Should a regulator postpone its investigations where the registrant is involved in a parallel proceeding addressing many of the same issues? In Bauhuis v Association of Professional Engineers and Geoscientists of Alberta, 2024 ABKB 603 (CanLII), an Alberta court upheld a regulator’s decision to proceed.
The regulator for professional engineers was investigating concerns about a pipeline failure. The now-retired professional engineer and his former employer declined to answer questions or provide documents, asking that the investigation be postponed until the parallel civil proceedings were completed. The regulator declined to adjourn its processes giving detailed reasons, and the engineer then initiated court proceedings.
The Court upheld the refusal to postpone the investigation, making the following points:
- The possible prejudice to those involved in the civil proceedings was not the only consideration.
- The risk to the public in an extensive delay (the investigation was now 8 years old) from the now-retired engineer was only part of the concern. As the regulator said “… the public interest in continuing the investigation goes beyond him as an individual member, and that if it were to go to a discipline hearing, the principles of education and general deterrence for the larger membership would play an important role.”
- More delay risked the loss of relevant evidence and the further fading of memories.
- Unlike many other regulatory statutes, the outcome of the discipline process was potentially admissible evidence in the civil proceeding. However, the participants in the civil process could give no weight to those findings or limited weight.
- The Court said: “… there is a strong public interest in ensuring that statutory bodies are permitted to fulfill their mandate. This is particularly the case when dealing with issues of disciplinary matters of self-regulating professions ….”
- Regulatory proceedings and court proceedings were separate and distinct spheres. Caution should be taken before one sphere is permitted to dominate the other.
The Court found that the analysis by the regulator reasonably balanced the competing considerations.
The Court also found that there was no procedural unfairness on the part of the regulator. The regulator did not create a legitimate expectation that the engineer could defer his response until they had access to the documents from the former employer. An early preference by the regulator to proceed in that manner did not prevent it from requiring a response when the employer then refused to provide the documents.
Similarly, there was no appearance of bias created by the regulator proceeding with the investigation based on a report from the entity that later sued some of the parties. The motivation of a complainant should not be imputed to the regulator. The information provided justified initiating the investigation.
The Court did decline to order the engineer and his former employer to provide the requested documents and answer questions. Under the legislative scheme, the remedy for the regulator was to discipline them for non-cooperation.
This decision dealt with parallel civil proceedings. While the type of prejudice might be different in criminal proceedings, a similar contextual analysis of the competing considerations by the regulator should be conducted.