Dorn v. Association of Professional Engineers and Date:, 2014 MBCA 25

Citation: Dorn v. Association of Professional Engineers and Date: 20140303 Geoscientists (Man.), 2014 MBCA 25 Docket: AI 13-30-08023 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : ) B. J. Meronek, Q.C. and ) I. B. Scarth ) for the Appellant PHILLIP MARK DORN ) ) T. E. Bock and (Applicant) Appellant ) T. K. Reimer ) for the Respondent - and - ) ) J. B.

Hirsch ASSOCIATION OF PROFESSIONAL ) On a watching brief ENGINEERS AND GEOSCIENTISTS ) OF THE PROVINCE OF MANITOBA ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) February 26, 2014 ) ) Written reasons: ) March 3, 2014 MAINELLA J.A. Introduction [ 1 ] This is an appeal from a dismissal of a judicial review of a decision of the council of the Association of Professional Engineers and Geoscientists of the Province of Manitoba (the APEGM) as to the procedure to be followed in an appeal to the council pursuant to s. 53(1) of The Engineering and Geoscientific Professions Act , C.C.S.M., c.

E120 (the Act ). At the hearing of the appellant’s appeal, the court announced that the appeal was dismissed with reasons to follow. These are those reasons. Background [ 2 ] The appellant, an engineer, was convicted after a hearing by a discipline committee of the APEGM of two counts of professional misconduct under the Act . Pursuant to s. 53(1) of the Act , the appellant appealed the finding of professional misconduct to the council.

Section 53(1) of the Act states: Appeal to council 53(1) An investigated person or the complainant may appeal to the council a finding or an order, or both, of the panel or the discipline committee. [ 3 ] Pursuant to s. 12(1) (

c) of the Act , the procedures of the council are created by by-laws of the APEGM, so long as the

by-laws are “not inconsistent with this Act.” By-law 15.7.6.3 confirms that any professional misconduct appeal to council pursuant to s.53(1) of the Act is on the record of the discipline committee hearing. [4] Prior to the council hearing the merits of the professional misconduct appeal, the appellant brought a preliminarymotion to the council seeking a ruling that his appeal to the council was by way of a de novo hearing and not an appeal based on therecord of the discipline committee hearing. [5] The council ruled that the Act does not provide for a right of appeal by way of a de novo hearing to the council; theappellant’s appeal of the discipline committee’s finding of professional misconduct, therefore, is to proceed based on the record of thediscipline committee hearing. [6] The appellant then sought judicial review of the council’s

interpretation of the nature of the appeal before it under s.53(1) of the Act. [7] The application judge dismissed the application for judicial review. He held that when a statute is silent, thepresumption as to the right of an appeal in an administrative law context is that of a “true appeal” on the record as opposed to a de novohearing (Friesen (Brian Neil) Dental Corp. et al. v. Director of Companies Office (Man.) et al., 2011 MBCA 20 at para. 42, 262 Man.R.(2d) 197). The application judge held that the council’s

interpretation of its own statute was reasonable and deference should be given toit. He noted that By-law 15.7.6.3 simply “makes explicit what the Act has made implicit” (at para. 22). [8] When the parties filed their documents in this court regarding the appeal of the application judge’s decision, neitherside addressed the appropriateness of appealing an interlocutory ruling when the council has yet to hear the merits of the professionalmisconduct appeal.

The court invited submissions from the parties as to when it is appropriate to hear interlocutory appeals inadministrative law cases, and whether this was an instance where there are exceptional circumstances to justify this appeal of aninterlocutory ruling. [9] The parties have taken a common front on the questions raised by the court. [10] Both parties agree that, in order to avoid the delays and disruption caused by an interlocutory appeal, the administrativeprocess, as a general rule, should be allowed to run its course except where there are exceptional circumstances such that there is noeffective alternative remedy to deal with the alleged error (Turnbull et al. v.

Canadian Institute of Actuaries et al. (1995), (MB CA), 107 Man.R. (2d) 63 at para. 29 (C.A.)). [11] The parties also both argue that this is an exceptional case to hear an interlocutory appeal. They note that thesubstantive appeal has not yet commenced, therefore, it is convenient to hear this interlocutory appeal. They further argue, based onManitoba v.

Russell Inns Ltd. et al., 2013 MBCA 46, 291 Man.R. (2d) 244, that there is no adequate alternative remedy in thecircumstances because the decision and order of the council on the preliminary motion as to the appellant’s request for a de novo hearingis not reviewable pursuant to s. 55(1) of the Act as it was not made by the council pursuant to s. 53(4) of the Act. Analysis and Decision [12] Despite the agreement of the parties to the contrary, I am satisfied that exceptional circumstances do not exist for thiscourt to review the council’s

interpretation of s. 53(1) of the Act before the administrative process is exhausted. [13] A court will not lightly intervene in an administrative process before it is complete; the threshold to do so is very high assuch judicial intervention by definition delays and fragments the administrative process (Black v. Canada (Attorney General), 2013 FCA201 at para. 10, 448 N.R. 196, and Turnbull at para. 29). [14] In Canadian Pacific Ltd. v.

Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3, Lamer C.J.C. describedwhat factors a court should consider before intervening in an administrative process on an interlocutory basis (at para. 37): ... I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, oralternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of thealternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedialcapacities).

I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate andbalance the factors which are relevant. [15] On the question of whether there is an adequate alternative remedy, the parties’ reliance on Russell Inns to justify ajudicial review before the exhaustion of the administrative process is not persuasive. The parties are correct that s. 55(1) of the Act doesnot specifically include the right to appeal the council’s interlocutory decisions.

However, any interlocutory decision of the council thataffects a finding or order under s. 53(4) in a way that is material (i.e., more than harmless), would be subject to appeal as an aspect orground of the appeal of the s. 53(4) finding or order that is subject to appeal. In this case, applying the incorrect appeal procedure would,in many cases, affect the council’s finding or order under s. 53(4) and, therefore, would be subject to appeal under s. 55(1).

In RussellInns, however, the interim order under review had no effect on the final compensation in the expropriation; it only dealt with the timingof the payment of a portion of that compensation. Therefore, due to its nature, the interim order was not subject to appeal either on itsown or as an aspect of the statutory appeal of the final compensation. For this reason, the decision in Russell Inns does not assist in thiscase.

In this case, the alternative to a judicial review (a statutory right of appeal under s. 55(1) of the Act) is both convenient andadequate; further, the appellate body reviewing the council is a Court of Queen’s Bench judge who has remedial powers (s. 55(4) of theAct).

[ 16 ] The nature of the alleged error (the council’s

interpretation of its home statute) also does not favour intervention before the administrative process is exhausted because deference is owed to council’s

interpretation of the Act . The standard of review is presumed to be reasonableness ( McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at paras. 19-33 ; and Kane v. Association of Professional Engineers and Geoscientists (Man.) , 2012 MBQB 114 at para. 26 , 278 Man.R. (2d) 162). [ 17 ] The parties’ agreement that it is convenient to delay the administrative process in favour of litigation does not constitute exceptional circumstances ( Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. , 2010 FCA 61 at para. 33 , 400 N.R. 367, leave to appeal to S.C.C. dismissed, [2011] S.C.C.A. No. 267 (QL)). [ 18 ] In

summary, none of the factors identified in Matsqui , or other aspects of this case, demonstrate there are exceptional circumstances to justify judicial review of the council’s

interpretation of the appellant’s right of appeal before the completion of the administrative process. There is no justification to delay, or bifurcate, the administrative process before it is completed. If the appellant seeks to admit fresh evidence before the council, it has powers under the by-laws to deal with such an application. It would be speculative at this point to say that the administrative process under the Act cannot address the appellant’s concerns regarding the discipline committee’s finding of professional misconduct.

Conclusion [ 19 ] The appeal is dismissed because it does not meet the criteria for judicial review of the interlocutory ruling of the council before the administrative process is completed. Given the position taken in this court by the respondent, each party will bear its own costs on the appeal. J.A. I agree: J.A. I agree: J.A.