SALWAY V. ASSN. OF PROFESSIONAL ENGINEERS

Last year, the B.C. Court of Appeal dealt a potentially heavy blow to professional regulatory bodies who achieve agreements with wayward registrants. In Salway v. Assn of Professional Engineers and Geoscientists of B.C., 2009 BCCA 350,it overturned a consent agreement that had been achieved via a non statutory process developed by the regulatory body (the "Engineers").

At the time of the events, the Engineers did not have legislation in place that supported a consent resolution process in respect of disciplinary matters. Accordingly, they developed a process known as the "Stipulated Order Process". The registrant agreed to peer and practice review, in addition to paying significant costs following an investigation into his practice. The terms of the review were onerous and permitted the Engineers to suspend his membership if he breached terms of the agreement. The review process became expensive and protracted. Ultimately the registrant's membership was suspended. He successfully challenged the decision on judicial review.

It is important to understand that the decision is probably limited to its facts because the Court reached its conclusions having regard to the specific provisions of the Engineer's legislation in force at the time. The Stipulated Order Process was inconsistent with the enabling legislation in certain specific respects. This meant that those provisions had to be struck down. In addition, the Process delegated functions that had been given to the discipline committee by the enabling legislation to another body. This amounted to an improper delegation of the Engineer's disciplinary functions and could not be sanctioned by the Court.

Thus, while the decision on its face is a blow to consensual resolution of disciplinary matters, it is probably limited to the situation facing the Engineers at the time. Most regulatory bodies have enabling legislation that provides for a consent resolution process. Accordingly, the Salway decision should not apply in most cases.