Salway v. Association of Professional Engineers and Geoscientists (B.C.), 2010 BCCA 94

• Judge: Ryan, K. Smith and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 25, 2009
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 94;(2010), 284 B.C.A.C. 136 (CA)

Salway v. APEG (2010), 284 B.C.A.C. 136 (CA);

    481 W.A.C. 136

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MR.012

Anthony A. Salway (respondent/petitioner) v. Association of Professional Engineers and Geoscientists of British Columbia (appellant/respondent)

(CA036990; 2010 BCCA 94)

Indexed As: Salway v. Association of Professional Engineers and Geoscientists (B.C.)

British Columbia Court of Appeal

Ryan, K. Smith and D. Smith, JJ.A.

February 24, 2010.

Summary:

A panel of the disciplinary committee of the Association of Professional Engineers and Geoscientists found Salway guilty of unprofessional misconduct for failing to respond to correspondence from his clients in a timely way (the Determination). The panel issued Salway a reprimand and ordered him to pay the costs of the hearing (the Penalty Order). Salway appealed the Determination and the Penalty Order pursuant to s. 39(1) of the Engineers and Geoscientists Act.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 262, allowed the appeal and set aside the Determination and Penalty Order. The Association appealed.

The British Columbia Court of Appeal allowed the appeal, set aside the order above and reinstated the Determination and the Penalty Order.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - A panel of the disciplinary committee of the Association of Professional Engineers and Geoscientists found Salway guilty of unprofessional misconduct for failing to respond to correspondence from his clients in a timely way (the Determination) - The panel issued Salway a reprimand and ordered him to pay the costs of the hearing (the Penalty Order) - Salway appealed pursuant to s. 39(1) of the Engineers and Geoscientists Act - The reviewing judge allowed the appeal - With respect to the standard of review, the reviewing judge declined to follow the standard of review analysis dictated by Dunsmuir v. New Brunswick (SCC 2008) on the basis that it involved an application for judicial review that was subject to a privative clause, while the matter before him came on as a statutory right of appeal - He concluded that he "need not find any excess of jurisdiction on the part of the Panel to intervene if I concluded that it had erred in law" - The reviewing judge found that the panel had erred in law in finding that Salway's conduct had risen to the level of unprofessional misconduct - The British Columbia Court of Appeal allowed the Association's appeal - The reviewing judge erred in law by failing to apply the standard of review analysis directed by Dunsmuir - The standards of review of correctness and reasonableness applied to both judicial review and statutory appeals from decisions of administrative tribunals - The reviewing judge should have followed the two-step process in Dunsmuir to determine the appropriate standard of review - First, the reviewing judge had to determine if existing jurisprudence had already determined the standard of review to be applied to the question at issue - If not, the reviewing judge had to engage in a "standard of review analysis"- Both steps led to the conclusion that the appropriate standard of review was reasonableness - See paragraphs 14 to 32.

Professional Occupations - Topic 3266

Engineers - Discipline - General - What constitutes professional misconduct - A panel of the disciplinary committee of the Association of Professional Engineers and Geoscientists found Salway guilty of unprofessional misconduct for failing to respond to correspondence from his clients in a timely way (the Determination) - The panel issued Salway a reprimand and ordered him to pay the costs of the hearing (the Penalty Order) - Salway appealed pursuant to s. 39(1) of the Engineers and Geoscientists Act - The reviewing judge allowed the appeal - The reviewing judge found that the panel had erred in law in finding that Salway's conduct had risen to the level of unprofessional misconduct - The British Columbia Court of Appeal allowed the Association's appeal - The appropriate standard of review was reasonableness - The decision-making process was justified (there was a formal complaint), transparent (adjudicated upon in an open hearing), and intelligible (the decision was delivered through written reasons) - Based on the jurisprudence and the evidence before the Panel, the Determination was well within the range of reasonable outcomes that could be said to be "defensible in respect to the facts and the law." - See paragraph 33.

Professional Occupations - Topic 3289

Engineers - Disciplinary proceedings - Appeals and judicial review - [See Administrative Law - Topic 6201 and Professional Occupations - Topic 3266 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 5].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 12].

Reddoch v. Medical Council (Yukon) (2001), 161 B.C.A.C. 131; 263 W.A.C. 131; 2001 YKCA 13, refd to. [para. 12].

Weyerhaeuser Co. v. Assessor of Area No. 04 - Nanaimo Cowichan (2010), 283 B.C.A.C. 82; 480 W.A.C. 82; 2010 BCCA 46, refd to. [para. 14].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 18].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 22].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 24].

Robertson v. Law Society of Saskatchewan (1983), 22 Sask.R. 57 (C.A.), refd to. [para. 26].

G. (A Solicitor), Re; Ex parte Law Society, [1912] 1 K.B. 302 (Div. Ct.), refd to. [para. 26].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 26].

Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293; 1 D.L.R.(4th) 285 (C.A.), refd to. [para. 26].

Legal Professions Act, Re; Baron v. F., [1945] 4 D.L.R. 525 (B.C. Law Society Visitors), refd to. [para. 26].

Goldberg v. Law Society of British Columbia (2009), 269 B.C.A.C. 73; 453 W.A.C. 73; 2009 BCCA 147, refd to. [para. 28].

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. 28].

Coffey v. College of Licensed Practical Nurses (Man.) (2008), 228 Man.R.(2d) 64; 427 W.A.C. 64; 2008 MBCA 33, refd to. [para. 29].

Bishop v. College of Optometrists (Alta.) (2009), 454 A.R. 197; 455 W.A.C. 197; 2009 ABCA 175, refd to. [para. 29].

Matthews v. Board of Directors of Physiotherapy (Ont.) (1987), 24 O.A.C. 319; 43 D.L.R.(4th) 478 (C.A.), refd to. [para. 29].

Counsel:

M. Kleisinger and R. Hunter, for the appellant;

T. Pearkes, for the respondent.

This appeal was heard on November 25, 2009, at Vancouver, British Columbia, by Ryan, K. Smith and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by D. Smith, J.A., on February 24, 2010.