Registration Committee

Since all administrative agencies, including the OAA, derive their power from the government via legislative enactment, their decisions are subject to review by a court by way of a process called “judicial review.”

The most basic requirement of administrative law is the duty to act fairly, which refers to the procedure followed in making a decision. This “duty of fairness,” also called “procedural fairness,” is a continuum of procedural requirements applicable to decision-making agencies, boards, commissions, and panels in varying degrees.

It is crucial the registration hearing be conducted in accordance with the principles of natural justice, including:

• the right to be heard (the applicant must be informed of all the evidence against them and given an opportunity to challenge it); and
  
• the right to a decision from an unbiased and impartial decision-maker (the test for bias is whether there is a reasonable apprehension of, rather than actual, bias—the decision should be based on the evidence and argument submitted, and the panel uninfluenced by outside factors).
  

Legislation governing professional registration embodies the rules of natural justice. The courts may enforce the rules by staying or overturning decisions of the Registration Committee where these rules are not followed.

Registration hearings are highly technical and adversarial proceedings; it is difficult to conduct them and manage competing lawyers given the high stakes. An independent legal counsel (ILC) is separate from both the OAA and the applicant representative, and provides neutral advice to the panel about legal issues.

ILCs help the panel navigate hearings by:

• assisting at the pre-hearing conference;
  
• providing advice during the hearing itself;
  
• researching legal issues that arise; and
  
• reviewing and commenting on the panel’s draft reasons.

There is nothing improper in an ILC giving non-binding advice on the ultimate issue for which the panel requests guidance. It is also good for the panel to seek the advice of its counsel as to how it might improve the quality of the reasons it has drafted so as to more effectively explain its decision. However, the final, actual decision belongs to the panel. (If an ILC provides advice to the panel, they will do so in the presence of both parties so the parties can provide comments on the advice before the panel makes its decision.)

This summary of process touches on some of the primary elements of a hearing. However, the Registration Committee panel, in conjunction with the OAA’s counsel and the applicant’s representative (or the applicant themselves), may agree to modify the procedure to a certain extent.

The term used to describe the individual or practice subject to the Registrar’s Proposal is “applicant.” Additionally, reference to the “applicant’s representative” is based on the assumption most applicants retain legal counsel to defend them. However, applicants may choose to represent themselves at a hearing. In some cases, individuals may choose not to attend, or may instruct legal counsel or agent to represent them in their absence. As long as the individual has been properly served with the Notice of Hearing, a hearing may proceed without the applicant’s attendance, with OAA’s counsel still required to present evidence in support of the Registrar’s Proposal.
A Notice of Hearing must be served by the Association on the applicant when a matter is forwarded to the Registration Committee. Reasonable notice is required to ensure the applicant can exercise the right to be heard and reply to the Registrar’s Proposal. Breach of the notice requirement can be a ground for overturning a decision.

It is important to note that not every hearing will proceed on an adversarial basis. In some cases, a joint submission may be made by the OAA and the applicant with respect to facts, admissions, and/or conditions. For example, the parties may agree on the essential facts and admissions, but may disagree on an appropriate condition(s). The panel is not obliged to accept a joint submission. It could accept the agreed facts and admissions, but request further submissions.

Whether a hearing proceeds as a contested hearing or by way of agreed statement of fact, the basic outline of process remains the same. Most importantly, the panel remains the sole decision-maker on matters.
The proceedings typically move through the following steps:

1. Opening statements by the parties.
   
2. Motions.
   
3. Evidence.
   
4. Submissions on law.
   
5. Closing statements by the parties.
   
6. Deliberations by panel.
   
7. Decision.
   

At the outset of the hearing, the Chair of the panel convenes the hearing, identifies the parties, swears in the Court Reporter and any translator to record or translate the proceedings, and outlines the matter being considered. The OAA enters any agreed documentation or exhibits and any agreed statement of facts.

At the conclusion of the evidence for both parties, the panel is entitled to request any person, including a party, to provide evidence or to produce in evidence any documents or things specified by the panel relevant to the subject matter of the proceedings and admissible at the hearing. It is important the panel avail itself of this opportunity to obtain any clarification it believes is necessary. The panel then retires to determine if any party is to be called as an additional witness or any additional material is required.

Following this, if the applicant has not adduced any evidence, counsel to the Association will then present their submissions to the panel. If the applicant’s representative has called evidence, they will make submissions first with counsel to the Association being given a right to reply.

The panel will wish to advise the parties as to whether they should remain pending the decision or whether they will be advised in due course of the result. It then retires to consider, in camera, the evidence submitted and reconvenes once deliberation is complete. After the completion of its deliberations, the Chair will declare the hearing concluded.

Following upon a hearing in respect of a proposal by the Registrar, the Registration Committee may, by order,

(a) where the committee is of the opinion upon reasonable grounds that the applicant meets the requirements and qualifications of this Act and the regulations and will engage in the practice of architecture with competence and integrity, direct the Registrar to issue a licence, certificate of practice or temporary licence, as the case may be, to the applicant;

(b) where the committee is of the opinion upon reasonable grounds that the applicant does not meet the requirements and qualifications of this Act and the regulations,

(i) direct the Registrar to refuse to issue a licence, certificate of practice or temporary licence, or to revoke the certificate of practice issued to the applicant, as the case may be, or

(ii) where the committee is of the opinion upon reasonable grounds that the applicant will engage in the practice of architecture with competence and integrity, exempt the applicant from any of the requirements of this Act and the regulations and direct    the Registrar to issue a licence, certificate of practice or temporary licence, as the case may be; or

(c) where the committee is of the opinion upon reasonable grounds that it is necessary in order to ensure that the applicant will engage in the practice of architecture with competence and integrity,

(i) require the applicant to take and successfully complete such examinations as the Registration Committee may set or approve and to pay such fees therefor as the Registration Committee fixes,
 
(ii) require the applicant to take such additional training as the Registration Committee specifies, or

(iii) direct the Registrar to issue a licence, certificate of practice or temporary licence, as the case may be, subject to such terms, conditions or limitations as the Registration Committee specifies. R.S.O. 1990, c. A.26, s. 25 (8).

Following the hearing, a “Decision and Order of the Registration Committee” document along with "Reasons for Decision" is sent to the applicant.

The panel can decide to announce the decision and make the associated order, but issue reasons later, or it can opt to announce its decision when the reasons are ready at some later date.

Where the panel directs the Registrar to carry out their proposal and refuse to issue a licence, CoP, or temporary licence, the applicant may wish to exercise the right to appeal under Section 36 of the Architects Act.

1. To protect the health and safety of all persons involved, all proceedings of the Registration Committee will be held virtually for the foreseeable future in accordance with the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020.
   
2. All hearings before the Registration Committee will proceed remotely by videoconference on the Zoom platform (or equivalent).
   
3. The Registration Committee’s remote hearings remain open to the public. A court reporter will record the evidence taken at the remote hearing.
   
4. The parties and witnesses should observe etiquette and best practices appropriate to remote hearings, including that there shall be no communication with witnesses who are testifying by use of the chat function or any other means.
   
5. No person may take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or oral representations of the remote hearing by electronic means or otherwise.
   
6. All documents in relation to Registration Committee proceedings are to be delivered and filed electronically only. The parties will be advised as to the procedure.
   
7. Panels of the Registration Committee may provide additional or alternative directions.