COURT FILE NO.: 05-DV-1098

DATE: 20060525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, CUSINATO AND JENNINGS JJ.

B E T W E E N:

JEFFREY A. WHITE, P.ENG. AND DELTA ENGINEERING

Appellants

• and -

THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO

Respondent

Edward Pundyk, for the Appellants

William D. Black, for the Respondent

HEARD at Ottawa: February 14, 2006

CUSINATO AND JENNINGS JJ.

Nature of the Proceedings

[1] The appellants seek an order to set aside the decision of a panel of the Discipline Committee (the Panel), delivered March 24, 2005, said Panel established through the Council of The Association of Professional Engineers (APEO) operating within and pursuant to the statutory provisions of the Professional Engineers Act (PEA) R.S.O. 1990, c. P.28 and Regulations R.R.O. 1990, Reg. 941 as amended.

[2] Following a hearing, the Discipline Panel concluded, that the appellants, Jeffrey A. White, P.Eng. (White) and Delta Engineering (Delta) of which White was President, committed an act of professional misconduct as provided by s. 28(2) PEA. It is from this determination, that this appeal is brought to set aside this finding or, in the alternative, that the penalty imposed be varied.

Background Overview

[3] McNeely Engineering Consultants Limited (McNeely), a firm of consulting engineers was retained by the Village of Plantagenet in Eastern Ontario (the Village) to conduct an environmental assessment, relating to the improvement and or expansion of a lagoon system for the Village.

[4] Alain Lalonde (Lalonde), the Reeve of the Village, identified a concern to White about the proposed recommendations of their engineer, McNeely, specifically the Village’s cost concerns for the implementation of their proposal.

[5] At the Reeve’s request, White was asked to attend a public meeting of Council for the Village at which the McNeely engineers were addressing their proposal. Following such meeting, White was to provide an assessment of McNeeley’s recommendations in a report to the Village Council.

[6] The meeting before Village Council was to take place on August 17, 1995 but because White had an earlier commitment he could not attend. He directed two of his engineers to attend to hear the proposal and recommendations of the McNeely firm and, thereafter, provide him with their report.

[7] It is following White’s assessment of the report from his engineers as to McNeely’s recommendations that White communicated his views in writing to the Reeve of the Village on August 29, 1995.

[8] In his correspondence to the Reeve, White provided a scathing assessment of McNeely’s recommendations. In expressing his views, White attacked the suggested proposal of McNeely and brought into question the existence of conflict and the professional integrity of McNeely in its recommendations to the Village. The letter, when read in its totality, was not only condescending in its critical analysis but could be said to have been intemperate in its tone and commentary relative to McNeely who headed the firm of professional engineers acting for the Village.

[9] The allegation in the complaint filed with the APEO is that this correspondence to the Village by White through Delta constituted a personal attack on McNeely, the firm’s principle, and a breach of the Code of Ethics. Within his communication, White concluded that in McNeely’s analysis there was a failure to provide professional alternatives in their environmental assessment as to the necessity for an extension of the lagoon system for the Village. It is this, among other such comments involving McNeely, incorporated within the letter, that is the basis for the complaint of unprofessional conduct.

[10] To deal with the issue confronting the Panel the subject of their review relative to unprofessional conduct now before the court, the following comments directed by White to the Village in the correspondence of August 29, 1995, are herein identified and set out in the Panel’s reasons under the sub heading; “The Allegations” extracted from White’s letter.

Summary of Allegations

• In the accusations with respect to McNeely’s professional integrity,

White accused McNeely of having a conflict of interest.

• White asserted that McNeely’s population growth for the Village calculated at 2% into the future meant an oversized facility. In his commentary White stated:

This served the engineer (i.e.) bigger facility, bigger fee.

White went on to state that:

Any attempt to justify this is a self-serving process on the part of your engineer.

He concluded in the above reference to over-sizing, that he could show that unsubstantiated growth patterns are being recommended by engineers hired by the towns.

• With regard to McNeely’s failure as to alternatives, White states that:

The attached report by McNeely Engineering has done the Village … a great disservice in its consideration of alternatives.

White proceeded to state, thereafter, that higher capital costs and lower operating costs numbers are absent from the McNeely report. He concluded that the engineer’s recommendations are anything but unsubstantiated opinions. Following this statement, White makes this observation:

Your engineer has either not done his homework well, which translates into a poor job or they are deliberately misleading you.

I believe their (McNeely’s) agenda is different than yours and is perhaps more self-serving.

• In referring to the lagoon system within the McNeely proposal White confirms with this unprofessional comment:

In a very high-handed manner, your engineer patronizes the Village by failing to provide adequate details on the lagoon system proposed.

• Relative to conflict of interest, White concludes with the statement:

… [t]he engineer eliminates, in the Environmental Study Report (ESR), procedures, technologies, that are not within his scope of skills and experience, …

[Inferentially, we may conclude from this last comment, it is this failure addressed by White which he suggests creates the conflict of interest – our words.]

• In reference to White’s comments re the ESR study and the fee justification, he alludes to this additional criticism:

To spend $200,000 on this exercise is a wanton misuse of taxpayers’ money.

[11] It is with the above commentary extracted from White’s correspondence that McNeely filed its complaint to the Complaints Committee of the APEO.

[12] As stated, the initial complaint filed by William Harding P.Eng., President of McNeely, dated September 22, 1995, suggested that White was in contravention of the APEO Code of Ethics in the content of his addressed letter of August 29, 1995 to the Village.

[13] It is not, however, for some two years thereafter that a formal PEO complaint requested by the Complaints Committee, signed by Donald Lishman, Vice President of McNeely, on December 18, 1997, was formalized and directed to the Committee.

[14] Following this formalized complaint, the matter was referred by the Complaints Committee to the Discipline Panel in order to conduct a discipline hearing to determine whether the comments contained in the letter to the Village constituted professional misconduct.

[15] During the hearing before the Panel, it was understood that the initially filed complaint referred to a contravention of the PEO’s Code of Ethics, and the formalized second complaint was one of professional misconduct. Respondent counsel, both before the Panel and this court, supported by the decision of Karmash v. Association of Professional Engineers (Ont.) (1998), 109 O.A.C. 334 confirmed these terms are not mutually exclusive and therefore of no particular significance.

Issue

[16] Whether the impugned behaviour of the appellants through its principal, White, in their correspondence to Lalonde, the Reeve of the Village, specifically critiquing the professionalism of McNeely in their environmental recommendation to the Municipality, is an action constituting professional misconduct?

Courts Jurisdiction

[17] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 31 of the PEA which reads, in part, as follows:

31.(1) A party to proceedings before the Registration Committee or the Discipline Committee may appeal to the Divisional Court, in accordance with the rules of court, from the decision or order of the committee.

(3) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and as the court considers proper, and for such purposes the court may substitute its opinion for that of the committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

[18] The Discipline Committee is established through the statutory authority of the Council of the APEO provided within the provisions of the PEA; s. 10(1)(f) with the committee’s composition provided by s. 27(1) of the same act.

Establishment of Committees - PEA

s.10(1) The Council shall establish and appoint the following committees:

(a) to (e) Not applicable;

(f) Discipline Committee

s. 27(1) The Discipline Committee shall be composed of,

(a) at least one person appointed to the Discipline Committee by the Council from among the members of the Council elected to the Council;

(b) at least one person who is a member of the Association and who is a member of the Council appointed by the Lieutenant Governor in Council; and

(c) the persons appointed to the Committee by the Council from among the members of the Association who have not less than ten years experience in the practice of professional engineering.

[19] The duties and powers of the Discipline Committee are set out in s. 28(1) of the PEA, which therein authorizes the committee to hear and determine allegations of professional misconduct.

s. 28(1) The Discipline Committee shall,

(a) when so directed by the Council, the Executive Committee or the Complaints Committee, hear and determine allegations of professional misconduct …

(b) hear and determine maters referred to it …

[20] By s. 7(1) PEA, subject to the approval of the Lieutenant Governor in Council and with prior review by the Minister, the Council of the APEO may make regulations pursuant to s. 7(21) of the PEA, defining professional misconduct for the purposes of this Act.

[21] Within this statutory authority, the definition of what constitutes professional misconduct is as prescribed within the provisions of the PEA and the Regulations herein before referred to, R.R.O. 1990, Reg. 941 as amended.

[22] Section 72(2)(j) of the Regulations sets out the definition upon which the Panel proceeded as to the complaint filed and which said Regulation is set out in the following terms:

s. 72(2) For the purposes of the Act and this Regulation,

“professional misconduct” means,

(j) conduct or an act relevant to the practice of professional engineering that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional,

Panel’s Determination as to Conduct Under Review

[23] At the outset, the Panel, in their review as to the conduct of the appellants, the subject of the filed complaint, concluded that White’s actions did not meet the mandated requirements of disgraceful or dishonourable.

[24] In compliance with the ascribed definitions for consideration of the Panel, the following meanings were provided:

Disgraceful conduct considered the more serious of unprofessional conduct relates to the moral fitness and ability to discharge the higher obligations expected of a professional.

Dishonourable conduct generally involves dishonesty or deceit.

[25] In view of the fact that both disgraceful and dishonourable carry an element of moral failure, whereas unprofessional conduct did not require dishonest or immoral elements, the Panel, at the outset, discounted the first two, as not relevant to the issue before them.

Delay

[26] At the hearing before the Panel, the appellant raised the issue of delay in the processing of the complaint. This question was raised because of the inordinate delay in processing the complaint, and whether there has been a violation by the Complaints Committee and or the Discipline Panel or either administrative body constituting a breach of natural justice.

[27] Following McNeely’s receipt from Lalonde of a copy of the correspondence directed by White to the Village, the initial complaint was filed with the PEO on September 22, 1995.

[28] It was not, however, until more than two years later, December 5, 1997 that White was notified of the complaint.

[29] It was also raised, before the Panel, that pursuant to the statutory requirements of the Complaints Committee, there was no information provided to White as to what steps were taken to investigate the complaint. Additionally, it was questioned why it took until on or about December 29, 1997, in excess of a two-year delay, to notify the appellant for the first time of the complaint.

[30] With such delay, the position of the appellant was that to the extent it caused prejudice, the Complaints Committee should be found to have lost its jurisdiction within the provision of the Act to refer the matter to the Panel.

[31] To counter this argument the respondents, together with the advice of independent counsel assisting the Panel, advised that within the provisions of the PEA there existed no statutory authority provided to the Panel on this issue, but rather the Panel had a duty to process the hearing and determine the matter referred to it.

[32] As confirmed by their independent counsel in referring to the provisions of the Act, counsel concluded the Panel had no jurisdiction to consider the cause of the delay involving the Complaints Committee, leading up to the referral.

[33] On this question, the Panel was referred to the operable section of the PEA as to the duties of the Complaints Committee s. 24(1) that upon receipt of a complaint, the committee “shall consider and investigate complaints made by members … of the Association regarding the conduct or actions of a member of the Association … but no action shall be taken by the committee under ss. (2) unless,”

a) a written complaint in a form that shall be provided by the Association has been filed with the Registrar and the member or holder whose conduct or actions are being investigated has been notified of the complaint and given at least two weeks in which to submit in writing to the Committee any explanations or representations the member or holder may wish to make concerning the matter: and

b) the Committee has examined or has made every reasonable effort to examine all records and other documents relating to the complaint.

(2) The Committee in accordance with the information it receives may,

(a) direct that the matter be referred, in whole or in part, to the Discipline Committee;

(c) take such action as it considers appropriate in the circumstances and that is not inconsistent with this Act or the regulations or by-laws.

[34] In the Panel’s requested consideration of the issue of delay, it was noted that the appellant had an earlier avenue available relative to the question now raised of whether the delay constituted a breach of natural justice. The appellant could have requested judicial review on this issue immediately before or upon the referral to the Panel. Added to this possibility, the respondent noted that the appellant could have sought, at the same time, a request for review by the Complaints Review Councillor as to the necessity of referral to the Panel.

[35] Within the provisions of s. 26(1) and the applicable subsections therein it provides specific powers of examination of a complaint by the Complaints Review Councillor:

s. 26. (1) The Complaints Review Councillor may examine from time to time the procedures for the treatment of complaints by the Association.

[36] Concerning those provisions as set out in the PEA, such review could result in the discretionary power of the Review Councillor not proceeding before a Discipline Committee for good reason.

[37] From our examination of the Panel’s determination on this issue, they concluded that while they took the matter under consideration, they had no statutory authority to deal with the issue of apparent delay arising with the Complaints Committee.

[38] More importantly, the Panel determined that the lapsed time between the filing of the initial complaint, while it may appear to be excessive before the fixed date for a hearing before this Panel, did not find for the reasons given that this apparent delay was prejudicial to the position of White and or Delta.

[39] In this court’s consideration of delay beyond November 30, 1998, the initial date set for hearing, it was due to the health difficulties or medical problems associated with White. It is for this reason the final review and hearing date was postponed to June 7, 2004.

[40] Following the conclusion of the hearing, oral reasons were provided by the Panel as to their decision which included a review on the question of delay. Subsequent to this oral decision, a written decision was delivered on March 24, 2005.

[41] From our examination of the issue of delay, specifically the manner in which it was dealt with by the Panel, we are cognizant of the pronounced authorities as to when unacceptable delay may cause significant prejudice.

[42] Within this context before a court or administrative tribunal given the authority to deal with delay, it must be demonstrated that the delay is such that it impairs the ability to answer the complaint.

[43] On this issue, the following authorities were considered:

Blencoe v. British Columbia (Human Rights Commission) 2000 44 (SCC), 2000, 2 S.C.R. 307, [2000] S.C.J. No. 43;

Nisbett v. Manitoba (Human Rights Commission) (1993), 1993 3366 (MB CA), 101 D.L.R. (4th) 744;

Canadian Airlines International Ltd. v. Canada (Human Rights Commission) (C.A.), 1995 3546 (FCA), [1996] 1 F.C. 638

[44] In referring to Blencoe, supra, which captures the essence of a court’s consideration of unacceptable delay, Justice Bastarache of the Supreme Court of Canada had this comment at para. 115 of the judgment;

I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where fairness of the hearing has not been compromised …

It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.

[45] As suggested by the case authorities, the onus to satisfy the issue of abuse of process as to proceeding after a lengthy delay or that the position as here of the appellants is impaired by the delay to respond to the filed complaint, is on the party against whom the complaint is filed.

[46] This Panel, commenting within their reasons and while making no finding on the issue of delay, in spite of their lack of statutory jurisdiction, demonstrate to their satisfaction that such delay did not impair the position of the parties.

[47] Moving from this consideration, the Panel found that the real issue before them related to the complaint filed, the correspondence of August 29, 1995 and whether such written material within the circumstances presented, constituted a breach of s. 72(2)(j) of the Regulations.

Standard of Review

[48] As confirmed in Pezim v. British Columbia (Superintendent of Brokers), 1994 103 (SCC), [1994] 2 S.C.R. 557 at 598-99, in such appeal, the court should undertake a pragmatic and functional analysis to determine the standard of review. It is within such analysis that the court shall determine on the spectrum of deference, beginning with correctness at one end and patent unreasonableness at the other end, whether the determination of the committee withstands judicial scrutiny.

[49] In this instance, pursuant to the Provisions of the PEA, there is no privative clause insulating the decision of the Panel.

[50] There is, also, from the decision of the Panel, a broad statutory right of appeal on questions of law and fact.

[51] The Supreme Court of Canada has determined, nonetheless, that disciplinary bodies that self govern their profession should be granted a large degree of autonomy. The court should provide deference to their decisions as a self-regulating body, “unless judicial intervention is clearly warranted.”

Reference: Pearlman v. Manitoba Law Society Judicial Committee (1991) 1991 26 (SCC), 84 D.L.R. (4th) 105 at 119 (S.C.C.)

See also,

Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247

Bouhamadani v. Association of Professional Engineers and Geoscientists of New Brunswick (2004), 2004 NBCA 84, 247 D.L.R. (4th) 96

Karmash v. Association of Professional Engineers (Ont.) (1998), 109 O.A.C. 334

Disposition

[52] Was the Panel wrong in their finding that the conduct and actions of White and Delta constituted professional misconduct within the meaning of s. 28(2) and 72(2)(j) of Regulation 941 as amended.

[53] In the Panel’s reasoned conclusions they made a finding on the totality of the evidence that professional misconduct was established as that term is defined.

[54] As taken from their decision under review, the Panel determined that: The Association bears the onus of proving the allegations in accordance with the standard of proof the panel is familiar with, set out in Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 477:

The standard of proof applied by the panel, in accordance with the Bernstein decision, was on the balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognized that the more serious the allegation to be proved, the more cogent must be the evidence.

[55] In our determination of the standard of review, we find it to be correctness. The Panel was obliged to analyze the provisions of the Statute and Regulations that apply.

[56] Although their decision is not protected by a privative clause, in areas of statutory interpretation where it is a question of law and the court may re-open the interpretation as to the standard of correctness concerning the Panel’s determination, we find no error in their conclusion and defer to their expertise in their findings as to what, in their profession, would constitute professional misconduct.

[57] We, therefore, find that the Panel was correct in its conclusion.

[58] The Panel accepted that the technical aspects concerning the lagoon in the letter written by White, was validated by the subsequent actions of the municipality in adopting his recommendation. In this regard, the Panel found that there was no allegation that impugned White’s technical competence or engineering skill and qualifications.

[59] It was, rather, the wording of the letter of August 29th by White delivered through Delta that the Panel found displayed a lack of judgment and professional courtesy that would be expected by the engineering profession in the circumstances. The Panel’s own assessment was bolstered by the evidence tendered through a number of professional engineer witnesses called by the defence that they would not have written such a letter.

[60] It was on this basis that the Panel made a finding that the conduct of White and Delta would reasonably be regarded by the engineering profession as unprofessional but neither disgraceful nor dishonourable. We find the Panel was correct in its conclusion. With this determination by the Panel, an experienced group of professional engineers, on the issue of the standard of correctness as to unprofessionalism, we defer to their expertise for their given reasons and dismiss the appeal on the merits.

Penalty

[61] On the issue of penalty, while one would conceive that the same standard of review applies, we are of the view that is not the case.

[62] In our consideration of penalty, although we acknowledge the expertise of the panel as professionals in their consideration of the conduct and actions of a member of the Association, the imposition of penalty within the provisions of the Act and Regulations in itself provides a wide degree of discretion and we conclude it is not based on a standard of correctness.

[63] Flowing from this consideration as it applies to the facts and balancing those factors that apply to the pragmatic and functional analysis to penalty, although we have regard to the principle of deference as it regards this issue before them, we do not agree under the circumstances that such deference is equally applicable to penalty.

[64] From our review of the penalty section, we conclude that the Panel invariably is called upon to apply the Act and Regulations in an infinite number of fact situations, and therefore this may very well be the rational for a long list of possible sanctions available.

[65] Penalty is governed by s. 28(4) of the PEA Regulations. While it is within the powers of the Panel to impose penalty in classifying the appropriate penalty to fit the finding of unprofessional conduct, there is a complete spectrum of penalties available in the exercise of that discretion, as to what may be appropriate and reasonable under the circumstances.

[66] In this regard, by analogy to penalty within the criminal context, penalty should fit the crime relative to the circumstances before the court and the offence.

[67] Although in our consideration of penalty, we are aware that we are dealing with a self regulating body, we are also cognizant of the provisions of the powers of the court on appeal within s. 31(3) PEA, of what would constitute an appropriate penalty under these circumstances which forms the exercise of a discretionary determination by the Panel.

[68] Within our consideration of the Act and Regulations, the court must examine their purpose in providing a variable of options.

[69] The central question then, is whether there is any specific expertise in the determination of penalty as set out in s. 28(4) PEA, where the Act grants to the Panel a long list of options available as sanctions to be exercised in their discretion.

[70] In their analysis, the Panel is obliged to consider not only the violation of the professional standard of conduct but the appropriateness of the penalty to fit the violation, with specific regard to that person’s prior exemplary conduct to the profession as well as his contributions.

[71] Within this consideration we find that the following factors are important:

1. The appellant has been a professional engineer for over 30 years;

2. That during this period the appellant has contributed significantly to engineering, in the development of a new process for the treating of waste water;

3. In 1995, the appellant’s process for treating waste water received the Maine Consulting Engineers honour award for use of innovative environmental technology;

4. In 1996, the American Council of Consulting Engineers presented his process patented under the name, Snowfluent, with an award;

5. For his contributions as an engineer to the profession, the appellant received the Schreyer award, the highest award given by the Association of Consulting Engineers of Canada;

6. In 1997, his process won the most “outstanding product” award from the Canadian Advanced Technology Association;

7. On January 5, 1998, the Engineering News Record (ENR) named the appellant as one of the top 25 newsmakers in 1997 for his engineering excellence and for which he received the nomination for ENR’s highest honour, the award of excellence.

[72] It is with the aforementioned acknowledgments that the appellant’s achievements have earned and brought tremendous credit and recognition to the Canadian Engineering Profession. Added to these considerations of his engineering excellence, although it is accepted that the appellant committed an act of indiscretion against a member of the association by his unprofessional comments, this conduct, the subject of review, occurred in August 1995 some 10 and one-half years ago.

[73] As found by the Panel in arriving at their determination in White’s communication to the Village, his engineering recommendations were right and adopted over that of McNeely.

[74] While this does not forgive his impugned behaviour, it is relevant to the consideration of penalty that White exercised his professional expertise in the public interest albeit in a manner disrespectful of a fellow member of his profession. In this regard, the municipality benefited by avoiding a large financial expenditure to correct their sewer problem.

[75] From the date of the appellant’s professional indiscretion to the date of the Panel’s written decision on March 24, 2005, a period of eight and one-half years and to the date of this appeal, there have been no further violations or conduct of an unprofessional nature.

[76] Having regard to all of these factors and in addition to the consideration of delay from the initial complaint to the Complaints Committee to the date of notice to White some two years later, which even though the Panel was without statutory authority to consider this issue, if is an appropriate matter for consideration of penalty.

[77] In such case where the analysis for imposition of a suitable penalty does not warrant the totality of the penalty imposed to meet its purpose, then it is not inappropriate to consider some amendment to those terms, yet satisfy the purpose of the statutory and ethical obligations.

[78] The imposition of penalty should relate to the offence, its gravity and any facts which may apply in mitigation.

[79] To the extent that the penalty as reviewed falls within the framework of reasonableness simpliciter, and while we are dealing with a self regulating body where it is the exercise of discretion, the court concludes that the penalty imposed is overly extensive and unreasonable in meeting the requirements of sanctioning the unprofessional conduct. The determination is unreasonable even if as to each individual sanction isolated it may be found to be reasonable, but added together in its totality, constitutes an error in principle and thus unreasonable.

[80] It is in this regard that the court may conclude that the determination within the context of the pragmatic and functional analysis is unreasonable. From our review, what is intended is to identify a penal sanction which brings notice to the profession for the purpose of general deterrence and this may be accomplished without the totality of the sanctions imposed.

[81] Therefore, while we concur that some of these sanctions are relevant to the profession’s purpose, we are not in agreement that the totality of the sanctions meet the tests of reasonableness under the circumstances.

[82] For all of these reasons we allow the appeal on penalty and in its place vary the imposition of penalty from that imposed in the reasons for judgment and confirm hereafter which of those listed by the Panel as being appropriate for the reasons herein identified.

[83] Within the penalty sanctions set out by the Panel, we confirm the following:

1. White receive an oral reprimand, the fact of this reprimand to be recorded on the Register of the PEO;

2. Publication in the journal of the association with the names of White and Delta being mentioned but without mention of the other parties.

[84] With these sanctions we accept that such notice and recording in the Register of the PEO, shall act as a general deterrent to others in the profession. In so doing, it demonstrates that appropriate judgment and professional courtesy is expected of the members of the engineering profession in these circumstances.

[85] On the balance of the provisions regarding penalty as imposed for reasons herein given, we allow the appeal as to those provisions and strike them as unnecessary.

[86] In our reasoning for striking the balance of the sanctions imposed, we begin with the question of costs. We are cognizant that the appellants’ actions, while discreditable, his technical advice to the Village provided a financial savings and benefit. We also find that the delay on the part of the Complaints Committee may have been a factor as to the cost incurred by the Association. In this regard, it may well be that the consequences of such delay resulted in the calling of many witnesses. If the matter had proceeded very soon after the initial filing of complaint, the number of witnesses called may have been avoided. It is for these reasons we allow the appeal on this sanction and delete from this imposition of penalty the cost sanction therein set out.

[87] As to the requirements to attend and pass both parts of the professional practice examination, we conclude that where the member as here has practiced without blemish for in excess of 30 years, save for this incident, we find such requirement has not been shown to be necessary or reasonable in the circumstances. This is an individual who has received numerous professional honours from his own association with a long distinguished record which should be a consideration in mitigation concerning the imposition of penalty.

[88] Equally applicable to this consideration, the revocation of his consulting engineering designation until he passes the professional practice examination, for the reasons given, we find under the circumstances, to be unreasonable. We conclude that the cancellation of this honourary designation, the member having met all of the requirements of s. 56(1) of the PEA Regulations, is equally not needed, particularly now that we have rescinded the requirement to take the professional practice exam.

Costs

[89] On the issue of costs as it relates to this appeal, while it appears some success has been partially divided, if the parties are unable to agree on this disposition, we shall allow submissions in writing within 30 days of delivery of these reasons.

Cusinato J.

Jennings J.

MATLOW J. (Dissenting)

[90] With respect, I disagree with the disposition of this appeal by the majority as it pertains to both the finding of guilt and the imposition of penalty. I would allow the appeal, set aside the decision of the Discipline Committee and dismiss the complaint against the appellant, Jeffrey A. White. As well, I would invite submissions from counsel with respect to costs and then determine costs after consideration of those submissions.

[91] The appellant and Delta Engineering were found guilty by the Committee of professional misconduct pursuant to section 28 (2)(b) of the Professional Engineers Act, R.S.O. 1990, c. P. 28. That section adopts the definition of professional misconduct set out in section 72 (2)(j) of Regulation 941 made under the Act which reads as follows:

Conduct or an act relevant to the practice of professional engineering that, having regard to all of the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional.

[92] No evidence was called on behalf of the respondent, the Association. At page 5 of the Committee’s decision and reasons, it recorded that the respondent’s counsel stated that “the evidence would speak for itself”. The Committee then went on to characterize the issue before it as follows:

The issue for the Discipline Panel was the language and tone used in the Aug. 29, 1995, letter signed by White, not whether White was or was not technically correct. The contention of the Association in this matter was that the Delta report of Aug. 19, 1995, and the Delta letter of August 29, 1995, signed by White, constituted professional misconduct. The tone and language was not that expected of a professional engineer.

[93] Despite this reference to “the Delta report of Aug. 19, 1995,” it appears that the notice of hearing made no reference to it. Nor does it appear that any such report, if one existed, was referred to during the hearing before the Committee.

[94] The Committee expressly found that the act alleged to constitute the offence was not “disgraceful” or “dishonourable” and it rested its decision solely on its finding that the sending of the letter was “unprofessional”.

[95] I do not agree with the finding of the majority that the Committee’s decision on this issue was correct. Nor, in my view, was the Committee’s decision even reasonable.

[96] As well, I also disagree with the view of the majority that the standard of review in this case is that of correctness. The statutory definition of professional misconduct, by its explicit language, required the Committee to assess the act of the appellant in relation to its perception of what “would reasonably be regarded by the engineering profession as unprofessional”. In my view, in the absence of some scientifically conducted poll of the members of the profession, such a conceptual assessment does not lend itself to being either correct or incorrect. At most, all that one could reasonably say about the Committee’s determination is that it was either reasonable or not reasonable. For precisely the same reason, the standard of review that should now be applied by this court with respect to the Committee’s decision is that of reasonableness. This view is consistent with the view that I share with the majority that some deference ought to be given to the Committee’s decision. It follows that I would allow the appeal even though I would apply a higher standard of review than that applied by the majority.

[97] As stated above, the only act which gave rise to this disciplinary proceeding was the sending of the letter dated August 29, 1995, written by White who was then likely the sole owner of Delta, on whose behalf it was sent, to the reeve of the Corporation of the Village of Plantagenet. A typewritten copy of the text of that letter is attached to these dissenting reasons as an appendix. The very narrow issue before the Committee was, therefore, whether the sending of the letter, which contained statements alleged to be offensive, constituted professional misconduct.

[98] The letter was prepared and sent by White at the request of the reeve of the municipality to comment on a proposal of another engineering firm for the improvement of the municipality’s lagoon system. Its contents show that White was severely critical of the proposal and pointed out numerous evident technical errors that had been made in the course of its preparation. As well, he challenged the competence of those who prepared the proposal and speculated that the possibility of self-interest motives may have affected the contents of the proposal.

[99] The Committee noted that subsequent events established that all of White’s technical criticisms of the other firm’s proposal were valid. As a result of White’s analysis of the other firm’s proposal, the municipality decided to reject it and was thereby able to save a considerable amount of money by proceeding, instead, as White suggested.

[100] The Committee also found that White failed to send a copy of his letter to the other firm and that he failed to affix his professional seal to the letter which contained his professional engineering opinions and was likely to become a public document. In fact, the other firm did obtain a copy of the letter from the reeve and the letter did become a public document. It appears, however, that these oversights were not significant elements of the Committee’s decision.

[101] In arriving at its decision, the Committee concluded that the wording of White’s letter “displayed a lack of the judgment and professional courtesy that would be expected by the engineering profession in the circumstances”. It then went on to find “that the conduct of White and Delta would reasonably be regarded by the engineering profession as unprofessional, but neither disgraceful not dishonourable”.

[102] In its decision and reasons, the Committee stated the following:

All of the professional engineer witnesses called by the defence, except the defendant, agreed that they would not have written such a letter.

The panel therefore finds that this conduct would reasonably be regarded by the engineering profession as unprofessional.

[103] It is my view that this excerpt from the Committee’s reasons for decision reveals reversible error. Just because other engineers who gave evidence stated that they would not have sent such a letter does not mean that White committed an act of professional misconduct by sending it. Not all engineers use or should be legally required to use the same standard of good manners in their correspondence. The other engineers might well have chosen to use less provocative language simply as a matter of personal preference or as a matter of abundant caution.

[104] The evidence before the Committee revealed that White, who had had a long and distinguished career and was highly respected and recognized as an innovative and knowledgeable professional engineer, felt very strongly about what was contained in the other firm’s proposal and was upset with the prospect that the municipality might accept the proposal. He genuinely believed that if the municipality were to accept the proposal, it would end up spending large sums of money unnecessarily.

[105] There is no doubt that White’s response to the other firm’s proposal was intemperate and that a more restrained response might have been preferable. Even White conceded that, with the benefit of hindsight, he would not have sent the same letter.

[106] However, bad manners and extravagantly worded criticism in a letter commenting on another engineer’s proposal that was rife with technical errors such as that which White reviewed cannot, in my view, be reasonably regarded as professional misconduct. Having regard to his analysis of the other firm’s proposal and his genuinely held opinion, it is not at all surprising that he brought a considerable amount of emotion to the writing of his letter. At its worst, what White did reflected nothing more than a short lapse of judgment by someone whose emotional response to the situation he faced caused him to lose his sense of good judgment and perhaps write things that should not have been written even if they were true.

[107] In my view, the legislation set out above contemplates that findings of guilt for professional misconduct by professional engineers should be reserved for acts which are serious and which clearly justify the intervention of the professional engineers’ self-disciplinary body. As well, in my view, if it were possible to ascertain the views of its members, the engineering profession would not likely regard what White did as amounting to professional misconduct that could potentially attract the imposition of career-ending penalties. Engineers are educated, practical and generally robust professionals who appreciate the importance of maintaining freedom of expression in their profession and they would understand the evils that could occur if their professional association were to develop an overly broad interpretation of professional misconduct and apply it to “the tone and language” of letters sent by its members. Instead, in the circumstances of this case, they would likely agree that no statutory violation had occurred and that nothing more than an informal reprimand given in private would be appropriate.

[108] Accordingly, I conclude that White’s act in sending the letter does not reasonably meet the statutory definition of professional misconduct and that this court is now required to intervene.

[109] I further conclude, in the alternative, having regard to the circumstances of this case and the personal record of White, that the penalties imposed on him are grossly excessive and reflect an error of principle. If the Committee’s finding with respect to guilt were to be upheld, I would set aside the penalties imposed. In their place, I would order only that White be reprimanded in private, that the fact of the reprimand not be published in the journal of the association and that it not be recorded on the association's register.

[110] There remains one technical matter of probably no practical significance which requires brief comment. The title of proceeding in the notice of appeal shows that both White and Delta constitute the “appellant”. However, the body of the notice of appeal states that this appeal is brought only by White. The Committee’s decision, both with respect to its finding of guilt and with respect to its imposition of penalty, is, nevertheless, applicable, by its terms, to both White and Delta. Delta, by the nature of its name, which gives no indication that it was an incorporated entity, cannot be a corporation and may be the name under which White carried on his business. In any event, the record indicates that Delta, whatever its legal status may be, is now bankrupt and no longer in existence. Accordingly, I would make the assumption that Delta is not an appellant and has no interest in the outcome of this appeal. I would therefore not interfere with the Committee’s disposition with respect to Delta. If there is any good reason why a different assumption should be made, counsel should be at liberty to exchange and submit written submissions on this issue within a reasonable period of time.

MATLOW J.

Released: May 25, 2006

APPENDIX “A”

delta

ENGINEERING

August 29, 1995

Mr. Alain Lalonde, Reeve

Corporation of the Village of Plantagenet File: P95-1493

220 Main St., P.O. Box 350

Plantagenet, Ontario

K0B 1L0

Dear Mr. Lalonde:

We sent two engineers to your public meeting of August 17, 1995 with regards to the McNeely Engineering firm’s presentation.

We have considerable problem with the direction you are being advised to take.

1. Population

First, I disagree with the population calculations for Plantagenet. 0.5% per year would be adequate based on the history of the Village’s growth. 2% is a gross over-estimate as a projection.

The same scenario was applied to Westport by its engineers, KMK; based on a specious policy, they planned a wastewater treatment facility based on current loading of 640 persons for a 56% population increase by 2014 to 1,000 persons.

They failed to look into the actual growth of the Village:

1900 903 persons

1935 660 persons

1995 640 persons

2014 ??? persons (1,000 KMK)

This increase meant an oversized facility. This served the engineer (ie) bigger facility, bigger fee.

We argued that this was excessive in the Certificate of Approval application; MOEE accepted our argument.

In the case of Plantagenet, there re no circumstances that justify such a growth pattern. Any attempt to justify this is a self-serving process on the part of your engineer. 0.5% per year is adequate; 1% might be an acceptable maximum.

At 0.5% growth in 20 years 1,060 persons

At 1.0% growth in 20 years 1,170 persons

At 4% overall growth 1,330 persons

What they have calculated is a 216% increase. Nothing supports this growth – nothing.

If Plantagenet can show a greater growth requirement, then at the time the requirement can be demonstrated, expansion could take place.

In a study of over 25 villages and towns in Ontario, we can show that unsubstantiated growth patterns are being recommended by the engineers hired by the towns, in every case based on a government policy that is as excessive for the future as it was short-sighted in the past.

2. Plantagenet - Loadings

The annual discharge is currently measured at 224,694 M³ per year. This is 648 lped. This is high, even with the high school and commercial loading, which, estimated on a continuous basis, can be no more than 15,000 M³ to 18,000 M³ per year.

That then leaves the current domestic loading, at the worst, at 206,000 M³ or a per unit loading of 596 lped.

This is still too high. However, it is not in the range of an Alexandria or a Tweed, AND CAN BE FIXED.

There are technologies and procedures that can reduce infiltration and inflow to net a 300 lped figure on a domestic use basis.

Embrun and Russell, at 270 lped and 250 lped, have done much better on their own. They are the example to follow. Contact Mr. Pharand at the Township Council.

At 300 lped, the annual loading would drop to 104,000 M³ per year, AND adding 18,000 M³ for incremental external/commercial use – 122,000 M³ per year becomes the total. This means your loading would, on a combined basis, be 352 lped. This is acceptable.

On the basis of present lagoon capacity, this would allow for a 40% increase in loading and population without any expenditure on treatment facilities, or, Plantagenet can tolerate 496 lped on the present lagoon capacity, which is still high for a unit loading, but allows time to effect repairs to the sewers.

Simply stated, Mr. Mayor, fix up your sewers over the next few years. Reduce your sewage loads accordingly and you’ll have plenty of capacity for expansion without any sewage treatment plant requirements or expenditures.

Your engineers claim that the capacity of the existing system is insufficient, combined with extraneous flows, has constrained future development.

We disagree completely.

If you get control of sewer leakage et al, you will have sufficient capacity for 40% growth from the current capacity. Your operating costs would be reduced, as well. If you do not address these “extraneous inflows”, you will constantly pay for wastewater treatment costs on water that is obviously not wastewater.

It is essential for Plantagenet to solve this situation by treating the problem, not the symptoms.

You will be saddled with higher costs “ad nauseam” if you don’t re-establish your priorities.

We are somewhat surprised that your engineers have not emphasized this approach.

3. Alternatives

The attached report by McNeely Engineering has done the Village of Plantagenet a great disservice in its considerations of alternatives. They have not provided detailed costs for the basis of their considerations. This is essential in any comparison, especially in a “summary”.

Capital costs can be justified or rejected only on the basis of operating costs being considered at the same time.

There is no such consideration. The Village will pay 100% of the operating costs of any treatment. If the system of choice is cheaper to build, but more expensive to operate, Plantagenet will be the loser.

Higher capital costs can be justified by appropriate lower operating costs. It simply depends upon the numbers. These numbers are absent from this summary report and, therefore, we cannot accept the engineers’ recommendations in any way, as being anything but unsubstantiated opinion.

Costs of the secondary systems considered, range around this region between $0.55 per M³ to over $1.00 per M³. Even with economies of scale, the Ottawa-Carleton Green’s Creek plant runs at a cost of $0.55 per M³. Costs of facilities operations at villages such as Westport, Merrickville, Winchester, etc., are in the high end of this scale.

The two systems “rejected” by McNeely that not only provide environmentally better results by far than the simple extension of the lagoon system, but are much cheaper to operate by less than half. Yet McNeely has rejected these processes.

Let’s examine why they were rejected.

The New Hamburg (intermittent filtration system) was rejected because it was land intensive and can only operate during undefined “warm” weather.

IT IS NOT LAND INTENSIVE. This is the second time that McNeely has misrepresented this very effective and innovative system developed by MOEE.

If Plantagenet fixed up its sewers, resulting in an annual loading of only 122,000 M³, the daily average loading would be 334 M³ of wastewater per day.

Design requirements for filters would be 1,804 M² (.18 ha. - .45 acres) 43 m x 43 m. This is not land intensive at all. Your engineer has either not done his homework well, which translates into a poor job or they are deliberately misleading you. It’s their choice, not ours.

They didn’t even spell New Hamburg correctly.

Snowfluent™, by far the best performing system with environmental results better than any system currently approved in Ontario, was rejected by McNeely because it only operates in the winter.

It is incredible, M. Lalonde, that we had proposed to you, a combination system of the two best systems in Ontario that could treat Plantagenet’s wastewater for an operating cost of less than ½ of the cost of what you are now doing. If you expanded on the recommended basis, your costs will increase again.

The combination system would be less expensive than expanding your lagoons – period, and cheaper to operate.

How then, sir, could McNeely rationalize a rejection of these two technologies? I believe their agenda is different than yours and is perhaps more self-serving.

M. Lalonde, I, too, must say that the only rationale for the combination system proposed is to raise the quality of discharge. Your proposed lagoon system will not do that. We regret the McNeely engineer’s comments on loading the South National River with more nutrients in that “it was pointless for Plantagenet to consider a higher quality discharge because loadings by other towns have already done the damage”. In some quarters, this would be professionally irresponsible.

If you fix up your sewers, you don’t need either.

On his own petard, your engineer has hung himself.

Costs are not detailed or substantiated. The document is grossly inadequate to come to these conclusions. To put such a document to the public is misleading. This is most regrettable. MAP auditors have agreed with me that the possibilities of a capital cost greater than those estimated is very high, indeed. Most projects involve cost overruns which you would have to pay for.

4. Lagoon System

In a very high-handed manner, your engineer patronizes the Village by failing to provide adequate details on the lagoon system proposed.

Discharges don’t match lagoon capacities. A detailed discharge criteria should be provided to the public so they know how much sewage will be discharged and when (over what period of time).

We have some considerable degree of difficulty trying to understand how they can add 40,000 M³ of lagoon storage to the existing system and discharge twice a year without dumping virtually raw sewage into the South Nation River, on the basis of the design capacity of 384,000 M³/year.

The use of windmills is questionable value. Ask the Village of Westport; they simply don’t work.

The continued increasing discharge of effluent to receiving waters on the basis of dilution is contrary to new MISA standards.

Simply, such concepts are unacceptable. It is not in the interests of Plantagenet to become involved in such environmental and economic conflicts of interest.

We take great exception to the engineer’s procedures, conclusions and recommendations.

The result will be environmentally more of the same at a higher cost when it can be less for less money when using logic and integrity.

5. Conflict of Interest

We have carefully reviewed the procedure involving the ESR and ultimate design build implementation of ESR recommendations.

We have discussed the legal implications of the whole procedure as to potential conflict of interest with our lawyers.

The use of the ESR to write oneself into a downstream engineering fee is a distinct conflict of interest, irrespective of past or current practices.

Review of Plantagenet, Wendover and several other ESR documents, clearly demonstrates a conflict of interest in such procedures by the engineer. It is incredible that the OCWA, MAP and MOEE have condoned this in any way. Such condoning does not eliminate the conflict of interest. The net result has been unnecessarily high cost projects at the taxpayer’s expense. This must end.

Further, when the engineer eliminates, in the ESR, procedures, technologies, that are not within his scope of skills and experience, the conflict is exacerbated.

I regret to advise you that I certainly see that here. I caution the Village of Plantagenet regarding this circumstance.

We have advised the Premier, the Minister of Environment and the Parliamentary Secretary to the Minister, of the broad range of this conflict of interest and that it must be eliminated.

McNeely is not alone in this.

In McNeely’s case, they appear to be stroking the conflict to their own advantage. We are prepared to see this through to the Minister, the courts and the P.E.O.*, if anyone so chooses. The facts are documented, sir. We will have no problem proving the conflict. Several senior people within MOEE agree with our position completely. Times are changing.

6. ESR Fee Justification

I know that the Village only pays 15% of the ESR fee. That will be $30,000 by the time McNeely is finished.

M. Lalonde, if it takes $200,000 to recommend lagoons extension, then there is something terribly wrong here. That is a $1,000 recommendation. It does not need a $200,000 ESR to recommend an extension of what you are already doing. The law requires that the ESR procedure be reasonable. All the other boilerplate is unnecessary.

A lagoon extension recommendation by McNeely has been in the cards since you and I first met several months ago. Every effort since then has consisted of boilerplate, bafflegab and very questionable assessment of the alternatives.

To spend $200,000 on this exercise is a wanton misuse of taxpayers’ money.

We are outraged. Again, McNeely is not alone in this. We are seeing it everywhere. We are in discussions with the Ministry to stop this open-ended practice now.

In a meeting with a McNeely Vice-President in Hawkesbury, I was told that:

1. McNeely had Eastern Ontario sewed up, and that we should stay out.

2. Why should they even look at new technologies as it was too much trouble to get MOEE on board to new technologies?

3. Why should they share the loot with us?

Those expressions had no relation to Plantagenet.

The Plantagenet ESR development mirrors these expressions of McNeely policy, however, somewhere down the line, they must answer for this.

Respectfully but regretfully submitted,

DELTA ENGINEERING

Jeffrey A. White, P. Eng.

President

JAW/ls

COURT FILE NO.: 05-DV-1098

DATE: 20060525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, CUSINATO AND JENNINGS JJ.

B E T W E E N:

JEFFREY A. WHITE, P.ENG. AND DELTA ENGINEERING

Appellants

• and –

THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO

Respondents

JUDGMENT

Cusinato and Jennings, JJ.

Matlow, J. (Dissenting)

Released: May 25, 2006

• Professional Engineers of Ontario