Eye On Regulation

In the recent Alberta case of Korzeniowski v Alberta (Association of Professional Engineers and Geoscientists), 2024 ABCA 91, the Court of Appeal considered whether the Discipline Committee's denial of the member's adjournment request was a breach of procedural fairness.

The following events occurred:

• March 2019: The matter was referred to a formal hearing.
• Beginning in July 2019: The member alerted both the Investigative Committee and the Discipline Committee of medical issues which may impact scheduling of the hearing.
• September 17, 2019: The member advised he would be unable to attend a hearing until at least the end of April 2020 and attached a "Certificate of Absence" from a physician.
• September 19, 2019: The Investigative Committee asked the member whether he continued to work as an engineer and requested further medical information.
• November 2019: Notice of Discipline Hearing issued, to be heard February 3-7, 2020.
• November 2019: Request for further medical information to consider an adjournment. The member did not provide the requested information.
• January 23, 2020: The member provided an update on his medical issues, but did not provide the requested information, and requested an adjournment to May 2020.
• January 28, 2020: The Discipline Committee granted an adjournment, but advised any further adjournment would require the information previously requested.
• The member continued to claim inability to participate but failed to provide the requested information.
• December 2020: Issued another Notice of Discipline Hearing, scheduled for January 25-29, 2021, and advised any adjournment request would be considered on the first day.
• The member advised he would not be attending. The Investigative Committee warned the hearing would proceed in his absence without proper evidence from his physician.
• January 21, 2021: The member provided a physician's letter outlining his side effects, stating he may not be able to conduct himself properly, and recommending the matter be delayed until he has recovered.
• The Investigative Committee asked the physician to attend virtually on January 25, 2021.
• January 25, 2021: Neither the member nor his physician appeared.
• The matter proceeded in his absence. The Discipline Committee explained in the written reasons that there were concerns about the safety and interests of the public.

The member appealed to the Appeal Board claiming a breach of procedural fairness. The Appeal Board denied the appeal, noting his failure to provide the requested medical information.

The member appealed to the Court of Appeal. The Court of Appeal held that a decision to deny an adjournment request is a breach of procedural fairness only if the decision maker has exercised its discretion in an unreasonable or non-judicious fashion, considering all competing factors. In this case, the Discipline Committee had to weigh the member's interests and the public's interests. The onus was on the member to satisfy the Discipline Committee that an adjournment was warranted. The Court found the member had ample opportunity to provide the requested medical information and alleviate their concerns, which he largely failed to do. This failure was compounded by his failure to attend the first day of the hearing.

The Court held it was not unreasonable to expect the member to appear and speak to the adjournment request and, considering all these factors, there was no breach of procedural fairness.

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