Regulators often have registrants on staff. Things can get complicated where the regulator disciplines a registrant staff member for their conduct while on staff.
In Villa v. Association of Professional Engineers of Ontario, 2022 ONSC 6104 (CanLII), the registrant was disciplined for providing services to the public without a proper certificate and contrary to his agreement not to do so. The Court found that those allegations were established. The discipline panel determined that a third allegation of providing services during work hours or while on sick leave, was an employment issue, not a regulatory one.
Appearance of bias concerns can arise in these circumstances. For example, one panel member was on the governing Board/Council of the regulator and, it was speculated, may have received briefings on the related wrongful dismissal action. Another panel member was the spouse of the registrant’s former employment lawyer. Both denied receiving any information about the matter in those capacities. The Court found that the registrant had not adduced “cogent and compelling evidence to overcome the strong presumption of impartiality”.
The Court also dismissed appearance of bias arguments on the basis that that panel members were paid a per diem or that they had not sworn an oath of office. The Court was not concerned about either of those circumstances.
The registrant also argued that prosecuting counsel had engaged in prosecutorial misconduct and facilitated an abuse of process. The Court said: “The test for proving an abuse of process is a stringent one. Mr. Villa must demonstrate, on a balance of probabilities, that the conduct of the PEO prosecutor was egregious and compromised his right to a fair hearing.” That test was not met. The Court found no evidence to support the assertion that prosecuting counsel had fabricated evidence. The registrant also argued that the prosecution was for the improper purpose of undermining his wrongful dismissal claim against the regulator. The Court said:
The mere fact that the same conduct gave rise to multiple proceedings does not amount to an abuse of process. Similarly, the fact that Mr. Villa was terminated from his position with PEO and subject to disciplinary proceedings for the same conduct does not give rise to an inference that PEO pursued the disciplinary proceedings for an improper purpose related to Mr. Villa’s civil claim.
The Court also noted that attempts were made by prosecuting counsel to separate the two proceedings despite this overlap.
The Court also held that the regulator properly called reply evidence because it responded to issues raised by the registrant in their defence during the hearing that was not anticipated when the regulator presented its case in-chief. That the registrant declined to provide meaningful disclosure of their defence evidence in advance worked against him on this point.