Case Summary: Katsoulakos v. Association of Professional Engineers of Ontario
Katsoulakos v. Association of Professional Engineers of Ontario, 2014 ONSC 5440, setting aside a decision of a Discipline Committee and ordering a new hearing. An engineer found guilty of professional misconduct appealed the findings on the basis that he was not provided reasonable notice of certain allegations and on the basis that the association unfairly took judicial notice of professional standards in the absence of expert evidence.
The Discipline Committee had ruled that the subject matter of the complaint against the engineer, the structural adequacy and integrity of a tank the engineer designed, was broad enough to include advice given by the engineer regarding repairing a cut-out in the tank even though the “cut-out” issue was not raised in the Statement of Allegations. The Divisional Court overturned this decision, finding the duty of fairness required the association to disclose with reasonable particularity the act or conduct alleged to enable the member to prepare a full defence. It was not enough that the misconduct alleged may have become clear during the hearing. The degree of particularity required is similar to that required in a judicial proceeding and ambiguous language may offend the duty of fairness.
After declining to qualify an individual as an expert in specific areas of engineering, the Discipline Committee allowed the individual to give evidence on those areas and relied on his evidence in its findings. The Divisional Court held that the Committee considered inadmissible evidence. Further, the Court found that since there was no admissible expert evidence on the standard of practice, the Committee acted improperly when it took judicial notice of the standard of practice and ruled the standard had not been met.
Comment: Katsoulakos illustrates that allegations must be drafted to provide sufficient notice of the particular misconduct alleged and that a discipline committee may be unable to find a breach if an allegation is not adequately set out. The case also holds that discipline committees should be careful about interpreting standards of practice in the absence of any admissible evidence about them. Discipline Committees should not rely on their own expertise in lieu of evidence of practice standards.