Ahmad v. Association of Professional Engineers of Ontario, 2025 ONSC 2897
CITATION: Ahmad v. Association of Professional Engineers of Ontario, 2025 ONSC 2897
DIVISIONAL COURT FILE NO.: 694/23
DATE: 20250603
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, R. Gordon and R.A. Lococo JJ.
BETWEEN:
Hafiz Ahmad and Orbit Engineering Limited
Appellants
- and -
Association of Professional Engineers of Ontario
Respondent
COUNSEL:
Julian Heller and Kevin Luciano Fernandes, for the Appellants
Brookelyn Kirkham and Ryan Lapensée, for the Respondent
HEARD at Toronto: October 21, 2024
REASONS FOR DECISION
D.L. Corbett J.
[1] The Appellants appeal the "Merits Decision" dated November 10, 2023, and the "Penalty Decision" dated March 7, 2024, of the Discipline Panel of The Association of Professional Engineers of Ontario (the "Panel").
[2] The Panel found that the Appellants devised and sent three impugned emails and thereby acted dishonourably, disgracefully and in a manner inconsistent with their obligations of professionalism. The Panel imposed:
(a) a license suspension of three months,
(b) a reprimand,
(c) a requirement that the Appellant Ahmad (i) complete the national professional practice examination (“NPPE”) and (ii) be subject to supervision if he does not complete the NPPE within 14 months, to continue until he completes the NPPE,
(d) publication of the Panel's findings and order pursuant to ss. 28(4)(i) and 28(5) of the Act, and
(e) costs of $30,000 against the Appellants.
[3] The Appellants acknowledged sending one, but denied sending the other two of the impugned emails. They argued that, given the overall context, the one email they acknowledge sending does not warrant professional discipline.
[4] On this appeal the Appellants raise multiple grounds related to the Panel's findings that they sent the second and third impugned emails. I would not give effect to any of these arguments: the Panel’s conclusion that the Appellants devised and sent these emails are findings of fact amply supported by the record. The Panel did not err in law in admitting and considering the evidence on which these findings were based. With respect, this was a strong case against the Appellants: there is clear and convincing evidence that they devised and sent the impugned emails, which is not displaced by their arguments that the Respondent's investigation could have gone further or their unproven allegation that the Appellant Ahmad’s account was hacked and he did not send the emails.
[5] The two contested emails involve fundamental dishonesty and are disgraceful departures from standards of professionalism: the Panel's findings to this effect and its consequent penalty decision, are fully justified. The costs award reflects partial recovery for the Respondent and is a consequence of the way in which the Appellants defended the discipline proceedings. Therefore, for the following reasons, I would dismiss the appeal.
Jurisdiction and Standard of Review
[6] This court has jurisdiction over this appeal pursuant to s. 31 of the Professional Engineers Act, RSO 1990, c. P.28. An appellate standard of review applies to the appeal: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, para. 37; Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018, paras. 50-51 (Div. Ct.):
Questions of law, including questions of statutory interpretation, are subject to a correctness standard of review. Questions of fact are subject to the palpable and overriding error standard of review. Questions of mixed fact and law are also subject to the palpable and overriding error standard of review unless a legal principle can be easily extricated from the legal issues in which case the legal issue is subject to a correctness standard of review… (Villa v. Professional Engineers of Ontario, 2022 ONSC 6104, para. 8 (Div. Ct.)).
Background
[7] Orbit Engineering was formed by Ahmad in 2013 as a professional engineering firm (Merits Decision, p. 2). In 2018, five Orbit employees, including Daniel Hopkins, Kourosh Mohammadi, Irfan Khokhar, John Lametti and Manny Virani, left Orbit to create a competing engineering firm. These events led to conflict between the Appellants and the departed employees, including civil proceedings (Merits Decision, p. 2; Sanctions Decision, p. 6).
The Liability Decision
(a) The Standard of Proof
[8] The Panel accurately stated and applied the applicable standard of proof, following this court's decision in Professional Engineers of Ontario v. Rew, 2020 ONSC 6018, para. 71 (Div. Ct.) (Merits Decision, p. 6).
(b) Credibility Findings
[9] The Panel correctly stated and applied the law of credibility assessment, drawn from Preiano v. Cirillo, 2022 ONSC 4945, para. 29 (Div. Ct.).
The "So Sorry email"
[10] The Panel found that the Appellants created an email account styled "daniel_hopkin1@yahoo.com" and then created an email from that account addressed to the Appellant Ahmad. This email, defined as the "So Sorry email" in the Merits Decision, was as follows:
From: daniel hopkins [mailto:daniel_hopkin1@yahoo.com] Sent: Friday, November 30, 2018 4:50 PM To: hafiz.ahmad@orbitengineering.ca Cc: hafiz128@gmail.com Subject: so sorry
Dear Hafiz, I am writing this mail to inform you about the circumstances and how I was played into deceiving you.
First of all I am very sorry about my recent behavior with you. I was misguided by Kourosh and john into leaving your company and joining the new company. On top of that Manny and Irfan turned out to be the snakes I could not imagine.
I was promised a lot of things with the new job and as you may already know, it all turned out to be white lies. It was short-sightedness on my part and once again I am sorry for betraying you the way I have.
I sincerely hope you can find it in your heart to forgive me.
With Regards, Daniel Hopkins
The effect was to make it appear that Mr Hopkins had written the "So Sorry email" and sent it to the Appellant Ahmad. The Panel found that the Appellants then forwarded this email to another engineer, Shaheen Ahmad ("Shaheen" – a mentor to, but no relation to, the Appellant Ahmad), creating the impression with Shaheen that Mr Hopkins had sent the So Sorry email to the Appellant Ahmad.
[11] Shaheen responded to the Appellant Ahmad by email as follows:
Hello Hafiz Thank you for sharing this with me. I had met Daniel at the CGS lecture about two weeks ago and he told me and Naj who was also sitting at the same table that he was removed from the new company very recently and in an unkind manner. Life is very complicated and sad sometimes.
I wish you peace
Your friend
Shaheen
The "Modified Shaheen email"
[12] The Panel found that the Appellants then edited the email from Shaheen by adding the following to it:
He was misguided by Kourosh and john into leaving your company and joining the new company. On top of that Manny and Irfan turned out to be the snakes he could not imagine. He was promised a lot of things with the new job and as you may already know, it all turned out to be white lies. It was short-sightedness on his part and he felt sorry for betraying you the way he had. He sincerely hope you can find it in his heart to forgive him.
[13] The Panel found that the Appellants then distributed this doctored response to Mohammadi and 25 other recipients (the "Modified Shaheen Email) (Merits Decision, p. 40).
The "Muddy Game email"
[14] The Appellants admitted to sending an email (defined by the Panel as the "Muddy Game email") (Merits Decision, pp. 5, 10-11, 32) (Appellants’ Factum, paras. 22-24) that included the following statement:
I strongly disagree with Kourosh. John and Kourosh are playing a muddy game. They cheated Orbit and will have to complete the current projects under Orbit.
[15] The recipient of the email, Great Gulf, was an engineering client of Orbit's and of the company formed by Orbit’s departed employees (“HLV2K”). The persons mentioned in the email – John (Lametti) and Kourosh (Mohammedi) – were former employees of Orbit.
Findings of Professional Misconduct
[16] The Panel found that the "Muddy Game email" was "relevant to [the] practice of engineering as per 72(2)(j) of Regulation 941" because it was sent to a client of Orbit's from the Appellant Ahmad's Orbit email address, in the course of discussing engineering work. The Panel found the email was "unprofessional" because in it, the Appellant Ahmad attacked the integrity of two professional engineers "in an attempt to injure their reputation." In the result, the Panel found that the "Muddy Game email" amounted to professional misconduct within the meaning of s. 72(2)(j) of Regulation 941 (Merits Decision, p. 42).
[17] The Panel found that the "So Sorry email" and the "Modified Shaheen email" were likewise "unprofessional" and "have the elements of lack of moral fitness and dishonesty present, [establishing that this conduct] was not solely unprofessional… but also disgraceful and dishonourable" (Merits Decision, p. 42).
[18] On the facts, as found, the Panel's findings of professional misconduct disclose no error of law and no palpable and overriding error of fact. In particular, the Panel did not err in its findings respecting the “Muddy Game email”. The professional misconduct arising from the “Muddy Game email” did not involve “disgraceful and dishonourable” conduct that characterized the other two emails and was thus a less serious disciplinary offence. The Panel clearly identified this distinction in its reasons, and was justified in making the findings that it did on the facts as it found them to be.
Arguments on Appeal
[19] I address each of the seven issues argued by the Appellants in the order in which they are set out in the Appellants' factum.
Issue I - Shifting the Burden of Proof
[20] The Appellants argue that the Tribunal shifted the burden of proof to the Appellants. I see little merit to this argument. The Tribunal accurately stated the burden of proof and found that the burden had been met by the Respondent on the basis of the expert evidence before it, the text of the emails, and the oral evidence of the witnesses. The Tribunal drew an adverse inference against the Appellants for failing to adduce evidence which could have been exculpatory (if their theory of the case was true), and the Tribunal disbelieved the Appellant Ahmad for reasons it explained in its credibility findings.
[21] The Appellants' theory of the case was that the second and third impugned emails were devised and sent by someone else, by hacking on to Mr Ahmad's computer. The Tribunal explained why it did not accept this theory of the case at pp. 6-30 of the Merits Decision. In brief, the Tribunal accepted the Respondent’s evidence that established on a balance of probabilities that the impugned emails were sent from the Appellant Ahmad’s email address, and it concluded that, on a balance of probabilities, the Appellant Ahmad’s email account was not hacked. The Tribunal then drew the natural inference from these findings that Ahmad sent the impugned emails.
[22] The expert evidence supported the Tribunal's conclusion (Merits Decision, pp. 16-18, 23-25), and the Appellants' failure to adduce potentially exculpatory evidence that (a) should have been available to them and (b) would have been material to their "hacking theory", was a proper basis for drawing an adverse inference (Merits Decision, pp. 25-26). In sum, the Tribunal found that the Respondent had met its burden, and that the Appellants had not established their theory that Mr Ahmad's account had been "hacked" (Merits Decision, pp. 18-21, 28-29).
[23] The Tribunal assessed the evidence before it and explained why it was satisfied that the Respondent had met its burden, and why the Appellants' competing theory of the case was not established on the evidence. The Tribunal did not reverse the burden of proof. The Appellants approached this issue in this court on the basis, apparently, that because the Appellant Ahmad testified that he did not send two of the impugned emails, and alleged that his computer was hacked, that the Respondent bore the onus to disprove this theory of the case with “clear and convincing evidence”. That is not the law. The Respondent did prove that the emails originated from the Appellant Ahmad’s email account, and the evidence was sufficiently clear and convincing that the Panel drew the inference that the Appellant Ahmad sent the emails. The Panel approached the Appellants’ “hacking allegation” in the correct fashion – and concluded that it was not shown, on a balance of probabilities, that hacking took place. I would not give effect to this ground of appeal.
Issue II - Failing to Consider Evidence of Benefit to the Appellants
[24] I see little merit to the Appellant’s argument that the Panel failed to consider evidence of benefit to the Appellants. The reasons, read as a whole, show that the Panel understood the nature of the factual issues, wrestled with those issues, and explained its reasoning path to its conclusions. It was not necessary for the panel to refer to each and every piece of evidence: Selladurai v. Aiello, 2018 ONSC 2253, para. 23; Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 OAC 201, para. 343 (CA).
[25] The Appellants did not specify in their factum the evidence that they say the Panel failed to consider. In oral argument, the Appellants argued that they had established motive and opportunity in respect to their allegation of hacking, and the Panel failed to wrestle with this evidence and explain why it did not provide a foundation for the hacking allegation.
[26] With respect, this argument misses the central thrust of the Panel’s reasoning. The Respondent’s expert acknowledged that the Appellant Ahmad’s computer “could have been” hacked. Former employees of Orbit “could have” had the means to effect that hacking. Clearly there was acrimony between the Appellants and the departed employees. All of this was apparent to the Panel, and there was no need for it to review the evidence establishing these points.
[27] Showing that hacking “could have” taken place does not establish that it did. The Panel explained why it was not satisfied on a balance of probabilities that hacking took place. I would not give effect to this ground of appeal.
Issue III - Either Failing to Draw Adverse Inferences or by Drawing Adverse Inferences Inappropriately
[28] Failure to adduce evidence that is available to a party may give rise to an inference that the evidence would have been unfavourable to the party: Ma v. Canada (Citizenship and Immigration), 2010 FC 509, 368 FTR 116, para. 1. Drawing - or declining to draw - an inference is a matter of discretion, to be exercised on proper principles: Association of Professional Engineers v. Rew, 2020 ONSC 6018, para. 92.
Drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue (Parris v. Laidley, 2012 ONCA 755, para. 2.).
[29] The Tribunal drew an adverse inference against the Appellants because they failed to adduce evidence from their expert in respect to the “header” for the “So Sorry email” and did not provide the header to the respondent so that it could be reviewed by the respondent’s expert (Merits Decision, pp. 25-26). Applying the test in Parris, there was no legitimate explanation for failing to adduce this evidence. The evidence was within the exclusive control of the Appellants, was certainly not "equally available to both sides" and it was reasonable to suppose that this would have been "key evidence" if the Appellants' "hacking" theory was true. The Tribunal exercised its discretion reasonably in drawing an inference against the Appellants in respect to their “hacking” theory of the case in these circumstances.
[30] The Tribunal declined to draw an inference against the Respondent for failure to obtain information about who created the email address “daniel_hopkin1@yahoo.com” from the company Yahoo! in California (Merits Decision, pp. 26-28). In respect to this issue, the Tribunal found:
Although counsel for Ahmad argued that counsel or the [Respondent] should have summonsed Yahoo to obtain the above information, the Panel finds that this is not fatal to the Association’s case. This is due to cost considerations and the fact that the [Respondent] knew that a summons may not garner the desired information since the person who set up the suspicious… account could have used an anonymous phone number to set it up. (Merits Decision, p. 27)
[31] Applying the test in Parris, there was a legitimate explanation for failing to adduce this evidence (cost, delay, and a reasonable possibility the evidence would turn out to be immaterial), the evidence was equally available to both sides (either side could have sought the evidence from Yahoo! in California), and although the evidence might have been material to the case, there was a reasonable possibility it would not be so. The Tribunal exercised its discretion reasonably in declining to draw an adverse inference against the Respondent in all of these circumstances. I would not give effect to this ground of appeal.
Issue IV - Improper Qualification of Mr Ellwood as an Expert Witness and Improper Reliance on His Expert Evidence
[32] The Tribunal correctly stated and applied the test for admission of expert evidence, citing controlling authorities including R. v. Mohan, 1994 80 (SCC), [1994] 2 SCR 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 (Merits Decision, pp. 11-13). It then made the requisite findings and qualified the Respondent’s expert, Mr Ellwood, “as an expert in digital forensics, consisting of email analysis as a subcategory….” Mr Ellwood certainly meets the criteria of “expert” in the specified fields, and the Tribunal did not err in concluding that his expert evidence was “necessary” in the context of a case where a key issue was whether the impugned emails were sent from the Appellant Ahmad’s computer. The objections raised by the Appellants before the Tribunal were all matters that properly went to the weight to be given to Mr Ellwood’s evidence, and they were considered by the Tribunal in that fashion. The Appellants’ arguments that Mr Ellwood lacked independence and objectivity lacked substance and the Panel did not err in rejecting it. I would not give effect to this ground of appeal.
[33] The Appellants argued that the Panel erred in permitting Mr Ellwood to testify about the “HELO codes” referenced in the Appellants’ expert report. The Panel exercised its discretion to permit this testimony as it arose from the Appellants’ expert evidence. The Appellants had the opportunity to cross examine Mr Ellwood on this evidence and could have led responding evidence from their own expert on this point if they had wished to do so. This ruling by the Panel was discretionary, was exercised on correct principles, and worked no unfairness on the Appellants in all the circumstances.
Issue V - Credibility Assessments
[34] As noted above, the Panel correctly stated guiding principles for assessing credibility (Merits Decision, p. 28). It found that the Appellant Ahmad’s evidence “does not make sense in light of the preponderance of probabilities that an informed person would find reasonable” (Merits Decision, p. 28), and that this assessment was not primarily based on a weighing of the evidence of the Appellant Ahmad against the evidence of the departed employees (whose credibility was attacked by the Appellants) (Merits Decision, p. 29). Findings of credibility are entitled to significant deference on appeal, and I see no basis on which this court should disturb credibility findings in this case. I would not give effect to this ground of appeal.
Issue VI - Alleged Prosecutorial Misconduct and Delay
[35] The events at issue took place in late 2017 and in 2018. The first complaint was made in December 2018. The second complaint was made in March 2019. The Ellwood Report was not produced until December 2022, four years after the first complaint, the Merits Hearing commenced in April 2023 and the Sanctions Hearing concluded on January 24, 2024, more than five years after the first complaint was made.
[36] The Panel cited the correct test for analysing a delay claim, taken from the Supreme Court of Canada’s decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 DLR (4th), paras. 58, 59, 69, 78 (Merits Decision, pp. 36-39). The Panel found no inordinate delay, given the preliminary motions brought by the Appellants prior to the hearing, the Appellants’ request to adjourn the hearing, and the time anticipated for the hearing increasing from five to sixteen days (Merits Decision, p. 37). The Panel noted that both sides have a role in fostering an expeditious investigation and prosecution, and further found that the Appellants did not “use all available procedures to move matters forward.” These findings do not disclose any palpable and overriding errors of fact.
[37] The Appellants alleged prejudice arising from delay, but the Panel found that no such prejudice was established (Merits Decision, pp. 38-39). The Panel found that the delay did not amount to abuse of process that would bring the administration of justice into disrepute, but rather to the contrary, concluded that terminating the proceedings for delay in all the circumstances of this case would tend to undermine the confidence of the public in effective professional regulation. I see no reversible error in these findings.
[38] With respect, the time required to conclude this matter below was driven, in significant part, by tactical choices made by the Appellants about their defence of the case. The Appellants were entitled to make these choices, but they cannot now be heard to complain about the time required to deal with the case as occasioned by their tactical choices. The Panel applied the correct legal principles and its conclusion that delay was not undue, in the circumstances of this case, does not disclose any palpable and overriding error. I would not give effect to this ground of appeal.
Issue VII – Relevant Factors with Respect to Penalty and Costs
(a) Provocation
[39] The Appellants argue that the Panel erred in failing to consider “provocation” in respect to the penalty to be applied in respect to the “Muddy Game email”. First, penalty was ordered in respect to the totality of the misconduct of which the “Muddy Game email” was but a minor portion. Aside from the finding of misconduct respecting the “Muddy Game email”, it is not clear that any additional sanction was imposed in respect to it. Second, it is clear from the Sanctions Decision that the Panel was aware of the context that gave rise to the Appellants’ misconduct. The Panel’s conclusion – that professional conflict does not justify or excuse the Appellants’ misconduct – discloses no error in principle. Indeed, if the misconduct had arisen from baser motives, with no exculpatory context, the Appellants’ serious misconduct could have justified more serious sanctions than those that were imposed.
(b) Other Similar Cases and the Appropriate Range
[40] The Appellants argued that the Sanctions imposed were unduly harsh compared to sanctions imposed in similar cases: ONCPRO v. Faleyimu, 2017 ONCPRO 1. Faleyimu was a decision of the Discipline Committee of the College of Registered Psychotherapists and Registered Mental Health Therapists and turned on a different context. The other two decisions cited in support of this argument are unreported decisions of discipline panels of the Respondent and were not binding on the Panel.
[41] The jurisprudence cited does not establish a traditional “range” from which it can be said that the Sanctions Decision departs. In the instant case, the Appellant Ahmad created two false emails – and in connection with the first he devised a false email address – all for the purposes of casting aspersions on departed employees with whom he was engaged in a conflict arising from their professional work. Standards of professionalism are not relaxed because of stress or conflict. The “Muddy Game email” might be excused as mere intemperance caused by an upsetting situation, but the other two emails involve dishonesty arising in a professional context. In my view, the sanctions imposed were measured, in the circumstances, and are well within the range for such dishonest conduct.
(c) Costs
[42] This court will interfere with a costs award “only if the tribunal made an error in principle or was plainly wrong” (Kitmitto v. Ontario (Securities Commission), 2024 ONSC 1412 (Div. Ct.), para. 183 (Div. Ct.).
[43] The hearing took place over 16 days. The costs award on a partial indemnity basis – $30,000 – is modest relative to the resources required for the proceedings below. The Panel noted the Appellants’ arguments – that the amount requested exceeded awards made in past cases, and the Appellants had succeeded on some issues. The Panel found that the hearing was protracted “largely due to arguments made by the [Appellants] that were mostly unsuccessful.” The Panel exercised its discretion as to costs on correct principles (Sanctions Decision, pp. 12-14). I see no basis for this court to interfere with the Panel’s costs order.
Disposition
[44] I would dismiss the appeal, with costs in the agreed amount of $20,000, inclusive, payable by the Appellants to the Respondent within 30 days.
“D.L. Corbett J.”
I agree: “R. Gordon J.”
I agree: “R.A. Lococo J.”
Released: June 3, 2025
CITATION: Ahmad v. Association of Professional Engineers of Ontario, 2025 ONSC 2897
DIVISIONAL COURT FILE NO.: 694/23
DATE: 20250603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, R. Gordon and R.A. Lococo JJ.
BETWEEN:
HAFIZ AHMAD and ORBIT ENGINEERING LIMITED
Appellants
– and –
ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: June 3, 2025