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Professional regulator’s refusal to grant further adjournment of disciplinary hearing due to cancer-related medical issues was not procedurally unfair

April 19, 2024

Administrative law – Decisions reviewed – Association of Professional Engineers – Natural justice – Adjournment of hearing; Judicial review – Appeals – Natural justice – Procedural requirements and fairness; Engineers – Disciplinary proceedings – Appeals and leave to appeal – Engineers and architects – Professional governance and discipline – Professional misconduct/conduct unbecoming

Korzeniowski v. Alberta (Assn. of Professional Engineers and Geoscientists), [2024] A.J. No. 291, Alberta Court of Appeal, March 15, 2024, D. Pentelechuk, W.T. deWit and J.A. Fagnan JJ.A.

Mr. K, an engineer, was the subject of disciplinary proceedings for unprofessional conduct stemming from a 2017 complaint made to his Association. He was found to have signed certification sheets confirming that a project met all requirements when he had knowledge to the contrary. In March 2019 he was advised that the matter had been referred to a formal hearing, and in November 2019 he was provided with a Notice of Discipline Hearing setting out 6 charges to be heard in February 2020. In September 2019, he provided the Association with a doctor’s note confirming he had cancer treatment pending and would not be able to attend a hearing until at least the end of April 2020. Shortly thereafter, the Association asked if he was still working as an engineer and requested additional information from the doctor. In November 2019, the Association indicated his response to the requested information was a condition to considering his adjournment request. He did not reply to the Association’s requests. In January 2020, Mr. K updated the Association on his medical condition and requested an adjournment to May 2020; it was granted, and he was advised that no further adjournments would be granted without the information previously requested. In December 2020, after Mr. K claimed he remained medically unable to participate in a hearing (but still had not provided the requested information), a second Notice of Discipline Hearing was issued setting the hearing to proceed virtually in late January 2021.

A few days before the start of the hearing in January 2021, Mr. K provided the Association with a letter from his oncologist with further information (including that further treatment was expected later in 2021 and he may continue to have symptoms for up to another year after that), but the Association determined that additional information was necessary, so they asked for the oncologist to attend virtually on the first day of the hearing to provide evidence about Mr. K’s abilities to conduct himself at the hearing. Neither Mr. K nor his oncologist appeared on the first day of hearing. The discipline committee elected to proceed with the hearing in his absence due largely to concerns for public safety if Mr. K continued to practice, and he was found guilty on 4 of the 6 charges. He was reprimanded, fined $5,000, suspended pending his completion of educational requirements in professional ethics, and ordered to pay a portion of the hearing costs in the amount of $78,000.

Mr. K challenged the disciplinary decision before the Appeal Board, in part on the grounds that the committee’s failure to adjourn the hearing in January 2021 constituted a breach of procedural fairness. The Appeal Board upheld the decision, and Mr. K further appealed to the Alberta Court of Appeal, arguing that the adjournment ought to have been granted with an interim order that he refrain from practicing in the meantime. The Court noted it was understandable that the committee did not make such an adjournment order given that Mr. K had neither proposed nor agreed to it. The Court further noted that Mr. K’s interests were not the only ones involved in the hearing; lengthy delays in disciplinary proceedings can impact the complainants and the public in general by undermining confidence in the profession. The Court found there was no breach of procedural fairness, and that the committee reasonably exercised its discretion in denying an adjournment at the hearing given the competing interests at play. The appeal was dismissed.

This case was digested by Kara L. Hill and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: April 19, 2024.

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