Some regulators have the authority to award costs to a practitioner where no finding of professional misconduct is made and the referral to discipline by the screening committee is “unwarranted”. Further guidance is given with respect to when such costs can be awarded in Assoc. of Professional Engineers of Ontario v. Pelow, 2021 ONSC 7034 (CanLII), https://canlii.ca/t/jk09q.
In the Pelow case there were allegations of failing to meet the accepted standard in respect of two small residential projects. The complaint was made by a local Chief Building Official. The screening committee had two expert reports indicating that the standard was not met. The Discipline Committee found that the allegations had not been proved and a majority of the panel directed the regulator to pay the practitioner $35,000 in costs. The regulator appealed.
The Court held that the panel had to consider the referral based on the information before the screening committee at the time and should not consider the evidence that arose during the course of the hearing. In particular, the Court was concerned about the following:
- The majority of the discipline panel considered factors that were irrelevant to the decision of whether the matter should be referred to discipline, namely “the limited scope and cost of the Projects, lack of broad impact on the public and the absence of any threat to public safety”.
- The majority of the discipline panel was of the view that one of the experts relied upon by the screening committee had no experience with small projects. The Court noted that this was factually incorrect, that the hearing panel had qualified the expert at the discipline hearing, and that there was a second expert opinion relied upon by the screening committee whose small project qualifications were not disputed.
- The majority of the discipline panel was concerned about the “questionable motivations” of the complainant. The Court found that this factor was irrelevant to the issue of whether there were concerns about whether the practitioner failed to meet the standard of practice. In any event, the discipline panel explicitly held in its decision on the merits that the motivation of the complainant was irrelevant to the allegations at the discipline hearing.
- The majority of the discipline panel felt that the investigation was inadequate. However, the example it gave was not an issue raised by the practitioner before the screening committee and, thus, there was no basis for the screening committee to investigate that issue.
The Court set aside the costs order.
Discipline panels, when considering whether the referral to discipline was unwarranted, need to focus on the information before the screening committee at the time of the referral.