Alberta Association of Architects v Boga, 2011 ABQB 482

Court of Queen ’ s Bench of Alberta Citation: Alberta Association of Architects v Boga, 2011 ABQB 482 Date: 20110726 Docket: 1103 07448 Registry: Edmonton Between: The Alberta Association of Architects Plaintiff - and - Zul Boga and the Boga Group of Architects Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ The Application [ 1 ] This is an Application commenced by the Alberta Association of Architects (the “ Association ” ) by way of Originating Application for a permanent injunction: – (

a) Restraining Mr. Zul Boga ( “ Mr. Boga ” ) from practicing architecture;

(

b) Requiring Mr. Boga to return his seal and certificate of registration to the Association; (

c) Requiring Mr. Boga to cease holding himself out as an architect; (

d) Requiring Mr. Boga ’ s corporation, The Boga Group Architects, to return its firm license to the Association; (

e) Requiring The Boga Group Architects to cease holding itself out as providing architecture services; and (

f) Requiring The Boga Group Architects to remove from its website any content that indicates it provides architecture services. [ 2 ] Mr. Boga was removed from the register of architects in Alberta (the “ Register ” ) in 2010. As a result, Mr. Boga has not been officially registered as an architect in Alberta for more than ten months. Mr. Boga did not request a review of that decision within the time limit required by the Architects Act , R.S.A. 2000, c. A-44 (the “ Act ” ), nor has he commenced reinstatement proceedings. [ 3 ] Mr. Boga ’ s registration was cancelled and Mr.

Boga was removed from the Register, pursuant to s. 27(3) of the Act for failure to complete his continuing competency requirements. It is submitted that Mr. Boga was provided notice of his cancellation in accordance with the notice provision set out in s. 62 of the Architects Act General Regulation , Alberta Regulation 200/2009 (the “ Regulation ” ). [ 4 ] After the cancellation of Mr. Boga ’ s registration, the Registrar of the Association requested that Mr.

Boga return his seal and certificate of registration, and that The Boga Group Architects return its license to the Association, pursuant to s. 27(7) of the Act . Both Mr. Boga and The Boga Group Architects have failed to comply with the Registrar ’ s request. [ 5 ] Further contrary to s. 2(2) of the Act , it is submitted that Mr. Boga continues to hold himself out as an architect by continuing to operate out of an office with a sign that states: – Zul Boga Architects Ltd.

Architect Urban Planners. [ 6 ] The Boga Group Architects, contrary to s. 2(2) of the Act , also allegedly continues to hold itself out as an architect by operating a website that indicates it provides architecture services. The Law [ 7 ] The test for an interlocutory injunction has been considered thoroughly in the jurisprudence and requires: – (

a) A strong prima facie case; (

b) Balance of convenience favouring the application;

(

c) Irreparable harm. [ 8 ] If the requested injunction is final rather than interlocutory, the Applicant must establish its legal rights first. Although the balance of convenience and the existence of irreparable harm are not necessarily relevant, they may be considered in the decision whether to grant the injunction. This is discussed in Cambie Surgeries Corp. v British Columbia (Medical Services Commission) , 2010 BCCA 396 at paragraph 28 as follows: – In order to obtain final injunctive relief, a party is required to establish its legal rights.

The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief. [ 9 ] In addition to the authority provided by common law,

section 4 of the Act allows the Court of Queen ’ s Bench to grant an injunction enjoining any person from contravening s. 2, 2.1, 3(1) or 4 of the Act , the relevant sections of which read as follows: – Exclusive scope of practice and use of name 2(1) Except as otherwise provided in this Act, no person except an authorized entity shall engage in the practice of architecture.

(2) No person except a registered architect, visiting project architect, architects corporation or architects and engineers firm shall (

a) use any one or more of the names architect, registered architect, visiting project architect, architects corporation or architects and engineers firm, or any title, description, abbreviation, letter or symbol representing those names, alone or in combination with any other name, title, description, abbreviation, letter or symbol, that represents expressly or by implication that the person is a registered architect, visiting project architect or it is an architects corporation or architects and engineers firm, (

b) represent or hold out, expressly or by implication, that (

i) the person or it is entitled to engage in the practice of architecture, or (ii) the person is a registered architect, visiting project architect or it is an architects corporation or architects and engineers firm, or (

c) affix the seal or stamp of a registered architect or the stamp of a visiting project architect, architects corporation or architects and engineers firm, or permit that seal or stamp to be affixed, to a plan, drawing, detail drawing, specification or other document or a reproduction of any of them unless (

i) that plan, drawing, detail drawing, specification, other document or reproduction was prepared by or under the personal supervision, direction and control of, and (ii) the seal or stamp is affixed with the knowledge, consent or in accordance with the direction of

the registered architect or visiting project architect to whom or the architects corporation or architects and engineers firm to which the seal or stamp was issued by the Registrar. . . . Injunction 4 The Court of Queen ’ s Bench, on application by the Council, may grant an injunction enjoining any person from doing any act that is in contravention of

section 2, 2.1 or 3(1), notwithstanding any penalty that may be provided by this Act or the regulations in respect of that contravention Analysis [ 10 ] The Association is statutorily mandated by the Act to govern, amongst other things, the registration and conduct of architects registered to practice architecture in Alberta. Mr. Boga was an architect registered to practice architecture in Alberta, and he failed to complete the continuing competency requirement imposed by the Association on all registered architects. [ 11 ]

Section 27 of the Act governs the cancellation of registration and provides as follows: Cancellation of registration 27(1) The Registrar may cancel the registration of (

a) an authorized entity in default of payment of any fees, dues, costs or levies payable by it under this Act, the regulations or the bylaws, (

b) an architects corporation or interior design corporation that no longer has shareholders, directors or officers in compliance with the regulations, or (

c) a joint firm that ceases to have at least one registered architect and at least one professional engineer to take the responsibility referred to in

section 1 8(2)(b), after the expiration of one month following the service on the authorized entity of a written notice that the Registrar intends to cancel the registration, unless the authorized entity on whom the notice is served complies with the notice.

(2) The notice under subsection (1) shall state that the Registrar may cancel the registration unless, as the case may be, (

a) the fees, dues, costs or levies are paid as indicated in that notice, or (

b) evidence satisfactory to the Registrar has been received by the Registrar within the time prescribed in the notice that

(

i) the architects corporation or interior design corporation has shareholders, directors or officers in compliance with the regulations, or (ii) the joint firm has at least one registered architect and at least one professional engineer to take the responsibility referred to in section 18(2)(b).

(3) If the Registrar decides that the registration of a registered architect, restricted practitioner or licensed interior designer should be cancelled because that authorized entity has failed or refused to comply with the requirements of the continuing competence program, the Registrar may serve that authorized entity with a written notice that the Registrar intends to cancel the registration.

(4) The notice under subsection (3) shall state (

a) the reasons for the Registrar ’ s decision, (

b) that the authorized entity must complete the requirements of the continuing competence program within a specified time, which may not be less than 30 days from the date the notice is served on the authorized entity, (

c) that the Registrar may cancel the authorized entity ’ s registration unless the authorized entity completes the requirements of the continuing competence program within the time specified in the notice, and (

d) that the authorized entity is entitled to request a review of the Registrar ’ s decision under

section 27.1.

(5) The Registrar may cancel the registration of a registered architect, restricted practitioner or licensed interior designer who has been served with a written notice under subsection (3) if that authorized entity does not comply with the notice by the time specified in the notice.

(6) The Registrar may cancel the registration of an authorized entity that was entered in the register in error.

(7) If the registration of an authorized entity is cancelled under this section, the certificate of registration and annual certificate, licence, permit or certificate of authorization of that authorized entity is deemed to be cancelled, and that authorized entity shall surrender to the Registrar the stamp or seal and, when requested by the Registrar, the certificate of registration, annual certificate, licence, permit or certificate of authorization, as the case may be. [ 12 ] Pursuant to s. 27(3) of the Act , Mr. Boga was removed from the Register.

Section 62 of the Regulation governs the notice required to be provided and states the following: – Service of notices 62(1) If a notice is permitted or required to be served under the Act or this Regulation, it may be served by registered mail, or pre-paid courier with proof of delivery, addressed to the person at the last known address as recorded in the records or register of the Association.

(2) If notice must be served on the Registrar, the Registration Committee, Complaint Review Committee or Practice Review Board or any member of it or the Council, it must be served at the head office of the Association. [ 13 ] It is submitted that Mr. Boga was served notices from the Association in the following ways: –

[ 13 ] It is submitted that Mr. Boga was served notices from the Association in the following ways: – (

a) Letter dated May 10, 2010 by regular mail; (

b) Letter dated September 2, 2010 by registered mail; (

c) Letter dated October 27, 2010 by registered mail; (

d) Letter dated January 31, 2011 by pre-paid courier; and (

e) Letter dated April 12, 2011 by process server. [ 14 ] All correspondence was addressed to the address recorded in the records of the Association for Mr. Boga and The Boga Group Architects, which is the address of the offices of Mr. Boga and The Boga Group Architects, as required by s. 62 of the Regulation [ 15 ] It is submitted that Mr. Boga also attempted to avoid service. When the process server, who knew Mr. Boga from serving him previously, attempted to serve him with the letter dated April 12, 2011, Mr. Boga refused to identify himself. [ 16 ] In addition to the numerous notices served on Mr.

Boga pursuant to the notice requirements of the Regulation, a representative of the Association also called Mr. Boga and personally attended at his office. [ 17 ] Mr Boga claims that as a result of the visit from the Association representative, he provided the following letter dated March 25, 2011 to the Association by delivering it to the Palliser Hotel: – Mr.

Chris Babits Chair Complaint Review Committee Alberta Association of Architects 10515 Saskatchewan Drive Edmonton, AB T6E 4S1 Dear Sir: Re: Cancellation of Membership and License Further to your visit to our office this morning, I wish to confirm as follows: • In November 2009, I had suffered from ill health which resulted in my collapsing in November, 2009. I was taken to the Trauma Unit at the Foothills Hospital where I remained in the hospital under the care of Specialists for almost a week. I fractured my skull, injured my brain and impacted my hearing.

• Subsequently, I have remained under the care of various Physicians, Physical medicine and Rehab Doctors, ENT specialists, TMJ specialist, GI specialists, physiotherapist, neuro-surgeon, sociologists. • Since 2009, I have taken several MRI ’ s, Cityscans, and other internal scopic tests and examinations. • In the month of March, 2010 my mother passed away in Nairobi, Kenya. I flew to Nairobi for funeral under the physical care of my son during the flight. When in Nairobi, I consulted Dr.

Din, ENT Specialist. • As a result of the above medical traumas, stress, and other personal circumstances, I have not been able to practice Architecture and go to my office regularly. I have also not been able to attend educational workshops and seminars. I have not promoted my services as an Architect nor have I accepted an Architectural project. • I have not been able to receive and read my mail, correspondences and documents in a timely manner. Any document relating to AAA came in my possession very late. When received, the correspondences were late and time barred.

As such I could not attend to the subject matter and submit my defense. I trust the Association will understand my position that have endeavored to described above and allow me the opportunity to be reinstated. I wish to apologize to the Association if I caused any party any inconvenience through no apparent fault of mine. Yours very truly Zul Boga [ 18 ] However the Association submits that the letter is clearly not a request for review of the Association ’ s decision as: – (

a) The letter does not request a review of the Association ’ s decision, instead it acknowledges Mr. Boga ’ s cancellation; (

b) The letter, even if delivered, was delivered outside of the review period; and (

c) The letter, even if delivered, was not delivered to the address required for notice by the Regulation. [ 19 ] It is submitted that what the letter does show is that Mr. Boga was aware of and had notice of his removal by March 25, 2011. [ 20 ] After Mr. Boga claims to have delivered the letter to the Association, he received a letter from the Association, delivered by process server on April 12, 2011, which confirmed his cancellation and removal from the Register. [ 21 ] Mr. Boga ’ s argument against the Application consists of the following main points: – (

a) No action has been commenced against Zul Boga Architects Ltd.; (

b) Mr. Boga believed he was a registered architect; (

c) The Boga Group Architects is not a legal entity;

(

d) The Association has addressed some of it ’ s notices to “ Zul F. Boga ” who is not a party to this action, and knew that Mr. Boga had not signed for the registered letters; (

e) Mr. Boga was suffering from medical issues and never received personal notice of the termination or of the proceedings in a manner that he comprehended required further action on his part; (

f) Mr. Boga has not been practicing as an Architect; (

g) Mr. Boga supplied a letter dated March 25, 2011 to the Association as directed by the Association; (

h) Mr. Boga wrote a cheque to the Association as directed and the June 16, 2011 cheque was accepted by the Association; and (

i) Mr. Bogs was unrepresented by legal counsel until this application. [ 22 ] It is submitted that Zul Boga Architects Ltd. is not a party to this action and has not been served, and that granting an injunction dealing with Zul Boga Architects Ltd. ’ s property would be inappropriate. It is submitted that the Boga Group of Architects is not a legal entity and should not be a party to these proceedings, and that Zul F. Boga is not a party to this action. [ 23 ] It is submitted that the termination of Zul Boga was tainted as Mr.

Boga was never effectively personally served with the notices due to his medical issues. Mr. Boga had direct communication with the Association and delivered a letter as requested. Later he paid a cheque to the Association for his outstanding continuing education dues in full, which cheque was accepted by the Association. [ 24 ] It is submitted that the onus of proof is on the Association, and the Association chose the parties to name in the action and there is no evidence that they have chosen the right parties.

The sign that is the subject of this injunction application states on it ’ s face that it is “ Zul Boga Architects Ltd. ” It is submitted that Zul F. Boga is not a party to the action. Balance of Convenience and Irreparable Harm [ 25 ] Although balance of convenience and irreparable harm are not necessary considerations for the purpose of a permanent injunction application, the Court may turn its mind to those issues. [ 26 ] It is submitted that the balance of convenience is with Mr. Boga as his is very reputable and a long history of impeccable service.

Of his own accord, he deposes that he has not been practicing. His lawyer says he will be commencing a review or appeal in short order. He argues that no irreparable harm has been shown to be caused to the Association as Mr. Boga is not practicing. [ 27 ] On the other hand, the Association argues it is submitted that the balance of convenience favours it. The registration of both Mr. Boga and The Boga Group Architects has been cancelled. Neither Mr. Boga, nor The Boga Group Architects is entitled to practice architecture.

As they cannot practice architecture, there is no inconvenience to them to enforce the statutory regime governing their practice by granting this injunction. [ 28 ] The Association is tasked with regulating architects and ensuring the public is protected. It would be extremely difficult for the Association to meet its statutory mandate, including ensuring that Mr Boga is not providing unregistered architecture services to the public, if Mr. Boga is allowed to maintain his seal and certificate of registration and describe himself as an architect to the public when he is no longer entitled to practice architecture.

It is submitted that the same holds true for The Boga Group Architects.

[ 29 ] There is a risk of irreparable harm both to the public and to members of the Association if Mr. Boga is allowed to continue to hold himself out as practicing as an architect. Mr. Boga ’ s registration was cancelled as a result of a failure to comply with continuing education requirements. Mr. Boga has admitted in his Affidavit that he has serious medical issues that have prevented him from dealing properly with his affairs. He has also admitted that he has failed to complete any continuing competency requirements since those medical conditions arose. [ 30 ] If Mr.

Boga is allowed to continue representing himself as an architect and maintain his seal and certificate of registration, the reputation of all architects may be damaged, as well as the public who trust that architects are competent and properly regulated.

The integrity of the profession and the public may also be damaged if unsuspected members of the public approach Mr Boga to provide architecture services for which he is not licensed. [ 31 ] In addition, self-regulation is the authority that is granted by statute for an organization to protect the public from unethical or unskilled practitioners through regulating practice and setting standards for registration. That is the authority that has been granted to the Association by the Act .

To allow someone to violate the Act without repercussion irreparably erodes the credibility of the statutory regime and the ability of the Association to self-regulate. Conclusion [ 32 ] The Association must prove that the termination of Mr.

Boga as an architect was properly done, and if the termination was improper then an injunction based on an improper termination would also be improper. [ 33 ] While this Court cannot judicially review the termination at this point, it can still decide based on the Affidavits whether there is a legitimate question surrounding the appropriateness of the cancellation under the circumstances alleged. [ 34 ] This present permanent injunction application is the first time Mr.

Boga has had legal counsel in this matter, as he says that he believed he had met his obligations by providing his March 25, 2011 letter to the Association, and his $2,107.90 education dues cheque of June 16, 2010 which the Association cashed. [ 35 ] It is debatable whether Mr. Boga has had effective personal knowledge of the notices from the Association given his apparent health issues. Mr. Boga claims that as a result of the visit and direct communication he had from the Association ’ s representative he delivered a letter to the Association as the Association ’ s representative had requested.

Later he paid a cheque of $2,107.90 to the Association on June 6, 2010, which was provided after the Association ’ s Notice of Intent to Cancel, and that cheque was accepted by the Association. Mr. Boga believed that he was still registered and this resulted in him not taking further steps to correct a problem that he didn ’ t comprehend existed. [ 36 ] In determining whether to grant an injunction, the Court must look at the foundation upon which the injunction is based. If the Association ’ s termination or service on Mr. Boga is problematic, then the injunction would aggravate the situation, disadvantage Mr.

Boga, and damage his reputation causing him further expense and possible irreparable harm. [ 37 ] Mr. Boga has apparently regained his health to the point where he has now retained counsel and has started to deal with this matter. Mr. Boga has had to respond to this permanent injunction application, rather than commence his appeal or judicial review application. [ 38 ] It appears from the limited present facts as I know them now that it is arguable that Mr. Boga could have a reasonable chance of success on a review or an appeal of the termination of his registration. It appears that Mr.

Boga could be reinstated by performing and fulfilling his continuing education responsibilities.

[ 39 ] The Association allegedly provided instructions to Mr. Boga, and Mr. Boga says he followed those instructions, and then later paid his cheque. Mr. Boga should also not be punished unduly for having medical problems. The stigma of the cancellation and the punishment and expense caused to Mr. Boga by forcing him to change web sites, signs, return seals etc seems unwarranted at this point. [ 40 ] Mr. Boga says that he has not been practicing architecture and will not practice architecture until this matter is resolved. Allowing Mr.

Boga to deal with this matter as he appears to intend to now will not stop the Association from meeting their statutory responsibilities to any great extent. There is no evidence before me that Ms. Boga is unethical or incompetent. [ 41 ] I conclude that the Association ’ s application for a permanent injunction is premature at this time, and should be adjourned for 60 days pending Mr. Boga ’ s commencement of the appeal of his suspension and/or application for judicial review. I will revisit the issue in 60 days with the parties to determine what, if anything, Mr.

Boga has done in that 60 day period to rectify matters. Heard on the 5 th day of July, 2011. Dated at the City of Edmonton, Alberta this 26 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Alisha L. Hurley Miller Thomson LLP for the Plaintiff Brett Barclay Chinook Country Law for the Defendants