An Applicant sought judicial review of a decision by the Complaints Committee of the Respondent Association of Professional Engineers of Ontario not to refer his complaint to its Discipline Committee. The Applicant further filed a motion for production of all documents related to the investigation of the Applicant’s complaint, the proceedings before the COC, and the decision of the COC. The Court dismissed the application for production, finding that the decision of the COC not to deal with a complaint was an exercise of discretion authorized by statute, falling outside of the definition of a statutory power of decision. Given the nature of the screening out decision, the requirement for producing the record of proceedings as framed by the Applicant was overly broad at this stage in the proceedings.

Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Professional misconduct – Investigations – Judicial review – Disclosure of records

Harrison v. Assn. of Professional Engineers of Ontario, [2014] O.J. No. 5382, 2014 ONSC 6549, Ontario Superior Court of Justice, November 12, 2014, R. Beaudoin J.

The Applicant filed a complaint of professional misconduct against an engineer and his company with the Respondent Association of Professional Engineers of Ontario (“PEO”). The Complaints Committee (“COC”) declined to refer the complaint to the Discipline Committee, finding no evidence of professional misconduct of a significant nature on the part of the engineer or his company. The Applicant applied for judicial review and requested that the Respondent file the record of proceedings or alternatively produce all documents relating to the investigation, the proceedings before the COC, and the decision of the COC, so that the Applicant could file his own record.

The Court dismissed the application for production. The Judicial Review Procedural Act, R.S.O. c.J.1 requires a person or body making a decision in the exercise or purported exercise of a statutory power to file forthwith a record of the proceedings in which the decision was made. In the case of the PEO and the Professional Engineers Act, RSO 1990, c.P.28 (the “PEA”), the decision of the professional regulatory body to not pursue a complaint does not constitute a statutory power of decision. In the absence of a statutory power of decision, the Applicant was not entitled to the record of proceedings in the scope and breadth described in the motion for production. The Court distinguished the Court of Appeal decision in Endicott v. Ontario (Independent Police Review Office) 2014 ONCA 363, finding that the complaints provisions of the Police Services Act, RSO 1990, c.P.15 was unlikely other statutory complaints procedures in that the Independent Police Review Director’s discretion is in deciding whether or not to stop a complaint from proceeding (“screening in unless screened out”) and not in deciding whether he will deal with a complaint (“screening out unless screened in”). This distinction has an impact of whether or not there is an exercise of a statutory power of decision.

Screening out decisions will only infrequently involve consideration of more than the complaint form and attachments provided by the complainant. Requiring the PEO to produce the record of the proceedings in the manner described by the Applicant was overly broad and unhelpful.

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