Introduction
In Bauhuis v. Association of Professional Engineers and Geoscientists of Alberta[1] (Bauhuis), the Alberta Court of King’s Bench considered applications for judicial review of two decisions issued by the Investigation Committee (AIC)of the Association of Professional Engineers and Geoscientists of Alberta (APEGA).[2]
Background
The AIC commenced two preliminary investigations related to a July 15, 2015 pipeline failure: the first was an investigation into whether Mr. Bauhuis had met his obligations as an engineer on the project and the second was an investigation into the conduct of Wood Group Canada Inc. (Wood Group), which had refused to provide the documents that were required for AIC’s investigation into Mr. Bauhuis.[3]
The investigation into Mr. Bauhuis’ conduct was to determine if he had met his obligations under Alberta’s Engineering and Geoscience Professions Act[4] (EGPA).[5] The scale of the pipeline leak was alleged to be “approximately 5,000 cubic meters of produced emulsion (the equivalent of approximately 31,000 barrels) released over an area…of wetland.”[6] At the time of the AIC investigation into Mr. Bauhuis’ conduct, he was retired and no longer had access to any of his documents, which were held by the company where he had previously worked and which had amalgamated into Wood Group.[7]
The AIC’s representative requested documents from Wood Group, so that Mr. Bauhuis could respond to AIC’s investigation into his conduct; however, Wood Group refused to provide the documents.[8] The AIC then commenced an investigation against Wood Group due to its refusal to provide the documents that the AIC’s representative had requested.[9]
Wood Group informed the AIC that it was defending a civil claim brought by CNOOC Petroleum North America ULC in relation to the pipeline failure.[10] Both Mr. Bauhuis and Wood Group requested that the AIC adjourn its preliminary investigations, pending the outcome of the civil litigation.[11] The AIC denied both requests for adjournment.[12] The AIC’s investigation into Mr. Bauhuis was at the preliminary investigation stage, which was to consider whether there existed sufficient evidence of unprofessional conduct and/or unskilled conduct to refer allegations to APEGA’s discipline committee.[13] Mr. Bauhuis and Wood Group applied for judicial review of the AIC’s decisions to deny their requests for adjournment.
Issues
In Bauhuis, the Court decided the following three issues, among others:[14]
(1) Were the applications for judicial review brought prematurely?
(2) Should the Court grant Mr. Bauhuis’ application for judicial review of the AIC’s denial of his request for adjournment of the AIC’s preliminary investigation?
(3) Should the Court grant Wood Group’s application for judicial review of the AIC’s denial of its request for adjournment of the AIC’s preliminary investigation?
Judicial review applications in the middle of proceedings: Not premature in this case
The first issue the Court considered was whether the judicial review applications were premature.
The concern at this stage was “litigation by installment,” which is generally to be avoided as it adds costs, delays proceedings, wastes judicial resources and may also constitute an abuse of process.[15] The Alberta Court of Appeal has previously stated that it is generally inappropriate to short circuit an administrative process by bringing an application for judicial review mid-process, except in rare and exceptional circumstances.[16]
However, in this case, section 43 of the Engineering and Geoscience Professions General Regulation[17] provided for adjournments to an investigation if there was a parallel court action, stating: “A preliminary investigation under Part 5 of the [EGPA] may be adjourned if the complaint that gave rise to the investigation is the subject of proceedings in the Alberta Court of Justice or the Court of King’s Bench of Alberta.”[18]
In this case, considering the legislation, the Court found that there was “enough scope in the text of section 43…to allow judicial reviews to occur in these circumstances.”[19]
Mr. Bauhuis’ judicial review application: Dismissed
In deciding whether to grant Mr. Bauhuis’ request for judicial review, the Court considered whether the AIC’s decision to not grant an adjournment of its preliminary investigation was reasonable and whether that decision was procedurally fair.
The Court concluded that the AIC’s decision to deny Mr. Bauhuis’ request for adjournment was reasonable in all of the circumstances.[20] In coming to this decision, the Court made comments related to professional regulation and the statutory mandates of regulators in the context of parallel civil proceedings.
The Court noted that “[i]t is repeatedly stated throughout the jurisprudence that there is a strong public interest in ensuring that statutory bodies are permitted to fulfill their mandate…There is a public interest that the statutory processes in place can continue, regardless of whether the situation is unique. Although there could be overlap between the civil and regulatory processes…the regulatory and civil processes remain distinct spheres.”[21]
The Court also found that the AIC’s decision was procedurally fair and that there was no reasonable apprehension of bias.[22] In doing so, the Court stressed that the threshold for procedural fairness at the investigation stage of an administrative proceeding is low.[23]
The Court highlighted that different tests for reasonable apprehension of bias are applied at the investigative and adjudicative stages of administrative proceedings. The Court emphasized that at the investigation stage, the “closed mind” test is used.[24] The closed mind test asks “whether the decision maker has prejudged the matter to the extent of being no longer capable of persuasion.”[25] The Court determined that the AIC was not tainted by a reasonable apprehension of bias.[26]
Wood Group’s judicial review application: Dismissed
The Court also considered whether the AIC’s refusal to adjourn the investigation into Wood Group was reasonable and procedurally fair.
The Court determined that the AIC’s decision was reasonable and procedurally fair.[27] In making this determination, the Court noted that the correct test at this stage was for the AIC to balance “the potential prejudice with the public interest.”[28] There was concern that the regulatory decision could prejudice the civil proceedings.[29] However, the Court noted that even in the face of an unfavourable regulatory decision, it is open to the applicable party to argue the weight to be given to the regulatory body’s decision in the civil proceedings.[30]
The Court found that the AIC’s determination that concerns about prejudice did not outweigh the public interest, was appropriate in the circumstances.[31] The Court stressed that “the regulatory and civil litigation spheres are equally legitimate realms with separate mandates and focuses.”[32] The Court noted that there is a “clear throughline in the jurisprudence regarding disciplinary bodies and the public interest in allowing disciplinary bodies to pursue their statutory mandates.”[33]
Takeaways
The Bauhuis decision provides several takeaways when considering the timing and chance of success for applications seeking judicial review of a professional regulatory body’s interim decisions.
First, it is important to carefully analyze the relevant provision of the applicable legislation when deciding whether to seek judicial review mid-process, when the regulatory body has not yet made a final decision. The language in the applicable legislation should be considered, together with the facts and circumstances of the case.
Second, the Court emphasized the importance of allowing professional regulators to fulfill their statutory mandates, even when parallel civil proceedings exist. The Court stressed the importance of this process and how it should not be diminished in favour of other, concurrent proceedings. The importance of regulatory proceedings is one of the factors that should be considered when deciding whether to request adjournments or seek judicial review in the midst of parallel proceedings. The mere existence of parallel, civil proceedings will not automatically give rise to an adjournment of the related regulatory matters.
Finally, one must also accurately assess the varying tests applied to the investigative and adjudicative stages of administrative proceedings. The threshold for procedural fairness is lower at the investigative stage and allegations of reasonable apprehension of bias will be assessed using the “closed mind” test.
For more information on this case or any questions related to the legal implications of this decision on your business, please contact the author, Tari Hiebert. Thank you to our articling student Amanda Lehmann for her contribution to this blog.
[1] 2024 ABKB 603 [Bauhuis].
[2] Ibid at paras 4–10.
[3] Ibid at paras 1, 4, 9.
[4] RSA 2000, c E-11 [EGPA].
[5] Bauhuis, supra note 1 at para 4.
[6] Ibid at para 82, quoting from an APEGA Investigation Panel report.
[7] Bauhuis, supra note 1 at paras 5–6.
[8] Ibid at para 7.
[9] Ibid at para 9.
[10] Ibid at para 8.
[11] Ibid at paras 38, 82.
[12] Ibid at paras 39, 82.
[13] Ibid at para 45.
[14] The Court also allowed the admission of further evidence from Wood Group (see ibid at paras 21–27), determined that the standard of review was reasonableness (see ibid at paras 28–37), and dismissed APEGA’s application for an order for disclosure because the EGPA contained a process for APEGA to follow when a party refuses to disclose (see ibid at paras 102–09).
[15] Bauhuis, supra note 1 at para 17, citing Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2022 ABCA 416 at para 19 [Fawcett].
[16] Fawcett, supra note 13 at para 19.
[17] Alta Reg 150/1999.
[18] Ibid, s 43.
[19] Bauhuis, supra note 1 at para 20.
[20] Ibid at para 60.
[21] Ibid at paras 56–57.
[22] Ibid at para 80.
[23] Ibid at para 72.
[24] Ibid at para 75.
[25] Ibid at para 75, citing Rebel News Network v Alberta (Election Commissioner),2021 ABCA 376 at para 11.
[26] Bauhuis, supra note 1 at para 80.
[27] Ibid at para 101.
[28] Ibid at para 85.
[29] Ibid at paras 94–95.
[30] Ibid at para 94.
[31] Ibid at para 87.
[32] Ibid at para 89.
[33] Ibid at para 92.
