Concrete Concerns

There is no general duty of procedural fairness or duty to consult when proposing legislative amendments or making policies: Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (CanLII), However, there are exceptions. One exception can be found in Leavitt v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 983 (CanLII), In that case, the regulator for professional engineers issued a practice bulletin requiring professional engineers to supervise construction concrete testing laboratories.

However, the issue of whether professional technologists (who are not professional engineers) could supervise such a laboratory had been the subject of dispute for some years. There had been previous litigation on the topic and various standard setting organizations had been lobbied to revise their standards on the point (which they had). The legislation applicable to regulating professional engineers established joint bodies to determine scope of practice issues. That legislation provided for an appeal process where the equally constituted joint body could not reach a decision.

The Court concluded that the regulator had the legal authority to issue the practice bulletin clarifying its expectations for the supervision of the laboratories. This was so even though there was no explicit legislative provision enabling the regulator to address this topic through non-legislative policy. Part of the regulator’s mandate is to provide guidance to the profession as to scope of practice issues. The Court also concluded that despite the secretive way in which the practice bulletin was developed, there was no improper motive by the regulator in developing the practice bulletin.

However, the Court found that the regulator improperly circumvented the statutory joint body consultation process: “By knowingly acting on inadequate information and declining to acquire relevant information, APEGA’s decision to issue the Practice Bulletin was unreasonable.” The Court also found that in the unique circumstances of this case, the regulator did not comply with the principles of procedural fairness including “breaching the doctrine of legitimate expectations”. The Court declared that the practice direction was not validly made and returned the issue to the joint body for determination in accordance with the legislative scheme.

This case illustrates the necessity of following the legislatively designed process for policy development (where it exists) and for regulators to avoid a deliberate lack of transparency.

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