) ) JIM HARRISON Applicant – v. –, 2017 ONSC 2569

CITATION : Harrison v. Association of Professional Engineers of Ontario, 2017 ONSC 2569 DIVISIONAL COURT FILE NO.: 14-1999 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., HEENEY R.S.J. & ELLIES J. BETWEEN: ) ) JIM HARRISON Applicant – and – ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent -and- DAVID W DOWNEY and DAVID W DOWNEY ENGINEERING LTD. Intervenors ) ) ) ) ) ) ) ) )))))))))) John D.

Dempster , for the Applicant Leah Price and Nick Hambleton , for the Respondent Association of Professional Engineers Scott Howardt , for the Intervenors ) ) HEARD at Ottawa: February 22, 23, 2017 MARROCCO A.C.J.S.C. [ 1 ] The applicant, Jim Harrison, applies to judicially review a decision of the Complaints Committee of the respondent, the Association of Professional Engineers of Ontario. The Complaints Committee refused to refer the applicant’s complaint against the intervenors, David. W. Downey and David W.

Downey Engineering Ltd. to the Discipline Committee, finding that there was “no evidence of professional misconduct of a significant nature on the part of Downey or David W Downey Engineering Ltd.”. [ 2 ] The applicant asks for an order • setting aside the Decision and Reasons of the respondent’s Complaints Committee dated December 19, 2013 concerning a complaint of professional misconduct against David W. Downey and David W. Downey Engineering Ltd. (“Complaint”); • requiring the Complaints Committee to refer his Complaint to the respondent’s Discipline Committee pursuant to s. 24(2) (

a) of the Professional Engineers Act , R.S.O. 1990, c. P.28 (“PEA”); or • Alternatively, referring his Complaint back to the Complaints Committee for re-determination. [ 3 ] The respondent resists the application maintaining the impugned decision is reasonable. [ 4 ] In February 2005, the Limestone District School Board retained David W. Downey Engineering Ltd. to perform all engineering services and oversee all mechanical and electrical trades hired to renovate Frontenac Secondary School in Kingston, Ontario. Allen Mechanical Inc. was awarded the heating, ventilation and air-conditioning sub-contract.

In November 2006, Allen Mechanical awarded Longhill Energy Products Ltd. (“Longhill”) the contract to supply four heating, ventilation and air-conditioning units, conditional upon receipt by Allen of Longhill’s shop drawings approved by David Downey (“Downey”). In December 2006, Downey rejected Longhill's initial shop drawings because crucial information about the refrigerant systems was missing. In or about May 2007, Downey rejected Longhill's resubmitted shop drawings.

Later in May 2007, Allen Mechanical Inc. cancelled the Longhill Purchase Order and issued a Purchase Order to Engineered Air for the heating, ventilation and air-conditioning units. [ 5 ] The applicant is a professional engineer in Ontario. He was, at all material times, the owner, president and representative of Longhill in the dealings with Downey that led to his complaint. [ 6 ] In his complaint, the applicant alleged that Downey sent Longhill’s confidential shop drawings for review and comment to

Engineered Air, one of Longhill’s competitors who had also bid on the Project. Harrison alleged that Downey used Engineered Air’s comments to repeatedly reject Longhill’s heating, ventilation and air-conditioning shop drawings, resulting in Engineered Air eventually replacing Longhill as the supplier of the units. Harrison alleged Downey and Engineered Air mutually benefitted from informal and inappropriate specification changes after the mechanical subcontractor issued its purchase order to Engineered Air.

Lastly, the applicant complained that Downey and his wife, during the material time, went on vacation to Ireland with Darren Trenholm of Engineered Air and his wife. [ 7 ] The applicant provided the respondent with evidence of his allegations, which included affidavits, expert reports and email exchanges. Longhill had used these materials to pursue a civil claim against Downey.

Longhill settled that litigation in October 2011 and then made the complaint to the respondent, with which we are concerned, in February 2012. [ 8 ] Downey, with the assistance of counsel, responded to each allegation in the Complaint approximately one month later, on March 30, 2012. [ 9 ] On December 19, 2013, the Complaints Committee found that “there was no evidence of professional misconduct of a significant nature on the part of Downey…” and declined to refer the complaint to the Discipline Committee. [ 10 ] The applicant submits that the Complaints Committee dismissed his complaint without addressing any of his allegations or providing any reasons as to why his allegations did not constitute professional misconduct by Downey.

Failure to give reasons in circumstances where they are required may constitute a breach of procedural fairness and an error of law: Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 22 . [ 11 ] When considering whether the procedure followed by the Complaints Committee was fair, the Court must keep in mind section 24(5) of the PEA , which provides that the Complaints Committee “is not required to hold a hearing or to afford any person an opportunity for a hearing or an opportunity to make oral submissions before making a decision or giving a direction”. [ 12 ] The Complaints Committee is required by s. 24(1) of the PEA to consider and investigate the applicant’s complaint. It clearly did this.

For example, the applicant referred in his complaint to the fact that Downey went to Ireland with Mr. Trenholm of Engineered Air. The Complaints Committee in a December 19, 2013 document entitled “Decisions and Reasons of the Complaints Committee of the Association of Professional Engineers of Ontario”, commented on this trip. Specifically, the Complaints Committee indicated that the timing and circumstances of Downey’s vacation to Ireland could appear unusual and that Downey should maintain an arm’s length relationship with equipment suppliers when working on public projects. In this regard, it also sent Mr.

Downey a Letter of Advice. [ 13 ] The Complaints Committee is required by ss. 24(3) and 24(4) of the PEA to give its decision in writing to the Registrar and the Registrar must forward a copy of that decision to the applicant. As indicated, the Complaints Committee issued a document on December 19, 2013 which purported to be its reasons.

The evidence disclosed that the Registrar forwarded a copy of this letter to the applicant. [ 14 ] Accordingly, I am satisfied that this is not a case in which there was a failure to give reasons and any challenge to the decision of the Complaints Committee must be made within the reasonableness analysis: Newfoundland and Labrador Nurses’ Union at para. 22. [ 15 ] Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process.

It is also concerned with whether the decision falls within a range of possible acceptable outcomes which are defensible on the facts and the law: see Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47 . [ 16 ] The reasons of the Complaints Committee are defective because they state the central conclusion, namely that “there was no evidence of professional misconduct of a significant nature on the part of Downey…” without explaining why the Complaints Committee thought so. The Committee’s reasons lack transparency: see Jakutavicius v.

Canada (Attorney General) , 2011 FC 311 at para. 31 . [ 17 ] However, the adequacy of reasons is not a stand-alone basis for quashing the decision. The approach to be taken by this court in considering the sufficiency of the reasons given by an administrative decision-maker was discussed in Dunsmuir , and more recently clarified in Newfoundland and Labrador Nurses’ Union .

Abella J., speaking for the court in the latter decision, says this, at para. 12: It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision". In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: "Reasonable" means here that the reasons do in fact or in principle support the conclusion reached.

That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them .

For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.] (David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304) See also David Mullan, " Dunsmuir v.

New Brunswick , Standard of Review and Procedural Fairness for Public Servants: Let's Try

Again!" (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law(5th ed. 2004), at p. 380; and Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63. [18] In considering what reasons “could be offered” in support of the decision under review, the law requires us to look at therecord that was before the Complaints Committee to see if its decision falls within a range of possible acceptable outcomes which aredefensible on the facts and the law: see Newfoundland and Labrador Nurses’ Union at para.15. [19] It becomes clear when looking at the material before the Complaints Committee that Downey offered the ComplaintsCommittee a response to every allegation advanced by the applicant.

In addition, the evidence on this judicial review applicationestablishes that both the applicant’s and the respondent Downey’s versions of events were before the Committee.

Therefore, it was opento the Complaints Committee to accept Downey’s explanation and decide that Downey’s conduct did not merit a referral to theDiscipline Committee. [20] The reasons of the Complaints Committee should have indicated that it accepted the explanations provided to it by Downey.We are satisfied that the Complaints Committee must have done so because Downey’s explanations are a complete answer to theapplicant’s complaints and supported the Complaints Committee’s conclusion that “there was no evidence of professional misconduct ofa significant nature on the part of Downey”. [21] In addition, the essence of the applicant’s allegation was that Mr.

Downey’s relationship with Engineered Air was corrupt. Hesuggests that none of the suppliers could meet Mr. Downey’s specifications “and so it was inevitable that Engineered Air would receivethe contract at whatever price they wanted to charge”. This allegation is not supported by the evidence. It is true that the projectspecifications at the time of tender were mostly in conformance with those of Engineered Air. This is disclosed in Mr. Downey’s emailto Mr. Trenholm of Engineered Air dated November 7, 2006.

However, in a letter to Allen Mechanical dated November 6, 2006,Longhill’s representative stated that after the review of the drawings, specifications and sound requirements for the project, he wasconfident that Longhill would be able to meet the requirements indicated in the bid documents. The applicant was awarded the purchaseorder two days later.

The applicant was unable to meet those specifications and as a result was replaced on the project by Engineered Air [22] Accordingly, a review of the materials that were before the Complaints Committee leads to the conclusion that the ComplaintCommittee’s Decision that Downey acted appropriately even though the “timing and circumstance of Downey's vacation with othersfrom the Project may be perceived as unusual” is within the range of possible acceptable outcomes “defensible on the facts and the law”. [23] While we have decided to dismiss the application, we wish to make certain observations.

The Complaints Committee isexpected to issue appropriate reasons. The applicable principles for appropriate reasons are set out in decisions of the Supreme Court ofCanada. A helpful explanation of these principles can be found in the jurisprudence created after Dunsmuir. For example, in JakutaviciusMr.

Justice Zinn of the Federal Court made the following observation at para. 31: The reasons provided for a decision may fulfill the requirements of procedural fairness in the sense that the reasons meet the goals offocusing the decision maker on the relevant factors and evidence, providing parties with the assurance that their representations havebeen considered, allowing parties to effectuate any right of appeal or judicial review they might have and allowing reviewing bodies todetermine whether the decision maker erred, and providing guidance to others who are subject to the decision maker’s jurisdiction: VIARail Canada v National Transportation Agency, (FCA), [2001] 2 F.C. 25 (CA), at paras. 17-21.

Yet the samereasons which meet procedural muster may render the decision unreasonable as a matter of substantive review. It is in this context thatone examines, based on the reasons provided, the justification, transparency and intelligibility of the decision. Justification requires adecision maker to focus on relevant factors and evidence. Transparency requires a decision maker to clearly state the basis for thedecision reached.

Intelligibility requires a decision maker to reach a result that clearly follows from the reasons provided. [24] While the court can look to the material before the Complaints Committee to see if it explains their Reasons, the ComplaintsCommittee should not assume that the material before it will always satisfactorily explain its written reasons. For example, theComplaints Committee successfully maintained before this Court that it was not required to produce a “record” because its refusal torefer the complaint to the Discipline Committee was not the exercise of the statutory power of decision.

This Court was able to concludefrom the Decision and the material filed by the respondent and the Intervenors that Mr.

Downey’s response to the applicant’s complaintwas before the Complaints Committee. [25] Finally, while the court can consider the material before the Complaints Committee to see if it explains the Committee’sReasons, the court cannot uphold a decision by writing reasons and substituting them for defective reasons. [26] The Complaints Committee was well represented in this matter by experienced counsel who could have, in a legallyappropriate way, provided advice concerning the adequacy of the Reasons before they were released. [27] This application is dismissed.

Parties are not seeking costs and accordingly there will be no order concerning costs. ___________________________ MARROCCO A.C.J.S.C. I agree: ___________________________ HEENEY R.S. J.

I agree: ___________________________ ELLIES J. Released: 20170505 CITATION : Harrison v. Association of Professional Engineers of Ontario, 2017 ONSC 2569 DIVISIONAL COURT FILE NO.: 14-1999 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., HEENEY R.S.J. & ELLIES J. BETWEEN: JIM HARRISON Applicant – and – ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO Respondent -and- DAVID W DOWNEY and DAVID W DOWNEY ENGINEERING LTD. Intervenors REASONS FOR JUDGMENT Released: 20170505