Introduction
In the realm of professional regulation, the protection of the public interest is paramount. This principle was recently reinforced by the Supreme Court of British Columbia in Kovacik v. The Association of Engineers and Geoscientists of the Province of British Columbia, 2026 BCSC 217. The Court dismissed a petition for judicial review brought by a professional engineer, upholding a disciplinary decision that found him guilty of unprofessional conduct regarding the certification of crane equipment.
This decision serves as a critical reminder to all regulated professionals in British Columbia that adherence to the Code of Ethics takes precedence over common industry practices, particularly when public safety is at risk.
Case Background and Key Facts
The case centers on the inspection of "anchor stools," which are single-use steel components used to connect construction cranes to their foundations. The Petitioner, Peter Gordon Kovacik, a professional engineer and co-founder of Kova Engineering, signed and sealed an inspection report recommending a set of anchor stools for service.
The controversy arose because the respondent's Discipline Committee found that the anchor stools were not, in fact, serviceable at the time Kovacik signed off on them. Evidence presented at the hearing revealed that another professional engineer, Ryan Stewart, had previously inspected the same anchor stools and rejected them due to weld deficiencies. Despite this, Kovacik certified the equipment based on information provided by non-engineer employees via a FaceTime call and a subsequent report, rather than a personal re-inspection.
The Discipline Committee concluded that Kovacik's conduct violated the Code of Ethics by failing to hold paramount the safety of the public (Principle 1) and by providing a professional opinion not founded upon adequate knowledge (Principle 3). Kovacik sought judicial review of this decision.
The Court’s Analysis on Procedural Fairness
Justice V. Jackson, presiding over the judicial review, first addressed the Petitioner's arguments regarding procedural fairness. Kovacik argued that the citation against him lacked sufficient detail and that the Panel relied on inadmissible hearsay evidence regarding the identity of the anchor stools.
The Court rejected these arguments. Citing Mission Institution v. Khela, 2014 SCC 24, the Court applied a correctness standard to questions of fairness but found no breach. The citation clearly identified the alleged misconduct: signing off on unserviceable equipment. Furthermore, regarding the admission of hearsay and photographs without metadata, the Court noted that administrative tribunals are not bound by the strict rules of evidence seen in criminal court. The Panel was entitled to weigh the credibility of Mr. Stewart's testimony against the Petitioner's evidence.
Clarifying the Standard of Proof
A significant legal aspect of this judgment is the Court's treatment of the standard of proof in professional discipline cases. The Petitioner argued that the Panel should have applied a standard higher than a "bare balance of probabilities" given the seriousness of the allegations.
Justice Jackson firmly rejected this notion. Relying on the Supreme Court of Canada's ruling in F.H. v. McDougall, 2008 SCC 53, the Court reiterated that there is only one civil standard of proof: the balance of probabilities. The reasoning was that the Panel correctly scrutinized the evidence to determine if it was more likely than not that the event occurred. There is no intermediate standard between the civil and criminal standards in Canadian law.
Industry Practice vs. Regulatory Standards
Perhaps the most impactful takeaway for professionals is found in the Court's dismissal of the Petitioner's argument regarding industry norms. Kovacik argued that the Panel's finding imposed a "high and new standard of conduct" that was not based on industry practice.
In paragraph 30 of the decision, Justice Jackson provided a definitive correction to this view:
However, industry practice does not determine the standards of a profession. Both the former, and the current, legislative regulatory regimes governing professional engineers, confirm that is the regulatory body that is responsible for establishing, monitoring and enforcing standards of practice.
The Court affirmed that the regulator (Engineers and Geoscientists BC) has the expertise and authority to determine what constitutes a marked departure from competent practice. The fact that a certain practice might be common in the industry does not validate it if it breaches the regulatory Code of Ethics.
Practical Implications and Advice
For legal practitioners and regulated professionals in British Columbia, Kovacik v. EGBC offers several practical lessons:
First, reliance on subordinates must be exercised with extreme caution. While professionals often rely on teams, the final seal or signature carries personal professional responsibility. In this case, relying on non-engineers via video calls to override a previous rejection by a professional engineer was deemed insufficient diligence.
Second, in disciplinary hearings, the argument that "everyone does it this way" is not a valid defense if the practice compromises the regulator's established standards. The courts will defer to the regulator's expertise in defining the standard of competence, provided the decision is reasonable under the Vavilov framework.
Finally, the decision underscores the difficulty of overturning a disciplinary tribunal's factual findings on judicial review. As long as the tribunal's chain of analysis is rational and the outcome is justified by the facts and law, the court will not intervene.