The Appellants (Mr. Katsoulakos and Micro City Engineering Services Inc.) successfully appealed a decision of the Respondent, the Association of Professional Engineers of Ontario. The decision found that the Appellants were guilty of professional misconduct in respect of their work designing a manure tank for a dairy farm.

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Professional misconduct / conduct unbecoming – Competence – Disciplinary proceedings – Judicial review – Appeals – Procedural requirements and fairness – Notice – Evidence – Judicial notice

Katsoulakos v Assn. of Professional Engineers of Ontario, [2014] O.J. No. 4430, 2014 ONSC 5440, Ontario Superior Court of Justice, September 22, 2014, I.V.B. Nordheimer, C.J. Horkins, D.M. Brown JJ.

The Appellants, Mr. Sotiros Katsoulakos and his company (Micro City Engineering Services Inc.) designed a manure storage tank for a dairy farm. The tank started leaking a few months after it was constructed. The leak was not caused by the design but, rather, was caused by a modification completed by the farm owner. During an insurance investigation, an engineer reviewed the structural integrity of the tank and made a complaint to the Respondent, the Association of Professional Engineers of Ontario (the “Association”).

In October 2010, the Association’s complaints committee referred the matter to the discipline committee for a hearing. The disciplinary hearing was held in June 2012. The decision of the discipline committee was issued on November 26, 2012. The discipline committee found Mr. Katsoulakos guilty of professional misconduct and negligence. The reasons of the discipline committee were not released until October 2013.

The Appellants commenced an appeal before the Court, seeking for the decision to be quashed or, alternatively, seeking a re-hearing before a different discipline committee panel. The Association brought a cross-appeal relating to the evidence to be considered if there was an order for a re-hearing.

The Appellants advanced two primary arguments.

First, the Appellants argued that they did not have sufficient notice of the allegations relating to the “cut-out” in the tank. This related to the advice given by Mr. Kotsoulakos about the repair of the “cut-out” created by the farm owner. Mr. Kotsoulakos advised the farm owner to use a concrete bonding agent. He failed to consider the applicable provisions of the Ontario Building Code which required reinforcing steel as well.

The Court held there was not adequate notice about the “cut-out” issue. In this regard, the Court noted that the “Statement of Allegations” was focused on the design of the tank. The Court held that, in professional disciplinary proceedings, the duty of fairness requires that the professional body disclose, with reasonable certainty, the act or conduct in issue. The Court set aside the finding that Mr. Katsoulakos was negligent and incompetent in his advice about the cut-out.

Second, the Appellants argued that the discipline committee did not act fairly in the way it considered the allegations relating to the integrity of the tank. The Appellants argued that the discipline committee relied on inadmissible evidence from an expert (Mr. Stephenson), and also relied improperly on judicial notice. During the hearing, the discipline committee accepted that Mr. Stephenson was not an expert about circular liquid retaining storage structures. In spite of making this finding, the discipline committee permitted Mr. Stephenson to give evidence about the requirements for steel in the tank.

The Court held that the discipline committee made an unreasonable decision when finding that the Appellants were incompetent and negligent in designing the tank. The discipline committee was either relying on inadmissible evidence from Mr. Stephenson, or taking judicial notice about the standard of practice.

The Court allowed the appeal and remitted the matter for a re-hearing before a new panel of the discipline committee. The Court dismissed the cross-appeal.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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