Association of Professional Engineers of Ontario (PEO) v. Widla, 2018 ONAPE 4

Date: 2018-10-05 Citation: Association of Professional Engineers of Ontario (PEO) v WIDLA, 2018 ONAPE 4

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Widla, 2018 ONAPE 4

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 Waldemar M. Widla, P. Eng., a member of the Association of Professional Engineers of Ontario and Fulton Engineering Specialties Inc., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Waldemar M. Widla, P. Eng and Fulton Engineering Specialties Inc.

PANEL MEMBERS: Albert Sweetnam, P. Eng., Chair Michael Chan, P. Eng., Member Lew Lederman, Q.C., Member William Walker, P. Eng., Member Robert Willson, P. Eng., Member

Hearing Dates: 2018-06-06 Decision Date: 2018-07-05 Release of Written Reasons: 2018-07-11

Counsel: Leah Price LL.B., Counsel for the Association of Professional Engineers of Ontario (PEO) Member is self-represented Sean McFarling LL.B., Independent Legal Counsel to the Tribunal

DECISION AND REASONS

The Panel of the Discipline Committee met to hear this matter on the sixth of June, 2018 at the offices of the Association of Professional Engineers of Ontario at Toronto.

The Allegations

The allegations against Waldemar M. Widla (“Widla”), as stated in the Statement of Allegations dated September 20, 2017, are as follows. Widla had been the owner, through a numbered company, of a commercial building in the Town of Caledon. His firm, Fulton Engineered Specialties Inc. (“FESI”), occupied the building. In 2010-11, Widla contracted with Sino-Can Energy to install solar panels on the roof of the building and to replace the roof. Structural design by Sino-Can’s engineer required the addition of attachment plates to the roof structure inside the building to support the solar panels. FESI took responsibility for this part of the installation, based on structural drawings provided by Sino-Can, while the panels and their support structure were installed by another contractor.

In May of 2014, Widla sold the building to Armando Tallarico, with FESI remaining as the sole tenant, first on a one-year lease, and later on a month-to-month basis. Tallarico then tried to re-sell the building to a new owner, Sam Boumitry, in August 2015. The Town held up transfer of the building to Boumitry because of an outstanding building permit associated with the attachment plates supporting the solar panels, as approximately half of the plates had not been installed due to interference with the roof structure. The Town required a letter from an engineer certifying the completion of the structural work. Tallarico requested Widla to resolve the problem.

In response, on September 14, 2015, Widla signed and sealed a letter to the Town of Caledon, stating that the structural work had been completed in accordance with one of the design drawings, SE-1. Receipt of the letter satisfied the Town, which permitted the transfer of the building to Boumitry. However, after taking possession and inspecting the building, Boumitry realized that the attachment plates had not been installed in accordance with the design drawings, and advised Widla. Widla offered to correct the deficiencies, but had not done so by the end of 2015. In early 2016, Boumitry evicted FESI from the building for non-payment of rent.

Boumitry complained against Widla to PEO. PEO initiated an investigation, and the Complaints Committee considered the complaint and all relevant evidence. An independent review by a structural engineer noted that the FESI letter refers to only one of five drawings associated with the attachment plates. That drawing specifies testing of the existing roof joist, but does not address the attachment plates or any structural modifications required for installation of the panels. The structural modifications are specified on drawing SE-4, which Widla does not make reference to. Further, he notes that Widla did not inspect the installation, either during construction or prior to writing his letter. All of these activities would be expected of a reasonable and prudent practitioner in these circumstances. Further, Widla has admitted that he is an electrical engineer, and structural engineering is not within the scope of his business.

The structural engineer calculated that, without the attachment plates, the supporting structure for the solar panels would be greatly overstressed at maximum wind load conditions. The resulting severe deflections of the structure would likely damage the solar panels. As the engineer did not visit the site and, therefore, had no information as to which attachment plates were missing, he was unable to determine whether the underlying roof joists could be damaged in this scenario. Beyond the potential damage to the panels, the engineer made no statement regarding public safety impact.

Based on the evidence, the Complaints Committee alleged that Widla and FESI were guilty of professional misconduct as defined by Sections 72(2)(a), (b), (c), (h) and (j) of Regulation 941. The matter was referred to the Discipline Committee on September 20, 2017.

Counsel for the Association advised that the parties concluded an Agreed Statement of Facts with respect to the allegations set out in the Statement of Allegations, that would be entered as evidence.

Plea by Member and Holder

Waldemar Widla, P.Eng. admitted the allegations set out in the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the Member and Holder’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the Association advised the Panel that agreement had been reached, and introduced an Agreed Statement of Facts, which provides as follows:

The Respondent, Widla, is a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”). Widla has little to no training or experience in the field of structural engineering.
The Respondent, FESI, is an Ontario corporation. At all material times, FESI held a Certificate of Authorization (“C of A”), and Widla was the individual taking responsibility for engineering services provided under the C of A. According to the C of A, FESI’s business operations included the design and fabrication of custom pressure vessels and heat exchangers.
FESI was the tenant/occupant of a building located at 13908 Hurontario Road in Caledon (the “Building”) from before 2010 to on or about January 5, 2016.
In or about 2010, Sino-Can Energy (“Sino-Can”) entered into an agreement with 952496 Ontario Inc. (“952”), the owner of the Building, to install a solar panel array on the roof of the Building. At that time, 952 was wholly or partly owned by Widla.
Under the agreement with 952, Sino-Can obtained a building permit for the solar panel project, hired Arash Niaki & Associates Ltd. to do the structural design, looked after re-roofing the Building, and also looked after providing and installing the solar panel racks on the exterior of the roof of the Building.
FESI was responsible for providing and installing the attachment plates for pull-out force that were supposed to be bolted on the underside of the roof from the inside of the Building in accordance with the structural design done by Arash Niaki & Associates Ltd.
The Building was sold by 952 in a private sale to Armando Tallarico (“Tallarico”) in or about May 2014.
In or about August 2015, Tallarico sold the Building to the Complainant, Sam Boumitry (“Boumitry”).
In or about September 2015, Tallarico notified Widla that the building permit obtained by Sino-Can remained outstanding. The Town of Caledon’s inspector, Frank Marra (“Marra”), advised Widla that the Town required a letter from a professional engineer confirming that the work required to be done was done in accordance with the structural drawings.
Widla signed and sealed a letter from FESI to Marra dated September 14, 2015 (the “Letter”) regarding Permit BA/10/563, stating:

i. We are the contractor who modified the roof structure at the subject property with respect to the subject Permit #. The details of the work to be performed were specified on engineering drawing SE-1 issued by Niaki & Associates Ltd. dated Aug. 13, 2010.

ii. We hereby confirm that all work was performed by our company in full compliance with the drawing issued.
Widla had not inspected the work for which FESI was responsible at the time of construction of the solar panel project, nor did he inspect the inside of the roof to see if the attachment plates were actually installed, at any time prior to writing the Letter.
As a result of receiving the Letter, the Town closed the building permit and the sale closed.
In or about late September or early October 2015, Boumitry advised Widla that the work performed by FESI was not in compliance with the associated structural drawing, contrary to Widla’s assertions in the Letter. In fact, approximately 50 of the 100 attachment plates required by the drawings had not been installed.
Despite being advised that the work had not been completed as required, Widla took no steps to correct, amend or retract the Letter, nor to advise the Town.
PEO retained Daria Khachi, P.Eng. as an independent expert. He prepared a written report dated August 16, 2017 (the “Report”). The Report concluded, among other things:

i. The roof joist reinforcing specified on Arash Niaki & Associates Ltd.’s drawing SE-4 is necessary for the performance of the roof joists. The connecting plate locations specified on drawings SE-2 and SE-3, and the connection details specified on drawing SE-5 are critical to the performance of the W150x14 beams used to support the photovoltaic panels.

ii. The absence of approximately 50% of these connector plates will result in the overstressing of the W150x14 beams in bending under full uplift wind loads and will also create excessive deflections of the members.

iii. It was noted that approximately 50% of these connector plates had not been installed. It is not clear as to which plates were missing - connector plates at the ends of the W150x14 beam span or in the middle of the beam span, or two missing connector plates adjacent to each other. Missing connector plates at the ends of the W150x14 beams will result in a cantilever length of approximately 19 feet. Under full wind loading conditions, the W150x14 beams with a 19 ft cantilever will be overstressed in bending by over 330% and their deflections will be extreme to a point of damaging the photovoltaic panels. Missing connector plates in the middle span of the W150x14 beams will result in a longer than anticipated span of approximately 38 feet (assuming no two adjacent connectors are missing, thus increasing the span even further). Under full wind loading conditions, the W150x14 beams with a 38 ft span will be overstressed in bending by 100% and their deflections will exceed the recommended allowable deflections by over 280%.

iv. The missing connection plates noted above will not distribute the wind uplift reactions to the supporting roof joists below. Instead, the adjacent connection points will receive greater reaction forces which affects the design of the supporting roof joists. Depending on the location of the missing connection plates, the supporting roof joists may or may not be overstressed.

v. Based on the independent expert’s review of the details noted on Arash Niaki & Associates Ltd.’s drawings, failure to provide these details are critical and a potential risk to public safety. As these deficiencies are a Building Code violation and a potential risk to public safety, a proper installation review would be expected of a reasonable and prudent practitioner.
For the purposes of this proceeding, Widla and FESI accept as correct the findings, opinions and conclusions contained in the Report. Widla and FESI admit that they failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.
By reason of the aforesaid, the parties agree that the Respondents, Widla and FESI, are guilty of professional misconduct under Section 28(2)(b) of the Act, by reason of:

a. Signing and sealing a letter to a building official that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined by Section 72(2)(a) of Regulation 941;

b. Signing and sealing a letter to a building official that failed to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work, amounting to professional misconduct as defined by Section 72(2)(b) of Regulation 941;

c. Failing to correct an incorrect certification of the completeness of structural work that he knew or ought to have known was not complete, thereby endangering the welfare of the public, amounting to professional misconduct as defined by Section 72(2)(c) of Regulation 941; and

d. Signing and sealing a letter to a building official that was prepared in an unprofessional manner, amounting to professional misconduct as defined by Section 72(2)(j) of Regulation 941.
The Respondents have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to their agreement as to the facts, as set out above.

Decision

The Panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that Waldemar Widla, P.Eng. committed an act of professional misconduct as alleged in Paragraphs 16 (a), (b), (c) and (e) of the Statement of Allegations. Specifically, Widla and FESI are guilty of professional misconduct under Section 28(2)(b) of the Act, by reason of:

a) Signing and sealing a letter to a building official that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined by Section 72(2)(a) of Regulation 941;

b) Signing and sealing a letter to a building official that failed to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work, amounting to professional misconduct as defined by Section 72(2)(b) of Regulation 941;

c) Failing to correct an incorrect certification of the completeness of structural work that he knew or ought to have known was not complete, thereby endangering the welfare of the public, amounting to professional misconduct as defined by Section 72(2)(c) of Regulation 941; and

d) Signing and sealing a letter to a building official that was prepared in an unprofessional manner, amounting to professional misconduct as defined by Section 72(2)(j) of Regulation 941.

Reasons for Decision

The Panel accepted the agreed plea as it was satisfied that the Member and Holder’s agreement was voluntary, informed and unequivocal. The Panel was concerned whether the attachment plate deficiencies have been corrected, given the potential for impact on public safety. It was advised that corrections have been made by the current owner of the building and that public safety is now protected.

Penalty

Following the Panel’s decision to accept the agreed plea, Counsel for the Association advised the Panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

a) Pursuant to s. 28(4)(f) of the Act, Widla and FESI shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently;

b) Pursuant to s. 28(4)(b) of the Act, Widla’s licence and FESI’s Certificate of Authorization shall be suspended for a period of one (1) month, commencing on June 7, 2018;

c) Pursuant to Sections 28(4)(i) and 28(5) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication, with reference to names;

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

e) Pursuant to s. 28(4)(b) and (k) of the Act, in the event Widla does not successfully complete the PPE within the time set out above, his licence shall be suspended pending successful completion of the examination; and

f) There shall be no order as to costs.

Counsel for the Association advised that the agreed plea satisfies the five purposes of penalty as follows:

a) The requirement that the Member takes the Professional Practice Exam protects the public by reinforcing the importance of ethical behaviour by licence holders.

b) Publication of the results of the hearing and the permanent reprimand indicates that the reputation of the profession is taken seriously.

c) Suspension of the Member’s licence to practice and his company’s Certificate of Authorization provides general deterrence to other members of the Association and the public.

d) Licence suspension and publication, plus taking the Professional Practice Examination, provides specific deterrence to the Member reoffending.

e) Rehabilitation of the Member is enhanced by his taking the Professional Practice Examination.

In support of the penalty agreement, Counsel for the Association referred to two previous decisions: Association of Professional Engineers of Ontario v. Bruce D. Crozier, P.Eng. and Association of Professional Engineers of Ontario v. Jiri Krupka, P.Eng. In the Crozier case, the engineer had submitted a letter to a building official regarding construction work in progress, without reviewing the work on site, and had later submitted a deficient sketch to the same official while using his stamp improperly. In the Krupka case, the engineer had provided and stamped construction drawings and calculations for roof anchors, despite not having the requisite experience in structural engineering. He attempted to justify his design, but was unable to produce acceptable calculations or to justify the safety of his work.

In both cases, the penalties were similar to the penalty agreement before this Panel, except the previous penalties had invoked a two-month suspension of licence, rather than the one month proposed here. However, in both previous cases, the Members had denied guilt, and hearings took place. In the present case, the Member has admitted guilt, avoiding the cost of a full hearing. In the Krupka case, because the Member admitted to having performed similar structural design work previously, there was a concern that he might do so in future projects. Therefore, a limitation was placed on his licence that he must only undertake structural engineering services under the direct supervision of another professional engineer for a period of two years, unless and until he passed two exams in structural engineering administered by PEO.

Widla stated that he accepted the penalty and agreed that it was appropriate. When asked, Widla confirmed that he was aware that he had the opportunity to obtain independent legal advice and had chosen not to do so with full understanding of the consequences. He stated that he felt that his admission of guilt made it inappropriate to question the penalty.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and, accordingly, orders:

a) Pursuant to s. 28(4)(f) of the Act, Widla and FESI shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently;

b) Pursuant to s. 28(4)(b) of the Act, Widla’s licence and FESI’s Certificate of Authorization shall be suspended for a period of one (1) month, commencing on June 7, 2018;

c) Pursuant to Sections 28(4)(i) and 28(5) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication, with reference to names;

f) There shall be no order as to costs.

Reasons for Penalty Decision

The Panel concluded that the proposed penalty is reasonable and in the public interest. Widla has cooperated with the Association and, by agreeing to the facts and proposed penalty, has accepted responsibility for his actions and has avoided unnecessary expense to the Association. There was no apprehension that Widla intended to practice structural engineering in future and, thus, no reason to place a limitation on his professional licence in this regard. The Panel considered that the two previous Discipline decisions referred by Counsel for the Association were similar to the current matter and provide reasonable guidance with respect to penalty. In the present case, a suspension of one month, rather than two, is reasonable given the cooperation given by the Member in this case.

ILC advised the Panel that it is entitled to accept or reject a Joint Submission on Penalty. However, a joint submission should not be interfered with lightly. ILC advised that the Panel must not reject a Joint Submission on Penalty unless it is a severe departure from an appropriate penalty and, therefore, contrary to the public interest. Further, ILC noted that the Panel should not vary an agreed penalty unless it feels there has been a substantial lack of propriety. In this case, despite the Member not being represented by counsel, there was no evidence of this.

There was some challenge to the Panel determining whether the penalty is in the public interest, since the only evidence presented was the Agreed Statement of Facts and the Joint Submission as to Penalty, and no testimony was given. In this regard, the Panel considered a recent decision in Association of Professional Engineers of Ontario v. Sotiros Katsoulakos, P.Eng., where the panel accepted a motion to dismiss based on the correct processes being followed by PEO in reaching a settlement with the Member. In the present case, all parties have agreed to the penalty with full knowledge of the facts and consequences.