Douglas Cameron Appellant (Applicant) v. The Association of Professional, 2022 SKCA 118

Court of Appeal for Saskatchewan Docket: CACV3963 Citation: Cameron v The Association of Professional Engineers and Geoscientists of Saskatchewan , 2022 SKCA 118 Date: 2022-10-13 Between: Douglas Cameron Appellant (Applicant) And The Association of Professional Engineers and Geoscientists of Saskatchewan Respondent (Respondent) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: 2021 SKQB 318 , Regina Appeal heard: September 6, 2022 Counsel: Barton Soroka for the Appellant Michael Griffin for the Respondent Caldwell J.A. I. INTRODUCTION [ 1 ] Douglas Cameron appeals against the judgment of a Court of Queen’s Bench Chambers judge in Cameron v Association of Professional Engineers and Geoscientists of Saskatchewan , 2021 SKQB 318 [ Chambers Decision ] , which dismissed his application for judicial review of a decision of the council [Council] of the Association of Professional Engineers and Geoscientists of Saskatchewan [APEGS].

In its decision, which consists of a series of emails [ Council Decision ], the Council denied Dr. Cameron’s request for disclosure of the materials that an APEGS complaint investigation committee [Committee] had relied upon when recommending no further action be taken in the professional misconduct complaints Dr.

Cameron had lodged against two engineers [Engineers] (see Report of the Investigation Committee Complaint Alleging Professional Misconduct Against W.K. and Report of the Investigation Committee Complaint Alleging Professional Misconduct Against D.R. (19 Sept 2019) [ Committee Reports ]). [ 2 ] The Chambers judge dismissed the application for judicial review because he found that Dr. Cameron did not “enjoy the standing as a complainant to make such a request [for disclosure]” ( Chambers Decision at para 57). The Chambers judge also found that, even if Dr.

Cameron had standing to seek judicial review of the Council Decision , it was limited to raising issues of procedural fairness and, in which case, “the refusal by the Council is not … a breach of procedural fairness” (at para 57). [ 3 ] In this appeal, Dr. Cameron argues that the Chambers judge erred when he found that complainants have limited standing in these matters and may only raise issues of procedural fairness.

He ultimately seeks to have a court review the Council Decision and the Committee Reports for their reasonableness under the approach set out in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ]. [ 4 ] Largely for the reasons of the Chambers judge, I would dismiss the appeal, with an award of costs in this Court to APEGS. II. BACKGROUND [ 5 ] APEGS is the regulatory body that governs professional engineers and geoscientists pursuant to The Engineering and Geoscience Professions Act , SS 1996, c E-9.3 [ EGPA ]. Dr. Cameron is a professional agrologist.

He is not a member of APEGS. [ 6 ] In 2017, Dr. Cameron lodged two complaints with APEGS, alleging improper conduct on the part of the Engineers. APEGS established the Committee to investigate the complaints. The Committee did so and, after some delay, it initially recommended that no further action be taken against the Engineers. [ 7 ] Dissatisfied with the Committee’s recommendations, Dr. Cameron asked the Council to review them pursuant to s. 32 of the EGPA , which states in its relevant parts: 32

(7) A person who made the complaint with respect to which the investigation was conducted may apply to the council to review a recommendation of the investigation committee that no further action be taken.

(8) On completion of the review pursuant to subsection (7), the council may: (

a) confirm the decision of the investigation committee; or (

b) refer the matter back to the investigation committee:

(

i) to investigate the matter further; or (ii) to prepare a written report recommending that the discipline committee hear and determine a formal complaint. [ 8 ] The Council did so and found that the Committee had not considered all the relevant evidence. It therefore ordered the Committee to reinvestigate Dr. Cameron’s complaints and to take account of all available evidence when doing so. [ 9 ] To conduct the second round of investigations, the Committee hired an outside consultant to review the evidence and report on his findings.

Relying on those findings, the Committee again recommended to the Council under the Committee Reports that no further action be taken against the Engineers. [ 10 ] Dr. Cameron, dissatisfied with the Committee’s second recommendations, sought to have them reviewed by the Council. To prepare for that, he asked the Council to disclose to him the documents that the Committee had relied upon when making its recommendations. The evidence he requested included the consultant’s report as well as correspondence from one of the Engineers and that Engineer’s employer. The Chambers judge described Dr.

Cameron’s disclosure request and where matters then stood in this way: [13] The applicant then wrote the Association’s Registrar on October 11, 2019 stating, inter alia “I would like to move my complaints forward to the APEGS council”. Dr. Cameron also requested that the “evidence” gathered by the Investigation Committee on both complaints be disclosed to him (Exhibit “H” of Cameron Affidavit). [14] This appears to have now developed into a bit of a stalemate. Dr.

Cameron has not yet formally requested another Council review under s. 32(7) of the Act because he believes he needs fulsome [ sic ] reasons from the Investigation Committee. He also contends he needs the Investigation Committee’s “evidence” to conduct his presentation before Council under s. 32(7). III. CHAMBERS DECISION [ 11 ] The Council’s handling of Dr. Cameron’s request for disclosure led him to file an originating application in the Court of Queen’s Bench seeking judicial review.

As relief, he sought orders quashing the Council Decision and requiring the Council to disclose the evidence the Committee had relied upon when making its recommendations. However, as the Chambers Decision makes clear, what he truly challenged is the reasonableness of the Committee Reports and the committee’s recommendations that no further action be taken in his complaints against the Engineers. [ 12 ] The first issue the Chambers judge addressed in the application was whether Dr. Cameron had standing to seek judicial review.

Referring principally to Friends of the Old Man River Society v Association of Professional Engineers, Geologists and Geophysicists of Alberta , 2001 ABCA 107 , 199 DLR (4th) 85 [ Friends ], and noting the similarities between the EGPA and the equivalent Alberta legislation (which was at issue in Friends ), the Chambers judge held that Dr. Cameron’s standing was limited. When concluding his analysis on this issue, the Chambers judge wrote: [32] The takeaway from all of this is that Dr.

Cameron’s standing is limited to a review of procedural fairness regarding Council, but he does not enjoy a similar standing regarding “any downstream procedure” ( Warman v Law Society of Alberta , 2015 ABCA 368 at para 6 , 609 AR 83 [ Warman ]). That includes the work and recommendations of the Investigation Committee. To round this out, for any possible future reference, Dr. Cameron does not have standing as a complainant to seek a review of the reasonableness of any potential Council decision ( Tran at para 25).

Further if the reasoning in Friends is applied: Council would not have to provide reasons (see para. 22 above). As I have alluded to; this is a peculiar situation in that Dr. Cameron has yet to again evoke s. 32(7) of the Act . (Emphasis added) [ 13 ] Although not expressly addressed by the Chambers judge, the last sentence in the preceding paragraph points to a foundational principle of judicial review that restricts its availability in cases like this.

Namely, in the absence of exceptional circumstances, courts do not interfere with ongoing administrative processes until they have been completed or—put another way—until all available, effective statutory remedies have been exhausted (see Canada (Border Services Agency) v C.B. Powell Ltd. , 2010 FCA 61 at para 31 , [2011] 2 FCR 332 ( Powell ); Dugré v Canada (Attorney General) , 2021 FCA 8 at para 37 ). I will return to this point later in these reasons. [ 14 ] After finding that Dr.

Cameron had standing to raise issues of procedural fairness regarding the Council’s handling of his complaints, the Chambers judge turned to the issues that Dr. Cameron sought to raise, characterising and addressing them in this way: [35] I can quickly come to the conclusion that APEGS has at all times properly followed the complaint process set out under the Act . Dr. Cameron has been fully engaged in this process including requesting and receiving a previous review from Council under s. 32(7) of the Act . [36] Dr. Cameron’s concern appears to be two-fold in this application.

He asserts the Investigation Committee has not provided adequate reasons for its recommendations and he has been denied the Investigation Committee’s underlying “evidence” or as I put it – their files – on the two complaints. He argues that without a full understanding of the Investigation Committee’s reasons and without access to the committee’s files he cannot conduct a meaningful presentation to attempt to persuade Council to move the two complaints on to a hearing before the Discipline Committee. In that way, it seems he is trying to evoke a breach of procedural fairness argument.

This begs the question: does he have standing to engage a judicial review of “downstream procedure” ( Warman at para 6 ) being the involvement of the Investigation Committee or is he restricted to procedural fairness at the review stage under s. 32(7) of the Act ? [37] Or put another way – does Dr.

Cameron have the right via procedural fairness to demand full reasons from the Investigation Committee and access to their investigation files in order to fairly participate in the review process yet to happen? [38] In my opinion, the cited line of Alberta decisions do not allow for any judicial review of the “downstream” preliminary investigation process – particularly as set out in Friends . Nor do I see Warman , Tran or Mitten v College of Psychologists (Alberta) , 2010

ABCA 159, 487 AR 198, as expanding judicial review to the early stages of the complaint process other than ensuring the procedure setout in the Act has been complied with. [39] The result of this is Dr. Cameron is only entitled upon judicial review for a determination of procedural fairness. I find that he hasbeen fairly accorded all procedural processes available under the Act and Bylaw. [15] Notwithstanding this conclusion, which also fully disposed of Dr.

Cameron’s application, the Chambers judge proceeded toconsider whether the factors outlined in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2SCR 817 [Baker], required the Committee to provide more thorough reasons than it had in its Reports.

In his concluding remarks on thisquestion, the Chambers judge wrote: [53] Considering all of the above, I find the Baker factors are either not clearly made out or give rise to a low level of proceduralfairness. [54] Accordingly, considering all of the above, I come to the conclusion that reasons are not required at the Investigation Committeestage and that there has not been a breach of procedural fairness. [16] Lastly, the Chambers judge rejected Dr.

Cameron’s request for an order requiring the Council to provide him with theCommittee’s files, writing: [56] In my opinion, in the greater scheme of things, to order the release of confidential investigative materials would breachconfidentiality and could adversely affect not only investigated members but also other parties.

This could have a chilling effect on theability of governing professional bodies to properly investigate complaints. [57] However, the overriding reason why he cannot demand production of the Investigation Committee’s files is that he does not enjoystanding as a complainant to make such a request and the refusal to do so by Council is not, in my opinion, a breach of procedural fairness. IV. ANALYSIS [17] In this appeal, Dr.

Cameron seeks to establish error in the Chambers Decision by persuading this Court that the decision inFriends and the line of Alberta cases upon which the Chambers judge relied are distinguishable on several bases. He then proposes thatthis Court review the Council Decision as well as the Committee Reports under the standard of reasonableness. He asserts that theCommittee Reports were unreasonable because the Committee’s reasons were not transparent, intelligible or justified. [18] As I read the Chambers Decision, the Chambers judge dismissed the judicial review application because Dr.

Cameron lackedthe necessary standing to challenge the reasonableness of the Committee Reports. Given this conclusion, the Chambers judge’s commentson the reasonableness of those reports, as well as his analysis of the content of the duty of fairness under Baker in this context, wassurplusage; it was not necessary to the disposition of the application. On that understanding, the first order question in this appeal iswhether the Chambers judge erred in his analysis of the issue of standing by relying on the principles espoused in Friends. If he did not,then this appeal must be dismissed.

If he did, then this Court may consider whether he erred in reaching his conclusions on the content ofthe duty of fairness and in his reasonableness analysis. [19] At bottom, I am in complete agreement with the Chambers judge that the determining principle in Friends precludes Dr.Cameron from seeking judicial review of the Committee Reports. [20] Under s. 32 of the EGPA, the Legislature granted limited standing to complainants in what are processes of investigatingcomplaints and, when warranted, of disciplining APEGS members that clearly involve only APEGS and the members in question.

In thisregard, the provisions of the EGPA set out rights and duties for APEGS and its membership; they leave no room for outside involvementin the investigation and disciplinary processes. While APEGS is charged with governing its membership in the public interest, the onlyinterested parties in the investigative and disciplinary processes are APEGS and those members whose conduct has been impugned. Acomplainant launches those processes, but the EGPA does not interject complainants into them as a party.

The only exception to this is acomplainant’s ability to have an investigating committee’s report reviewed by the Council under s. 32(7). [21] It follows from this that Dr. Cameron has no standing in the investigative process other than pursuant to s. 32(7). For thatreason, I am not persuaded that the factual differences between Friends and the other Alberta cases that the Chambers judge relied uponserve to distinguish them from the case at hand. I agree with the analysis and conclusion in Friends that, in a context such as this, wherethere is no lis inter partes between Dr.

Cameron and APEGS (or the Engineers), judicial review is not available. [22] In the Chambers Decision, the Chambers judge went on to consider the obiter comments in Friends, under which the AlbertaCourt of Appeal, in “alternative” reasoning, “assumed that the decision of Council is amenable to judicial review” and then concluded thatjudicial review was “limited to a consideration of the content of [the Alberta] Council’s duty of procedural fairness to the complainants”(at para 25; emphasis added).

The Court there found that, “Accepting the [complainants’] contention that their interests were adverselyimpacted by [the Alberta] Council’s decision, the corresponding duty of fairness would, in our view, be limited” (Friends at para 46). [23] While I am persuaded that the alternative, obiter reasoning in Friends is not binding in this matter, that does not assist Dr.Cameron in this appeal. This is because, if the alternative reasoning does not apply, then he is precluded, as noted, from raising questionseven about procedural fairness by the operative reasons in Friends.

For completeness, I will say that I agree with the Chambers judge that,if judicial review were available in this matter, the duty of fairness owed to Dr. Cameron by the Council would be quite limited and hewould have a correspondingly narrow basis for seeking judicial review concerning its breach.

I further agree that this right to seek judicialreview, even if it existed, would not entail review of the Committee Reports, as the Chambers judge concluded. [24] Moreover, although the Chambers judge did not address it, the principle of law that, in the absence of exceptionalcircumstances, courts do not interfere with ongoing administrative processes until all available, effective statutory remedies have been

exhausted reinforces the correctness of the Chambers judge’s dismissal of the judicial review application. Under this principle, even Dr. Cameron’s arguments relating to a denial of procedural fairness (should he have standing to raise them) do not entitle him to judicial review at this point. As the Court in Powell noted, “Concerns about procedural fairness or bias… are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted” (at para 33).

In the context of this matter, because ss. 32(7) and (8) of the EGPA set out a remedy for Dr. Cameron’s concerns with the Committee Reports (a remedy of which he has previously and successfully availed himself), his application for judicial review was premature and could have been dismissed on that basis. V. CONCLUSION [ 25 ] For these reasons, I would dismiss this appeal with costs to APEGS calculated in the usual way. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.