Court File and Parties

CITATION: Professional Engineers Ontario v. Ikpong, 2019 ONSC 1966

DIVISIONAL COURT FILE NO.: 588/18

DATE: 20190329

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Professional engineers Ontario, Respondent

AND:

ANTHONY IKPONG, Appellant

BEFORE: Kiteley, Parayeski and Favreau J.J.

COUNSEL: Anthony Ikpong, self-represented Appellant

Leah Price, counsel for the Respondent

HEARD at Toronto: March 25, 2019

ENDORSEMENT

KITELEY J.

[1] This is an appeal by Dr. Ikpong pursuant to s. 31 of the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Act”) from the decision of the Discipline Committee of the Professional Engineers of Ontario (“PEO”) dated December 7, 2017 (“liability decision”) and from the decision of the Discipline Committee dated February 27, 2018 (“penalty decision”). For the reasons that follow, the appeal is dismissed.

The Decisions of the PEO

[2] The genesis of the proceedings was the Appellant’s assertion that many bridges in Northern Ontario have not been designed and constructed properly and posed a safety risk. In July 2014, based on his analysis, he had filed a complaint with the PEO against the Head of Bridge Design at the Ministry of Transportation (“MTO”), alleging negligence and a failure to safeguard life, health or property. He subsequently filed similar complaints against three other MTO engineers.

[3] In December 2014, the Head of the Construction Contracts Section of MTO filed a complaint against the Appellant.

[4] In April 2015, the Complaints Committee decided not to refer any of the Appellant’s complaints to the Discipline Committee. In October 2015, the Complaints Committee referred the MTO Complaint against the Appellant to the Discipline Committee. The allegations were that the Appellant was guilty of professional misconduct and/or was incompetent by:

(a) Engaging in 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; amounting to professional misconduct as defined in s. 72(2)(j) of Ontario Regulation 941; and/or

(b) Engaging in a course of vexatious comment or conduct that he knew or ought reasonably to have known was unwelcome and that might reasonably be regarded as interfering in a professional engineering relationship; amounting to professional misconduct as defined in s. 72(2)(n) of Ontario Regulation 941; and/or

(c) Displaying in his professional responsibilities a lack of knowledge, skill or judgment or disregard for the welfare of the public of a nature or to an extent that demonstrates he is unfit to carry out the responsibilities of a professional engineer; amounting to incompetence as defined by s. 28(3)(a) of the Professional Engineers Act, R.S.O. 1990 c. P 28, as amended; or

(d) In the alternative to (c) above, committing acts or omissions in the carrying out of his work as a practitioner that constituted a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances; amounting to professional misconduct as defined in s. 72(2)(a) of the Ontario Regulation 941.

[5] The Appellant denied all of the allegations.

[6] The hearing took place over eight days between October 2016 and April 2017. The evidence with respect to the professional misconduct allegations arose largely from emails sent by the Appellant.

[7] During the hearing, much of the evidence dealt with the Appellant’s theory about negligent bridge design. In his closing written submissions, the Appellant provided a “Final Summation” in which he indicated he had had access to sophisticated software and he had created two models of bridge design: the design that he espoused and the design that MTO espoused. He took the position that the detailed models demonstrated that he had been right and MTO was wrong. On that basis, he took the position that his assertiveness in pursuing the issue with MTO was justified and ought not to result in a finding of professional misconduct. His Final Summation consists of almost 150 pages. Parts 1 and 2 (119 pages) deal with the modeling analysis. Part 3 is headed “Prosecution’s Case”. Part 4 is his “summary”. And Part 5 is “My Pleas”. Essentially all of the Final Summation rests on what he considers to be vindication of his position as demonstrated by the two models.

[8] In the liability decision, the Appellant was found guilty of the two counts of professional misconduct pursuant to ss. 72(2)(j) and (n) of the Act. The Discipline Committee dismissed the allegations of incompetence and negligence. In the context of the third allegation, the Discipline Committee held as follows, at page 21:

The panel is not satisfied that the conduct of Dr. Ikpong as set out in the Amended Statement of Allegations constituted a display “in his professional responsibilities.” The extensive testimony of the witnesses and Dr. Ikpong established that Dr. Ikpong expressed certain views on engineering analysis and design of pre-stressed concrete box girder bridges, and that he did so in the capacity of an engineer volunteering his views, in part, out of concern for public safety. This context is crucial to the panel’s finding. The panel does not accept that Dr. Ikpong’s volunteered views on bridge design and his insistence that his volunteered views were correct qualified as a display in his “professional responsibilities” of a lack of knowledge, skill or judgment or disregard for the welfare of the public as required for the application of Section 28(3)(a) of the Act. The panel considers Dr. Ikpong to be expressing a concern, albeit one that none of the witnesses agreed with, about bridge design. Irrespective of whether Dr. Ikpong’s views were in fact wrong, the panel cannot make a finding of incompetence when the conduct underlying the allegation is not a display in his professional responsibilities of a lack of knowledge, skill or judgment or disregard for the welfare of the public and the Section 28(3)(a) test is not met.

[9] The panel made similar observations in dismissing the fourth allegation.

[10] After the “Conclusion” in that decision, the Discipline Committee included a “Final Note” as follows, at page 22:

The panel notes that professional engineers have a duty to raise, and should not be faulted for raising, safety concerns. The evidence in this matter established that Dr. Ikpong conscientiously objected to a specific bridge design and that he advocated for what he considered a safer design and for a clarification in the Code for prestressed/precast concrete box girder bridges. The panel is neither charged with nor qualified to determine such design questions. However, the panel notes it was presented with evidence of recurring failures of shear keys and of the judgment requirement for bringing shear connected box girders into the sphere of the Code’s simplified design, both of which raise issues. Accordingly, the panel recommends that these issues and the additional information and calculations that Dr. Ikpong provided in response to PEO’s reply submissions (which the panel did not accept or review) be reviewed by relevant authorities. In this regard, the panel echoes the recommendation of the Complaints Committee Decision of April 1, 2015 that concerns regarding the accuracy or applicability of the Code should be forwarded to, and seriously considered by, the CSA Technical Committee responsible for the Code which should publish its reasoning and conclusions.

[11] The Discipline Committee directed that the parties prepare written submissions as to penalty and established a schedule in January and February 2018. In the penalty decision dated February 27, 2018, the Committee ordered a reprimand, a four-month suspension, a requirement that the Appellant successfully complete the Professional Practice Examination within 18 months, and publication of the decision and reasons on the merits and on penalty together with the member’s name in PEO’s official publication pursuant to s. 28(5) of the Act.

Issues raised by the Appellant

[12] The Appellant appeals from the liability and the penalty decisions.

[13] At paragraph 25 of his factum, the Appellant asked for orders as follows:

(a) A finding that Dr. Ikpong’s solution is correct and PEO’s solution is wrong.

(b) Give the Executive Branch the marching order to award, latest by 1^st September 2018 the contract for the review of the design notes and the proper analysis of all affected bridges in Ontario …

(c) Throw out and annul the finding of professional misconduct by the PEO’s Committee and the penalties associated therewith …

(d) PEO’s recalcitrance in not conceding [his design theory]

(e) … render the above verdicts based on the scientific proofs that I presented in my Final Summation documents …

(f) … I plead that this Court sees through the shenanigans of the other side …

(g) do not send this matter back to the PEO …

(h) The Ontario pubic needs justice. My family cries out for justice. I have toiled for justice these past 5 years. I need justice.

In his submissions, the Appellant also indicated that, in this appeal, he hoped to accomplish two things: to pursue his complaint about counsel for the PEO and to ensure that the recommendation of the Discipline Committee in their “Final Note” is carried out.

[14] In other words, the Appellant expected that this court would accept his analysis, vindicate him for what he had done during the last five years, and would therefore set aside the liability decision and the penalty decision.

[15] At the outset, I explained to the Appellant that much of what he was asking and hoped to accomplish was not within the jurisdiction of the Divisional Court. Furthermore, the allegations of negligence and incompetence had been dismissed. It was those allegations that gave rise to the extensive evidence about bridge design and that led him to prepare his Final Summation in which he developed the two models. None of that is relevant when the issue before us relates to the appeal of the professional misconduct allegations. I explained that the Court would not hear submissions that arose out of the Final Summation and that he had to focus his submissions on his appeal of the professional misconduct findings and the penalty imposed.

Issues in the Appeal and Standard of Review

[16] Pursuant to s. 31(3) of the Act, an appeal may be made on questions of law or fact or both. The PEO did not appeal the dismissal of the negligence and incompetence allegations.

[17] The issue that is properly before this court is whether the decisions as to liability and penalty on the professional misconduct allegations are reasonable.

[18] The Discipline Committee is a specialized professional body whose decisions are entitled to deference. The Committee was interpreting and applying its home statute and regulations. The standard of review is reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. In according deference, a reviewing Court should analyze whether the outcome was within the range of reasonable outcomes in light of the facts and the law. [^1]

[19] Determining an appropriate penalty is within the expertise of the Discipline Committee and deserving of substantial deference.[^2] A penalty decision should not be overturned unless the Discipline Committee has made an error in principle or the penalty is clearly unfit.[^3]

Analysis

[20] In his submissions, the Appellant acknowledged that he had been aggressive and forceful in his communications with MTO engineers. But he insisted that he had to engage with MTO engineers in that way in order to “solve the problem”. In other words, he acknowledged the behaviour but he simply did not accept the finding of the Discipline Committee that it constituted professional misconduct for which he should be penalized.

[21] As indicated above, the evidence on the professional misconduct allegations was largely emails that he had sent. He did not challenge that evidence. On the basis of the evidence before the Discipline Committee, the liability decision on both allegations of professional misconduct demonstrated justification, transparency, and intelligibility, and was therefore reasonable. The decision as to penalty is also reasonable. Both decisions were within the range of reasonable outcomes in light of the facts and the law.

[22] The only modification to the penalty decision arises from the passage of time. The Discipline Committee required him within eighteen months of that decision dated February 27, 2018 to successfully complete the PEO’s Professional Practice Examination and provide evidence of his successful completion to PEO. That date will be replaced by the date of this order.

Publication

[23] After oral submissions were finished and the Court reserved, Dr. Ikpong made a written request through the Divisional Court Panel Coordinator in which he requested that:

[T]he Court issue an order that reads: Effective Wednesday 27^th March 2019, the only news item that is authorized to appear on PEO’s web site or any other media controlled by the PEO is the decision of this Court. Absolutely nothing else is authorized to be published by the PEO regarding this matter. Any existing news item on PEO’s web site such as the two (2) news items that Dr. Ikpong has cited here today must be removed latest on Wednesday 27 March 2019.

[24] As indicated above, in the penalty decision, the Discipline Committee directed that the decisions on the merits and on penalty be published in PEO’s official publication pursuant to s. 28(5) of the Act. We have found the decision as to penalty was reasonable and accordingly, there is no basis to change that term as the Appellant requested.

ORDER TO GO AS FOLLOWS:

[25] The appeal from the decisions of the Discipline Committee dated December 7, 2017 and February 27, 2018 is dismissed without costs.

[26] The date within which the Appellant is required to comply with the term as to completion of the Professional Practice Examination is 18 months from the date of release of this order.

Kiteley J.

I agree _______________________________

Parayeski J.

I agree _______________________________

Favreau J.

Date: March 29, 2019

[^1]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 46-47, 53. [^2]: Sullivan v. Ontario College of Teachers, 2018 ONSC 942, at para. 35. [^3]: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at paras. 37-38.