Association of Professional Engineers of Ontario (PEO) v Jones, 2018 ONAPE 1

Discipline Committee of the Association of Professional Engineers of Ontario (PEO)

Date: 2018-05-03 Citation: Association of Professional Engineers of Ontario (PEO) v Jones, 2018 ONAPE 1

Indexed as: The Association of Professional Engineers of Ontario (PEO) v James R.H. Jones, P. Eng. and Jones Engineering Limited, 2018 ONAPE 1

IN THE MATTER OF a hearing under the Professional Engineers Act, R.S.O. 1990, c. P. 28

AND IN THE MATTER OF a complaint regarding the conduct of James R.H. Jones, P. Eng., a member of the Association of Professional Engineers of Ontario, and Jones Engineering Limited, a holder of a Certificate of Authorization

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

James R.H. Jones, P. Eng. and Jones Engineering Limited, 2018 ONAPE 1

PANEL MEMBERS: Patrick Quinn, P. Eng. (CHAIR) James Amson, P. Eng. (MEMBER) Rishi Kumar, P. Eng. (MEMBER) Lew Lederman, Q.C. (MEMBER) Leslie Mitelman, P. Eng. (MEMBER)

Hearing Dates: 2018-03-28 Decision Date: 2018-05-03 Release of Written Reasons: 2018-05-07

NAME OF LAWYER Leah Price, Counsel for the Association of Professional Engineers of the Province of Ontario (PEO)

NAME OF LAWYER Gary W. Gibbs, Counsel for James R.H. Jones, P. Eng. and Jones Engineering Limited

NAME OF LAWYER Steven Bosnick, B.Math, M.A, LL.B, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

The Panel of the Discipline Committee met to hear this matter on March 26, 2018 at the offices of the Association of the Professional Engineers of Ontario (the “Association”) at Toronto.

The Allegations

The Association alleged that James R.H. Jones, P. Eng. (“Jones”) and J.R. Jones Engineering Limited (“Jones Engineering”) are guilty of professional misconduct as defined in the Professional Engineers Act and R.R.O. 1990, Regulation 941 (“Regulation 941”), the particulars of which are as follows:

a. Jones and/or Jones Engineering were negligent, amounting to professional misconduct under section 72(2)(a) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew, or ought reasonably to have known, would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to maintain the minimum standards that a reasonable and prudent practitioner would maintain in the circumstances.

b. Jones and/or Jones Engineering failed to comply with applicable statutes, regulations, standards, codes, by-laws and rules, amounting to professional misconduct under section 72(2)(d) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew, or ought reasonably to have known, would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to comply with sections 4.3.1, 9.4.1.2, 9.15.5.2, 9.17.4.3, 9.23.2.2 and 9.23.2.3, and/or 9.15.4.2 of the Ontario Building Code and/or the Canadian Standards Association Standards (CAN/CSA-086 Engineering Design in Wood).

c. Jones and/or Jones Engineering engaged 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 unprofessional, amounting to professional misconduct under section 72(2)(j) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew, or ought reasonably to have known, would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to meet the standard of professionalism expected of practitioners.

The hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission as to Penalty and Costs, which are reproduced below.

Agreed Statement of Facts

This Agreed Statement of Facts is made between the Association of Professional Engineers and the Respondents, James R.H. Jones, P. Eng. (“Jones”) and J.R. Jones Engineering Ltd. (“Jones Engineering”) (collectively, the “parties”).

1. Jones is a professional engineer who has been licensed pursuant to the Professional Engineers Act (the “Act”) since 1992. He has held the designation of consulting engineer since 1998.

2. Jones Engineering has, at all material times, held a certificate of authorization issued pursuant to the Act. Jones is the president of Jones Engineering, and is the person designated under section 47 of Regulation 941 under the Act as assuming responsibility for the professional engineering services provided by Jones Engineering.

3. The Complainant, Shari Darling, (“Darling”) purchased a post and beam house at 3414 Wallace Point Road (the “House”) in Township of Otanbee-South Monaghan, Ontario, in late 2007. She purchased the House from Allen Dunford (“Dunford”), who had previously constructed the House. She moved into the House in January 2008.

4. Dunford and his company, Barn Revival, build post and beam houses using timber reclaimed from barns. Dunford had worked with Jones Engineering on past post and beam residence projects. Dunford retained Jones Engineering, under an oral contract, to prepare structural drawings to accompany his request for a building permit for the House in 2005.

5. Jones Engineering prepared two drawings, namely: Drawing S-1, entitled “Specification & Plans”; and S-2, entitled “Roof Framing Plan & Specifications” (the “Structural Drawings”). Copies of the Structural Drawings are attached as Schedule “A”. The Structural Drawings are dated July 25, 2005, and are stamped with Jones’ seal. The Structural Drawings specify 10”x10” main beams in Douglas fir, and spruce-pine-fir no. 1 for the floor joists.

6. Clause 9.4.1.2 of the Ontario Building Code 1997 requires that post, beam and plank constructions with loadbearing members shall be designed in conformance with subsection 4.3.1, which requires conformance with CAN/CSA-086 Engineering Design in Wood. CAN/CSA-086 Engineering Design in Wood requires standard grading of wood used in building projects.

7. The Structural Drawings failed to:

a. specify the minimum grade of timbers to be used in the House;

b. specify the connection details for all Douglas fir elements;

c. specify an assumed founding elevation for various interior spread footings for the foundation and first floor framing;

d. ensure that wood members were separated from direct contact with concrete, contrary to Ontario Building Code clauses 9.17.4.3 (posts), 9.23.2.2 and 9.23.2.3 (timber joists), and 9.15.5.2 (ground floor beams); and

e. specify a continuous pocket with an anchored sill plate in the design of the ground floor timber joists to ensure adequate lateral support as required by s. 9.15.4.2 of the Ontario Building Code.

8. The building permit was issued in September, 2005, and construction of the House was completed in the fall of 2006. The municipality requested a review of the post and beam construction by an engineer. Dunford requested that Jones conduct a site visit, and that he provide a review letter to the municipality. Jones agreed to do so. As a result, in or about October or November 2006, Jones attended at the House for the purpose of reviewing the post and beam construction.

9. Jones had not signed any Commitment to General Review in connection with the project. He did, however, prepare, sign, seal, and send to the municipality a letter dated November 1, 2006, which reads in full as follows:

During the course of construction of the above project, personnel from our firm carried out periodic site reviews of structural work in accordance with the requirements of section 2.3.2 of the Ontario Building Code and requirements of section 78 of Ontario Regulation 941/90, as amended, made under the Professional Engineers Act 1990, as amended. These reviews were conducted following the procedures described in the Professional Engineers Ontario Guideline for Professional Engineers Providing General Review of Construction as Required by the Ontario Building Code.

On the basis of these, it is our opinion that the work is in general conformity with the drawings and specifications prepared by J.R. Jones Engineering Ltd, under the professional seal of James R.H. Jones, P. Eng., which formed the basis for issuance of the building permit and any changes thereto authorized by the Chief Building Official.

This opinion is based on the above parameters and should not be construed as a guarantee of work.

(“November 1, 2006 Letter”)

10. In fact, neither Jones nor anyone from his firm had carried out periodic site reviews during the course of construction. In addition, the work was not in general conformity with the drawings and specifications prepared by Jones Engineering under Jones’ professional seal. There were in fact a number of deficiencies and variances, which were known or ought to have been known by Jones. These included:

a. the use of reclaimed material for the heavy timber members, not new material, without independent testing as to their species, grade, design value, or structural integrity;

b. the use of “TJI” joists that were installed at the ground floor and “TJI” rafters at the roof, where sawn timber was specified, without any additional calculations to ensure this substitution was acceptable, and without submission of engineered shop drawings for the “TJI” elements;

c. missing connection brackets between ground and second floor column lifts;

d. missing and inadequately fastened knee bracing at the second floor;

e. exterior stud wall framing being located beyond the face of heavy timber columns with no connection between the two elements;

f. roof rafters being supported on exterior stud wall framing instead of on the heavy timber beams; and

g. columns not being continuous across the ground floor with a lack of blocking being in place to transfer loads across the floor plate.

11. On the basis of the November 1, 2006 Letter, the municipality’s Chief Building Official granted occupancy.

12. After Darling moved in, she noted numerous problems. As a result:

• the House was inspected on numerous occasions by the municipality, who found deficiencies in several areas of construction and design;

• the municipality eventually issued an Unsafe Building Order, and Darling had to move out of the House to a trailer;

• the House was inspected by numerous independent structural engineers and pest control experts who observed evidence of structural failure and pest infestation, and;

• litigation ensued, which was ultimately settled.

13. The Structural Drawings of the House failed to comply with the Ontario Building Code, and failed to specify sufficient information, including as set out above in paragraph 7. In the circumstances, Jones and Jones Engineering failed to maintain the minimum standards that a reasonable and prudent practitioner would maintain in the circumstances.

14. The November 1, 2006 Letter was not accurate in that Jones and Jones Engineering had not completed periodic site reviews of the House during the construction, and in that there were numerous variances and deficiencies in the construction of the House from the Structural Drawings such that the construction of the House was not in general conformity with the Structural Drawings.

15. By reason of the aforesaid, the parties agree that the Respondents, James R.H. Jones, P. Eng., and J.R. Jones Engineering Ltd., are guilty of professional misconduct as follows:

a. Jones and/or Jones Engineering were negligent amounting to professional misconduct under section 72(2)(a) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew or ought reasonably to have known would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to maintain the minimum standards that a reasonable and prudent practitioner would maintain in the circumstances.

b. Jones and/or Jones Engineering failed to comply with applicable statutes, regulations, standards, codes, by-laws and rules amounting to professional misconduct under section 72(2)(d) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew or ought reasonably to have known would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to comply with sections 4.3.1, 9.4.1.2, 9.15.5.2, 9.17.4.3, 9.23.2.2 and 9.23.2.3, and/or 9.15.4.2 of the Ontario Building Code and/or the Canadian Standards Association Standards (CAN/CSA-086 Engineering Design in Wood).

c. Jones and/or Jones Engineering engaged 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 unprofessional, amounting to professional misconduct under section 72(2)(j) of Regulation 941. In particular, in preparing structural drawings and providing post-construction review to Dunford in respect of the House, which they knew or ought reasonably to have known would be relied on by the Township, the CBO, Dunford and subsequent owners, they failed to meet the standard of professionalism expected of practitioners.

The Respondents have had independent legal advice with respect to their agreement as to the facts, as set out above.

Joint Submission as to Penalty and Costs

1. James R.H. Jones (“Jones”) was at all material times a Member of the Association of Professional Engineers of Ontario (“PEO”). J.R, Jones Engineering Ltd (“Jones Engineering”) was at all material times the Holder of a Certificate of Authorization issued by PEO.

2. Jones and Jones Engineering are the subjects of a proceeding before a panel of the Discipline Committee of PEO pursuant to Section 28 of the Professional Engineers Act (the “act”).

3. PEO, Jones and Jones Engineering make the following joint submission on penalty and costs:

a) pursuant to s.28(4)(f) of the Act, Jones and Jones Engineering shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of six (6) months;

b) pursuant to s.28(4)(i) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication without reference to names;

c) Pursuant to s.28(4)(d) of the Act, a term or condition shall be placed on Jones’ licence that he shall, within 14 months of the date of pronouncement of the decision of the Discipline Committee, successfully complete the Association’s Professional Practice Examination (“PPE”);

d) Pursuant to s.28(4)(b) and (k) of the Act, in the event that Jones does not successfully complete the PPE with the time set out in (c) above, his licence shall be suspended for a period of ten (10) months thereafter, or until he successfully completes the PPE, whichever comes first; and

e) there shall be no order as to costs.

Plea by Member and/or Holder

James R.H. Jones, P. Eng. and J.R. Jones Engineering admitted the allegations set out in paragraphs a., b., and c., in the Allegations. The Panel conducted a Plea Inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Reasons for Decision

The Panel expressed concern that the period of suspension could be viewed as a “light penalty” by the public. Both Counsel for PEO and Counsel for the Member indicated that the case at hand was a complex case, that extensive negotiations had continued for a period of time and the penalty was both fair and in the public interest. Counsel for the Member also stated that the Member would be writing the Professional Practice Examination within the 14 months stipulated in paragraph c) of the Joint Submission as to Penalty and Costs.

The Panel accepted the explanations, accepted that the penalties were not contrary to the public interest and would not bring the administration of justice into disrepute, and followed the law and accepted the Joint Submission as to Penalty and Costs.

Penalties and Costs Decision

The Panel concluded that the penalties and costs set out in the joint submission were appropriate as they fell within a reasonable range of acceptability, taking into account the following items:

a. protection of the public interest;

b. remediation of James R.H. Jones, P. Eng. and Jones Engineering Limited;

c. maintenance of the reputation of the profession in the eyes of the public;

d. general deterrence; and

e. specific deterrence.

James R. H. Jones, P. Eng. and Jones Engineering Limited have cooperated with the Association and by agreeing to the facts and proposed penalties have taken responsibility for their actions and have avoided unnecessary expense to the Association.

The Panel Orders

a) Pursuant to s.28(4)(f) of the Act, James R.H. Jones, P. Eng. and Jones Engineering Limited shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of six (6) months;

b) Pursuant to s.28(4)(i) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication without reference to names;

c) Pursuant to s.28(4)(d) of the Act, a term or condition shall be placed on James R.H. Jones, P. Eng. licence that he shall, within 14 months of the date of pronouncement of the decision of the Discipline Committee, successfully complete the Association’s Professional Practice Examination (“PPE”);

d) Pursuant to s.28(4)(b) and (k) of the Act, in the event that James R.H. Jones, P. Eng. does not successfully complete the PPE with the time set out in (c) above, his licence shall be suspended for a period of ten (10) months thereafter, or until he successfully completes the PPE, whichever comes first; and

e) There shall be no order as to costs.

Additional Note:

The panel administered a verbal reprimand at the conclusion of the hearing.

I, Patrick Quinn, sign this Decision and Reasons for the decision as Chair of this Discipline Panel and on behalf of the members of the Discipline panel as listed below:

Dated this 3rd day of May, 2018.

Chair, Discipline Panel

James Amson, P. Eng.

Rishi Kumar, P. Eng.

Lew Lederman, Q.C.

Leslie Mitelman, P. Eng.