Playing Chicken with Adjournments

For regulators, one of the more frustrating aspects of the discipline process is when a registrant asks for repeated and extended deferrals of discipline hearings while providing only a limited basis to support the request. Refusing an adjournment where it compromises a registrant’s ability to have a fair hearing can result in the entire proceeding being set aside. The regulator can also be perceived as heavy handed by pressing forward too aggressively. However, public confidence and protection can be placed at risk by failing to complete discipline proceedings on a timely basis. Sometimes, the process resembles a game of “playing chicken”.

That is what appears to have occurred in Korzeniowski v Alberta (Association of Professional Engineers and Geoscientists), 2024 ABCA 91 (CanLII). A professional engineer faced a discipline hearing for allegations related to quality of practice concerns. The engineer repeatedly requested an adjournment of the proceedings because of his treatment for cancer. The regulator sought additional information about the engineer’s health and whether he was continuing to practice. Despite not providing the information, the regulator still provided a lengthy adjournment of eleven months. When the hearing was scheduled to resume, the engineer again requested an adjournment and provided a physician’s document indicating that treatment was ongoing and would be for some time. The regulator insisted that both the engineer and the physician attend, remotely, at the beginning of the hearing to provide a full basis for the adjournment request. Neither attended. The hearing panel proceeded with the hearing.

On appeal, the primary issue was whether the engineer had been denied procedural fairness by the adjournment refusal. The engineer argued that, if the regulator was truly concerned about the public interest, it could have imposed an adjournment with conditions related to the engineer not practising in the meantime.

The Court dismissed the appeal. The engineer had failed to provide sufficient information to justify an additional lengthy adjournment.

In the present case, the Discipline Committee faced a stark choice: grant a second, lengthy adjournment for an undefined period during which Mr Korzeniowski could continue to practice, or proceed in his absence. The mandate of a professional disciplinary body is “to protect the public, to regulate the profession and to preserve public confidence in the profession”: Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 53. The professional disciplinary hearing involved more than Mr Korzeniowski’s interests; lengthy delay in disciplinary proceedings can impact the complainants and the public in general by undermining confidence in the profession.

In the absence of a statutory provision enabling the hearing panel to impose restrictions on the practice of the engineer, it was reasonable for the hearing panel not to grant an adjournment on the condition the engineer would not practice. The engineer was not present to indicate whether he would agree to such a condition.

On these facts, the regulator’s choice to proceed with the hearing was justified.

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