Association of Professional Engineers of Ontario (PEO) v Hum et al, 2018 ONAPE 5

Date: 2018-08-28

Citation: Association of Professional Engineers of Ontario (PEO) v Hum et al, 2018 ONAPE 5

DISCIPLINE COMMITTEE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)

Indexed as:

The Association of Professional Engineers of Ontario (PEO) v Moon D. Hum P.Eng. and DHM Engineering Ltd., 2018 ONAPE 5

IN THE MATTER OF 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 Moon D. Hum, P.Eng., a member of the Association of Professional Engineers of Ontario and DHM Engineering Ltd., holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Moon D. Hum and DHM Engineering Ltd.

PANEL MEMBERS:

Albert Sweetnam, P. Eng.

CHAIR

Michael Chan, P. Eng.

MEMBER

Kamal Elguindi, P. Eng.

MEMBER

David Germain, J.D.

MEMBER

Warren Turnbull, P. Eng.

MEMBER

Hearing Date(s):

2018-07-19

Decision Date:

2018-08-28

NAME OF LAWYER

Leah Price, Counsel for the Association of Professional Engineers of Ontario (PEO)

NAME OF LAWYER

Moon D. Hum, P.Eng, - self-represented

NAME OF LAWYER

Aaron Dantowitz, Independent Legal Counsel to the Tribunal

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 MOON D. HUM, P.ENG., a member of the Association of Professional Engineers of Ontario, and DHM Engineering Ltd., a holder of a Certificate of Authorization.

DECISION AND REASONS

The Panel of the Discipline Committee met to hear this matter on the 19th of July, 2018 at the offices of the Association of Professional Engineers of Ontario at Toronto.

The Allegations

The allegations against Moon D. Hum (“Hum”), as stated in the Statement of Allegations dated December 14, 2017, are as follows:

1. At all material times, Hum was a professional engineer licensed pursuant to the Professional Engineers Act.

2. At all material times, DHM was a company specializing in the design of HVAC systems, air dispersion modeling, NPRI/Reg 127 reporting, TRA reporting and pre-start health and safety reviews, located in Toronto, Ontario.

3. At all material times, DHM held a Certificate of Authorization, and Hum was the individual taking responsibility for the professional engineering services provided under the Certificate of Authorization. Hum was the only licence holder at DHM, as well as its President.

4. In the summer of 2015, the Respondents were retained by Florian Sunrooms Toronto Inc. to provide heating/cooling load calculations for a solarium that Florian had been retained to construct for the complainant, Ms. Shaolin Lu (“Lu”). The original plan was for the exterior wall of Lu’s home to be removed so that the solarium would be continuous with the interior of the house.

5. The Respondents provided the heating/cooling load calculations under seal dated August 24, 2015 (“the Original Calculations”). The Original Calculations were submitted to the City of Mississauga (“the City”) as part of the permit process and called for a minimum of 39,404 BTU/HR for cooling and a minimum of 14,480 BTU/HR for heating. The equipment specified in the design submitted by the Respondents and stamped by Hum was a 12,600-36,400 BTU/HR Cooling/11,400-43,000 BTU/HR Heating, electric heat pump, wall mounted, indoor HAC-1 unit.

6. After the Respondents had completed the Original Calculations, but before the solarium was built, Lu decided to change the design. Specifically, Lu decided to keep the home’s exterior wall and build the solarium as an attached structure to the house (“the Design Change”).

7. The solarium was completed in the Spring of 2016. Lu was dissatisfied with various aspects of the solarium, including the significant underperformance of the HVAC unit. Accordingly, she complained to the City on the basis of the original permit that had been obtained prior to the Design Change.

8. In the context of the City’s review of Lu’s complaint, the Respondents provided new calculations to reflect the Design Change, under cover of letter on DHM’s letterhead, dated June 30, 2016 (“the Revised Calculations”). The Revised Calculations called for a minimum of 15,487 BTU/HR for cooling and a minimum of 12,849 BTU/HR for heating. The Revised Calculations included significantly lower Cooling Load Factors and did not account for some of the surface area of the solarium structure, including the ceiling.

9. The June 30, 2016 letter stated, among other things, that Hum had “reviewed the heat gain and heat loss calculations done by Mr. Danny Maglaque, CET, at our firm”. The concluding sentence of the letter stated: “In summary, I feel our load calculations are reasonable and the design is in compliance with the OBC.”

10. The City wrote to Lu on or about July 14, 2016 to advise her that the matter would be closed, based on the explanations that had been provided by Hum.

11. PEO subsequently retained an independent engineer, John A. Harris, P.Eng. (“the Expert”) to review and comment on the calculations submitted by the Respondents. The Expert concluded that both the Original and the Revised Calculations contained significant errors. Among other things, the Respondents had miscalculated the surface areas of the solarium structure and used incorrect Cooling Load Factors.

12. In his response to the Expert’s Report, Hum admitted that the Revised Calculations had overlooked a significant solar gain, with the result that the cooling load was underestimated. Hum attributed the error to Mr. Danny Maglaque, and stated that he had not checked Maglaque’s work before stamping the Revised Calculations.

13. Based on these facts and others, which have or will be disclosed, it is alleged that:

a) The Original and the Revised Calculations were inaccurate and/or inappropriately calculated in that they:

(i) failed to comply with the standards or codes applicable to the design of the system;

(ii) reflected errors, omissions or deficiencies that a reasonable and prudent practitioner would not be expected to make; and

(iii) failed to meet the standards of practice.

b) The Respondents either:

(i) signed and sealed the heating/cooling calculations prepared by Mr. Danny Maglaque, without checking them; or

(ii) checked the Original and/or Revised Calculations prepared by Mr. Danny Maglaque, but failed to notice that they were inaccurately and/or inappropriately calculated.

c) The Respondents failed to take reasonable steps to verify the accuracy and/or appropriateness of the heating/cooling design plans, including the Original and/or Revised Calculations, when the accuracy and/or appropriateness of those plans and/or calculations was being questioned.

Based on the evidence, the Complaints Committee alleged that Hum and DHM were guilty of professional misconduct as defined by Sections 72(2)(a), (d), (e) and (j) of Regulation 941. The matter was referred to the Discipline Committee on December 14, 2017.

Counsel for the Association advised that the parties had reached an Agreed Statement of Facts with respect to the allegations set out in the Statement of Allegations which was entered as evidence.

Plea by Member and Holder

Moon D. Hum, P.Eng. admitted to certain of the allegations as set out in the Agreed Statement of Facts (reproduced below), on his own behalf and on behalf of DHM Engineering Ltd. 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 stated as follows:

1. The Respondent, Moon Donald Hum, P.Eng., (“Hum”) is a professional engineer licensed under the Professional Engineers Act (the “Act”). Hum is the President and the engineer taking responsibility for the professional engineering services provided by the Respondent, DHM Engineering Ltd. (“DHM”), which holds a Certificate of Authorization under the Act.

2. In the Summer of 2015, the Respondents were retained by Florian Sunrooms Toronto Inc. to provide heating/cooling load calculations for a solarium that Florian had been retained to construct for the complainant, Ms. Shaolin Lu (“Lu”). The original plan was for the exterior wall of Lu’s home to be removed so that the solarium would be continuous with the interior of the house.

3. Hum signed and sealed the heating/cooling load calculations on August 24, 2015 (“the Original Calculations”). The Original Calculations were submitted to the City of Mississauga (“the City”) as part of the permit process, and the City relied upon them in granting the permit. The Original Calculations erroneously used R-40 values for the solarium’s glass ceiling. The correct value for all the glass was R-4. The Original Calculations called for a minimum of 39,404 BTU/HR for cooling.

4. Lu decided to retain the home’s original exterior wall, and to have the solarium built as a separate (attached) structure. No new building permit was required, and no new calculations were done. After the solarium was built, Lu complained to the City about, among other things, significant underperformance of the HVAC unit, including excessive heat gain in the solarium.

5. In the context of the City’s review of Lu’s complaint, Hum provided new load calculations to justify the design as built (the “Revised Calculations”), under cover of a letter dated June 30, 2016, on DHM letterhead, in which he stated, among other things:

• That he “reviewed” the calculations, which had been done by Danny Maglaque (“Maglaque”), CET.

• That “all factors used in calculating solar gain are reasonable”.

• That “there is no ceiling consideration in the detached Sunroom. It was considered in the extension.”

• That “the load calculations are reasonable and the design is in compliance with the OBC.”

A copy of this letter is attached to the Agreed Statement of Facts as Schedule “A”.

6. The Revised Calculations assigned an R-4 value to the glass. However, the Revised Calculations included significantly lower (incorrect) Cooling Factors and did not account for some of the surface area of the solarium structure, including the ceiling. The Revised Calculations called for a minimum of only 15,487 BTU/HR for cooling, even though the dimensions of the solarium remained unchanged. This value matched the capacity of the unit that was installed by Florian.

7. The City wrote to Lu on or about July 4, 2016 to advise her that the matter would be closed based on the explanations that had been provided by Hum. Lu filed her complaint in August 2016. A copy of the Complaint, with attachments, is attached to the Agreed Statement of Facts as Schedule “B”.

8. A copy of the Complaint was provided to Hum. In his initial response to the Complaint dated September 8, 2016, Hum asserted that the Complainant’s complaint concerning the Respondents’ work was “totally groundless”.

9. PEO subsequently retained an independent engineer, John A. Harris, P.Eng. (the “Expert”) to review and comment on the calculations submitted by the Respondents. The Expert concluded that both the Original and the Revised Calculations contained significant errors. Among other things, the Respondents had miscalculated the surface areas of the solarium structure and used incorrect Cooling Load Factors. The Expert concluded, among other things, that “by miscalculating the surface areas of the structure and using incorrect Cooling Load Factors”, the Respondents had not met the standard expected of a reasonable practitioner under the circumstances. A copy of the Expert’s Report dated May 13, 2017, with its Appendices, is attached to the Agreed Statement of Facts as Schedule “C”.

10. The Expert’s Report was provided to Hum. In his response to the Expert’s Report, Hum finally admitted that the Revised Calculations had overlooked a significant solar gain, with the result that the cooling load was underestimated. Hum attributed the error to Maglaque, and stated that he had not checked Maglaque’s work before stamping the Revised Calculations, contrary to his assertions to the City in the June 30, 2106 letter referred to above.

11. In an email to the investigator dated May 29, 2017, Hum stated that he contacted the homeowner to offer to come to the site to “inspect the situation”. He further stated that the solution:

“will involve installing a larger, 3 ton cooling unit to replace the 11/2 ton. This cost will most likely be absorbed by my technician as he was the one who made the error. It will be a lesson for him.”

12. The Respondents admit that:

a) The Original and the Revised Calculations were inaccurate and/or inappropriately calculated, in that they:

(i) reflected errors, omissions or deficiencies that a reasonable and prudent practitioner would not be expected to make; and

(ii) failed to meet the standards of practice; and further admit that

b) Hum signed and sealed the heating/cooling calculations prepared by Mr. Danny Maglaque, without checking them, and failed to take reasonable steps to verify the accuracy and/or appropriateness of the heating/cooling design plans, including the Original and/or Revised Calculations, even after the issue was drawn to his attention, and the accuracy and/or appropriateness of those plans and/or calculations was being questioned.

13. By reason of the aforesaid, the parties agree that the Respondents, Hum and DHM, are guilty of professional misconduct under Section 28(2)(b) of the Act by reason of:

a) engaging in an act(s) or an omission(s) in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances, amounting to “negligence” and, as such, engaging in professional misconduct as defined in s. 72(2)(a) of Ontario Regulation 941; and

b) signing or sealing a final drawing, specification, plan, report or other document not actually prepared or checked by Hum and, as such, engaging in professional misconduct as defined in s. 72(2)(e) of Ontario Regulation 941.

The Respondents stated that they had independent legal advice, or 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 Moon D. Hum, P.Eng. and DHM Engineering Ltd. committed an act of professional misconduct as alleged in Paragraphs 14 (a) and (c) of the Statement of Allegations. Specifically, Hum and DHM are guilty of professional misconduct under Section 28(2)(b) of the Act by reason of:

a) Engaging in an act(s) or an omission(s) in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances, amounting to “negligence” and, as such, engaging in professional misconduct as defined in s. 72(2)(a) of Ontario Regulation 941; and

b) Signing or sealing a final drawing, specification, plan, report or other document not actually prepared or checked by Hum and, as such, engaging in professional misconduct as defined in s. 72(2)(e) of Ontario 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.

Penalty

Following the Panel’s decision to accept the Member’s 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, Hum and DHM shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of one (1) year;

b) 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, without reference to names;

c) Pursuant to s. 28(4)(d) of the Act, it shall be a term or condition on Hum’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”);

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

e) There shall be no order as to costs.

In support of the penalty agreement, Counsel for the Association referred to two previous decisions: Association of Professional Engineers of Ontario v. A Member (March/April 2004 edition of “Engineering Dimensions”) and Association of Professional Engineers of Ontario v. A Member (March/April 2007 edition of “Engineering Dimensions”). In both cases, the panels of the Discipline Committee considered various factors, including absence of subsequent incidents of misconduct and the Member’s admissions and cooperation with the association and determined that both matters should be published without reference to names.

In the present case, the Member has admitted the Association’s allegations, avoiding the cost of a full hearing. Further, the Association submitted that there was no technical competence issue in this case and no issue of public safety. Therefore, publication with names was not warranted.

Hum stated that he admitted the facts and allegations, and had nothing to add to the Association’s submissions with respect to the agreed 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, Hum and DHM shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of one (1) year;

b) 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, without reference to names;

c) Pursuant to s. 28(4)(d) of the Act, it shall be a term or condition on Hum’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”);

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

e) There shall be no order as to costs.

Reasons for Penalty Decision

Although the Panel had some concern with Clause (b) of the Joint Submission as to Penalty that requires the publishing of the finding and order without reference to names, the Panel acknowledges that this is a possibility that is provided for in the Act, and that the Panel’s discretion to interfere with a joint submission on penalty is limited.

The Panel concluded that the proposed penalty is reasonable and in the public interest. Hum 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 Hum lacked technical competence or posed a danger to the public. The Panel considered the two previous Discipline decisions referred by Counsel for the Association, and found that they provide reasonable guidance with respect to penalty.