BCCA CONFIRMS AUTHORITY OF DISCIPLINE COMMITTEES TO SET STANDARD FOR PROFESSIONAL MISCONDUCT

In Salway v. Association of Professional Engineers and Geoscientists, 2010 BCCA 94, the B.C. Courth of Appeal had to consider the degree of deference owed to a discipline committee's assessment of whether certain behaviour constituted professional misconduct.



The member had been found guilty of professional misconduct for failing to respond to correspondence from clients in a timely manner. His clients had retained him to prepare a report in connection with a subdivision plan. They wanted to be exempted from the application of a city bylaw and required the report to support this application. The member was required to have his report peer reviewed before the city would accept it. The clients wrote or emailed him on 3 occasions regarding the peer review in a 3 month period, but the member did not respond. The discipline committee found that the behaviour constituted professional misconduct and imposed a reprimand and an order to pay for the costs of the hearing.



The member appealed on the basis that his behaviour was not severe enough to be characterized as professional misconduct. The Judge hearing the appeal in Supreme Court agreed and found that while the conduct was negligent, it was not "flagrant" and therefore was not professional misconduct.



The Association appealed to the Court of Appeal, which allowed the appeal. It found that the reviewing Judge had not given appropriate deference to the Discipline Committee's views following the decision in Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190.



The Court of Appeal's reasons are of interest to lawyers in that they include a good review and analysis of the Dunsmuir decision.



The decision is very important to Colleges given that it clearly stated that the reviewing Judge had not paid sufficient deference to the tribunal's views and expertise. From a practical point of view, it confirms that as long as the conduct can be reasonably characterized as professional misconduct, that is all that is required: It clearly stated that the conduct did not need to be "dishonourable, disgraceful, blatant or cavalier" to be characterized as unprofessional. It said at paragraph 32:



.....it is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes - ie., it is justified, transparent and intelligible - it is not for courts to substitute their view of whether a member's conduct amounts to professional misconduct.