Statutes – Interpretation – Constitutional Questions Act, 2012, Section 15
Statutes – Interpretation – Agrologists Act, 1994, Section 28
Professions and Occupations – Agrologist – Professional Misconduct
The appellant appealed the decision of a Queen’s Bench judge that confirmed the decision of the Discipline Committee (DC) of the Saskatchewan Institute of Agrologists (Institute). The DC found the appellant guilty of professional misconduct and ordered that he be reprimanded, fined $2,000 and pay costs of $15,000 to the Institute. The DC had held a hearing because a fellow member of the Institute complained to it regarding the content of various email editions of a bimonthly newsletter created and written by the appellant. He distributed the newsletter to between 700 and 800 people, most of whom were members of the Institute. The DC found that the appellant had breached the standards expected of agrologists as set out in their Code of Practice because the newsletter contained unsubstantiated questions regarding the integrity and honesty of other agrologists and demonstrated his disregard for his professional responsibility to abstain from making misleading public communication about other members. Although this finding of professional misconduct would infringe the appellant’s s. 2(b) Charter rights, the DC concluded that it was justified under s. 1 of the Charter. In its decision regarding the penalty, the DC found that the newsletters should be regarded as public communication rather than private and the appellant should have acted with greater sensitivity to others. The appellant appealed the finding of professional misconduct by the DC and the penalty. With respect to the finding, the chambers judge found the appropriate standard of review was reasonableness and determined that the appellant had had a fair hearing. The DC’s findings that his communication was public and that his comments constituted professional misconduct were reasonable. The issues on this appeal were: 1) had the judge erred in deciding that the DC’s findings were reasonable in the following ways: a) that the appellant was guilty of professional misconduct; and b) the penalty decision as to costs; and 2) whether the appellant should be permitted to argue the Code unjustifiably infringed his s. 2(b) Charter right.
HELD: The appeal was dismissed. The court found with respect to each issue that: 1) the chambers judge: a) had erred in his application of the reasonableness test because he dealt only with the factor of justification. It then reviewed the DC’s decision itself to determine whether it was reasonable to have found: a) professional misconduct and found that it was because there was justification and the decision was transparent and intelligible and fell within the range of acceptable outcomes. The DC was entitled to a degree of deference with regard to its interpretation and application of its home statute which would include findings of professional misconduct as set out in s. 28 of the Act; and b) had not erred in finding the DC’s decision as to costs was reasonable. The costs incurred by the Institute were $62,600.The DC’s reasons were in accordance with the principles outlined in Abrametz; and 2) the appellant had not made this argument before either the DC or the chambers judge. It was a new issue and the appellant had not given notice under The Constitutional Questions Act, 2012. The court declined to depart from the general rule against raising constitutional arguments for the first time in the Court of Appeal.