In an unusual case, a four-person discipline panel issued two sets of concurring reasons each signed by two members of the panel. The panel found that the regulator had not proven that the practitioner had failed to maintain the standard of practice or been negligent in his handling of oil contamination concerns at a residential property: The Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018 (CanLII), http://canlii.ca/t/jb60d. The Court found a number of legal errors and returned the matter for a new hearing.
The main basis for the Court’s decision was that it appeared to apply an intermediate standard of proof between the civil (balance of probabilities) and criminal (beyond a reasonable doubt). The Court based this conclusion on statements in the reasons for decision that suggested that the panel was requiring a high level of proof, its reference to giving the practitioner the benefit of the doubt, its frequent use of criminal language (e.g., “penal” proceedings, “charges”) and its apparent use of the term “clear, cogent and convincing” evidence in a manner suggesting it created a higher standard of proof. The Court indicated that there was only one standard of proof in civil proceedings (that include discipline hearings) even where the allegations are serious: proof on a balance of probabilities.
The Court made a number of other important points including:
- The panel did not demonstrate bias towards the regulator by criticizing it for bringing the case to discipline or by the panel making legal errors, such as on the standard of proof.
- Where an allegation is a “strict liability” one, such as for practising without a certificate of authorization, the intent of the practitioner is irrelevant. Absent due diligence or mistaken belief in the facts, the conduct itself establishes the allegation. The Court also rejected the suggestion that such conduct was trivial.
- The Court also found that an adverse inference against the regulator for not calling a third party witness was unwarranted. The witness was not in the exclusive control of the regulator, the evidence was not significant and the regulator’s explanation for not calling the witness (i.e., that the practitioner admitted the necessary facts) precluded an adverse inference being made.
- This regulator had a ground of discipline where the practitioner had acted with “negligence”. The term was defined as being conduct that “constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances”. The Court held that it was improper for the panel to infer additional requirements to the definition, based on civil tort law, related to causation and harm.
- The Court also found that the panel had erred by failing to deal with the evidence of the defence expert on cross-examination. The defence expert had agreed on cross-examination that the practitioner should have done a second test a month after the first test before expressing conclusions on the risks involved. Where a witness retracts evidence they express in their evidence in-chief, the panel must explain why it still accepted the opinion expressed in the examination-in-chief.
- The Court also declined to award costs to the regulator in the circumstances even though the regulator had been successful on the appeal, as the errors were made by the regulator’s own committee.
The Court returned the matter to a differently constituted panel.