Association of Professional Engineers of Ontario (PEO) v Pelow et al, 2019 ONAPE 15

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

Date: 2019-06-06

Citation: Association of Professional Engineers of Ontario (PEO) v Pelow et al, 2019 ONAPE 15

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Pelow et al, 2019 ONAPE 15

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 John P. Pelow, P. Eng., a member of the Association of Professional Engineers of Ontario, and Pelow Engineering, a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

John P. Pelow, P.ENG. and Pelow Engineering

PANEL MEMBERS: Anne Poschmann, P.Eng. CHAIR

David Germaine, J.D. MEMBER

Tim Kirkby, P.Eng. MEMBER

David Robinson, P.Eng. MEMBER

Robert Willson, P.Eng. MEMBER

Hearing Dates: 2018-10-26, 2018-10-27 and 2018-10-28

Decision Date: 2019-06-06

Release of Written: 2019-06-07

Reason:

NAME OF LAWYER Leah Price, Counsel for the Association (PEO)

NAME OF LAWYER J. Michael Hickey, Counsel for J. Michael Hickey (Licence Holder) and Pelow Engineering (Holder of Certificate of Authorization)

NAME OF LAWYER David P. Jacobs, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1. A panel to the Discipline Committee met at the Association of Professional Engineers of Ontario in Toronto on November 26, 27, and 28, 2018 to hear this matter.

2. The referral to the Discipline Committee, by the Complaints Committee decision dated February 14, 2018, included a Statement of Allegations based on a complaint filed on December 10, 2015. The referral was signed by Nancy Hill as Acting Chair of the Complaints Committee.

The Allegations

3. It was alleged that John P. Pelow, P.Eng. (“Pelow”) and Pelow Engineering (“Pelow Engineering”) were guilty of professional misconduct as defined in the Professional Engineers Act and R.R.O. 1990, Regulation 941 (“Regulation 941”), the particulars of which were set out in the Statement of Allegations dated February 14, 2018 and are as follows:

The Parties

1. Pelow has been licensed with PEO since 1992.

2. Pelow Engineering is the holder of a Certificate of Authorization (“C of A”). Pelow is the President of Pelow Engineering and is the engineer responsible for the professional engineering services provided under the C of A.

3. The complainant, Paul Nixon, was at all material times, the Chief Building Official of Loyalist Township (the “Township”).

Fusion Stone on Residence at 1376 Doyle Road, Bath, Ontario

4. On June 9, 2015, the owner of the single-family dwelling located at 1376 Doyle Road, Bath, Ontario submitted an Application for Permit to Construct or Demolish to the Township for the installation of Fusion Stone to the front of the dwelling (“Fusion Stone Project”).

5. The Ontario Building Code (“OBC”) does not specify the requirements for installation of Fusion Stone. As such, it is an “alternative solution” under Clause 1.2.1.1(1)(b) of the OBC and, pursuant to Clause 2.1.1.1., requires documentation of the applicable objectives, functional statements and acceptable solutions for the product and confirmation that the proposed alternative solution will achieve an acceptable level of performance.

6. The Township notified the owner that, in order to process the application, the owner would be required to provide acceptable engineering details for the installation of the Fusion Stone.

7. On or about June 15, 2015, the Township received a report from the Canadian Construction Materials Centre (“CCMC”) titled “Evaluation Report CCMC 14008-R Shouldice Fusion Stone” (“CCMC Report”).

8. The CCMC Report is a “proposed alternative solution” under Clause 2.1.1.1 of the OBC. The CCMC Report contained a section entitled “Conditions and Limitations”, which set out the conditions to be met in the dwelling and the construction, including, among other things, the use of 2x6 walls, and 3-ply top plates and 2-ply bottom plates (in some cases).

9. The Township required an engineer’s report that the Fusion Stone would be installed in accordance with the Conditions and Limitations set out in the CCMC Report, or an engineer’s report attesting to a different alternative solution.

10. Pelow provided a report to the Township dated July 2, 2015, which he sealed and signed. Pelow stated in full:

Based on a site visit and inspection of the existing structure, the following has been determined. The manner in which the building has been constructed and a review of the evaluation report of Shouldice Fusion Stone. It has been determined that the structure is capable of withstanding the superimposed loads, without adversely affected the structure. I trust that this satisfies your concerns.

(the “July 2, 2015 Report”)

11. This statement did not comply with the OBC.

12. The Association retained an independent expert who opined that the July 2, 2015 Report lacked justification. In particular, Pelow failed to provide a summary of his site visit and failed to indicate what and from where finishes were removed, and failed to record what structural elements and connections were observed in order to confirm whether the as-built conditions met the CCMC Report.

13. 13. By email dated July 10, 2015, Pelow advised the Township that, in his view, the proposed installation met the requirements of the CCMC Report and that the owner intended to install the stone to a maximum of 3’ and would “reinforce the wall if necessary”. The Association’s expert opined that this statement contradicts the previous assertion that the as-built structure was capable of withstanding the superimposed loads.

14. On July 29, 2015, the Township advised the homeowner that it would issue the permit if he agreed to meet all the requirements of the CCMC Report, which would require extensive renovation of the wall to which the Fusion Stone would be affixed.

15. The homeowner did not proceed with the permit application or the Fusion Stone Project.

Two-Level Deck at 21 Glenora Drive, Bath, Ontario

16. On September 28, 2015, the owner of the residence located at 21 Glenora Drive, Bath, Ontario applied for a building permit for a two-level deck to be constructed at the rear of her residence (the “Deck Project”). She provided ProDeck drawings from Home Depot along with her application.

17. The Township concluded that the application was incomplete and required, among other things, a site plan, footings information and a cross-section of the design. The owner provided a cross-section, a “sample site plan” and a “sample floor plan”. She also provided a document enclosing footing details which referenced the use of sono tubes. None of these documents were dated, signed or stamped.

18. The Township issued the permit on October 27, 2015 for the Deck Project. The Building Permit Application Additional Information Sheet that accompanied the permit required the installation of footings of 24x24x7” on all deck piers, or that “Bigfoot” footings must be used under the piers. This information sheet noted that the residence was constructed on engineered fill and that the excavation for solid bearing may require holes deeper than four feet. The permit also required the inspection of the footing prior to the pouring of concrete. The owner signed the list of required inspections.

19. On November 4, 2015, a Township building inspector attended the residence and observed that no footings had been placed under the sono tubes. The Township advised the owner’s contractor that footings were required unless the owner could demonstrate an exception under the OBC.

20. On or about November 5, 2015, Pelow submitted a sealed and signed letter to the Township, which stated in full:

Based on a site visit and calculations the proposed 10th diameter concrete footings for the desk at the rear of the dwelling are sufficient to withstand the superimposed loading (the “November 5, 2015 Report”).

21. As noted above, there were no footings. Rather, the sole support for the deck were 10” diameter concrete sono tubes. Pelow did not include any calculations with the November 5, 2015 Report.

22. On or about November 11, 2015, the Township issued an Order to Comply to the owner which required that all work on the Deck Project be stopped and that footings be placed as required by the OBC, or that the owner supply engineering design and calculations to show conformance with OBC 9.15.3.1. This order was issued after the Township inspected the project and determined that the sono tubes had been poured without the required footings

23. On November 12, 2015, Pelow sent the Township his hand-written calculations dated November 9, 2015 in support of the November 5, 2015 Report (the “November 9, 2015 Calculations”).

24. The Township obtained an independent review of Pelow’s November 5, 2015 Report and the November 9, 2015 Calculations, which opined that the November 5, 2015 Report and November 9, 2015 Calculations did not demonstrate compliance with the requirements of OBC. This report was provided to the owner on November 26, 2015. The owner and contractor redid the Deck Project with “Bigfoot” footings.

25. The Association retained an independent expert who opined that Pelow’s calculations used erroneous assumptions and did not demonstrate compliance with the OBC.

26. The use of 10th sono tubes alone was inadequate to ensure that appropriate load bearing capacity was not exceeded. As a result, Pelow’s November 5, 2015 Report and the November 9, 2015 Calculations were inconsistent with the requirements of Clause 9.15.3.1 of the OBC.

Specified Allegations

4. Based on these facts, it is alleged that Pelow and Pelow Engineering are guilty of professional misconduct under Section 72(2) of R.R.O. 1990, Regulation 941 (“Regulation 941”), as follows:

5. Pelow and Pelow Engineering were negligent, amounting to professional misconduct under Section 72(2)(a) of Regulation 941, in that they failed to maintain the minimum standards that a reasonable and prudent practitioner would maintain in the circumstances when:

a. They provided July 2, 2015 Report to the Township in respect of the Fusion Stone Project without providing a summary of the existing site conditions and without confirming that the proposed installation met the requirements of the OBC or the CCMC Report, as required by Clauses 1.2.1.1(1)(b) and 2.2.1.1 of the OBC;

b. They advised the Township on July 10, 2015 that the proposed installation of the Fusion Stone Project met the requirements of the CCMC Report when it did not; and

c. They provided the November 5, 2015 Report and the November 9, 2015 Calculations to the Township in respect of the Deck Project, opining that 10” diameter concrete “footings” were sufficient to withstand the superimposed loading, which was incorrect based on improper assumptions and/or contrary to the requirements of Clause 9.15.3.1 of the OBC.

28. Pelow and Pelow 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 that:

a. They provided the July 2, 2015 Report to the Township in respect of the Fusion Stone Project without providing a summary of the existing site conditions and without confirming that the proposed installation met the requirements of the OBC or the CCMC Report, as required by Clauses 1.2.1.1(1)(b) and 2.2.1.1 of the OBC; and

b. They provided the November 5, 2015 Report and the November 9, 2015 Calculations to the Township in respect of the Deck Project, opining that 10” diameter concrete “footings” were sufficient to withstand the superimposed loading, which was incorrect and based on improper assumptions and was, therefore, contrary to the requirements of Clause 9.15.3.1 of the OBC.

29. Pelow and Pelow 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 that:

a. They provided the July 2, 2015 Report to the Township in respect of the Fusion Stone Project without providing a summary of the existing site conditions and without confirming that the proposed installation met the requirements of the OBC or the CCMC Report, as required by Clauses 1.2.1.1(1)(b) and 2.2.1.1 of the OBC;

b. They advised the Township on July 10, 2015 that the proposed installation of the Fusion Stone Project met the requirements of the CCMC Report when it did not; and

c. They provided the November 5, 2015 Report and the November 9, 2015 Calculations to the Township in respect of the Deck Project, opining that 10” diameter concrete “footings” were sufficient to withstand the superimposed loading, which was incorrect based on improper assumptions and/or contrary to the requirements of Clause 9.15.3.1 of the OBC.

Plea of the Member and Holder

5. The Member and the Holder admitted all of the allegations, except for paragraphs 11, 12 13 (second sentence only), 24 (third sentence excepted), 25, 26, 27, 28 and 29, all of which were denied.

The Witnesses

6. The Association called three witnesses:

1. The complainant, Mr. Paul Nixon, who at all material times was the Chief Building Official (“CBO”) of Loyalist Township;

2. Mr. Chris Roney, P. Eng., who testified as a participant expert in structural engineering, giving evidence based on his review of both projects and advice given at the time to the CBO; and

3. Mr. Robert Holroyd, P.Eng., who testified as an expert in structural engineering, giving evidence based on his review of both projects.

7. The Member and holder of the C of A called seven witnesses, the first five of whom appeared under summons:

1. Mr. Ron Gordon, a municipal Councillor for Loyalist Township;

2. Mr. Ken Albertan, a project manager for the developer of the subdivision in which the deck project was located;

3. Mr. Mike McKay, the contractor who carried out the work on the deck project;

4. Mr. Richard Harper, the homeowner and client of the Member who intended to carry out the Fusion Stone project;

5. Mr. Bob Sanders, Director of Sales and Marketing with Shouldice, the manufacturer of the Fusion Stone product;

6. Mr. John Pelow, P. Eng., the Member; and

7. Mr. John Armitage, P.Eng., a respected local developer and builder familiar with Code compliance and a long-standing client of the Member. He provided expert opinion based on his review of both projects.

8. There was no objection to the qualification of any of the expert witnesses. Both counsel made submissions as to the weight to be given to their evidence.

The Evidence

9. There was little disagreement between the parties regarding the facts of this case. All expert witnesses and both counsel concurred that public safety was not compromised in the case of either project. The main points of contention between the parties related to the sufficiency and correctness of the work undertaken by the Member.

Evidence Pertaining to Both Complaints

10. Counsel for the defence alleged during his opening remarks that the complainant was motivated by animus towards the Member, rather than by his concerns about the Member’s engineering work, in submitting his complaint to PEO. In support of this, he provided testimony from Mr. Gordon, who testified to hearing of issues and public expressions of frustration with the Loyalist Township Building Department preceding and during the time the two projects were underway. Mr. Gordon stated that he had wanted to find out what the sticking points were and how service could be improved in the building permit application and approvals process for projects such as these. At Mr. Gordon’s request, Mr. Pelow provided a letter addressed to Mr. Gordon setting out what he saw as issues with the Loyalist Township Building Department, and Mr. Nixon was aware of this. Mr. Nixon’s complaints to the Association were made after the Township received the Member’s letter. Mr. Nixon was ultimately removed from his position of CBO at Loyalist Township, but this occurred some time after he complained to PEO.

11. A letter dated July 5, 2016 from the CAO of Loyalist Township was entered into evidence that advised PEO that the municipality “does not support the complaint dated December 10, 2015”.

The Evidence with Respect to the Fusion Stone Project

12. Mr. Nixon testified about various communications between himself, the homeowner Mr. Harper, the Member/Holder and Mr. Roney, including the July 2, 10 and 29, 2015 communications referenced in the Statement of Allegations. He also testified that he believed that the Member/Holder was not complying with the requirements of the CCMC report with respect to structural integrity of the house walls in the case of the Fusion Stone project.

13. Mr. Roney was the “go to” engineer for the CBO when advice was needed on issues that were beyond his expertise. Mr. Roney testified, with respect to the Fusion Stone Project, that he had counselled the CBO on Building Code issues, including the CCMC Report. He had been provided with copies of the Member’s July 2 and July 10, 2015 correspondence and testified that he had been troubled by the lack of clarity in that correspondence.

14. Mr. Holroyd’s evidence included a report reviewing the Member’s above-noted correspondence. His report identified areas where, in his opinion, the Member’s documentation: lacked justification by way of calculations and /or investigation; was not thorough; and was unclear. Mr. Holroyd stated that the July 2, 2015 letter was “reasonable” as a first communication to the Building Department, but lacked justification in that there was no information provided as to what had been investigated and what the “as-built” condition of the structure was. His main concern was the Member’s statement in his July 10, 2015 email that the owner “will reinforce the wall if necessary”. Mr. Holroyd felt that this implied that the reinforcement would be left to the discretion of the owner. Mr. Holroyd testified that, in his opinion, the Member’s conduct fell below the minimum standard of a reasonable and prudent practitioner.

15. Both experts opined that insufficient investigation was done by the Member to ensure the wall could support the additional load and both criticized the lack of detail in his letter to the CBO.

16. Mr. Harper said that he initiated the building permit application process on June 5, 2015, even though he believed that it was not necessarily required, but because he felt that it was the right thing to do. He wanted to replace the existing cedar siding on his house with new vinyl siding, and install Fusion Stone on the lower 3’ of the front wall below the siding and several windows. Mr. Harper testified that he intended to install the Fusion Stone himself. His employment entailed out-of-town travel, thus, his time available to deal with the Building Department was limited and he planned to do the work of removing and replacing the siding on the weekends. On July 30, 2015, however, he abandoned his efforts in pursuit of a permit for the installation of Fusion Stone due after concluding that he would never be issued a building permit. He, instead, proceeded with installation of vinyl siding only.

17. Mr. Sanders testified that the Fusion Stone was sold as a “do-it-yourself” product to be installed by homeowners. His evidence was that permits are readily issued in such cases and that engineering reports are almost never required.

18. The Member’s evidence was that he undertook an initial assessment based on his understanding of when the house was constructed and his knowledge of the type and builder of the home. He also took into consideration the extent of the proposed installation of the Fusion Stone, extending from ground surface to a height of 3 ft. above ground. Based on this information, the Member determined that the wall would very likely be able to support the proposed installation. The Member did not undertake an invasive investigation to expose the internal wall structure. However, both he and the owner testified that they had a mutual understanding that there was a requirement to confirm the construction of the supporting wall when the removal of the existing siding commenced. The Member’s evidence was that he could confirm at that time if his assumptions about the wall’s construction and suitability to carry the loading from the Fusion Stone were correct. Further, his evidence was that, if the conditions observed at that time differed from those assumed, then further analysis would be undertaken to determine what, if any, additional measures for wall reinforcement would be required in order to improve the carrying capacity of the wall to support the Fusion Stone loading.

19. Finally, the Member testified that he made a calculation, well after the fact, that demonstrated that the wall loading due to the Fusion Stone would have been less than 10% of its capability.

20. Mr. Armitage stated that he had applied for, and was granted, a Certificate of Authorization in July prior to the hearing, in part for the purpose of being accepted as an expert in these proceedings. Since graduation in 1971, Mr. Armitage has gained extensive experience in land development and building construction. He is co-owner of a building and development firm in the Kingston area. In the course of his business, he uses consultants, including Mr. Pelow, to carry out any necessary engineering work.

21. Mr. Armitage prepared a report outlining his review and conclusions. The report indicated that he had visited each site, performed his own calculations, and conducted industry research before preparing the report. His conclusion supported the respondent’s actions on both projects.

22. Mr. Armitage testified that, in his 40+ years of experience in the home building industry, he was not aware of building permits being required for veneer stone installations extending only 3 ft. above ground level. Mr. Armitage provided his opinion that the Member’s correspondence and arrangement with the homeowner constituted an appropriate approach in the circumstances.

The Evidence with Respect to the Desk Project

23. Mr. Nixon testified that he believed that the Member had not complied with the requirements of the OBC in the documents and submissions provided regarding the Deck Project.

24. Mr. Roney was specifically engaged to evaluate the Member’s documentation filed with respect to the Deck Project. His report of November 23, 2015 set out his opinion that the information provided by the Member lacked clarity and was silent on information considered necessary to inform the homeowner on restrictions and requirements with respect to the project.

25. Mr. Holroyd’s report indicated again that, in his view, the initial letter prepared by the Member was reasonable, but that the calculations subsequently provided were not correct or acceptable. In his opinion, the Member had made reasonable assumptions with respect to soil bearing capacity. However, in his opinion, there would likely be settlement over some piles given the size of the proposed footings. Mr. Holroyd’s report commented on the Member’s use of skin friction for the proposed piers, indicating that, in his view, such a factor is “typically only possible with driven piles”. He was also critical of the Member’s decision to assume that the load of the entire deck would be averaged over all piers. In his opinion, an approach identifying the worst case pier(s) based on tributary area was required.

26. Both Mr. Holroyd and Mr. Roney concluded that their calculations showed that there were some piers where the load applied exceeded the allowable bearing capacity.

27. Mr. Albertan provided evidence regarding engineered fill that was deposited on the subject property during the development of the subdivision in which it was located. He also provided a May 2001 geotechnical investigation report for the subdivision, the conclusions of which he stated he had discussed with the Member. He noted that the previous deck at the property, as well as those in the rest of the subdivision in question, had been supported by 8 inch piers, and that he was not aware of any issues with settlement of decks in the subdivision.

28. Mr. McKay testified as to the sequence of events involving the deck project. He indicated that the previous deck at the home in question, which had served its useful life and was unsafe due to rotting wood, had been installed on 8 inch piers and showed no signs of settlement. He had not been aware of the building permit conditions with respect to Big Foot footings prior to the Order to Comply being issued on November 11, 2015. He engaged the Member in an effort to allow the work to proceed without delay as was initially contemplated.

29. Mr. Pelow testified that he had been requested to attend the site in order to confirm that 10” diameter sono tube foundations were adequate for the support of the proposed new deck. He testified that at the time of his attending the site, the holes for the 10” diameter sono tubes had been completed and that he had had discussions with the contractor, as well as with Mr. Albertan, and that he had observed and probed the soils at the bottom of the holes. His evidence was that these observations and information allowed him to conclude that the proposed 10” diameter sono tube foundations were suitable, as stated in his brief report submitted to Loyalist Township.

30. With respect to his subsequent calculations, Mr. Pelow did acknowledge that the “skin friction” factor that he used was not applicable and that this approach was used only in an attempt to provide “peace of mind” to the Building Department. He also testified that he had assumed the deck to be a “monolithic” structure, which justified his averaging of the load over all piers, rather than identifying worst case pier(s) based on a tributary area methodology, as the Association’s experts believed was appropriate.

31. Mr. Armitage considered that the reports submitted were appropriate and validated by calculations submitted subsequently. Mr. Armitage’s report stated that the Member had complied with commonly accepted practices in Loyalty Township and met the standards that a reasonable and prudent practitioner would maintain in the circumstances.

32. Responding to questions, Mr. Armitage indicated he did not agree with the Member using “skin friction” as a means of establishing load carrying capacity in the case of the Deck Project. He had no issues with the report prepared by Mr. Holroyd and acknowledged that one pier would be a concern. He acknowledged that the load shedding/transfer theory posed by Pelow was not strictly appropriate, but the reality was that, given all the specific site considerations/conditions, safety and public welfare would not be compromised.

Summary and Review

33. The overall impression given by the evidence was that the Member was practicing in a fast-paced environment, where he worked on what would be classed as simple straightforward projects and reached conclusions quickly and efficiently using engineering judgement. The Panel concluded that the projects at issue in this hearing were both small and involved simple technical challenges. In general, the Member’s communications with the Building Department were very brief, an approach that, based on the evidence submitted, had been accepted by other Building Officials prior to the complaints before it.

34. All expert witnesses, including those for the prosecution, agreed that public safety had not been compromised as a result of the Member’s actions. The defence witnesses agreed that the Member’s conduct was what was expected of an engineer practicing in their area.

35. Counsel for the Association submitted that the documentation that had been provided by the Member to the CBO for the two projects was brief and lacking backup and, in the case of the Fusion Stone project, should have been specific and clear with respect to the requirements for follow-up to be undertaken by the homeowner.

36. Counsel for the Member expressed disappointment as to the amount of time that was spent on these two relatively minor undertakings. He suggested that the complaints in this matter were made as retaliation by Mr. Nixon against the Member, who had commented on issues in the Loyalist Township Building Department.

Analysis

37. Evidence submitted by both parties indicated there was a lack of trust and respect between the Member and the Chief Building Official. However, despite the submissions of Counsel for the Member, this Panel cannot discount the complaints before it merely because they may have been made in retaliation for some past wrong, either real or imagined. The panel finds that the motivation behind the complaint is not relevant to its decision in this matter. Under these circumstances, the complaints must be addressed on their merits. It is noted that the complainant is not a party to the matter once it has been referred to the Discipline Committee.

38. These complaints and subsequent Discipline hearing are fundamentally about the appropriate standard of engineering applicable to small scale projects. In this case, the CBO testified that he believed that it was his responsibility to enforce the letter of the OBC unless substantial documentation was provided to overrule it. On the other hand, the Member sought to provide engineering opinions in support of the needs of his clients based on what he, given his experience, believed were reasonable grounds acting as a prudent engineer. He did this without substantial documentation as his business model is based on providing sound engineering advice at a reasonable cost. As stated in the Act, professional engineering involves the safeguarding of life, health, property, economic interests, the public welfare or the environment.

The Fusion Stone Project

39. The Member’s evidence was that he undertook an informal assessment, based on his prior experience and the minimal nature of the proposed installation, to determine that the wall in question would be able to support the proposed installation of Fusion Stone. The Member did not undertake an invasive investigation by uncovering the structure of the wall. However, his evidence was that he had made arrangements with the homeowner to return to the site once the structure had been uncovered in order to confirm that his assumptions about that structure were correct. This was corroborated by the owner of the house. The Panel, therefore, accepts this evidence.

40. The Association alleged, firstly, that this course of conduct contravened Section 72(2)(d) of Regulation 941 by failing to comply with NRC Evaluation Report CCMC 14008-R (“the Alternative Solution”) published with respect to the Fusion Stone product; the Association alleged that this was required by Section 1.2.1.1(1)(b) of the OBC.

41. The Panel found that page14, bullet point #6, of the CCMC Report provided that, with the review of a professional engineer, installation of Fusion Stone product could be carried out without adhering to the standards prescribed elsewhere in the CCMC Report. This passage reads, in part: “When the product is used outside the scope and limitations of the said report, a special engineering analysis must be carried out by a licenced professional engineer skilled in structural design who must sign and seal the related analysis confirming its conformance to Part 4 of Division B of the NBC 2010.” The Panel finds that the Member’s July 2, 2015 letter, however brief, constituted such an analysis. On that basis, the Panel was satisfied that there was no contravention of the OBC.

42. The Association alleged, secondly, that the Member contravened Sections 72(2)(a) and (j) of Regulation 941 by failing to conduct himself professionally and in accordance with the minimum standards that a prudent practitioner would follow. The Panel did not accept the opinions of the Association’s experts with respect to the standard of a prudent professional engineer in the Member’s circumstances. The Panel found that, in the circumstances, the minimum standard for a professional engineer would be to conduct an investigation and make appropriate recommendations to the client. In this case, the Member did so, and this was done having regard to safeguarding the public welfare and considering the nature of the Fusion Stone installation. The Member was providing services for individuals undertaking small scale projects. It would not be reasonable, or in the public interest, for a professional engineer in these circumstances to be as thorough and exhaustive in his attention to detail as the Association’s experts suggested would be appropriate. To do so would render the services of a professional engineer prohibitively expensive in the context of the type of projects that the Member was involved in.

43. That being said, the Panel notes that the Member’s July 2, 2015 letter to the Township Building Department was, indeed, very brief and would have been improved by disclosing that a further visit to the property was required once the structure of the walls had been uncovered and emphasizing that there may be a need for further strengthening depending on what as exposed. The Panel concluded, however, that the briefness of the report did not rise to the level of professional misconduct.

The Deck Project

44. The prosecution’s experts believed that the Member’s calculations of deck loading were of such poor quality that the submission of these calculations constituted professional misconduct. Using a tributary approach to establish the load and assuming the 150 KPa soil bearing capacity, their calculations show two piers to be overloaded, thus requiring enlarged footings. However, the Member did not use a tributary approach and assumed even loading on all piers. With this assumption, footings under the 10” diameter piers would not be required assuming the 150 kPa soil bearing capacity, which all experts agreed was an appropriate assumption. During his testimony, the Member justified his approach, stating that, in his experience, decks operate as a single unit and loads tend to equalize over time if any settlement occurs.

45. A difference in opinion between engineers is common during the practice of professional engineering as is the tailoring of their engineering solutions depending on specific circumstances. The Panel finds that this process does not constitute professional misconduct, even if the disagreement occurs after the fact. Evidence was submitted that decks are simple structures that tend to adjust over time without failure, as demonstrated by the pre-existing deck in the same location.

46. The Member had used a common test using a crowbar to probe the base of the foundation excavations during his onsite visit to determine the adequacy of the bearing soils to support the proposed deck loading on the 10” diameter piers. Also, the evidence yielded that the prior deck supported on 8” diameter piers had showed no signs of settlement. The proposed upper deck was supported on the house wall and the proposed lower deck was less than 2 ft. above the ground level, and structurally independent of both the house and the upper deck. These factors, taken together with his calculation based on his assumption of the deck operation as a single unit, were the basis for the opinion rendered by the Member.

47. Given the above, the Panel is not prepared to find that the Member’s conduct contravened the OBC, contrary to Section 72(2)(d) of Regulation 941. The Panel finds that the Member’s experience and onsite observations provided a sufficient basis on which to conclude that the proposed deck would not exceed the load that was supportable by the piers without “big foot” footings. The Panel finds that the Member formed his opinion on this basis and that this soundly formed opinion was sufficient to comply with the OBC.

48. The Panel finds that the Member knew, or ought to have known, that the use of skin friction in his calculations of load carrying capacity was not appropriate for the conditions at this site. However, the Panel accepts the Member’s evidence that this factor was used only to provide a measure of comfort to the building inspector and, ultimately, the use of skin friction was not a critical factor for the proposed deck supports. The panel finds that Member’s use of this unjustified factor in his calculations was inappropriate. However, the Panel is not prepared to find that this misstep, which the Member acknowledged, is of sufficient severity to constitute professional misconduct.

49. Again, the Panel found that the Member’s actions with respect to the deck project did not jeopardize public safety at any time.

50. As in the case of the Fusion Stone project, it would not be reasonable or in the public interest for a professional engineer in these circumstances to be as thorough and exhaustive in his attention to detail as the Township’s peer reviewer or Association’s experts suggested was required. To do so would render the services of a professional engineer prohibitively expensive in the context of the type of projects that the Member was involved in.

Conclusion

51. For the reasons outlined above, the Panel finds that neither the Member nor the Holder engaged in professional misconduct. As such, the charges brought by the Association are dismissed in their entirety.

52. Should the member and holder wish to request publication and /or costs, the member and holder must serve and file submissions on or before July 5, 2019, the Association must serve and file its response on or before August 2, 2019 and the member and holder must serve and file his reply, if any, on or before August 30, 2019.