Customer cries foul after home inspectors close ranks

[Raymond Wand]

Customer cries foul after home inspectors close ranks - Newfoundland & Labrador - CBC News

Shame on Mr. Guihan, and CAHPI conflict of interest reasoning is a cop-out. What is the point of having a discipline process if the association takes this approach? Then throws it on the lap of the government. Talk about hypocrisy.

As I have said all along its not inspectors who need licencing but the associations created to oversee their members who need to be regulated.

What is even worse is the President of CAHPI Atlantic region has found a spot on the Ontario Licencing panel even though he is not a resident of Ontario and an executive from P2P sits on the same licencing panel.

[Scott Patterson]

I agree that the associations really have no power other than to terminate that persons membership. It is the government that could have the power and does in many areas of the country that have good license laws. But, any good attorney also knows that you do not try to hire an EW in the same area or one that might have a conflict. Being a member of the same association could be seen as a conflict.

If the inspector followed the SoP that the license law cites, that licensing authority really can't do much. It is a civil matter and that is not governed by any licensing board I know of.

They just need to file a lawsuit get another EW ( I know several in CN and from the States that would do it) and let the courts decide the outcome. But, if the basement was dry during the inspection and no outward signs of past water issues were not visible or covered over; this is a common plague in our profession.........

[Raymond Wand]

In non licenced provinces such as Ontario (OAHI/CAHPI) and Newfoundland (Atlantic CAHPI) the bylaws of the corporation allows for a discipline process the association can and does dictate remedial actions for its members if found in breach of the SOP/COE. The association discipline process can order the inspector to take remedial courses such as an ethics course, electrical or heating course or other related course, or simply reprimand the inspector, or in extreme cases revoke their membership, its in the bylaws of the association.

I have been involved in EW work in my area and not one lawyer has ever stated I or any other inspector from the same association had a conflict of interest when submitting a report or testifying.

But again I must stress we have no licensing and even then licencing will not stop incompetence anymore than any other licenced profession, such as doctors or lawyers, or realestate agents.

[Raymond Wand]

Can Professional Associations Be Held Liable in Negligence?

Professions, such as law, accounting and engineering, are self-regulated to some extent by professional associations, which govern and discipline their members and protect the public. In consideration of these responsibilities, it is interesting to ask if a professional association could be held liable for failing to discipline one of its members or for failing to warn the public about the conduct of one of its members.

Few legal authorities in Canada have considered the liability of a professional association to individuals who suffer a loss, economic or otherwise, from a member's negligence. This seems to suggest that, under existing law, individuals would have a difficult time establishing liability against a professional association for failing to discipline or warn about a member. However, the Supreme Court of Canada has endorsed the position that "the categories of negligence are never closed." They have broadened the categories and, with them, broadened when a duty of care may be owed and to whom.

The rationale underlying the establishment of self-governing professions is the protection of the public. It is this rationale, coupled with a professional association's enabling statute, that could engender a private law duty of care being owed by an association.

Most professional associations, under their enabling statute, have the power to license and discipline their members. This power, often joined with an ethical code of conduct, defines a "self-governing" profession. The public is protected by ensuring that only qualified, competent individuals are permitted to practise and that those individuals conform to standards of professional conduct established by rules and bylaws.

Any claim against a professional association for failing to discipline a member or failing to warn about the negligence of a member would be framed in negligence. If the enabling statute imposes a positive duty on the association to investigate or discipline its members, then arguably that association could owe a private law duty of care to a person in the public who has used the member's services. As for any claim in negligence, the person making the claim would have to establish a sufficiently close relationship between the association and himself or herself, such that it was reasonably foreseeable that a careless act or omission by the association could result in damages being suffered by that person. Further, one must weigh any policy reasons or considerations that would limit the scope of the duty and the class of persons to whom it is owed or the damages to which a breach of it may give rise.

It is arguable, in certain circumstances, that an association is akin to a public authority. As such, there are public policy reasons to negate or limit its duty of care because of the potentially indeterminate number of claimants.

As well, the association's disciplinary powers may well be deemed quasi-judicial and therefore exempt from any liability. The enabling statute may include clauses protecting the association from actions brought against it as long as it acts in good faith. The wording of the enabling statute is of critical importance.

It is likely that an association, like any individual or public body, is also subject to a standard of reasonableness. Failing to act at all may be unreasonable. Failing to initiate a review or to discipline a member when the association knows, or ought to know, of his or her negligence or misconduct may also be unreasonable. The facts of each case will obviously affect the reasonableness of the alleged act or omission of the professional association.

Notwithstanding policy defenses, the potential for liability exists in the current negligence climate. Accordingly, it is in an association's best interests to ensure that its statutory obligations are clearly identified and adhered to in carrying out its role as a self-governing body.

For more information on this topic, please consult Bob Hodgins. (Frida Tromans assisted in writing this article.) http://www.singleton.com/lofl20001.cfm#part7

[Raymond Wand]

Kevin,

Mr. Guihan seems to be at odds with what is stated on the Atlantic CAHPI Website.

Words found in their website include: Self-regulated, discipline, consumer protection, complaint form.

Consumer Protection | Canadian Association of Home & Property Inspectors | Certified Inspection

http://www.cahpi-atl.com/sites/defau...2016-05-10.pdf

To top it off look at the agreement which must be signed by the complainant. Yup thats real consumer protection alright. Why would anyone complain when you are asked to give up your rights? (Not that the document has any weight in a court of law in my view)

COMPLAINT REVIEW REQUEST AGREEMENT
To proceed with a review by the Complaints Committee it is hereby understood and agreed that:
- The complaint Review Process is confidential in nature;
- Your letter of concern and all accompanying documents will be provided to the
member concerned:
-In the event there is any subsequent civil action between you, the homeowner, the CAHPI-Atlantic member or any other interested party that:
Neither you nor the member concerned will seek to introduce into evidence any communications emerging from CAHPI-Atlantic;
Neither you nor the member concerned will seek to introduce into evidence each other’s communications to CAHPI-Atlantic;
Neither you nor the member concerned will summons to Court any member of CAHPI-Atlantic who was involved in the review of your complaint.
I/We, as the Complainants, _______________________________________,
(Your name(s) – please print)
hereby agree to the above conditions with regards to my/our complaint filed against CAHPI-Atlantic Member, ____________________________________________,
(Inspector’s name – please print)
submitted to CAHPI-Atlantic on _________________. (date)
______________________________________________
______________________________________________ Complainant signature(s)

[Scott Patterson]

In regards to the powers that associations have in Canada they are nowhere the same in the States.

Associations in the States can only enforce their membership guidelines and rules with their members, they have no bearing on civil matters. As much as consumers think associations have the power to make them members take care of issues, they don't. Kind of like the Better Business Bureau has no power and can only discipline you if you are a member.

[John Kogel]

I think there must be more to it than the bits the reporter has chosen for his story.

One member of CAHPI, elected by other members because they like the guy, does not speak for the whole association, which has very strict and specific rules with regards to complaints and disciplining of members.

In BC, the govt has passed the responsibility of dealing with complaints and discipline back to the 4 approved associations. It is not a good system, but we hope to get one standard for all, in place of the 4 sets of standards we have now.