24 to 37.

Administrative Law - Topic 550

Hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of - [See Administrative Law - Topic 549 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Alberta Court of Appeal stated that when reviewing an issue that concerned bias or a reasonable apprehension of bias "... the judicial line of inquiry accords with established law on the topic of bias or its apprehension, and no deference is involved. As with fairness generally, this sort of argument may involve a ruling by the tribunal or a member of the tribunal on the subject of recusal or disqualification. Such a ruling is reviewed for correctness, but it also may involve some form of deference on issues of fact or procedure which are contextual to the central question. ... Where an allegation of bias or reasonable apprehension of bias is made after the tribunal has acted, and without a motion or objection having been made to the tribunal, the Court's line of inquiry will consider whether the lack of timely motion or objection shows frailty of the complaint or shows a strategic positioning which discounts the impact of the allegation. ... As for the substance of such an allegation, the Court's line of inquiry considers whether the claim is made out according to the relevant legal standards for proving such a claim. For judges there is a presumption against bias and proof of reasonable apprehension of bias is not a low test ... For tribunals, the test is not casual either. The perspective is of a reasonable person, informed of the facts and having thought the matter through, and not that of an anxious litigant. Moreover, for tribunals, the analysis considers the role and nature of the tribunal in assessing what would be properly characterized in that context as a basis for a reasonable apprehension of bias." - See paragraphs 20 to 23.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of two counts of professional misconduct - The Association's Council affirmed the decision - Ho appealed, asserting that the involvement of Wong, mentioned by a witness (Drew) during the hearing before the Committee as being part of the volunteer building committee for Ho's client (the complainant), disqualified Pierzchajlo as a member of the Committee - Pierzchajlo had announced during Drew's testimony at the hearing that Wong was an employee of his and he had not known that Wong was connected with the complainant - The Association's counsel explained that Wong had no involvement in the issues before the Committee and was providing only background context - Ho did not move for Pierzchajlo's disqualification but subsequently claimed that the Committee had become or was biased - The assertion was rejected by both the Committee and the Council - The Alberta Court of Appeal dismissed an appeal - See paragraphs 61 to 64.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of two counts of professional misconduct - The Association's Council affirmed the decision - Ho appealed, objecting to the Committee and the Council having their own counsel (Khullar and Kozak) during the proceedings below - Ho also asserted that Kozak was in a conflict in his role as legal advisor to the Council as he was paid by the Association - He also asserted that "judges do not use lawyers" - The Alberta Court of Appeal dismissed the appeal - That a lawyer participated on the Council was irrelevant - The fact that Kozak was paid by the Association was a global attack on the Association's institutional structure - Absent specific statutory rules, administrative tribunals controlled their own procedures subject to the rules of fairness and natural justice - There was no indication that fairness was abridged by the mere fact the Committee and the Council had counsel to advise them - Ho's assertion that the lawyers were ganging up on him was too subjective to constitute a principle - The Association's process had a legal component and character and the assistance of counsel was desirable, not faulty - The court rejected the assertion that since counsel was paid by the Attorney General there was a form of institutional or process bias unfavourable to Ho - There was no reasonable apprehension of bias - There was no foundation for the court to impugn the Association's system or for concluding that it necessarily undermined either fairness or propriety - See paragraphs 65 to 74.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations (incl. bias) - Bias - Institutional or systemic bias - [See third Administrative Law - Topic 2088 ].

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - [See Administrative Law - Topic 549 ].

Administrative Law - Topic 2415

Natural justice - Procedure - Judicial review - Decisions of domestic tribunals - [See first Administrative Law - Topic 2088 ].

Administrative Law - Topic 2415

Natural justice - Procedure - Judicial review - Decisions of domestic tribunals - The Alberta Court of Appeal stated that "Where there is a discrete issue of procedural fairness identified which involves a ruling of the tribunal, the standard of review is correctness and the reviewing court evaluates the fairness independently without any deference to the tribunal. Similarly, where there is a discrete issue of procedural fairness identified but there was no ruling involved, the Court will independently determine the level of procedural fairness that was required under the circumstances -- deploying the factors in Baker v Canada (Minister of Citizenship and Immigration) [(1999) (SCC)] ... -- as well as any topic specific law relevant to fairness by such tribunals. No deference is given to the tribunal on the scope of fairness, but the proper handling of the Court's line of inquiry may involve deference to the tribunal on the interpretation of its rules of evidence and procedure or on issues of fact." - See paragraph 19.

Administrative Law - Topic 2490

Natural justice - Procedure - At hearing - Calling witnesses - [See Administrative Law - Topic 549 ].

Administrative Law - Topic 2498

Natural justice - Procedure - At hearing - Participation by tribunal's counsel - [See third Administrative Law - Topic 2088 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of two counts of professional misconduct - The Association's Council affirmed the decision - Ho appealed, asserting that the discipline process was too slow and that it violated the 30 day limit under s. 32 of the Architects Act of Alberta - The argument was not made before the Committee - The Alberta Court of Appeal stated that if the issue had been raised in a proper manner, the Association would have been entitled to lead evidence before the Committee as to the Act's extension of time process - Ho's objection was untimely and had no facially decisive merit - See paragraph 56 and 59.

Professional Occupations - Topic 3523

Architects - Disciplinary proceedings - Jurisdiction - [See Administrative Law - Topic 549 ].

Professional Occupations - Topic 3523

Architects - Disciplinary proceedings - Jurisdiction - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of engaging in the practice of architecture from March 2004 to May 2011 without being registered with the Association (count 1), and failing to take responsibility for, and respond to, issues arising from a failure of the initial contract arrangement with his client (count 3) - The Association's Council affirmed the decision - Ho appealed, asserting that he became immune to the prosecution and sanction process with his de-registration from the Association prior to the Committee's hearing - The Alberta Court of Appeal rejected the assertion - At the time of the complaint, and at the time of the various stages that led up to the Committee's hearing, Ho was a registered member and was subject to the Association's discipline process - Section 31(2) provided that a complaint could be dealt with within one year following the cancellation of a member's registration - See paragraphs 38 to 41.

Professional Occupations - Topic 3523

Architects - Disciplinary proceedings - Jurisdiction - The Complaint Review Committee (the Committee) of the Alberta Association of Architects (the Association) found Ho guilty of two counts of professional misconduct - The Association's Council affirmed the decision - Ho appealed, asserting that the then Chair of the Committee (but not a member of the specific Committee or the Council panel in this instance) unlawfully or unfairly reviewed the original complaint and produced three counts which were dealt with by the Committee - Ho asserted that the Association was required to deal with the original complaint as worded - The Alberta Court of Appeal rejected the assertion - Section 32 of the Architects Act of Alberta directed that the Chair was to "review the conduct" in light of the complaint and, if required, conduct an investigation - Sections 33 and 34 set out what the Chair could do on the conclusion of the review - The clear implications of these provisions was that it was part of the Chair's initial gate keeping function to review not just the complaint made but the "conduct" involved - The Chair was entitled to decide what, out of the conduct revealed by the review, should be set out as a count of unprofessional conduct under s. 30 - See paragraphs 50 to 55.

Professional Occupations - Topic 3550

Architects - offences - Unauthorized practice of architecture - [See Administrative Law - Topic 549 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 17].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 17].

Danyluik et al. v. Institute of Chartered Accountants (Alta.) (2014), 569 A.R. 337; 606 W.A.C. 337; 2014 ABCA 78, refd to. [para. 17].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 17].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 19].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2014), 351 B.C.A.C. 216; 599 W.A.C. 216; 2014 YKCA 4, refd to. [para. 22].

R. v. Schmaltz (J.M.) (2015), 599 A.R. 76; 643 W.A.C. 76; 2015 ABCA 4, refd to. [para. 22].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 23].

Institute of Chartered Accountants (Alta.) v. Erdmann (2013), 544 A.R. 321; 567 W.A.C. 321; 2013 ABCA 147, leave to appeal denied (2013), 466 N.R. 393; 588 A.R. 400; 626 W.A.C. 400 (S.C.C.), refd to. [para. 28].

Sussman v. College of Psychologists (2010), 490 A.R. 304; 497 W.A.C. 304; 2010 ABCA 300, refd to. [para. 28].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 28].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 28].

Lienaux v. Nova Scotia Barristers' Society (2009), 274 N.S.R.(2d) 235; 874 A.P.R. 235; 303 D.L.R.(4th) 577; 2009 NSCA 11, refd to. [para. 28].

Matheson v. College of Physicians and Surgeons (P.E.I.) (2010), 295 Nfld. & P.E.I.R. 56; 911 A.P.R. 56; 2010 PECA 5, refd to. [para. 28].

Psychologist Y v. Board of Examiners in Psychology (N.S.) (2005), 236 N.S.R.(2d) 273; 749 A.P.R. 273; 2005 NSCA 116, refd to. [para. 30].

Stolen v. College of Teachers (B.C.), [1994] B.C.T.C. Uned. D57; 2 B.C.L.R.(3d) 44 (S.C.), refd to. [para. 30].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 32].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 33].

Hesje v. Law Society of Saskatchewan (2015), 451 Sask.R. 205; 628 W.A.C. 205; 2015 SKCA 2, refd to. [para. 37].

Abouabdallah v. College of Dental Surgeons (Sask.) (2011), 385 Sask.R. 15; 536 W.A.C. 15; 341 D.L.R.(4th) 284; 2011 SKCA 99, leave to appeal denied (2012), 435 N.R. 385; 399 Sask.R. 318; 552 W.A.C. 318 (S.C.C.), refd to. [para. 40].

Binet v. Pharmascience et al., [2006] 2 S.C.R. 513; 353 N.R. 343; 2006 SCC 48, refd to. [para. 46].

Sazant v. College of Physicians and Surgeons (Ont.) (2012), 297 O.A.C. 338; 42 Admin. L.R.(5th) 262; 2012 ONCA 727, refd to. [para. 48].

Nowoselsky v. Alberta College of Social Workers Appeal Panel (2011), 505 A.R. 93; 522 W.A.C. 93; 2011 ABCA 58, refd to. [para. 56].

Lethbridge (City) et al. v. Daisley et al. (2000), 250 A.R. 365; 213 W.A.C. 365; 2000 ABCA 79, refd to. [para. 58].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 69].

Moll v. College of Alberta Psychologists (2011), 510 A.R. 48; 527 W.A.C. 48; 2011 ABCA 110, refd to. [para. 71].

Omineca Enterprises Ltd. v. British Columbia (Minister of Forests) et al. (1993), 37 B.C.A.C. 123; 60 W.A.C. 123; 18 Admin. L.R.(2d) 210 (C.A.), refd to. [para. 72].

Edmonton Police Service v. Furlong et al. (2013), 544 A.R. 191; 567 W.A.C. 191; 2013 ABCA 121, refd to. [para. 82].

Camrose Police Service v. MacDonald et al. (2013), 566 A.R. 141; 597 W.A.C. 141; 2013 ABCA 422, refd to. [para. 82].

Statutes Noticed:

Architects Act of Alberta, R.S.A. 2000, c. A-44, sect. 30(1), sect. 30(2) [para. 27]; sect. 33, sect. 34 [para. 51].

Authors and Works Noticed:

Casey, James T., The Regulation of the Professions in Canada (Looseleaf), pp. 8-36 to 8-43 [para. 71].

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 32].

Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 32].

Counsel:

F.S. Kozak, Q.C., and D.J. Jardine, for the respondent;

John H. Ho, the appellant, in person.

This appeal was heard on February 6, 2015, by Watson, Veldhuis and Brown, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on February 18, 2015.