Kasz Leavitt Applicant - v. -, 2021 ABQB 983

Court of Queen’s Bench of Alberta Citation: Leavitt v Association of Professional Engineers and Geoscientists of Alberta, 2021 ABQB 983 Date: 20211210 Docket: 2003 10882 Registry: Edmonton Between: Kasz Leavitt Applicant - and - The Association of Professional Engineers and Geoscientists of Alberta Respondent - and - The Association of Science and Engineering Technology Professionals of Alberta Intervenor _______________________________________________________ Reasons for Judgement of the Honourable Madam Justice S.E. Richardson _______________________________________________________ 1. Introduction

[ 1 ] The Applicant, Mr Leavitt, applies for judicial review of a decision by the Respondent, the Association of Engineers and Geoscientists of Alberta (APEGA), to issue a Practice Bulletin which establishes who can and more importantly who cannot act as a “supervising professional” in a concrete testing laboratory in Alberta. [ 2 ] He seeks an order of certiorari quashing the Practice Bulletin, or in the alternative, an Order that the issue be sent to the Joint Councils Committee for consideration.

As well, he seeks a positive declaration that he is entitled to act as the “supervising professional” of a concrete testing laboratory as long as he is approved by the Canadian Council of Independent Laboratories (CCIL) and is registered to practice engineering as a professional technologist under the Engineering and Geoscience Professions Act (the Act ). [ 3 ] The Respondent, APEGA, argues that the certiorari claim be dismissed and asserts that there is no basis to consider the positive declaratory relief requested by the Applicant. [ 4 ] The intervenor, the Association of Science and Engineering Technology Professionals of Alberta (ASET), joins in the Applicant’s request only for certiorari setting aside or quashing the Practice Bulletin.

ASET takes no position on the positive declaratory relief sought by Leavitt. 2. Background [ 5 ] The Applicant is a professional technologist working for MPE Engineering (MPE) in their concrete testing laboratory. He is registered as a professional technologist under the Act and is a member of ASET. ASET is the professional association for professional technologists in Alberta.

As a professional technologist, his scope of practice is issued by the Joint Board of Examiners under the Act and is limited as follows: Within the discipline of civil engineering and field of practice of materials testing and inspection: reporting on and evaluating material testing of asphalt, aggregates, soils and concrete, directing the technical inspection and operations of asphalt, aggregates, soils and concrete that is the routine application of industry recognized codes, standards, procedures and practices using established engineering or applied science principles and methods of problem solving. [ 6 ] Meanwhile, APEGA regulates the practice of engineering in Alberta.

APEGA also governs the practice rights of professional engineers, professional licensees and permit holders. Permit holders are an association of persons or a corporation who hold a permit under the Act . MPE is a permit holder, as such, it is authorized by APEGA to engage in the practice of engineering, subject to regulatory oversight by APEGA. [ 7 ] As a result of the commonality of practice, APEGA and ASET, by operation of the Act , have a Joint Councils Committee (JCC) composed of an equal number of members from each organization.

The purpose of the JCC is to provide a forum for discussion, collaboration and coordination with respect to matters of mutual interest to APEGA and ASET. [ 8 ] Two other actors are relevant to the background, although they are not party to this application. The Canadian Council of Independent Laboratories (CCIL) is a national organization that certifies concrete testing laboratories in Canada. In that endeavour, CCIL relies upon standards promulgated by the Canadian Standards Association (CSA).

The CSA is a national voluntary standards organization. [ 9 ] This judicial review application is the extension of a multi year effort by the Applicant to challenge restrictions on his opportunity to practice engineering in a concrete testing laboratory. His efforts have been supported by ASET. [ 10 ] As early as 2017, the Applicant had sought the ability to act in a supervisory capacity in MPE’s concrete testing laboratory, unencumbered by the supervision of a professional engineer. [ 11 ] The CSA standard for concrete laboratories in place at that time was A283:06.

This standard employed the term “supervising engineer” to describe the person responsible for supervising concrete testing labs and ensuring that the other applicable CSA standards were followed. A “supervising engineer” was defined as a professional engineer with a minimum of two years experience. [ 12 ] The Applicant’s request to be captured by the “supervising engineer” terminology had been declined by CCIL.

Counsel for ASET had then asked CCIL to permit licensed professional technologists to be approved as “supervising engineers”, arguing that “it would be unreasonable for CCIL to interpret CSA A283:06 such that only a professional engineer can act as a supervising engineer of a concrete testing laboratory and prohibiting a professional technologist with an appropriate scope of practice from acting in this role”. CCIL had consulted with APEGA which had ultimately determined that the role of a “supervising engineer” exceeded the scope of practice of a professional technologist.

APEGA had concluded that “The exclusive jurisdiction to determine the qualifications and scope of practice for engineering professionals in Alberta is set out in the EGP [Act]. A national standard that purports to regulate professional scope of practice could infringe on this exclusive jurisdiction”. [ 13 ] In 2018, the Applicant and ASET applied for judicial review of CCIL’s decision. No notice was given to APEGA of this application.

Once APEGA became aware of this application, they sought and were granted, intervenor status: Leavitt v Canadian Council of Independent Laboratories , 2019 ABQB 589 . [ 14 ] That judicial review application was discontinued by the Applicant because, effective January 1, 2020, the CSA standard was revised to provide that a concrete testing laboratory required a “supervising professional”.

This new CSA standard, (A283:19), replaced the requirement for a “supervising engineer” with a “supervising professional”. [ 15 ] In contemplation of this revised standard, CSA undertook a public consultation process in which APEGA participated. A key change effected by A283:19 was that the term “supervising professional” replaced the term “supervising engineer”. The new concept of “supervising professional” is described in A283:19 as “a person who is licensed to practice engineering in the jurisdiction in which the

laboratory is located and who has specific expertise in concrete materials and in the operation of concrete testing laboratories…In some jurisdictions, this might also include a holder of other professional designation with a license to practice engineering in this field, as permitted by the application of provincial or territorial body responsible for governing the engineering profession”.

The CSA definition concludes with the note “in some jurisdictions, evaluating, interpreting, and advising on test results in accordance with CSA A23.1 is required to be conducted by a professional engineer in accordance with the requirements of the provincial or territorial body responsible for governing the engineering profession.” This is an acknowledgement that the practice of engineering is provincially regulated and that the designations and who can practice engineering are not uniform across the country.

The certified record indicates that the motivation for this change was to accord with the official translation of supervising engineer in the Quebec context. [ 16 ] A283:19 prescribes the qualification of a “supervising professional” as follows: a minimum of two years’ working experience in the operation of a concrete testing laboratory; demonstrate sufficient knowledge and understanding of concrete material testing to asses the validity of concrete test results and identify the impact of potential sources of error and bias; and have a working knowledge of the use of the equipment and procedures for each test the laboratory is certified to undertake, within the laboratory and in the field. [ 17 ] As a result of this change, the Applicant applied to CCIL for permission to act as the supervising professional at MPE.

CCIL approved his application effective January 1, 2020. APEGA was not advised that the Applicant had applied to CCIL to be recognized as a supervising professional. [ 18 ] Concurrent to Leavitt’s application to CCIL, APEGA was concerned about the change to the terminology in the new CSA standard. APEGA was troubled by the possibility that individuals without the requisite scope of practice could conclude that this change in terminology allowed them a broader scope of practice than they enjoyed before the change.

APEGA believed that the change in terminology was ambiguous about what aspects of engineering practice required a professional engineer and/or what areas of practice were outside the scope of practice of a professional technologist. [ 19 ] Unbeknownst to the Applicant or ASET, on December 11, 2019, the APEGA Council approved a Practice Bulletin which identified the duties involved in the supervision of concrete testing laboratories, stated that those duties were beyond the scope of practice of professional technologists and then concluded that “professional technologists are not able to act as supervising professionals of concrete testing laboratories” in Alberta. [ 20 ] The effect of the Practice Bulletin was to preclude any professional technologist from acting as a supervising professional in a concrete testing laboratory – that role was restricted to a professional engineer.

The Applicant hereby lost the opportunity to act as a supervising professional for MPE, despite the fact that CCIL had granted him that permission. [ 21 ] Less than a week later, on December 19, 2019, APEGA sent a copy of the Practice Bulletin to CCIL, together with its rationale for issuing it. [ 22 ] This Practice Bulletin was not made public until March 11, 2020, when APEGA emailed it to the affected laboratories, including the Applicant’s employer, MPE.

As a result, on June 25, 2020, the Applicant filed the within Originating Application for judicial review of APEGA’s decision to issue the Practice Bulletin. 3. Legislative Scheme [ 23 ] The Engineering and Geosciences Professions Act , RSA 2000, c E-11 ( Act ) governs the practice of engineering in Alberta. The Act limits the exclusive scope of the practice of engineering to a “professional engineer, a licensee…or a permit holder…”. A professional engineer is an individual who holds a certificate to engage in the practice of engineering under the Act .

Professional engineers have an unlimited scope of practice. [ 24 ] The Act also establishes APEGA as the regulatory body for the registration, certification and discipline of professional engineers, among other powers. [ 25 ] Alberta is unique across the country in that there are two types of professional license: a professional licensee (regulated by APEGA) who is permitted to engage in the unrestricted practice of engineering in terms of complexity but their practice is restricted to a certain subject matter, and a professional technologist, who is permitted to practice engineering but within a limited scope of practice that is framed by the “routine application of industry recognized codes, standards, procedures and practices using established engineering or applied science principles and methods of problem solving” (s 90.1(2) Act ). [ 26 ] Professional technologists are granted a scope of practice by the Joint Board of Examiners.

This is a body created by the Act and comprised of an equal number of APEGA and ASET members. [ 27 ] The Act creates a structure whereby professional engineers and professional licensees are governed exclusively by APEGA while professional technologists are governed by joint boards equally populated with members of APEGA and ASET. ASET enjoys no statutory authority over professional engineers or permit holders. [ 28 ] The Act recognizes that there is a mutual interest between APEGA and ASET in issues related to the practice of engineering. As such, the Act establishes several joint boards and committees.

Most are comprised of equal numbers of APEGA and ASET council members, while some also contain a single member of the public appointed by the Minister responsible for the Act . [ 29 ] These joint boards and committees include: the Joint Practice Board, the Joint Appeal Board, the Joint Professional Technologists Board, the Joint Discipline Committee, the Joint Board of Examiners and the Joint Investigative Committee. [ 30 ] The Joint Professional Technologists Regulation Committee enjoys the statutory authority to regulate the entry into and the ongoing registration and governance of professional technologists and includes the ability to make regulations respecting technical

standards of practice for professional technologists. Any unresolved dispute at this committee must be referred to the Joint Councils Committee. The Joint Councils Committee (JCC) has the authority to refer the matter back to the Joint Professional Technologists Regulation Committee with suggestions or directions about how to resolve the dispute, or the JCC may simply resolve the matter itself. If the JCC does not fully resolve the matter, the dispute is referred to arbitration. 4. Issues 1. Did APEGA have the lawful authority to issue the Practice Bulletin? 2.

Was APEGA’s decision to issue the Practice Bulletin reasonable? 3. Did APEGA breach the duty of procedural fairness? 4. Assuming the Applicant is successful on the judicial review application, should the remedy include the requested declaratory relief? 5. Standard of Review [ 31 ] Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 ( Vavilov ) established reasonableness as the presumptive standard for judicial review.

However, there are exceptions to this presumption, including questions of law that relate to constitutional issues, questions of law that are of central importance to the legal system as a whole, and questions of overlapping jurisdiction. These questions of law engage the correctness standard: Vavilov , para 17 . [ 32 ] The SCC in Vavilov declared that jurisdictional (or vires ) questions no longer attract correctness review: see para 65, 109.

This issue was dealt with recently by the British Columbia Court of Appeal, where they held that the jurisdictional power of an administrative body is to be reviewed on the reasonableness standard, unless there is a competing administrative body that may have jurisdiction: 1120732 BC Ltd v Whistler (Resort Municipality) , 2020 BCCA 101 at para 35 ; see also Terrigno v Calgary (City) , 2021 ABQB 41 at para 31 . [ 33 ] The first issue is whether APEGA had the lawful authority to issue the Practice Bulletin.

None of the exceptions to reasonableness review apply here, accordingly, the presumptive standard of reasonableness applies. [ 34 ] On the issue of APEGA’s decision to issue the Practice Bulletin, the standard is reasonableness, as none of the exceptions to this presumptive standard apply. [ 35 ] Reasonableness remains a robust form of review where the court is required to consider the decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified: Vavilov , para 13 and 15 . [ 36 ] Where the decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it and where a decision is not based on internally coherent reasoning which is both rational and logical, the decision will be unreasonable: Vavilov , para 101 .

The governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority: Vavilov , para 68 . The reasonableness standard does not permit the administrative decision maker to expand their statutory authority beyond was the legislature intended. [ 37 ] The reviewing Court must examine the whole of the record and assess the relevant factual and legal constraints on the reasonableness standard in order to understand the decision.

Courts are entitled to insist that decision makers explain their reasoning and justify their conclusions on issues of legislative

interpretation: Vavilov , para 79 and 85 . This ensures that the administrative decision maker has meaningfully grappled with key issues or central arguments raised by the parties and was actually alert and sensitive to the matter before it: Vavilov , para 128 .

An administrative action that has the effect of frustrating the legislative scheme under which the power of the decision maker is conferred will be unreasonable: Vavilov , para 82 . [ 38 ] Finally, issues of fairness and due process required by the legislation and common law are reviewed on the correctness standard without any deference to the decision maker: Vavilov , para 77 ; Mission Institution v Khela , 2014 SCC 24 at para 79 ; Makivik Corporation v Canada (Attorney General) , 2021 FCA 184 at para 78 ; Rebel News Network Ltd v Alberta (Election Commissioner) , 2021 ABCA 376 at para 10 .

Context is important, and this includes the decision maker’s choice of procedure. The reviewing court must be satisfied that the decision maker met the level of procedural fairness required in the circumstances. 6. Preliminary Issue: Scope of Materials Considered [ 39 ] A preliminary issue I must address is the scope of the material to be considered. [ 40 ] The Court has the benefit of the comprehensive written submissions of all the parties, along with the Certified Record of Proceedings.

As well, the Court received an affidavit of the Applicant (December 10, 2020), portions of his Questioning (January 26, 2021), an affidavit by Melanie Leaf (January 7, 2021) and an affidavit by Dr. Bozena Czarnecki (January 20, 2021). [ 41 ] Rule 3.22 sets out what evidence may be considered by the Court on a judicial review. The certified copy of the record is the foundational evidence on any judicial review. The certified record was filed on December 9, 2020. The three affidavits, along with the transcript of Questioning of the Applicant all post-date the certified record.

As such, they are not presumptively admissible and require leave of the Court to form part of the evidence on this judicial review.

[ 42 ] The general rule is that evidence that was not before the tribunal and that relates to the merits of the decision is not permitted on judicial review: Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) , 2006 ABQB 904 at para 42 ; Alberta College of Pharmacists v Sobeys West Inc, 2017 ABCA 306 at para 67 . The nature of judicial review is confined to the evidence before the administrative tribunal, subject to discrete exceptions.

Supplementary evidence that was not before the decision maker is usually allowed to address standing, to show bias or reasonable apprehension of bias where the facts in support of the allegation did not appear on the record, to demonstrate a breach of the rules of natural justice not apparent on the record and to reveal the evidence actually placed before the decision maker where the decision maker provided an inadequate or no record of its proceeding: Bergman v Innisfree (Village) , 2020 ABQB 661 at paras 45-46 .

Supplementary evidence has also been found to be admissible where the affidavits provide background information that will assist the Court in understanding the issues on judicial review and where the Court may benefit from opinion evidence on technical matters providing context to the judicial review: Association of Universities and Colleges of Canada v Canadian Copyright Licensing agency , 2012 FCA 22 at para 20 ; Alberta’s Free Roaming Horses Society v Alberta , 2019 ABQB 714 at paras 25-26 . [ 43 ] Dr. Czarnecki’s affidavit was offered by APEGA.

APEGA argues that the affidavit is required due to the nature of the positive declaratory relief sought by Leavitt. Given this relief relates to the Applicant’s individual ability to practice as a supervising professional, APEGA asserts that Dr. Czarnecki’s affidavit is necessary. APEGA also asserts that this affidavit is necessary as it contains evidence on the functional roles and tasks of a supervising professional and this is necessary background to what is a complex factual matrix underlying its decision to issue the Practice Bulletin.

Finally, APEGA argues that Dr Czarnecki’s affidavit is necessary to the extent that it sets out that concrete testing involves the evaluation and

interpretation of results which engages more complex problem solving than “the routine application of industry recognized codes, standards, procedures and practices using established engineering or applied science principles and methods of problem solving”, which is the restriction placed on the scope of practice for professional technologists per s 90.1(2) of the Act . APEGA agrees that the affidavit ought not to be categorized as an expert report. [ 44 ] The Applicant made no argument on the admissibility of this affidavit. The Intervenor, ASET, opposed the admissibility of Dr.

Czarnecki’s affidavit arguing that it was not necessary for the judicial review application, it was not before the APEGA Council on the certified record and it is not properly characterized as expert evidence. [ 45 ] Dr. Czarnecki’s affidavit contains her curriculum vitae outlining her expertise in the field of forensic investigations of strength and durability failures of materials, evaluation of admixtures and supplementary cementing materials in concrete, and assessment of gravel sources and their suitability for use in Portland cement concrete, asphalt concrete and road construction gravels.

She is also a professional engineer. The remainder of her affidavit contains her responses to questions that relate directly to the issue of the responsibilities of supervising professionals in concrete testing laboratories and whether any of these responsibilities fall outside the scope of practice for professional technologists imposed by s 90.1(2) of the Act . [ 46 ] This affidavit goes to the substance of the decision made by APEGA and reflected in the Practice Bulletin. Dr.

Czarnecki deposes that APEGA’s decision to limit the ability of professional technologists to act as supervising professionals in concrete testing laboratories was a proper decision based on the roles, responsibilities and statutory limits to the scope of practice for professional technologists. [ 47 ] While it is correct that this affidavit was not before the APEGA decision makers, I disagree that it is not necessary for the purpose of the application before the Court. [ 48 ] The roles and responsibilities of professional technologists in concrete testing laboratories involve scientific knowledge beyond that of the layperson.

Dr. Czarnecki’s affidavit is presented in a question and answer format, with her responses setting out in clear language, the framework of a supervising engineer, a supervising professional and how these roles relate to a professional engineer and a professional technologist and the operation of a concrete testing laboratory. As such, her affidavit is admissible background and technical information that will assist the Court in understanding the issues on this judicial review. The Court will benefit from her evidence on technical matters providing context to the judicial review.

This is a permitted exception against the admissibility of evidence that was not before the decision maker. [ 49 ] As well, her evidence is relevant to the positive declaratory relief requested by the Applicant. Without it, there is no evidence on which the Court could determine whether the Applicant can practice as a supervising professional. Care will be taken to ensure that Dr. Czarnecki’s affidavit evidence does not infiltrate the merits of the judicial review analysis. [ 50 ] The second admissibility issue relates to the affidavit of Melanie Leaf that was offered by the Applicant.

Melanie Leaf is the Registrar and Director of Practice for ASET. The Applicant argues that this evidence is relevant to what is absent from the certified record: APEGA’s lack of consultation with ASET or any of the statutory Joint Boards or Committees when the Practice Bulletin was being considered. ASET does not object to Melanie Leaf’s affidavit.

APEGA does not object to the Leaf affidavit being admitted, while arguing that it is not necessary because it contains evidence that was already before the APEGA decision makers. [ 51 ] The Leaf affidavit sets out the legislative scheme for cooperation between APEGA and ASET and the statutory Joint Boards and Committees established under the Act . She confirms that APEGA did not consult with ASET or any of the Joint Boards or Committees in the development or publication of Practice Bulletin.

She also deposes that there are approximately 35 professional technologists who have a scope of practice relating to concrete testing and APEGA never requested records from ASET in relation to these affected professional technologists. [ 52 ] No party takes issue with the fact that APEGA did not consult or provide notice to any of the Joint Boards or Committees or ASET or the Applicant in advance of the decision to issue the Practice Bulletin. A review of the certified record confirms the absence of any such notice or consultation.

To the extent that Ms Leaf’s affidavit confirms what is agreed to by the parties and what is absent from the certified record, it will be admitted. It will also be admitted for the purpose of succinctly setting out how the Joint Boards and Committees established by the Act operate in practice. [ 53 ] The final admissibility issue relates to an affidavit of the Applicant and a transcript of his Questioning on that affidavit.

[54] The affidavit sets out his status as a professional technologist and his scope of practice, his employment with MPE and hisduties therein. He also deposes to the CCIL certification held by MPE and describes the pre-January 1, 2020 CSA standard whichrequired that the supervising engineer of a concrete testing laboratory be a licensed engineer with a minimum of two years of workingexperience in the operation of a concrete testing laboratory.

He also deposes to the change that occurred on January 1, 2020 with theimplementation of CSA A283:19, which replaced the requirement of a “supervising engineer” with a “supervising professional”. Heincludes correspondence from CCIL dated January 1, 2020, indicating that CCIL would be forwarding his certificate to work as thesupervising professional under the new CSA A283:19 standard.

Finally, he deposes that MPE received a copy of APEGA’s PracticeBulletin dated January 1, 2020, on March 16, 2020 and that he was not earlier advised of the Practice Bulletin or that it would limit hisability as a professional technologist to act as a supervising professional pursuant to the new CSA standard. [55] APEGA does not object to the admissibility of the Applicant’s affidavit and Questioning transcript as they argue they containevidence that was already before the board in the decision-making phase, or confirms that no consultation with the Applicant or ASEToccurred.

They also do not oppose the admissibility of his affidavit or transcript to the extent that they provide background or context. [56] Neither of these two documents were before APEGA as they considered issuing the Practice Bulletin. However, given thecomplicated nature of the duties and the responsibilities in concrete testing laboratories, along with the positive declaratory relief sought,the affidavit and Questioning of the Applicant are admissible for the purpose of background information that will assist the Court inunderstanding the issues on judicial review. 7. Analysis A.

Did APEGA have the authority to issue the Practice Bulletin? [57] The Practice Bulletin proclaims that the nature of the work supervising a concrete testing laboratory lies beyond the scope ofpractice for professional technologists.

Accordingly, the Practice Bulletin determines that professional technologists are not able to actas supervising professionals of concrete testing laboratories in Alberta under CSA A283:19. [58] APEGA argues first, that the Practice Bulletin is an expression of its administrative and regulatory duties over its ownmembers and therefore, even though there is no express statutory language authorizing it to issue a Practice Bulletin, its actions in sodoing do not attract judicial review. [59] I disagree. The decision of APEGA Council on the

interpretation of the new CSA standard is inextricably bound up in theregulation of the practice of engineering and the intersection between the scope of practice of professional engineers and professionaltechnologists. A supervising professional was a completely new category in the CSA standard. The CSA standard defined that new roleand contemplated a challenge between which regulated category of engineering professional could act as a supervising professional.

APEGA Council was aware of the previous attempts by the Applicant and ASET to encourage CCIL to permit professional technologiststo act as a supervising engineer under the previous standard. They were aware of the previous judicial review application in relation toCCIL’s decision.

And finally, the Council foresaw further litigation in respect of their decision to issue the Practice Bulletin. [60] Given this knowledge, and combined with the role of the Joint Councils Committee being to inquire into matters of mutualinterest between APEGA and ASET, with a statutory appeal process for any decision from the JCC, the decision by APEGA to issue thePractice Bulletin cannot escape judicial review.

To conclude the APEGA could issue the Practice Bulletin without any recourse byASET or CCIL, since CCIL had approved the Applicant’s request to act as a supervising professional, would frustrate the legislativeintention of the JCC. [61] APEGA relies upon Ainsley Financial Corp v Ontario Securities Commission, (1994), (ON CA), 21 OR (3d) 104, 121 DLR (4th) 79, to argue that the Practice Bulletin is not a mandatory statement but rather advice to its members, and therebydoes not attract judicial review.

However, the Ainsley decision dealt with the authority of a regulator to issue non-binding statementsor guidelines. It is clear from the wording of the Practice Bulletin and the certified record that APEGA meant the Practice Bulletin to bebinding on its members. The Practice Bulletin was meant to have a direct impact on the category of professional who could be employedby an APEGA permit holder to act as a supervising professional in a concrete testing laboratory.

Permit holders were bound to complywith the Practice Bulletin or risk sanction by their regulator – APEGA. [62] Likewise, APEGA relies on the decision of Laboratories C.O.P. Inc. v New Brunswick College of Pharmacists, 2020 NBCA74, to support their contention that APEGA enjoyed the ability to issue the Practice Bulletin, arguing it was nothing more than areminder or guideline confirming the existing scope of practice coupled with a warning not to stray into areas reserved for otherprofessionals.

However, this statement of the law ignores the fact that in directing their permit holders as to who can be hired to performthe duties of a supervising professional in a concrete testing laboratory, APEGA established that the supervision of a concrete testinglaboratory involves activities captured by s 1(

q) of the Act which activities specifically exclude professional technologists given theirlimited scope of practice.

In setting out the work of the supervising professional, and the statutory constraints of a professionaltechnologist, the Practice Bulletin concludes that “The supervision of a concrete testing laboratory…is beyond the scope of aprofessional technologist…as a result, [they] are not able to act as supervising professionals” in these laboratories. [63] The Practice Bulletin is a definitive, mandatory expression of APEGA’s direction to its permit holders that professionaltechnologists are not permitted to act as a supervising professional.

Permit holders are regulated by APEGA and must comply with thedirectives of their regulator. The Practice Bulletin was not a guideline, it was a mandatory direction to APEGA members. As such, thedecision to issue the Practice Bulletin does attract judicial review. [64] Now I must apply the standard of review to whether APEGA’s had the authority to issue the Practice Bulletin. Both theApplicant and ASET argue that the standard of review on the issue of APEGA’s authority to issue the Practice Bulletin is correctness. Idisagree.

Vavilov narrowed the issues that attract a correctness review to specific questions of law. The jurisdictional authority of an

administrative body to make decisions is not one of the limited questions that now attract a correctness standard of review. This issue will be reviewed on the reasonableness standard. [ 65 ] The Applicant and ASET argue that APEGA did not have the jurisdiction to issue the Practice Bulletin given that it is a disguised effort to regulate professional technologists, and the regulation of professional technologists is outside the statutory authority of APEGA [ 66 ] I disagree.

APEGA was rightly concerned about the prospect of a professional technologist potentially being permitted to act as a supervising professional.

As the provincial regulator of the practice of engineering, it is within APEGA’s jurisdiction to determine what activities are captured by the “routine application” of engineering knowledge, and what activities require “complex methodologies” of engineering. [ 67 ] Because this CSA standard relates only to concrete testing laboratories, and these laboratories deal with engineering duties broadly, responsibility for establishing the requirements of a supervising professional in a concrete laboratory fell to APEGA as the body responsible for regulating the practice of engineering in Alberta.

Because the CSA materially changed the language in A283:19 from supervising engineer to supervising professional, APEGA was required as the provincial regulator of the practice of engineering, to provide some guidance to its members on the import of this change in terminology and how the change impacts the practice of engineering. [ 68 ] If a professional technologist assumed the ability to act as a supervising professional, APEGA believed that two issues arose. First, that a professional technologist could have authority over a professional engineer’s work in the practice of engineering in the concrete lab.

The structure of the Act and the unrestricted scope of practice enjoyed by professional engineers imposes a hierarchy in the practice of engineering whereby professional engineers stand above profession technologists. Any decision by a non-regulator, such as CCIL or the CSA, which disrupts this legislated hierarchy is of interest to APEGA given its role in the regulation of engineering. APEGA’s second concern contemplated a professional technologist as a supervising professional, practicing engineering outside the regulation of APEGA.

This too was a valid concern given that APEGA’s regulation of the practice of engineering is governed solely by the pubic interest. [ 69 ] APEGA alone enjoys the statutory authority to determine what constitutes the unrestricted practice of engineering.

The Practice Bulletin was a guideline to their members that the new terminology employed in A283:19 of “supervising professional” captured functional tasks that involved the unrestricted practice of engineering. [ 70 ] The Applicant further argues that APEGA exceeded its jurisdiction and acted without lawful authority when it issued the Practice Bulletin as it frustrated the legislative scheme that is designed to regulate APEGA members and professional technologists.

ASET joins in this assertion, arguing that the Act provides that issues related to the scope of practice of professional technologists are to be determined by the Joint Practice Review Board. Specifically, ASET points to ss 88.1(a)(iii) and (

b) of the Act to support their position that APEGA enjoys no statutory authority over the practice or scope of practice of professional technologists. [ 71 ] Establishing the scope of practice for individual professional technologists is delegated to the Joint Board of Examiners, one of the joint boards created by s 89 of the Act .

Thus, the practice of professional technologists is regulated by APEGA and ASET jointly. [ 72 ] The legislative scheme of the Act directs questions relating to the practice of professional technologists to the joint boards and committees, specifically the Joint Practice Review Board, which has the specific authority to inquire into the practice of professional technologists in general or individual professional technologists specifically ( s. 88.1 (a), (2) ,

(8) Act ). [ 73 ] While ASET argues that APEGA has no statutory role in the regulation of professional technologists, this is not entirely correct. After reviewing the statutory framework of the Act and the intersection of the legislative duties of both APEGA and ASET, the Court has previously concluded that the “Joint Boards and Committees act on behalf of the joint interests of APEGA and ASET, the overarching joint interest being the standardization of professional technologists for the benefit and safety of the public.”: Leavitt , para 28 .

And further that “ASET and APEGA share the responsibility for setting the scope of practice for P-Techs through the Joint Board”: Leavitt , para 46 . [ 74 ] The certified record indicates that CCIL believed that a professional technologist would meet the definition in the amended standard.

This is no doubt why CCIL approved the Applicant’s request to be granted “supervising professional” status effective January 1, 2020. [ 75 ] With knowledge that ASET had contacted CCIL seeking their position on whether the change in the definition of the supervising engineer to supervising professional would also change CCIL’s position on the eligibility of a professional technologist to fulfil that role, APEGA Council took the proactive step of issuing the Practice Bulletin setting out their advice on this issue as it relates to the practice of engineering.

The decision to issue the Practice Bulletin was reasonable. [ 76 ] Finally, the Applicant argues that regulations to the Act limit APEGA’s statutory authority to issue directives to certain prescribed areas none of which permit APEGA to pronounce on the competency of ASET’s members. [ 77 ] I have already concluded that the purpose of the Practice Bulletin was not to indirectly regulate professional technologists. I have already concluded that APEGA was obligated to announce a position on who can act as a supervising professional given the amended CSA standard.

APEGA’s overriding obligation to act in the public interest and their statutory role in the regulation of the practice of engineering required them to take a public position on this issue, notwithstanding the regulations to the Act . [ 78 ] I find that APEGA’s

interpretation of the Act as conferring the requisite authority to issue the Practice Bulletin was reasonable. B. Was APEGA’s decision to issue the Practice Bulletin reasonable?

[ 79 ] The SCC cautioned in Vavilov at para 93 that, in conducting a reasonableness review, ... judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons.

Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision..... [ 80 ] Nonetheless, the impugned decision must be “justified in relation to the constellation of law and facts that are relevant to the decision” ( Vavilov at para 105 ). [ 81 ] ASET joins the Applicant in arguing that APEGA’s decision to issue the Practice Bulletin was not reasonable.

They jointly argue that APEGA did not consider relevant matters and they considered irrelevant evidence. The Applicant alone argues that APEGA also acted with an improper purpose in issuing the Practice Bulletin in that it was designed to limit or restrict the Applicant’s scope of practice. [ 82 ] I first address the submission that APEGA acted with an improper purpose in issuing the Practice Bulletin. The change in the terminology in the new CSA standard required APEGA to consider how this new language impacted the practice of engineering in concrete testing laboratories.

APEGA was not motivated to restrict or limit the Applicant’s scope of practice. It is correct that APEGA Council discussed the Applicant in their deliberations. However, that was only in so far as the previous litigation he had initiated, and APEGA’s anticipation of further legal challenges on the issue.

APEGA was concerned with the regulation of its permit holders and maintaining the public interest in relation to the practice of engineering in an area they believed involved a level of complexity beyond that conferred on professional technologists. [ 83 ] None of this knowledge renders APEGA’s decision to issue the Practice Bulletin unreasonable. In fact, this knowledge properly prompted the decision to issue the Practice Bulletin. APEGA knew that this issue would arise with the promulgation of the new standard.

They are tasked with regulating the practice of unrestricted engineering in Alberta, and they act solely in the public interest. [ 84 ] APEGA did not act with any improper purpose. [ 85 ] The Applicant and ASET argue that the real purpose of the Practice Bulletin was the indirect regulation of professional technologists. I have already concluded that this was not the case.

Regardless of that finding, the Practice Bulletin did have an impact on professional technologists in general and on the Applicant in particular, since he had received permission from CCIL to act as a supervising professional before APEGA publicized the Practice Bulletin, and APEGA knew the Applicant had begun working as a supervising professional. [ 86 ] When CSA indicated that the new standard would be approved, APEGA became concerned that individuals without the necessary scope of practice may seek to undertake the responsibilities associated with the change in the terminology, and thus conclude that the terminology resulted in a broader scope of practice than they otherwise enjoyed. [ 87 ] APEGA considered what steps to take to ensure the protection of the public as well as to advise its permit holders on the new CSA standard and APEGA’s view on the change to the terminology from supervising engineer to supervising professional. [ 88 ] When the CSA announced the new standard, they had no authority to alter the category of regulated practitioner who could occupy that newly created role. [ 89 ] Despite this fact, the Applicant wrote to CCIL and obtained their permission to occupy the role of supervising professional at MPE.

CCIL ostensibly granted him that permission without any authority to do so. Leavitt’s scope of practice is established pursuant to s 90.1(2) of the Act . Neither CCIL nor CSA has any role in fashioning the scope of practice or exclusively determining whether the functional tasks of a supervising professional are limited to the routine application of industry standards or whether those functional tasks require more complex methodologies. [ 90 ] APEGA was obligated to act in response to this knowledge.

Their decision to act by issuing the Practice Bulletin however, was unreasonable. [ 91 ] APEGA had other options than unilaterally considering and then issuing the Practice Bulletin. APEGA knew that many concrete testing laboratories employed professional technologists and they knew that the Act contemplated issues that were of mutual interest to APEGA and ASET councils and created a forum for discussing these issues: the Joint Councils Committee.

APEGA also knew that the Act created an appeal process for disputes at the JCC level. [ 92 ] Despite this knowledge, APEGA decided to avoid consultation with ASET and decided to unilaterally pronounce on the issue without sending the question to the JCC. [ 93 ] In concluding that the tasks of a supervising professional in a concrete testing laboratory exceeded the scope of practice of a professional technologist, APEGA had limited information on the actual duties of a professional technologist in such a laboratory.

In declining to consult with ASET and by declining to send the question to the JCC, APEGA failed to consider information relevant to the question of whether the scope of practice of a professional technologist included the duties of a supervising professional under the new CSA standard. [ 94 ] I note that in Romania v Boros , 2020 ONCA 216 , the Ontario Court of Appeal set aside an extradition decision owing to concerns about transparency. Notably, the Ontario Court held that it was “incumbent upon the Minister to make inquiries” respecting a troubling issue (at para 26).

In a similar vein, a decision based on incomplete information or a deficient investigation has been characterized as unacceptable: Bergeron v Canada (Attorney General) , 2015 FCA 160 at para 70 . While these authorities are not fully analogous to APEGA’s decision to issue the Practice Bulletin, in my opinion, they do set out the principle that a decision maker has a

legal obligation to ensure that it has before it, complete information in order to meaningfully determine the issue. [95] I also agree with ASET that APEGA failed to adequately consider that there are different levels of concrete testinglaboratories with different types of tasks for the supervising professional in each level of laboratory. The certified record indicates thatAPEGA knew that concrete testing laboratories had three different levels and that there was an “enormous range of sophistication oflabs”, with a “huge difference between persons supervising low category 1 vs high category 2 or 3 lab”.

The certified record indicatesthat despite this knowledge, APEGA made no distinction between the category of concrete testing laboratory and the role played by thesupervising professional. By ignoring this detail, APEGA acted on inadequate information and failed to consider relevant information inissuing the Practice Bulletin. In all of these respects, APEGA’s decision to issue the Practice Bulletin cannot be justified. [96] By knowingly acting on inadequate information and declining to acquire relevant information, APEGA’s decision to issue thePractice Bulletin was unreasonable. C.

Did APEGA breach the duty of Procedural Fairness? [97] In the event that I am incorrect in concluding that APEGA’s decision to issue the Practice Bulletin was unreasonable, I turn toconsider whether its decision breached the principle of procedural fairness. [98] It is common ground that APEGA did not consult with ASET, any of ASET’s members, including the Applicant, or any of thejoint boards or committees. [99] The Applicant argues that APEGA breached its duty of procedural fairness in two respects: by breaching the doctrine oflegitimate expectations and by denying ASET and Leavitt participatory rights. [100] Procedural fairness is “eminently variable” and “its content is to be decided in the specific context of each case”: Baker vCanada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 21.

The SCC in Baker at paras22-28 sets out a non-exhaustive list of factors which can influence the content of procedural fairness in specific circumstances:

a) thenature of the decision being made and the process followed in making it;

b) the nature of the statutory scheme and the terms of thestatute pursuant to which the decision maker operates;

c) the importance of the decision to the persons affected;

d) the legitimateexpectations of the person challenging the decision;

e) the decision maker’s choice of procedures for such decision. [101] First, in terms of the nature of the decision, where a broad discretion is provided, there is a greater need for judicial oversight toprevent arbitrary decisions and therefore a high degree of procedural fairness. Second, in terms of the nature of the statutory scheme, theAct creates a comprehensive regime to protect the public by governing various engineering professions, which again warrants a highdegree of procedural fairness.

The Applicant points out that the Act provides significant participatory rights to regulated professionals –ie, APEGA Regulations must be approved by its members, and ASET Regulations must likewise be approved by its members. Third, thelack of a means to “appeal” a decision to issue a Practice Bulletin also warrants a high degree of procedural fairness.

Greater proceduralprotections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issueand further requests cannot be submitted: Baker at para 24. [102] In terms of the importance of the decision to the Applicant, he argues that the decision directly impacts his ability to earn alivelihood and thus warrants a high degree of procedural fairness. Kane v Board of Governors of the University of British Columbia, (SCC), [1980] 1 SCR 1105 at 1113; Baker at para 25.

The Applicant asserts that he had a legitimate expectation ofparticipatory rights in the determination of whether the new category of supervising professional in a concrete testing laboratory waslimited to professional engineers.

He bases this on the fact that he had been an applicant in an earlier judicial review involving the sameissue – ie, the scope of practice for professional technologists and its interplay with the standards and practices applicable to engineers, inwhich APEGA was a party. [103] I disagree with the Applicant that he had a legitimate expectation of participation in the decision in question. [104] APEGA argues that there was no duty to consult in its decision to issue the Practice Bulletin in part because the Applicant neverconsulted with APEGA when he sought permission from CCIL to be classified as a supervising professional and that the judicial reviewinitiated by the Applicant and ASET in 2018 was done without any notice to APEGA. [105] The duty to consult is a legal obligation.

Procedural fairness is the bedrock of administrative law. The duty to consult is notconditional on a tit for tat assessment of how the decision maker has been treated in the past by the affected parties. APEGA’s duty toconsult exists independent of choices the Applicant and ASET made in the past vis a vis their previous disputes with APEGA. [106] The Applicant is not a member of APEGA, and he is not regulated by APEGA Council.

While APEGA was aware that CCILhad granted the Applicant permission to act as a supervising professional effective January 1, 2020, APEGA’s decision did not limit theApplicant’s ability to continue his employment as a professional technologist with MPE. [107] The Practice Bulletin provides advice to permit holders regulated by APEGA.

The Applicant was not the target of the PracticeBulletin and accordingly he had no legitimate expectation that he would be consulted as APEGA considered the issue. [108] ASET also argues that APEGA Council breached procedural fairness because they did not consult with ASET, ASET’s affectedmembers or the joint boards and committees established by the Act specifically to inquire into matters of mutual interest.

ASET’saffected members did not enjoy a legitimate expectation that they would be consulted by APEGA. [109] ASET argues that not only did APEGA have a legal duty to act with procedural fairness and thereby consult with ASET or withthe joint boards created by the Act, but that the certified record demonstrates that APEGA knew they had a duty to consult with ASETand actively avoided any consultation and avoided the timely notice of the Practice Bulletin.

[ 110 ] ASET points to the fact that APEGA agreed in the past, on an unrelated issue relating to safety codes, to discuss the issue with ASET, and APEGA’s application for intervenor status in the 2018 judicial review ( Leavitt ) as a foundation to support their position that they enjoyed a legitimate expectation of consultation on the Practice Bulletin issue. I disagree. APEGA’s earlier safety codes “consultation” was not a consultation in advance of a decision on the issue but rather a courtesy explanation of what the decision already taken actually meant in practice.

As well, APEGA clearly had an interest in the earlier judicial review.

Neither position previously taken by APEGA gives rise to a legitimate expectation of consultation by ASET. [ 111 ] APEGA responds that it does not have to consult with other regulatory bodies when issuing a Practice Bulletin that relates to the practice of engineering by permit holders that it regulates. [ 112 ] This argument belies the statutory framework of the Act , the legislative purpose of the Joint Councils Committee to provide a forum for discussion on matters of mutual interest between APEGA and ASET and APEGA’s knowledge of the prior litigation on the issue under review. [ 113 ] APEGA was aware that professional technologists worked in concrete testing laboratories and that the Applicant and ASET had been attempting for quite some time to have a determination of whether the scope of practice for a professional technologist included the ability to work as a supervising engineer under the old standard.

This question involved litigation where APEGA was eventually granted party status ( Leavitt ). Despite this knowledge, APEGA made no effort to involve ASET or send the issue on to the Joint Councils Committee, where both entities could provide their positions, and for which there is a legislated appeal process.

In essence, APEGA circumvented the very process that the Act established for considering such issues. [ 114 ] As a result of the previous litigation, and APEGA’s anticipation of further litigation in respect of the Practice Bulletin, ASET had a legitimate expectation that it would be consulted on the issue under consideration. [ 115 ] APEGA also knew that given the unique regulatory regime in Alberta, with two types of professional licensees – a professional engineer with an unrestricted scope of practice, and a professional technologist with a restricted scope of practice – that they new national standard required clarification to apply to the Alberta landscape.

Given the note by the CSA in the new standard about the fact that in some jurisdictions, the supervising professional may also include a holder of another professional designation [not a professional engineer] with a license limited to practice engineering in this [concrete testing laboratories] field gives further weight to the conclusion that ASET had a legitimate expectation of consultation. [ 116 ] The certified record indicates APEGA’s knowledge that concrete testing laboratories were staffed by professional technologists.

It is also the case that the certified record indicates that there are different levels of complexity to the tasks of a supervising professional depending on the type of work the concrete laboratory undertakes, despite the fact that the A283:19 does not distinguish between the functional tasks of these three types of levels of work for a supervising professional.

This fact gives further weight to the conclusion that ASET had a legitimate expectation of consultation, as it is through the regulation of their members, that ASET would have knowledge and information to add to the deliberative process. [ 117 ] The certified record establishes that APEGA anticipated a negative reaction from ASET to the Practice Bulletin. APEGA consulted with CSA and CCIL, seeking clarification on the duties of a supervising professional within a concrete testing laboratory.

Despite the anticipated litigation from ASET and APEGA’s consultation with other bodies, they chose not to consult with the ASET, the association for the engineering professionals employed in the laboratories governed by the Practice Bulletin. [ 118 ] The Applicant did not enjoy a legitimate expectation of consultation. ASET did enjoy the legitimate expectation of consultation. APEGA acted contrary to its duty of procedural fairness in failing to consult with ASET. D.

Should the remedy include Declaratory Relief? [ 119 ] The Applicant seeks a positive declaration that he is entitled to act as the supervising professional for MPE so long as he is approved by CCIL and is registered to practice engineering as a professional technologist under the Act . The Applicant’s argument in essence is that the Practice Bulletin usurped the proper legislative role of the Joint Board of Examiners to determine whether his scope of practice encompasses the functional duties of a supervising professional under the new CSA standard.

He then requests that the Court assume the role of the Joint Board of Examiners and grant him the ability to act as a supervising professional for MPE. [ 120 ] APEGA takes the position that the positive declaration sought by the Applicant is not available as a remedy on this judicial review. [ 121 ] ASET takes no position on the positive declaration sought by the Applicant. [ 122 ] Positive declaratory relief can be available to the court on a judicial review: Vavilov at para 142 ; Knox v Conservative Party of Canada, 2007 ABCA 295 at paras 16-17 , leave to appeal ref’d, [2007] SCCA No 567; Khadr v Canada (Prime Minister) , 2010 SCC 3 at para 46 . [ 123 ] In any judicial review, the Court exercises either an original remedy or a supervisory remedy.

A supervisory remedy is engaged where the judicial review is based on whether the decision that was made was reasonable or correct or both. This is the issue in the present case. Where the court exercises its supervisory remedy, the court’s role involves a review of the decision itself, and does not involve fact-finding on the issue that was made by the decision maker. [ 124 ] The positive declaration sought by the Applicant involves consideration of facts, and fact finding, and ultimately, substituting the Court as the ultimate decision maker.

The SCC cautioned that the role of the Court in these circumstances is to review the decision and as a general rule, to refrain from deciding the issue themselves: Vavilov , para 298 [ 125 ] The practice of engineering, whether by professional engineers or professional technologists is one of vital importance to the

public interest. Engineering knowledge, skill and practice is embedded in the creation of all public and private spaces. It is a practice that is highly specialized. That is one of the policy reasons why the regulation of the profession is limited to those who have education, experience, technical and scientific knowledge in the subject area. Engineering does not lend itself to generalized knowledge or understanding.

Specifically, the operation and supervision of concrete laboratories is of critical importance as the consequence of an inaccurate test result can have significant impact on public safety. [ 126 ] Any finding as to the reasonableness of APEGA’s decision to issue the Practice Bulletin does not inevitably or even tangentially lead to a concurrent finding that the Applicant’s specific scope of practice as a professional technologist is captured by the definition of supervising professional in the new CSA standard.

That decision is a decision for the Joint Board of Examiners, comprised of subject matter experts, whose deliberations and decisions are guided by the public interest. [ 127 ] This is not a situation in which it is appropriate for the Court to assume the mantle of decision maker and determine whether the Applicant’s statutorily limited scope of practice encompasses the duties of a supervising professional. 8. Conclusion [ 128 ] The application for certiorari is granted. The Practice Bulletin is quashed and remitted to the Joint Councils Committee for consideration in keeping with the Act .

The Applicant’s application for positive declaratory relief that he is entitled to act as a supervising professional is denied. Heard on the 1 st day of April, 2021. Dated at the City of Edmonton, Alberta this 10th day of December, 2021. S.E. Richardson J.C.Q.B.A. Appearances: Simon Renouf Q.C. for the Applicant Shauna Finlay for the Respondent Kathleen Elhatton-Lake for the Intervenor