In Dargis v. Ordre des ingénieurs du Québec, the Superior Court reiterated that being a member of a profession is a privilege, not a right. This privilege is subject to a certain level of competency and the potential of being inspected.
This decision describes the professional inspection process under review in this case, discusses the corrective measures imposed, and finds that all applicable legal rules and principles were followed. Other professional orders should take note.
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In an application for judicial review, an engineer contested a decision by the Québec Order of Engineers (the “Order”) following a professional inspection that imposed measures limiting his right to practise until he successfully completed refresher training. The engineer claimed a) that the duty of procedural fairness was violated and b) that the decision rendered by the Order’s Applications Committee (the “Committee”) was insufficiently justified and unreasonable, especially with respect to the imposed refresher training.
The Superior Court dismissed all arguments raised, finding that:
- The Order complied with its duty of procedural fairness, going even above the expected standard.
- The Order exercised transparency and supported the engineer at each step of the professional inspection.
- The Committee’s decision was sufficiently reasoned and enabled the engineer to understand its content and logic.
- The decision under review is reasonable, given the applicable factual and legal constraints.
Full compliance with the duty of procedural fairness
Case law has already established – notably in Comité exécutif de l’Ordre des ingénieurs du Québec v. Roy and Bruyninx v. Comité exécutif de l’Ordre des médecins vétérinaires du Québec – that where professional inspections are concerned, refresher training and limiting the right to practise is an administrative measure, not a quasi-judicial one. This characterization guides the Court’s analysis as to the scope of the duty of procedural fairness.
As the duty of procedural fairness is a [TRANSLATION] “variable notion that must be adapted to the context and circumstances of each case,” the Court analyzed every detail of the inspection process in this case, including all communications between the Order and the member (or his lawyers). The Court found that the Order had fulfilled its duty, especially in that the engineer:
- was informed of the scope of the professional inspection in advance,
- received explanatory documents enabling him to prepare for each step of the inspection process, including the structured interview,
- was able to reschedule meetings, interviews and hearings,
- was given the opportunity to be heard,
- had access to the inspectors’ reports, and
- submitted all the documents he wanted during the Committee hearing and was allowed to fully argue his case.
The Court found that [TRANSLATION] “this amply demonstrates that procedural fairness was in no way compromised” and that [TRANSLATION] “it might even be said that the Order has provided a model for how the right to procedural fairness might be upheld in comparable circumstances.”
The engineer nevertheless claimed that the structured interview, as a method of evaluating his competencies, was unsuitable for his situation due to his age and the stress brought on by the process. The Court recognized that professional orders cannot ignore the personal circumstances of the member under inspection, and that certain accommodations could better support procedural fairness. However, the engineer’s argument was ultimately dismissed. While recognizing that structured interviews can be stressful, the Court ruled that it is unreasonable to require a professional order to tailor its professional inspection procedures to each individual. This could result in inequities, as the rules applied to some may be easier to meet than those applied to others.
The Superior Court also noted that it cannot replace the Order in determining what constitutes a suitable and personalized evaluation, if required. The regulations governing the professional inspection process provided procedural safeguards that amply met the required standards. It is up to the Order, not the Court, to determine how its members’ competencies are evaluated.
In sum, the Court found that no procedural fairness rules were breached in light of the manner in which the Order, its bodies, and its inspectors treated the engineer and since the professional inspection methods used in his case were explicitly provided for in the regulations.
Sufficient reasons were given
Relying on the Supreme Court’s Mason decision, the judge noted that an administrative decision-maker is not held to a standard of perfection. A decision-maker’s reasons must be reviewed in light of a complete and contextualized analysis of the file and must take the relevant administrative environment into account.
After analyzing various testimonies and the Committee’s decision in its entirety (including a description of the conduct of the hearing), the judge concluded that the Committee [TRANSLATION] “followed a chain of reasoning that bore its legislative powers and the relevant facts in mind, and explained why it endorsed the Inspection Committee’s recommendations.” Accordingly, the member could not claim not to understand the Committee’s reasoning.
On this basis, the Superior Court refused to intervene, finding that the Committee had given sufficient reasons for its decision. It added that [TRANSLATION] “the decision even constitutes a good example of careful writing that disposes of each party’s arguments” and that, [TRANSLATION] “though not perfect, the Committee’s decision ranks highly on the list of decisions that this Court considers to be well-reasoned.”
The decision is reasonable
The engineer claimed that the decision was unreasonable, as the administrative measures imposed were not tailored or appropriate for his situation.
The Court analyzed the validity of the Committee’s decision by applying the standard of reasonableness, which focuses on the administrative decision-maker’s thinking process rather than on the final result.
Based on his assessment of the file as a whole, the judge wrote that [TRANSLATION] “far from being unreasonable, this decision is warranted given the Committee’s concern about the gaps in the engineer’s critical competencies that led it to fear for public safety – a consideration that is core to the Order’s legislative mission.”
Conclusion
Inspections are performed to evaluate a professional’s competencies. The public’s trust in professionals is among the leading reasons that professional competency must be monitored. All professionals, without exception, are subject to inspection by their professional order.
Professional orders are the ones to decide how best to evaluate their members in accordance with their regulatory frameworks. They are also responsible for applying their processes in a way that upholds each member’s right to procedural fairness.