Dorn v Association of Professional Engineers Date:, 2018 MBCA 18

Citation: Dorn v Association of Professional Engineers Date: 20180305 and Geoscientists of the Province of Manitoba, Docket: AI17-30-08819 2018 MBCA 18 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN : phillip mark dorn ) B. J. Meronek, Q.C. ) for the Appellant (Applicant) Appellant ) ) T. E.

Bock - and - ) for the Respondent ) THE ASSOCIATION OF PROFESSIONAL ) Appeal heard: ENGINEERS AND GEOSCIENTISTS OF ) September 6, 2017 THE PROVINCE OF MANITOBA ) ) Judgment delivered: (Respondent) Respondent ) March 5, 2018 On appeal from 2017 MBQB 36 macinnes JA [ 1 ] The applicant appeals the dismissal of his application for judicial review of a decision made by the Council (Council) of the Association of Professional Engineers and Geoscientists of the Province of Manitoba (the Association). Background [ 2 ] This proceeding has a lengthy history.

On October 6, 2011, the applicant was found guilty of professional misconduct by the Discipline Committee of the Association. He appealed that decision to Council of the Association.

Prior to the hearing of his appeal, the applicant brought a preliminary motion to Council for a ruling that his appeal to Council should be by way of a de novo hearing. [ 3 ] On April 20, 2012, Council dismissed the preliminary motion and determined that the applicant’s appeal hearing would not be a de novo hearing but rather, a hearing based upon the record of the hearing before the Discipline Committee. [ 4 ] The applicant sought judicial review of Council’s decision in the Court of Queen’s Bench. His application was dismissed. He then appealed to this Court.

His appeal was dismissed, this Court deciding that it was premature and that the administrative process had to be completed before judicial review of the ruling of Council could be pursued. The matter was referred back to Council for hearing (see 2013 MBQB 185 ; and 2014 MBCA 25 ). [ 5 ] The applicant proceeded with his appeal before Council. He first moved, pursuant to

section 15.7.6.4(

b) of the Association’s by-laws (The Association of Professional Engineers and Geoscientists of the Province of Manitoba, By-Laws , (October 2011) (the by-laws)) for special leave to adduce further evidence on the appeal hearing. The motion was dismissed. His appeal before Council then was heard on the record before the Discipline Committee and, ultimately, was dismissed on May 22, 2015 (Council’s decision). [ 6 ] The applicant brought a fresh application for judicial review of Council’s decision and, alternatively, brought a statutory appeal of that decision pursuant to section 55(1) of The Engineering and Geoscientific Professions Act , CCSM c E120 (the Act ).

[ 7 ] Council’s decision was the vehicle which the applicant used to bring the fresh proceedings before the application judge (the judge). This was of necessity because, the applicant could not pursue the April 20, 2012 decision of Council dismissing his preliminary motion for a de novo hearing on appeal to Council, until the administrative process had been completed. [ 8 ] It is clear from the reasons for decision of the judge that the matter proceeded before her by way of application for judicial review alone.

The applicant did not allege procedural unfairness in either the hearing before the Discipline Committee or before Council. As well, there was no issue as to the right of the applicant to appeal to Council. The only issue for determination on judicial review was the nature of the appeal, the applicant asserting that his appeal to Council was to proceed by way of a de novo hearing, as he had asserted on his preliminary motion dismissed April 20, 2012. [ 9 ] The judge dismissed the applicant’s judicial review application, and it is from that dismissal that this appeal is brought.

The Appeal [ 10 ] On his appeal, the applicant asks this Court to set aside the judge’s decision and order that: 1. sections 15.7.6.3 and 15.7.6.4 of the by-laws upon which Council relied, conflict with

section 53 of the Act and are thereby invalid or ultra vires the Act and beyond the Association’s jurisdiction to enact; and 2. an appeal to Council under

section 53 of the Act is a hearing de novo during which new evidence may be adduced by either the applicant or the Association in accordance with sections 40 - 45 of the Act . [ 11 ] The applicant’s argument on appeal is based upon the following grounds. He asserts that the judge erred in law: 1. by holding that the standard of review of the decision of Council was reasonableness; 2. by holding that an appeal under

section 53 of the Act was an appeal on the record; 3. by holding that

section 53 of the Act was silent as to the nature of the appeal and that, therefore, an appeal on the record was presumed; 4. by holding that the decision of Council was reasonable; 5. by substituting her reasons for the reasons of Council when determining whether the decision of Council was reasonable; and 6. by holding that the record before the Discipline Committee should form part of the record on the appeal, along with any reasons and orders. [ 12 ] While the Association characterizes the issues on the applicant’s appeal differently, the alleged differences are, in my view, not significant in substance and I propose to deal with the grounds of appeal as outlined by the applicant on this, his appeal.

Relevant Statutory and By-Law Provisions [ 13 ] There are a number of provisions of the Act and the by-laws of the Association which, in my view, are relevant to this decision. They are set out in Appendix A to these reasons. Standard of Review [ 14 ] Both parties are of the view that the points for determination on the appeal raise questions of law arising from the decision of the judge and that accordingly, the standard of review is that of correctness.

I agree. [ 15 ] In Dr Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , McLachlin CJC wrote (at para 43): The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review . . . At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision.

As such, the normal rules of appellate review of lower courts as articulated in Housen , supra [ Housen v Nikolaisen , 2002 SCC 33 ], apply. The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge. [ 16 ] As I previously indicated, the applicant sought judicial review of Council’s decision and, alternatively, advanced a statutory appeal under section 55(1) of the Act which he did not really pursue before the judge.

Nonetheless, the law is clear that when a court reviews a decision of an administrative tribunal, whether it does so in the context of an application for judicial review or of a statutory appeal, the standard of review is to be determined on the basis of administrative law principles (see Mouvement laïque québécois v Saguenay (City) , 2015 SCC 16 at para 38 ). [ 17 ] I turn then to deal with the issues on the appeal. Issue 1: Did the Judge Err in Law by Holding that the Standard of Review of the Decision of Council was Reasonableness?

[ 18 ] The applicant asserts that the judge erred in holding that the standard of review of Council’s decision was reasonableness. [ 19 ] While acknowledging that there is a presumption of reasonableness when a tribunal, as here, was interpreting and applying its home statute, the applicant says that in this case, the presumption of reasonableness was rebutted and that the applicable standard of review was correctness. The applicant submits that the issue in this proceeding is one of procedure involving the statutory right to an appeal to Council afforded under the Act .

He acknowledges that the assessment of professional misconduct involves an analysis as to professional standards, which is something within Council’s bailiwick. However, he says that the right to determine the extent of an appeal is not. [ 20 ] Rather, he argues that the issue whether the appeal hearing before Council was to be a de novo hearing or a hearing on the record before the Discipline Committee is one both of central importance to the legal system as a whole and outside Council’s specialized area of expertise.

He says that, here, the members of Council were not legally trained and had no special expertise or experience in answering a question of statutory

interpretation involving a question of central importance to the legal system in the context of the applicable procedure in a quasi-criminal hearing, namely, a professional discipline hearing. [ 21 ] As well, he submits that there are many legislative appeal procedures in several of the provinces dealing with self- regulation of professionals and otherwise, and dealing with the statutory

interpretation of the words “with necessary modifications” (which appear here in section 53(3) of the Act ) or similar phrases. Given that, the applicant submits that it is critical that the courts be the “gatekeepers” of the proper statutory

interpretation of that phrase so as to avoid multiple

interpretations by different tribunals in different or even the same jurisdiction. [ 22 ] The applicant agrees that the

interpretation of the phrase “with necessary modifications” depends on the legislative context, but argues that, in this case, the context is bounded by

section 53 of the Act and its reference in section 53(3) to sections 40 - 45 of the Act . He argues that the judge failed to explain why uniformity is not necessary or appropriate, and why the context somehow imbues Council with more expertise than the court, without any insightful reason for coming to such a conclusion. [ 23 ] The applicant submits that, given the nature of the question before Council, namely, whether the appeal hearing was to be a hearing de novo or a hearing on the record, the judge should have attributed no deference to Council. He says that, as Council does not have expertise in matters involving statutory

interpretation on a question of central importance to the legal system, the judge erred by holding that the standard of review of Council’s decision was that of reasonableness. [ 24 ] The Association argues that the judge’s decision, in concluding that the appropriate standard of review of Council’s decision was reasonableness, was entirely consistent with the jurisprudence in Canada, being a case where Council was interpreting its home statute and, in particular, the proper

interpretation of section 53(1) of the Act . [ 25 ] It submits that the

interpretation of section 53(1) of the Act , including the language of section 53(3), does not raise a question of general law that is both of central importance to the legal system as a whole and outside Council’s specialized area of expertise, as argued by the applicant. [ 26 ] In short, the Association asserts that the judge was correct in determining that the standard of review to be applied to the decision of Council was that of reasonableness.

Analysis [ 27 ] In Smith v Alliance Pipeline Ltd , 2011 SCC 7 , Fish J, for the Court, wrote (at para 26): Under Dunsmuir [ v New Brunswick , 2008 SCC 9 ], the identified categories are subject to review for either correctness or reasonableness.

The standard of correctness govern s: (1) a constitutional issue ; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” . . . (3) the drawing of jurisdictional lines between two or more competing specialized tribunals ; and (4) a “true question of jurisdiction or vires ” . . . On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” . . . (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues. [ 28 ] In Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 , Karakatsanis J, for the majority, wrote (at para 22): Unless the jurisprudence has already settled the applicable standard of review . . . the reviewing court should begin by considering whether the issue involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness . . . This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts.

A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [ 29 ] In her decision, the judge considered the positions and submissions of the parties and informed herself as to the relevant

law to be applied in determining the standard of review applicable to Council’s decision. Ultimately, she concluded that (at paras 29-30): The tribunal is presumed to have expertise not only in relation to the subject matter of its decisions – the practice of professional engineering, professional standards and the regulation of the profession – but also in relation to the

interpretation of its statute and the broad policy context in which it must operate. See Edmonton (City) at para. 33 . The decision of the tribunal regarding the nature of the appeal right provided for in the Act is entitled to deference.

The presumption that the standard of review is reasonableness where the tribunal is interpreting its home statute is not rebutted in this case. [ 30 ] As I have stated, the applicant acknowledged that, in the circumstances here, the presumption of reasonableness existed as Council was interpreting and applying its home statute. [ 31 ] The question for determination is whether that presumption was rebutted. [ 32 ] As is clear, that presumption may be rebutted if the question for determination falls into one of the four categories identified in Dunsmuir v New Brunswick , 2008 SCC 9 which are subject to review on a standard of correctness.

The applicant asserts that the language of

section 53 of the Act and, in particular, section 53(3) which provides: Procedure 53(3) Sections 40 to 45 apply to proceedings before the council, with necessary modifications. brings the issue for determination into the category described in Dunsmuir as a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” (at para 60). He submits that the members of Council were not legally trained and had no special expertise or experience in answering a question of statutory

interpretation, which he says here involves a question of central importance to the legal system in the context of the applicable procedure in a quasi-criminal hearing, namely a professional discipline hearing. [ 33 ] I do not agree. [ 34 ] Referring again to Edmonton (City) , Karakatsanis J wrote (at para 33): The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing.

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer . . . However, as with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member.

Rather, expertise is something that inheres in a tribunal itself as an institution. [ 35 ] Moreover, in this case, in my view, section 53(1), including section 53(3), do not raise a question of general law that is both of central importance to the legal system as a whole and outside Council’s specialized area of expertise. [ 36 ] In considering the application of the category of a question of general law that is both of central importance to the legal system and outside the adjudicator’s expertise, Beard JA, in Manitoba v Russell Inns Ltd et al , 2013 MBCA 46 , wrote (at para 53 ): “This category applies where the tribunal is interpreting laws such as the common law or statutes other than its own enabling statute and closely related statutes.” She further wrote (at para 60): Macaulay and Sprague [Robert W MacAulay & James LH Sprague, Practice and Procedure Before Administrative Tribunals , (Toronto: Thomson Reuters Canada Limited, 2004, 2017), vol 3 (loose-leaf)] state (at p. 28-46.80(25)): Questions of central importance to the legal system as a whole are, generally, questions going to legal principle – such as bad faith, estoppel, retroactivity, and so forth.

A simple question of statutory

interpretation does not constitute a question of law of central importance to the legal system as a whole. [ 37 ] In my opinion, the

interpretation of

section 53 of the Act , which determines whether the appeal hearing before Council

was a hearing de novo or an appeal on the record, does not raise a question of general law that is both of central importance to the legal system as a whole and outside Council’s specialized area of expertise. It raises only a question as to Council’s entitlement to determine its own procedure, in this case, as to the nature of the appeal hearing. Accordingly, I am satisfied that the judge did not err in concluding that the standard of review of Council’s decision was that of reasonableness. Issue 2: Did the Judge Err by Holding that an Appeal Under

Section 53 of the Act was an Appeal on the Record? Issue 3: Did the Judge Err by Holding that

Section 53 of the Act was Silent as to the Nature of the Appeal and that Therefore an Appeal on the Record was Presumed? [ 38 ] As the applicant argued both issues 2 and 3 together, I will deal with them as such. [ 39 ] The applicant asserts that the judge erred by holding that the words, object and scheme of the Act mandated that

section 53 is an appeal on the record. [ 40 ] He says that, although the Act provided Council with the means to regulate the profession, there was also a concomitant object to provide the regulated professional with a certain degree of protection. Thus, he submits that Council may not circumvent or neuter portions of the Act that provide rights of appeal. [ 41 ] The applicant argues that the judge erred in her analysis by failing to distinguish between sections 53 and 55 of the Act . He says that

section 53 is not silent as to whether or not the hearing is on the record and he refers to section 53(3).

As well, he refers to section 55(3) which provides: Appeal on the record 55(3) An appeal to the court shall be founded on the record of the hearing before the council and the decision of the council. [ 42 ] He argues that the inclusion of section 53(3) which applies to the appeal hearing before Council as regards witnesses and evidence, and the exclusion of the same procedure in section 55(3), which clearly specifies that an appeal to the court is on the record, demonstrate that the legislative intent was to permit a fresh hearing before Council.

He says that, had the Legislature intended an appeal before Council to be on the record, it would have utilized the same language as contained in section 55(3). [ 43 ] The applicant submits that the Act does not allow Council the discretion to decide whether, and what, evidence can be adduced in the face of sections 40 - 45 of the Act . He says that sections 40-45 of the Act set out the procedure Council must follow during the hearing, including:

a) any evidence given at the hearing shall be recorded (section 41(3));

b) a witness giving oral testimony shall be taken on oath (section 41(1));

c) there shall be a full right to cross-examine the witness (section 41(1)); and

d) the investigated person and any other person having knowledge of the complaint are compellable witnesses (section 42). [ 44 ] The applicant submits that section 53(3) of the Act , which states that sections 40 - 45 apply to the proceedings before Council “with necessary modifications”, means that sections 40 - 45 shall be read as applying to Council, along with the necessary changes in nomenclature.

In other words, “with necessary modifications” in this context relates to substituting “Council” for “Discipline Committee” where appropriate. [ 45 ] The applicant argues that the Legislature has afforded a party the opportunity to admit further evidence and expand the nature and scope of the appeal as conferred by the Act , and that sections 40 - 45 of the Act specifically contemplate the calling of witnesses and the examining of evidence.

He says that it is not for the courts to question the wisdom of the Legislature in allowing an investigated person two hearings which permit the adducing of evidence and that, on the standard of correctness, the judge erred by finding that

section 53 of the Act mandates an appeal on the record. [ 46 ] The Association argues that Council is authorized to govern the Association and administer its affairs and has the authority to make by-laws for that purpose under

section 12 of the Act . For purposes of this appeal, the relevant powers are those with respect to the regulation of proceedings before Council under section 12(1)(

c) and those with respect to the government and discipline of members under section 12(1)(r). [ 47 ] It says that, on a plain reading, section 53(1) clearly mandates a right of appeal, but does not mandate any particular form of appeal.

It submits that the form of appeal is left to the discretion of Council under its power to regulate its own proceedings. [ 48 ] It argues that, unlike other instances in Manitoba statutes where the Legislature has mandated the nature of an appeal as being a “new hearing”, “new trial”, “a trial de novo ” or a “fresh hearing”, the Legislature did not here express itself in those terms.

It asserts that the obvious inference to draw is that the Legislature did not intend to do so and, rather, left the form of the appeal hearing before Council to be determined by Council under its power to make by-laws to control its proceedings under section 12(1) (

c) of the Act . [ 49 ] The Association submits that the only limit imposed by the Legislature on Council’s power to decide on the form of appeal is found in section 53(3). It argues that the effect of that provision is simply that, to the extent Council chooses a form of appeal

hearing that involves any of the processes described in sections 40-45, those sections would apply to the appeal “with necessary modifications”. Thus, if Council were to grant leave to a party under

section 15.7.6.4(

b) of the by-laws to adduce fresh evidence at an appeal, such evidence would have to be taken under oath in accordance with section 41(1) of the Act , that is, in such event, section 41(1) would apply to the appeal hearing. [ 50 ] As well, it submits that to interpret section 53(1) of the Act so as to require that all appeals to Council be entirely fresh hearings would be contrary to sound policy reasons, being inefficient and a waste of the resources of both the Association and the investigated member. [ 51 ] The Association argues that the standard of review applicable to Council’s decision being reasonableness, its decision must fall within a range of acceptable outcomes.

If it does, the decision should be upheld. [ 52 ] It refers to Dunsmuir , where the following was stated (at para 47): A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 53 ] The Association refers to Council’s decision and argues that, measured against these criteria, Council’s

interpretation of section 53(1) was eminently reasonable. It says that Council:

a) correctly identified the applicable principles of statutory

interpretation, namely, to interpret the words of the Act in their entire context in accordance with the object of the Act ;

b) correctly identified governance and regulation of the practice of professional engineering and geoscience as the objects of the Act as set out in

section 3 (

a) of the Act ;

c) identified the regulation of meetings and proceedings of the Association and Council as matters within the Association’s by- law-making authority under section 12(1)(

c) of the Act and concluded that

section 15.7.6.3 of the by-laws was validly enacted pursuant to that authority; and

d) considered whether

section 15.7.6.3 of the by-laws conflicted with

section 53 of the Act and concluded that it did not because

section 53 does not mandate that an appeal to Council be a fresh hearing. [ 54 ] The Association submits that Council’s decision is justifiable, transparent and intelligible, as well as defensible in respect of the facts and the law. It acknowledges that Council’s

interpretation of section 53(1) may not be the only possible

interpretation of that provision, but asserts that it falls within a range of acceptable

interpretations and that the judge was correct in concluding that Council’s decision on the form of appeal provided by the Act was reasonable. Analysis [ 55 ] The judge correctly found that the standard of review applicable to Council’s decision was that of reasonableness. Thus, deference was owed by the judge to Council’s decision that an appeal under

section 53 of the Act was an appeal on the record. [ 56 ] In addition, the judge concluded that section 53(3) of the Act was silent as to the nature of the appeal and that, accordingly, an appeal on the record was presumed. [ 57 ] It is my view that

section 53 does not clearly mandate whether the appeal to Council is to be a de novo hearing or a hearing on the record. As Steel JA explained in Friesen (Brian Neil) Dental Corp et al v Director of Companies Office (Man) et al , 2011 MBCA 20 , when the statute is unclear about the nature of the review, “one must look more carefully at two things: the statute as a whole in its appropriate context, and any prior cases that dealt with similar legislation” (at para 18). [ 58 ] There is a dearth of case law regarding the

interpretation of the Act and there is little of relevance to be learned from a review of the legislative history of the Act ’s provisions in question here. [ 59 ] The law is clear, however, that when the Act is silent or unclear as to the nature of the form of appeal, there is a presumption that the hearing will be a hearing on the record. [ 60 ] The applicant acknowledges the existence of the presumption, but argues that section 53(3) of the Act provides a clear or sufficient indication in the legislation as to rebut the presumption and afford him a de novo hearing on the appeal. [ 61 ] Section 53(3) does provide that the provisions of sections 40 - 45 of the Act are applicable to appeals under

section 53 of the Act , with necessary modifications. [ 62 ] In my view, the phrase “with necessary modifications” means simply that, where the words “Discipline Committee” are mentioned in sections 40 - 45 , they are to be substituted with the word “Council”. Nevertheless, the meaning of that

section must be interpreted contextually with regard to the entire Act . [ 63 ] The Association does have the power under

section 12 of the Act to pass by-laws. A by-law, of course, cannot override the provisions of the Act . Having said that, as will be seen in these reasons, it is my view that its by-laws, and in particular

sections 15.7.6.3 and 15.7.6.4, are not inconsistent with the Act and do not override the provisions of section 53(3). [ 64 ] Sections 40 - 45 of the Act fall into that portion of the Act dealing with hearings before the Discipline Committee. However, nothing in those provisions requires the taking of oral evidence from, or the cross-examination of, witnesses.

Rather, those provisions mandate how any oral evidence of witnesses shall be taken, that should oral evidence be adduced, there shall be a right to cross-examine and to call evidence in defence and reply, and that, if oral evidence is given, it shall be recorded. [ 65 ] The provisions of section 53(3) and by incorporation sections 40-45, pertain to procedure not in the sense of mandating a de novo hearing and the taking of evidence at every hearing, but in the sense of mandating the procedure to be followed in the event that oral evidence is received on an appeal hearing, given that Council does have the power to allow for the receipt of oral evidence in its discretion. [ 66 ] Furthermore, other provisions in the Act , in my view, support the conclusion that an appeal hearing to Council is to be a hearing on the record.

For example, section 49(2) of the Act requires the Discipline Committee to forward to the registrar of the Association a copy of the “record” of the proceedings, consisting of all evidence presented before it, including all exhibits, documents and recordings once a decision has been made.

Section 49(4) gives the investigated person the right to “examine the record of the proceedings before the Discipline Committee” and entitles the investigated person “to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the panel.” In my view, there would be no reason for including these provisions if the appeal to Council were not intended to be an appeal on the record. [ 67 ] This legislation is not a model of clarity on this issue.

In my opinion, however, where the legislation is looked at as a whole, the judge made no error in concluding that section 53(3) of the Act was silent as to the nature of the appeal and she correctly deferred to the decision of Council as to the form of the appeal hearing before it. Issue 4: Did the Judge Err by Holding that the Decision of Council was Reasonable?

Issue 5: Did the Judge Err in Substituting her Reasons for the Reasons of Council When Determining Whether the Decision of Council was Reasonable? [ 68 ] Once again, as the applicant argued issues 4 and 5 together, I will deal with them as such. [ 69 ] The applicant submits that, if the standard of review is one of reasonableness and not one of correctness as he asserts, the result is the same, in that the judge erred in law by holding that Council’s decision was reasonable. [ 70 ] He says that Council erred in its

interpretation of section 53(1) of the Act , in its determination that

section 15.7.6.3 of the by-laws was valid, and in stating that procedural fairness was upheld on appeal because the applicant is entitled to apply to Council under

section 15.7.6.4(

b) for special leave to adduce further evidence. [ 71 ] The applicant argues that, in effect, sections 15.7.6.3 and 15.7.6.4(

b) of the by-laws render sections 40 - 45 of the Act inoperative in an appeal before Council. He says that

section 15.7.6.3 provides for a hearing on the record which prevents both the applicant and the Association from introducing evidence before Council as contemplated by sections 40 - 45 , except by “special leave” and he argues that the requirement for “special leave” is a creation of

section 15.7.6.4(

b) of the by-laws and contrary to the process set out in the Act . [ 72 ] The applicant submits that, if the appeal is on the record, there is nothing in the Act to allow an exception for the introduction of evidence.

He asserts that section 53(3) is not discretionary, but mandatory, and, therefore, it is incorrect to suggest that sections 40 - 45 can be applied in a discretionary manner. [ 73 ] In addition, the applicant argues that Council clearly based its reasons on the applicability of the provisions of the by- laws, whereas the judge substituted her own opinion of reasonableness based on a different, but fallacious premise that section 53(3) was silent as to the nature of the appeal and that, in substituting different reasons for those of Council, the judge erred. [ 74 ] The applicant says that it is not the role of the reviewing court to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result, and that is what the judge did in her reasons in this case. [ 75 ] The Association argues simply that Council’s decision was justifiable, transparent and intelligible, and can be easily defended on the facts and the law.

It asserts that the essence of the applicant’s argument on these issues is simply, that because Council did not accept his

interpretation of section 53(1) of the Act , its decision was unreasonable. It argues that the law is clear that, in and of itself, Council’s refusal to accept the applicant’s

interpretation of section 53(1) of the Act does not equate to a conclusion that Council’s decision was therefore unreasonable. Analysis [ 76 ] In arguing that the judge erred by holding that Council’s decision was reasonable, the applicant submits that Council erred in its

interpretation of section 53(1) of the Act and in its determination that sections 15.7.6.3 and 15.7.6.4(

b) of the by-laws were valid. He asserts that those provisions of the by-laws effectively render sections 40 - 45 of the Act inoperative in an appeal before Council and that they are ultra vires the Act . I do not agree. [ 77 ] It is trite law that statutes are paramount over subordinate legislation and that subordinate legislation made without statutory authority is ineffective. [ 78 ] The leading case on the ultra vires doctrine in Canada is Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 . Justice Abella, for the Court, observed that, “A successful challenge to the vires of regulations requires that they

be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate” (at para 24). [79] She went on to say (at paras 25-28): Regulations benefit from a presumption of validity (Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 458).This presumption has two aspects: it places the burden on challengers to demonstrate the invalidity of regulations, rather than onregulatory bodies to justify them (John Mark Keyes, Executive Legislation (2nd ed. 2010), at pp. 544-50); and it favours an interpretativeapproach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner whichrenders it intra vires (Donald J.

M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, vol. 3 (loose-leaf), at15:3200 and 15:3230). Both the challenged regulation and the enabling statute should be interpreted using a “broad and purposive approach . . . consistent withthis Court’s approach to statutory

interpretation generally”. This inquiry does not involve assessing the policy merits of the regulations to determine whether they are “necessary, wise, or effectivein practice”. It is not an inquiry into the underlying “political, economic, social or partisan considerations” . . . Nor does the vires of regulations hingeon whether, in the court’s view, they will actually succeed at achieving the statutory objectives . . . They must be “irrelevant”,“extraneous” or “completely unrelated” to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutorypurpose . . .

In effect, although it is possible to strike down regulations as ultra vires on this basis, as Dickson J. observed, “it would takean egregious case to warrant such action”. [Thorne’s Hardware Ltd v The Queen, (SCC), [1983] 1 SCR 106 at 111] [80] In the present case, we are dealing with by-laws, not a regulation, but the same principles apply. Council was grantedbroad by-law-making authority by the Act. Section 12(1) provides, in part, as follows: By-laws 12(1) In accordance with procedures set out in its by-laws, the association may make, amend or repeal by-laws, not inconsistent with this Act, . . . (

c) regulating the meetings and proceedings of the association and the council and all matters pertaining thereto; . . . (

r) respecting the government and discipline of members, holders of certificates of authorization, temporary licensees, specifiedscope of practice licensees, engineering interns and geoscience interns including, but not limited to, the reprimand, temporarysuspension, indefinite suspension, acceptance of undertakings, imposing of conditions on practice, directing additional study, directingthat a disability or addiction be overcome, directing counselling, directing waiver, reduction or repayment of monies, imposition of finesand cancellation of membership, licensing or enrolment of members, holders of certificates of authorization, temporary licensees,specified scope of practice licensees, engineering interns and geoscience interns found to be guilty of professional misconduct orunskilled practice of professional engineering or professional geoscience, but subject to any right of appeal given by this Act; . . . (

t) respecting the procedures for dealing with complaints against members, holders of certificates of authorization, temporarylicensees, specified scope of practice licensees, engineering interns and geoscience interns;

. . . (aa) respecting any other matters necessary in the administration of this Act , or in the management and operation of the association. [ 81 ] It is clear from the above that the by-laws may address “procedures for dealing with complaints against members” and “discipline of members” generally. [ 82 ] As I have concluded that the judge was correct in her determination that the presumption of a hearing on the record for an appeal to Council had not been rebutted, in my opinion, sections 15.7.6.3 and 15.7.6.4(

b) of the by-laws do not conflict with the Act and are not ultra vires . [ 83 ] Accordingly, it is my opinion that the judge made no error in determining that Council’s decision was reasonable. [ 84 ] As regards issue 5, there is no question that the judge did not directly deal with Council’s decision as to the efficacy of the by-laws and, in particular, the two provisions in question. [ 85 ] On reviewing the applicant’s brief on his application for judicial review, it appears that his argument was that the provisions of the by-laws conflicted with the Act and particularly, section 53(3), and, as a result, the provisions of the by-laws in question were invalid.

It is clear from her decision, and in particular, paras 14, 22-23 and 32-33 thereof, that the judge was very much alive to this issue argued by the applicant. [ 86 ] But, it is also clear from her decision that the judge did not agree with the applicant’s

interpretation of the Act and the by-laws, and did not accept his argument. Rather, she found that the appeal hearing before Council was to be an appeal on the record. In my view, given that conclusion, it is understandable why she did not feel compelled to address the argument relating to the by-laws in detail, as the by-laws did not conflict with her

interpretation of the Act . [ 87 ] In Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , the majority of the Court held (at para 101): In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court.

Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. [ 88 ] In R v REM , 2008 SCC 51 , the Supreme Court concluded (at para 30): Viewed in the context of the entire record, the trial judge’s reasons sufficiently informed the appellant why the case was decided against him, and permitted meaningful appellant review: Hill , at para. 103 . [ 89 ] While it may have been preferable for review purposes had the judge dealt directly with Council’s decision as to the efficacy of the by-laws, and in particular, the two provisions in question, it is my view that, when you consider the entirety of her decision in context and in light of the record, she did not err in failing to specifically address Council’s decision as to the efficacy of the by-laws, given her finding that the Act did not require a de novo hearing before Council.

Issue 6: Did the Judge Err by Holding that the Record before the Discipline Committee Should Form Part of the Record on the Appeal, Along with any Reasons and Orders? [ 90 ] The applicant argues that it would be inappropriate and unwieldy for Council to deal with evidence partly in written form (transcript) and partly in oral evidence.

He says it would be difficult, if not impossible, for Council to disassociate itself from the contents of written testimony (transcript) if those witnesses were not called and that the potential for bias against the applicant would be too great without the ability to cross-examine on that evidence. [ 91 ] Further, the applicant argues that it would be inappropriate to have the transcript of the prior hearing available for Council’s unfettered review in the case of a witness who does not testify before Council. [ 92 ] In whole, he submits that the record before Council should not include the transcript of the hearing before the Discipline Committee, unless by consent of the parties or for cross-examination purposes in the context of a prior statement, and that exhibits should only be introduced by way of consent of the party or, failing consent, through witnesses who can identify and speak to the exhibits and thereafter be cross-examined. [ 93 ] The applicant thus asserts that the judge erred by holding that the record before the Discipline Committee should form part of the record on the appeal, along with any reasons and orders and submits that her error does not survive either the standard of correctness or of reasonableness. [ 94 ] The Association asserts that the applicant’s entire argument in respect of this issue is based upon his premise that the

appeal to Council is a hearing de novo . It agrees that, if the appeal were a de novo hearing, there would be no need to provide Council with the record of proceedings before the Discipline Committee. However, if the appeal to Council is an appeal on the record, then it follows that the record must include a complete record of proceedings before the Discipline Committee, which would include the transcripts and the exhibits, and is entirely consistent with common practice. Analysis [ 95 ] I agree with the argument of the Association.

While the applicant’s submission might require consideration if the appeal hearing was to be a de novo hearing, given the judge’s decision, with which I agree, that the appeal hearing is to be a hearing on the record, the applicant’s argument on this issue is without merit. Conclusion [ 96 ] In my opinion, the judge committed no error in her determination as to the applicable standard of review of Council’s decision, nor of the decision she made in respect of the other issues raised by the applicant on the appeal. I would therefore dismiss the applicant’s appeal with costs in favour of the Association.

JA I agree: JA I agree: JA APPENDIX “A”—RELEVANT STATUTORY PROVISIONS The Engineering and Geoscientific Professions Act , CCSM c E120 Purposes of association 3 The purposes of the association are to (

a) govern and regulate the practice of professional engineering and professional geoscience in Manitoba;

PART 4 CODE OF ETHICS AND BY-LAWS By-laws 12(1) In accordance with the procedures set out in its by-laws, the association may make, amend or repeal by-laws, not inconsistent with this Act , (

c) regulating the meetings and proceedings of the association and the council and all matters pertaining thereto; (

r) respecting the government and discipline of members . . . found to be guilty of professional misconduct . . . but subject to any right of appeal given by this Act ;

(

t) respecting the procedures for dealing with complaints against members; (aa) respecting any other matters necessary in the administration of this Act , or in the management and operation of the association.

PART 10 DISCIPLINE Extended

definitions 29 In this Part, “panel” means a panel of the discipline committee selected under clause 39(1)(a). Right to appear and be represented 39(3) The Association and the investigated person may appear and be represented by counsel at a hearing before the discipline committee or a panel thereof. Examination of documentary evidence 39(4) An investigated person shall be afforded an opportunity to examine before the hearing any written or documentary evidence that will be produced or any report the contents of which will be given in evidence at the hearing.

Hearings open to public 40(1) A hearing of the disciplinary committee or any panel shall be open to the public unless Evidence 41(1) At a hearing of the discipline committee or any panel the oral evidence of witnesses shall be taken on oath and there shall be a full right to cross-examine witnesses and call evidence in defence and reply. Power to administer oaths 41(2) For the purpose of an investigation or hearing under this Act , the registrar, the chair of the investigation committee, the chair of the discipline committee, and the chair of any panel have power to administer oaths and affirmations.

Recording of evidence 41(3) The oral evidence given at a hearing of the discipline committee or any panel shall be recorded. Witnesses 42 The investigated person and any other person who, in the opinion of the discipline committee or any panel, has knowledge of the complaint or any matter relating to the charge are compellable witnesses in any proceeding under this part.

Notice to attend and produce records 43(1) The attendance of witnesses before the discipline committee or any panel and the production of records may be enforced by a notice issued by the registrar requiring the witness to attend and stating the date, time and place at which the witness is to attend and the records, if any, that the witness is required to produce. Registrar shall provide notices 43(2) On the written request of the investigated person or the person’s counsel or agent, the registrar shall provide any notices that the person requires for the attendance of witnesses or the production of records.

Failure to attend or give evidence 44(1) Proceedings for civil contempt of court may be brought against a witness (

a) who fails to attend before the discipline committee or any panel in compliance with a notice to attend; (

b) who fails to produce any records in compliance with a notice to produce them; or (

c) who refuses to be sworn or to answer any question he or she is directed to answer by the panel. Failure by investigated person to attend 44(2) If the witness referred to in subsection (1) is the investigated person, the failure or refusal to attend may be held to be professional misconduct. Hearing in absence of investigated person 45 The panel, on proof of service on the investigated person of the notice of hearing, may (

a) proceed with the hearing in the absence of the investigated person or the person’s agent; and (

b) act, decide or report on the matter being heard in the same way as if the investigated person were in attendance. Written decision 49(1) The discipline committee or any panel shall, following the completion of a hearing, make a written decision on the matter consisting of the reasons for its decision, and a statement of any order made by it. Decision forwarded to registrar 49(2) The discipline committee or any panel shall forward to the registrar (

a) the decision; and (

b) the record of the proceedings, consisting of all evidence presented before it, including all exhibits, documents and recordings. Service of decision

49(3) The registrar shall, on receiving the decision and record, serve a copy of the decision on the investigated person and the complainant. Copies of transcript 49(4) The investigated person may examine the record of the proceedings before the discipline committee or panel, and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the panel. 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.

Procedure 53(3) Sections 40 to 45 apply to proceedings before the council, with necessary modifications. Powers of council on appeal 53(4) The council shall, within 90 days from the date of the conclusion of all proceedings before it, do any of the following: (

a) make any finding or order that in its opinion ought to have been made by the panel; (

b) quash, vary or confirm the finding or order of the panel or any part of the finding or order; (

c) refer the matter back to the discipline committee for further consideration in accordance with any direction of the council. Appeal to court 55(1) An investigated person may appeal to the court any finding or order made by the council under subsection 53(4). Appeal on the record 55(3) An appeal to the court shall be founded on the record of the hearing before the council and the decision of the council.

The Association of Professional Engineers and Geoscientists of the Province of Manitoba, By-Laws , (October 2011) Appeal of Hearing Decisions and Orders 15.7.3 The registrar shall, on receiving a notice of appeal under subsection 53(1) of the Act and the cash deposit required herein, give to each member of the council, the investigated person and to the complainant a copy of the notice of appeal, the appellant’s written reasons for appeal, the record of the proceedings before the discipline committee and the decision and any order of the discipline committee. 15.7.6.3 Any appeal to the council pursuant to sub-section 53(1) of the Act shall be an appeal on the record of the proceedings before the discipline committee and the decision and any order of the discipline committee.

15.7.6.4 The council on hearing the appeal may (

a) grant adjournments and reconvene the proceedings from time to time or reserve the determination of the matters before it for a future meeting of the council; and (

b) on granting special leave for that purpose, receive further evidence; and (

c) draw inferences of fact and make any determination or finding that, in its opinion, ought to have been made by the discipline committee.