The British Columbia Supreme Court has recently clarified the law regulating professions as it applies to a finding of “unprofessional conduct” in contrast to negligence or inadvertence. In Salway v. Association of Professional Engineers and Geoscientists of British Columbia, the Court held that “unprofessional conduct” requires a finding of “some quality of blatancy” or, in other words, “some cavalier disregard” for the consequences. Although the latter requirement has significant ramifications for the professional regulation of engineers, there is a lack of guidance and transparency about its meaning in practice.
In Salway, a professional engineer had completed a report regarding a flood rating of his client’s property within the Regional District of Central Kootenay. Subsequently, the client sent several requests that the report be provided for peer review as required by the Regional District. The engineer did not respond in timely fashion but did make subsequent attempts to secure a peer reviewer. The Discipline Committee panel of the Association of Professional Engineers and Geoscientists of British Columbia (APEGBC) brought a finding of unprofessional conduct against Dr. Salway.
In overturning the panel’s decision, the court in Salway found that the panel had not made any findings that “[the] conduct was anything other than negligent or deficient”. In its ruling the Court explained that the British Columbia legislature had intended to draw a distinction between the three categories of charges under Section 33(1)(c) of the Engineers and Geoscientists Act. When an error or omission by an engineer becomes “unprofessional conduct” will depend upon the circumstances of each case. The standard of proof is high: somewhere between the civil standard of a balance of probabilities and the criminal standard of proof beyond a reasonable doubt.
In effect, the Court made it clear that a discipline panel composed of professional engineers cannot hide behind its collective expertise but must make a finding based on the evidence before it with respect to the legal requirements of “quality of blatancy” or “cavalier disregard” for the client’s (or public’s) interests. In absence of such findings, a reviewing court may find an error and overturn the decision. The panel must not simply equate negligence or inadvertence with unprofessional conduct, for that would amount to an error in law.
Unfortunately, the court in Salway did not further explain the legal concepts. Although “quality of blatancy” has not been defined in law, “cavalier disregard” for consequences has been used in various court decisions in civil and criminal matters across Canada. “Cavalier disregard” may be found if the conduct was planned and deliberate rather than merely inadvertent. In the regulation of the Ontario legal profession, for example, “cavalier disregard” has been found to mean a reckless lack of attention to one’s duties and obligations and a marked departure from the standard of conduct expected for the profession. The public interest, whether directly or indirectly, is typically at stake.