Discipline Committee of the Association of Professional Engineers of Ontario (PEO)
DISCIPLINE COMMITTEE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)
Indexed as:
The Association of Professional Engineers of Ontario (PEO) v Taha and Gad Technology Inc., 2019 ONAPE 13
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 Ali D. Taha P. Eng. a member of the Association of Professional Engineers of Ontario and Gad Technology Inc., holder of a Certificate of Authorization.
BETWEEN:
The Association of Professional Engineers of Ontario (PEO)
-and-
Taha and Gad Technology Inc.
PANEL MEMBERS:
Stella Ball, LL. B.
CHAIR
James Amson, P. Eng.
MEMBER
Paul Ballantyne, P. Eng.
MEMBER
Michael Chan, P. Eng.
MEMBER
Robert Willson, P. Eng.
MEMBER
Hearing Date(s):
2018-09-24 and 2018-09-25
Decision Date:
2019-05-01
NAME OF LAWYER
Leah Price, Counsel for the Association of Professional Engineers of Ontario (PEO)
NAME OF LAWYER
Member and Certificate of Authorization not represented by Counsel
NAME OF LAWYER
Edward Marrocco, Independent Legal Counsel to the Tribunal
DECISION AND REASONS
This Panel of the Discipline Committee met to hear this matter at the offices of the Association of Professional Engineers of Ontario (the “Association”) in Toronto.
The Allegations
The Statement of Allegations, dated September 20, 2017, alleges that Ali D. Taha and GAD Technology Inc. are guilty of professional misconduct as defined in the Professional Engineers Act and its Regulation 941. It states:
Ali Taha is a professional engineer licensed pursuant to the Professional Engineers Act. Taha’s training and experience is primarily in the field of mechanical engineering.
At all material times, GAD Technology Inc. (“GTI”) held a Certificate of Authorization, and Taha was the individual taking responsibility for engineering services provided under the C of A.
The complainant, Snehal Pandya, was an officer of Infinite kWh Inc. (“IKI”), a solar energy company.
In or prior to March 2010, IKI retained Taha and GTI to design a solar tracking device intended to track the path of the sun from sunrise to sunset to aid solar panel efficiency. The scope of work was to design and build a “functional prototype” of the device, which either expressly or impliedly included a consideration of wind loads.
In or about March 2010, Taha delivered to IKI unsigned, unsealed drawings for the prototype. The design did not adequately account for expected wind loads.
In or about June 2010, Taha completed production of the prototype at GTI’s premises based on the drawings delivered in or about March 2010. Following this, IKI requested that GTI produce three more units.
On or about August 1, 2010, Taha installed one of the prototypes at the property of an IKI customer in or near Acton, Ontario. IKI installed the three additional prototypes on the same property throughout August and/or September 2010.
On or about August 3, 2010, IKI notified Taha of a bending failure of a supporting member of the structure of one of the units at a reported wind speed of about 40 km/h.
On or about September 4, 2010, IKI’s customer reported to IKI a second failure of one of the units at a wind speed of about 50 km/h.
IKI’s customer noted additional failures on one or more of the prototypes between October 2010 and April 2011 at wind speeds of approximately 30 - 80 km/h.
It is, therefore, alleged that Taha and GTI are guilty of professional misconduct as follows:
a. Creating a design for a solar tracking device prototype 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. Creating a design for a solar tracking device prototype 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. Undertaking work in the field of structural design that the practitioner was not competent to perform by virtue of the practitioner’s training and experience, amounting to professional misconduct as defined by section 72(2)(h) of Regulation 941;
d. Undertaking work in a manner that would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.
Plea of the Member and/or Holder
Mr. Taha denied the allegations on his own behalf and on behalf of GTI.
Overview
Mr. Taha has been licensed as a professional engineer since 2002. He holds a Bachelor of Science in Mechanical Engineering (1988), a Master of Science in Applied Mechanical Engineering (1994), and a Master of Science in Mechanical Engineering (2005). Between 2007 and 2013, Mr. Taha was listed as the professional engineer taking responsibility for the services provided by GTI, which held a Certificate of Authorization during that same period. Although GTI ceased to hold a Certificate of Authorization in 2013, section 22.1 of the Professional Engineers Act gives the Association continuing jurisdiction over GTI and over Mr. Taha as the holder of GTI’s Certificate of Authorization in respect of any professional misconduct referable to 2007 through 2013.
The focus of this contested hearing was whether Mr. Taha’s design for the solar tracking device prototype failed to meet the standard of a reasonable and prudent professional engineer. The Association called three witnesses: Mr. Pandya; Ms. Eva Papp, the customer on whose property the solar tracking system in question was installed; and Mr. Daria Khachi, an expert in structural engineering. Mr. Taha testified in his own defence. Most of the evidence tendered by the parties was contained in documents, including: email communications between Mr. Taha and Mr. Pandya, and between Ms. Papp and Mr. Pandya; quotes, invoices, purchase orders; and the two sets of drawings for Mr. Taha’s design. Although Mr. Taha denied all of the allegations in the Statement of Allegations at the outset of the hearing, there were many facts that he admitted or did not dispute during the hearing; these include paragraphs 1 through 4 and 6 through 10 of the Statement of Allegations as set out in the evidence summarized below.
The Evidence
Examination-in-Chief of Ms. Eva Papp
The Association called Ms. Papp, P.Eng., as its first witness. Ms. Papp testified that, in 2010, she signed a contract with IKI for the installation of an energy-generating solar tracking system on her rural property where she lived with her husband, three children and her mother. The contract was for $90,000.00, plus HST of $11,700.00, and it was signed by Mr. Pandya on behalf of IKI. The contract was undated but indicated a proposed installation date of May 15, 2010. IKI installed the first of four units in May or June 2010, and the remaining three units by the end of August.
Ms. Papp stated that, shortly after the units were put into energy production, starting in September 2010, she began to notice problems: bolts and screws were shearing off, parts of the frames were starting to bend, and the units made squeaking noises. She emailed Mr. Pandya about these problems in October 2010. In response, Mr. Pandya decreased the angles of the units to reduce the wind forces and overall stress on the system. However, Ms. Papp testified that the problems persisted and worsened as windstorms continued over the next month. By November 2010, three of the four units were damaged. In the following months, one of the units rotated out of control, the entire motor fell off another unit and, by February 2011, three of the four units had fallen or broken completely. Ms. Papp testified that the fourth unit, the sole unit left standing, was the only one producing energy. Ms. Papp stated that the problems with the units persisted, and the units appeared to be falling apart. She concluded by April 2011 that the failing system was unsafe and unsalvageable, and she shut it down. She then found another company that installed a new system.
Cross-Examination of Ms. Papp by Mr. Taha
During Mr. Taha’s cross-examination of Ms. Papp, she testified that Mr. Pandya did not tell her that the units IKI installed were a prototype. She stated that she purchased a product with specifications as set out in the IKI quote Mr. Pandya provided to her on March 2, 2010.
Questions from the Panel for Ms. Papp
The Panel asked Ms. Papp whether she expected to see and whether she did see professional engineering drawings for the system she purchased from IKI. Ms. Papp responded that she insisted to Mr. Pandya that the units be designed properly, and Mr. Pandya told her he would hire someone to design his new idea. She added that Mr. Pandya showed her draft drawings of the units which bore the IKI logo, but that he was secretive and wanted to keep the proprietary rights of the drawings. When asked whether she saw a building permit for the installation of the system, Ms. Papp stated that she did not, and that Mr. Pandya told her it was not required. She added that she understood the system she purchased from IKI would meet the wind specifications of 120 km/h.
Examination-in-Chief of Mr. Pandya
The second witness called by the Association was Mr. Pandya, who testified that he holds a Bachelor of Science in Physics and a Master of Business Administration, but he is not a professional engineer. He stated he is the President of IKI, a renewable energy company he founded in 2010 to offer solar-powered solutions and favourable returns under the Green Energy Act.
Mr. Pandya stated that, in March 2010, he communicated with Mr. Taha about GTI providing the mechanical design for Ms. Papp’s system. He stated that the racking structure for the units and the sun-mounting device for the system would be Mr. Taha’s exclusive responsibility, while he would retain a civil engineer to design the foundation and an electrical engineer to provide and integrate the electrical component for the tracking device. Mr. Pandya intended to retain the ownership of GTI’s design and the associated intellectual property for IKI so that he could have the system mass-marketed and mass-manufactured. He testified that this was the reason that all of the drawings Mr. Taha provided to him, both the first and second sets, bore the IKI logo. When asked by counsel for the Association whether he discussed signing or sealing the drawings with Mr. Taha, Mr. Pandya initially said that he expected and assumed that any professional engineer would stand by their specifications and sign and seal their drawings when delivering a product design. He added that Mr. Taha refused to deliver signed and sealed drawings. Mr. Pandya acknowledged that Mr. Taha said his calculations were rough estimates and that only after his design was proven would he provide Mr. Pandya with sealed drawings.
Regarding the fabrication process, Mr. Pandya stated that some components were prepared in GTI’s facility, while others came from a third-party facility. Mr. Pandya stated that the first unit was assembled in GTI’s facility and then disassembled and delivered to Ms. Papp’s property. Mr. Taha attended the site with Mr. Pandya’s crew to demonstrate the assembly of the unit, as he did not provide assembly instructions. Mr. Pandya testified that, after that attendance, Mr. Taha attended on-site, as needed, if there was a problem. Mr. Pandya testified that he reported failures of the units to Mr. Taha on August 3, 2010 following a recorded wind speed of 40 km/h at the property, and on September 4, 2010 following a recorded wind speed of 50 km/h. Mr. Pandya believes that Mr. Taha attended the site on August 3, 2010 but took no steps to address a rod on one of the units that was bent. Mr. Pandya testified that five further failures of the units occurred as follows, and as reflected in his email communications with Ms. Papp that were tendered as evidence: on October 10, 2010, following a recorded wind speed of 50 km/h, a linear actuator disengaged and fell to the ground; on November 18, 2010, following a recorded wind speed of 60 km/h, three horizontal bars on the units were bent and a component of one unit snapped off and hit the solar panel; in January 2011, following a recorded wind speed of 30 km/h, one of the units was moving excessively and bolts were shearing off; on February 19, 2011, following a recorded wind speed of 75-80 km/h, one unit collapsed; and in April 2011, following a recorded wind speed of 65 km/h, another unit broke and Ms. Papp shut the system down as unsafe. Mr. Pandya reviewed various photos entered as exhibits, which showed damage to the structure and solar panels after the November 18, 2010 incident and the collapse of one unit after the February 19, 2011 incident.
Mr. Pandya testified that although he notified Mr. Taha about the various problems with the units, Mr. Taha did not assist or respond adequately. Mr. Pandya felt that there was no point in discussing the problems and major structural deficiencies of the units with Mr. Taha because Mr. Taha believed that the scope of his work ended with his delivery of the first unit. His impression was that Mr. Taha had no interest in resolving the issues other than to suggest redesigning the system at the same or a higher cost to IKI.
Mr. Pandya testified that he sued Mr. Taha in Small Claims Court, but that he was not successful because he did not have a professional engineering assessment. He stated that he decided to take the matter as a business loss and move on.
Cross-Examination of Mr. Pandya
Mr. Pandya confirmed that he did not tell Ms. Papp that he had sold her a prototype rather than a finished product. He stated that he ordered a prototype because it was supposed to be a working prototype for a customer that did not exist, so he could not call it an existing tested product. He stated that he expected the prototype to work as per the specifications that Mr. Taha provided.
Mr. Pandya acknowledged that the GTI quote of March 15, 2010 stipulated that “aftermarket service” was not covered. He also confirmed he understood that once the materials for the units left GTI’s facilities, Mr. Taha was not liable. Mr. Pandya stated that he had not anticipated paying Mr. Taha more money to fix deficiencies in the design of the units, but that Mr. Taha expected more compensation. Mr. Pandya testified that Mr. Taha had performed remedial welding for one of the units following the problems in the fall of 2010. Mr. Pandya did not recall whether he had told Mr. Taha the destination for the units, but Mr. Taha knew it was within Ontario, and learned the location the day that they used Mr. Taha’s truck to transport and install the first unit.
Mr. Pandya acknowledged that, on February 14, 2011, he emailed Mr. Taha to say that IKI would be claiming a Scientific Research and Experimental Development credit on its tax returns for the tracker design of the units. In that email, Mr. Pandya asked Mr. Taha to assist IKI in this effort by answering questions about his design approach from a consulting company IKI had hired to assist in claiming the federal grant. Mr. Pandya also admitted that, on March 22, 2011, he was communicating with Mr. Taha about exploring a licensing and manufacturing proposal for Mr. Taha’s design, and trying to sell the design to a company, while the system was failing in the field.
Mr. Pandya stated that, because he is not a professional engineer, he does not know what the law requires professional engineers to do. When asked about a building permit, Mr. Pandya stated that he did not need to obtain one. He stated that a permit from the local utility was the primary requirement under the Green Energy Act, and he obtained that permit from Milton Hydro for tying Ms. Papp’s system into its distribution network. He also hired a master electrician for the Electrical Safety Authority inspection that was performed. When asked who was the engineer of record for Ms. Papp’s project, Mr. Pandya stated there was none.
Examination-in-Chief of Daria Khachi
The Association called Mr. Daria Khachi, M.Eng., P.Eng., as an opinion expert in structural engineering. Mr. Khachi’s company profile, tendered as evidence, indicated he has over 29 years of experience in the design of structures, including three recent projects in three cities designing aluminum racking systems for over 15,000 square metres of PV panels. Mr. Taha consented to having Mr. Khachi qualified as an opinion expert in structural engineering for the hearing. Mr. Khachi testified that he was retained by the Association to conduct an independent review of the adequacy of Mr. Taha’s design, in accordance with a letter of instruction dated December 19, 2014. Mr. Khachi’s report, dated September 12, 2016, was based on his review of Mr. Taha’s first set of drawings for the design of the first unit, a ground-mounted, racking structure with horizontal single axis tracking.
Regarding his design assumptions set out at page 708 of his report, Mr. Khachi stated that the Ontario Building Code and the National Building Code of Canada (“NBCC”) require that structures be designed to resist wind loads of one-in-50-year hourly wind pressures, based on site-specific data recorded by Environment Canada, modified by a number of inflationary factors. The additional wind factors provided in the NBCC that modify the design wind pressure are not appropriate to be applied to a solar panel mounting structure. Accordingly, Mr. Khachi analyzed Mr. Taha’s design using the American Society of Civil Engineering Minimum Design Load of Buildings and Other Structures (“ASCE 7-05”) as a reference to obtain adequate pressure coefficients and wind factors. Mr. Khachi’s report states that ASCE 7-05 was in effect during 2009-2010 when Mr. Taha designed the solar panel mounting structure.
Mr. Khachi testified that he used the S-FRAME software for his design analysis and proceeded based on the assumptions he sets out at pages 708 and 709 of his report. Mr. Khachi found, in his report, that 60% of the members in Mr. Taha’s design were identified as being over 100% of capacity and would fail. He noted that one member was calculated by S-FRAME as being 1586% of capacity under full loading, while another was calculated at 2505%. Mr. Khachi testified that pushing a member beyond its capacity would cause it to bend and collapse, resulting in catastrophic failure. He stated that, knowing how perilous some of the members in the structure were and that a structure is only as solid as its weakest link, there was no use in calculating the capacity of the connections since the structure would eventually fall to the ground.
Mr. Khachi stated that the starting point for any prudent engineer was getting the proper design requirements. He concluded that Mr. Taha’s design used incorrect design loads, approximately one-third of what was required, resulting in the premature failure of almost 60% of the members. He also concluded that Mr. Taha’s design had a potential impact on the safety of property and the public.
When asked whether the absence of an engineering seal on the designs changed his conclusion, Mr. Khachi stated that, in his opinion, once designs are released to the public, they become the responsibility of the engineer, regardless of whether they are sealed and signed. On the issue of the design being a prototype, Mr. Khachi stated that every building is a prototype as it is “one of”, but the engineer has to get it right. He added that the fact that the units were built and collapsed at winds of 50 km/h proves that Mr. Taha’s design was far off from the required design.
Cross-Examination of Mr. Khachi
Mr. Taha asked Mr. Khachi why he did not include support from the solar panels in his design analysis, or address the actuator, which Mr. Taha felt was one of the main defects in the project. Mr. Khachi stated that he did not include the panels because the panel manufacturer states they should not be credited in load calculations. Mr. Khachi added that any failure of the actuator was not a relevant factor given the independent failure of the structural members.
Mr. Taha also questioned Mr. Khachi about the numbers he used for his analysis, the 140 km/h winds, when the average in Ontario is 100 km/h, and whether his load numbers were exaggerated. Mr. Khachi acknowledged that his number of 144 km/h is 16% higher than Mr. Taha’s number of 120 km/h because he was careful to take data from Canada, the United States and the European Union, and used the U.S. data for consistency. He stated his load numbers were not unrealistic. Rather, they were mandated by the NBCC as a minimum; an engineer can use their judgement to increase the load numbers, but they cannot decrease them. Mr. Khachi stated that even reducing the numbers by 50% would result in 1250% overstress for the weakest member, a significant overstress.
Examination-in-Chief of Mr. Taha
Mr. Taha testified that the agreement between GTI and IKI was for GTI to design a prototype to be tested in the field, get feedback, and then move to implementing a product that could be released to the public. He made it clear in the GTI quote he provided to IKI that the cost of the prototype would cover only the work GTI did inside its premises, and not any other work. He made it clear to Mr. Pandya, from the beginning of the project, that he would not seal his drawings unless sufficient testing and analysis was properly done. He stated that he warned Mr. Pandya on many occasions that the prototype was not ready to be released to the public.
Mr. Taha testified that despite the agreement to have GTI manufacture the prototype and provide it to IKI for reliability and durability testing in the field Mr. Pandya and IKI changed the plan. Mr. Taha stated that IKI asked GTI to manufacture additional structures and have all of the units installed and tested at the same time. Mr. Taha stated that after helping deliver and assemble the first prototype, he provided over 60 hours to IKI without compensation, assisting Mr. Pandya through emails, meetings, consultations and site visits. Mr. Taha testified that, in the late summer and into the fall of 2010, he discussed the various defects with Mr. Pandya and the means for resolving them to avoid future serious problems and to prolong the life span of the prototype. Mr. Taha stated that, in November 2010, he suggested dismantling the system to Mr. Pandya so that it could be analyzed in order to implement solutions the following spring. However, Mr. Pandya and IKI implemented their own solutions instead.
Cross-Examination of Mr. Taha
During his cross-examination, Mr. Taha testified that this was his first time building solar racks. When asked by Ms. Price about his lack of experience in structural engineering, Mr. Taha stated that he completed a Masters thesis in automotive structure and that this gave him experience in stress analysis. Mr. Taha stated that he accepted Mr. Pandya’s evidence that he told Mr. Pandya to retain a structural engineer to do the posts for the units and that there were no problems with the posts. Mr. Taha acknowledged that GTI was responsible for the manufacturing of the units, and the structural engineering and design analysis of the units. He accepted that GTI was responsible for the welding problems that resulted because he was supposed to provide instructions for the manufacturing of the units, including welding specifications.
Regarding his design, Mr. Taha defended it and denied that the collapse of one of the units was due to his design. He asserted that it was, instead, due to IKI’s failure to assemble the units in accordance with his instructions. Mr. Taha also asserted that Mr. Khachi inflated his numbers in his report; however, Mr. Taha acknowledged that, even though he had received the report in 2016, he did not provided any calculations to the Association or during the hearing to support his assertion.
Mr. Taha admitted that when he attended Ms. Papp’s property to deliver and assemble the first unit, he knew the units would be used there and expressed no concerns at the time. Mr. Taha testified that it was only in November 2010 that he stated the system should be dismantled, although he also acknowledged that he had no documentary evidence of this. He confirmed that he repeated his suggestion to dismantle in an email to Mr. Pandya dated May 26, 2011.
When asked who was responsible for ensuring the safety of his design, Mr. Taha accepted that he was responsible if there was a problem with this design, and he should fix it. He stated he was aware of his obligations as a professional engineer and his first ethical duty to have regard to public welfare and ensure his designs are safe. He accepted that he should do everything in his power to prevent things from collapsing and falling off, like the motor did on one of the units which he saw. He acknowledged that three of the units had problems and there was a collapse. He admitted some failure and accepted that someone could have been hurt if they had been near the failing unit.
Questions for Mr. Taha from the Panel
The Panel asked Mr. Taha about the fabrication and welding of the units. Mr. Taha confirmed that he did not have any specifications for the welding and components that would be galvanized, and that the welding was done externally. Mr. Taha stated there was no quality control done because his design was a prototype and he was just trying to prove his idea. When asked why he did not specify that a welding engineer review the welds of the unit to ensure they were designed properly and that the weld met the design requirements, Mr. Taha responded that it was not necessary to do that until the production stage; his involvement was just to prove the idea as a prototype.
The Panel asked Mr. Taha why he did not express any concerns about the prototype being in a potentially hazardous location in a residential area when he found out where it was being installed. Mr. Taha stated that he was initially told the installation would be in a rural area, and the first unit was installed about 50 metres away from the home. He stated that he assumed Mr. Pandya would have conducted a safety assessment and would have told Ms. Papp that a barrier was required to keep people away. Mr. Taha admitted to the Panel that he feels he should have asked Mr. Pandya about the safety and risk assessment, rather than assuming Mr. Pandya would conduct one. His only excuse for not mentioning it was that the design was a prototype and they were still in the process of engineering.
Decision
The Association bears the onus of proving the allegations on a balance of probabilities. This is the standard of proof that the Panel has applied. In arriving at its decision, the Panel has relied on evidence that it found to be clear, convincing and cogent.
Having considered the evidence, the onus and the standard of proof, the Panel finds Mr. Taha and GTI guilty of professional misconduct as alleged in subparagraphs 11(a) through (d) of the Statement of Allegations.
Reasons for Decision
Mr. Taha and GTI were negligent in creating a design for a solar tracking device prototype 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.
Section 72(2)(a) of Regulation 941 states:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(a) negligence[.]
“Negligence” is defined in section 72(1), which reads, in part:
“negligence” means an act or an omission 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.
The Panel accepts the evidence of Mr. Khachi that Mr. Taha and GTI did not identify the proper design parameters for his solar tracking device prototype and used incorrect design loads that were less than what was required. In addition to the evidence in Mr. Khachi’s report, Mr. Taha’s failure in this regard is evident from the fact that the units, built from Mr. Taha’s design, experienced multiple failures after being installed on Ms. Papp’s property, as shown in numerous photos and described in various emails contained in the documentary evidence. A reasonable and prudent practitioner would have identified the proper design parameters even for a prototype solar tracking device. Failing to do so was negligent. For these reasons, the Panel finds Mr. Taha and GTI guilty of professional misconduct as defined by section 72(2)(a) of Regulation 941.
Mr. Taha and GTI 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.
Section 72(2)(b) of Regulation 941 defines professional misconduct as a “failure to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible”.
The evidence before the Panel was that Mr. Taha and GTI did not make any provision for the safeguarding of life, health or property with respect to his design. Initially, Mr. Taha testified that he believed public safety concerns for the design were the responsibility of Mr. Pandya and IKI. Mr. Taha later accepted that he should have discussed safety concerns with Mr. Pandya, despite the fact that his agreement with Mr. Pandya did not address them.
As the engineer who designed the prototype, Mr. Taha should have made reasonable provision for the safeguarding of life, health or property of a person who may be affected by it, particularly once he learned that the prototype was installed on Ms. Papp’s residential property. The Panel finds Mr. Taha’s and GTI’s failure in this regard to be professional misconduct as defined by section 72(2)(b) of Regulation 941.
Mr. Taha and GTI undertook work in the field of structural design that Mr. Taha was not competent to perform by virtue of his training and experience, amounting to professional misconduct as defined by section 72(2)(h) of Regulation 941.
Section 72(2)(h) of Regulation 941 defines professional misconduct as “undertaking work the practitioner is not competent to perform by virtue of the practitioner’s training and experience”.
Mr. Taha is a mechanical engineer with no prior experience designing a solar rack structure. Yet, Mr. Taha was solely responsible for the drawings and design of the prototype. The evidence was clear that Mr. Taha’s first attempt at designing a solar rack structure was based on a fraction of the design strength that a prudent professional engineer would require and resulted in three of the four units making up the structure failing within a few months of their installation.
The Panel finds that these failures establish that Mr. Taha undertook structural design work that he was not competent to perform by virtue of his training and experience, constituting professional misconduct as defined by section 72(2)(h) of Regulation 941.
Mr. Taha and GTI undertook work in a manner that would reasonably be regarded by the engineering profession as unprofessional, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.
Section 72(2)(j) of Regulation 941 defines professional misconduct as “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 professional as disgraceful, dishonourable or unprofessional”.
The Panel finds Mr. Taha’s and GTI’s conduct relevant to the practice of engineering was unprofessional.
First, Mr. Taha should have taken responsibility for the failure of his design, but he did not. He blamed the failures of the units on the various actions or inactions of IKI and Mr. Pandya. Mr. Taha also took the position that, because he agreed with Mr. Pandya to design a prototype for IKI that IKI would test before offering it to the public, he did not need to seal his drawings or take necessary steps to ensure the safety of the system. The Panel does not accept this. Having engaged in the practice of professional engineering in designing the prototype, Mr. Taha was ultimately responsible for his design, and his responsibility extended to the installation of the units on Ms. Papp’s property. As he acknowledged during cross-examination, Mr. Taha should have discussed safety issues with Mr. Pandya. He should have made reasonable provision for the safeguarding of the life, health and property of people who may have been affected by his design.
Second, Mr. Taha also should have been more professional in his dealings with Mr. Pandya. Although the evidence shows that Mr. Pandya employed questionable business and marketing strategies in selling an untested and unsafe system to Ms. Papp and then tried to obtain federal research grants and credits for the system while it was failing, the Panel has no jurisdiction to deal with Mr. Pandya’s behaviour. The Panel can only address Mr. Taha’s role in this matter, which was to allow himself to be used by an individual motivated by profit. Mr. Taha, as the professional engineer with ethical and professional duties to fulfil in his practice, should have protected his work from being used in the dangerous and opportunistic way that it was.
For these reasons, the Panel finds Mr. Taha and GTI undertook work in a manner that would reasonably be regarded by the engineering profession as unprofessional, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.
Conclusion
Having found Mr. Taha and GTI guilty of professional misconduct under sections 72(2)(a), (b), (h) and (j) of Regulation 941, the Panel will invite submissions from the parties on penalty and, accordingly, reconvene this matter on a date to be determined.