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the case
In Korzeniowski v Alberta (Association of Professional Engineers and Geoscientists), 2024 ABCA 91, Mr. Korzeniowski appealed the finding of guilt in charges brought against him as a member of the Association of Professional Engineers and Geoscientists of Alberta (“APEGA”). His appeal focussed on whether the refusal to grant him an adjournment on the basis of a medical condition which impaired his ability to participate in the proceedings was an error.
In March 2019, Mr. Korzeniowski was advised the issues raised in a complaint against him had been referred to a hearing. In July 2019, he advised that medication issues may impact scheduling and in September 2019 provided a physician’s note which indicated pending cancer treatment would prevent his attendance until at least April 2020.
In September and November 2019, Mr. Korzeniowski was asked whether he continued to practice as an engineer and to provide a physician’s report with information relating to questions raised. He was advised an adjournment would be conditional on responses. Mr. Korzeniowski was not responsive to either request, his communications implied he continued to work as an engineer.
In January 2020, Mr. Korzeniowski requested an adjournment to May 2020. The Discipline Committee granted the adjournment but informed him that a further adjournment would require him to first answer the questions posed which he had not yet done.
Throughout 2020, Mr. Korzeniowski continued to claim he was unable to participate in a hearing but failed to provide any documentation as requested. In December 2020, he received notice that a hearing would take place virtually in January 2021. Four days before the hearing was set to begin, Mr. Korzeniowski provided a letter from his oncologist. The information provided was limited and the oncologist was asked to attend the hearing.
Neither Mr. Korzeniowski nor the oncologist attended to the hearing. The Discipline Committee proceeded with the hearing and in its reasons wrote that it was concerned with public safety if Mr. Korzeniowski continued to practice as an engineer, noted that Mr. Korzeniowski had not requested to be moved to non-practicing status, and that correspondence suggested he continued to practice.
The Appeal Board upheld that decision as did the Court.
The Court stated the Discipline Committee had a stark choice between proceeding in Mr. Korzeniowski’s absence or granting a lengthy adjournment during which he could continue to practice. In the face of the mandate to protect the public, regulate the profession, and preserve the public confidence in the profession – the hearing invoked interests other than Mr. Korzeniowski’s. Mr. Korzeniowski had elected not to provide information to confirm he truly could not participate in a hearing or to attend to the first day of the hearing to speak to the requested adjournment. It concluded the Discipline Committee reasonably exercised its discretion in denying an adjournment given the competing interests.
our two cents for free
While it certainly is not the norm, it is open to administrative tribunals to proceed in the absence of a party. In the case discussed, the issue was one of balancing competing interests in the interests of justice. In Oliva, Pascoe, and Strong v Gursoy, 2023 AHRC 33, a decision of the Alberta Human Rights Commission, the Tribunal elected to remove Mr. Gursoy from further involvement in the hearing due to his conduct which it deemed to be an abuse of process. He had been given numerous warnings and opportunities to understand the issues with his conduct and the expectations of him as a participant both before and during the hearing.
These two cases show that where a participant’s conduct hampers the purposes for which a hearing is called then the hearing may be conducted in their absence. However, prior to reaching that point, the participant should have received clear opportunities for course correction, information about what that would look like, and a firm understanding of the consequences of failing to do so. In both cases these things were done. Measures must be employed to ensure that procedural fairness is honoured to be sure a decision to exclude can withstand scrutiny on appeal.
question
If such a situation arose in a hearing you were involved in, what would be the competing interests that would have to be considered before a participant could be excluded (no matter your role in that hearing)?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
- A Case: a (very) brief summary of a recent and relevant case;
- Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
- A Question: something to get you thinking about ways to enhance your work.
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