Sanctioning Sparseness

It is, unfortunately, not uncommon for some applicants to use the protected title and begin practising before the application for registration is completed. Regulators struggle with how to address such behaviour. In Eloufy v The Association of Professional Engineers And Geoscientists of Saskatchewan, 2024 SKKB 45 (CanLII), a court upheld a regulator’s refusal to register the applicant on the basis that they were not of good character, and to ban their ability to re-apply for three years.

The applicant was found to have made several written and verbal representations about being registered in Saskatchewan while applying for an engineering position in British Columbia. The applicant was hired on that basis. However, their employment was terminated when they could not provide proof of registration. The employer notified the Saskatchewan regulator, who was processing the application. The regulator treated the conduct as evidence of bad character. The applicant appealed the refusal of registration to court.

The Court upheld the finding of bad character: “Once might be a mistake. Twice could be coincidence or bad luck. But three or four times strains credulity. There was no palpable and overriding error in Council finding that Mr. Eloufy had falsely claimed to be a professional engineer.”

The Court also rejected the argument that bad faith could only apply to conduct in Saskatchewan, finding that any other approach to the character of the applicant would result in an “absurd” outcome.

However, the Court was concerned that the regulator had not provided any reasons explaining the basis for its finding. The refusal of registration for an applicant was sufficiently serious as to require meaningful reasons for the decision. The reasons need not be lengthy:

In saying that better reasons were required, what is required is not difficult. The usual guidance to decision-makers is to explain why they decided as they did. The explanation need not be lengthy. Sometimes it simply requires adding the word “because” at the end of the sentence stating the decision and then carrying on to complete the sentence.

The Court said that “While a finding of inadequate reasons will usually result in the appeal being allowed,” in this case the Court was willing to make an exception. The basis for the decision was apparent from the record and the outcome, if the matter was returned to the regulator, was inevitable. The Court was willing to reassess the record and render the decision on its own, with reasons. However, the Court refused to order the applicant to pay the regulator’s costs for the appeal, which would have ordinarily flowed from its decision.

Interestingly, the Court did not address the possibility, which some regulators accept, of registering the applicant with restrictions. Perhaps that was because the applicant in this matter did not acknowledge their behaviour and offered no evidence to demonstrate the possibility of rehabilitation.

The Court concluded: “In proceeding in this manner, I do not condone the inadequacy of reasons…. I hope that APEGS [the regulator] will treat this decision as a caution to provide better reasons in future decisions.”

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