DISCLOSURE OBLIGATIONS AT THE INVESTIGATION STAGE

It is always difficult to know how much information must be disclosed to a registrant under investigation, before a discipline hearing has been launched. In 2009, the BCCA confirmed that the duty of fairness at the investigation stage is minimal. In particular, a registrant under investigation is not entitled to the investigation report at the investigation stage of a matter that is going through the inquiry and discipline process: Puar v. Assn. of Professional Engineers and Geoscientists 2009 BCCA 487

PRIVACY AND TRIBUNALS

The Privacy Commissioner recently published an excellent tool for tribunal members to refer to in connection with their decisions. It is entitled Access and Privacy Issues: A Guide for Tribunals and is available on the Commissioner's website at www.oipc.bc.ca/pdfs/public/Guide_Admin_Trib(Jan2010).pdf.

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.