DISCIPLINE COMMITTEE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)
Indexed as:
The Association of Professional Engineers of Ontario (PEO) v Hum, 2020 ONAPE 16
IN THE MATTER OF a hearing under the Professional Engineers Act, R.S.O. 1990, c. P.28;
AND IN THE MATTER OF a complaint regarding the conduct of James C. Hum, P. Eng., a member of the Association of Professional Engineers of Ontario.
BETWEEN:
The Association of Professional Engineers of Ontario (PEO)
-and-
James C. Hum, P. Eng.
PANEL MEMBERS:
Robert Willson, P. Eng., Chair
CHAIR
James Amson, P. Eng.
MEMBER
Ishwar Bhatia, P. Eng.
MEMBER
Eric Bruce, J.D.
MEMBER
Michael Wesa, P. Eng.
MEMBER
Hearing Dates:
2020-01-27
Decision Date:
2020-06-02
NAME OF LAWYER
Nick Hambleton, Counsel for the Association of Professional Engineers of Ontario (PEO)
NAME OF LAWYER
Kharim Bhaloo, Representative for Alexander Colas, P. Eng.
NAME OF LAWYER
J. David Watson, Independent Legal Counsel to the Tribunal
DECISION AND REASONS
The Panel of the Discipline Committee met to hear this matter on January 27, 2020 at the Association of Professional Engineers of Ontario (the “Association” or “PEO”) at Toronto. Mr. James C. Hum, P.Eng. (the “Member” or “Hum”) attended the hearing via teleconference from British Columbia.
The Allegations
The original allegations against the Member were set out, with particulars, in the Statement of Allegations dated August 1, 2019. An updated set of allegations with additional particulars was set out in the Agreed Statement of Facts, discussed below.
Agreed Statement of Facts
Counsel for the Association advised the Panel that the parties had reached agreement on the facts and introduced an Agreed Statement of Facts signed by the Member on January 21, 2020 and the Association on January 22, 2020. The Agreed Statement of Facts provides as follows, with references to schedules omitted:
At all material times, Hum was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”). Hum has been continually licensed as a professional engineer by PEO since February 9, 1996.
At all material times, Hum was the sole owner and sole officer of 3035824 Canada Inc. o/a KNH Engineering Inc. (“KNH”). KNH is an engineering firm headquartered in Surrey, British Columbia, and Hum is its principal.
Neither Hum nor KNH have ever held a Certificate of Authorization (“C of A”) issued by PEO.
In or about 2016, Hotel-Dieu Grace Healthcare facility in Windsor, Ontario (“Hotel-Dieu”) received a donation to fund the building of a one‐storey greenhouse space (“Greenhouse”) for its Regional Children’s Centre. The Regional Children’s Centre provides clinical services and elementary schooling for children and youth with behavioural and mental health issues.
In or about August 2017, Ontario-based construction company Amico Design Build Inc. (“Amico”) was contracted by Hotel-Dieu to design foundations for and oversee construction of the Greenhouse. Dale Dutot (“Dutot”), the complainant in this matter, was Amico’s project manager.
On behalf of Hotel-Dieu, Amico contracted Ontario-based Backyard Greenhouses (the “Supplier”) to supply the Greenhouse. Shelley Awad, the owner of Backyard Greenhouses, was the Supplier’s point of contact.
British Columbia based BC Greenhouse Builders Limited (the “Manufacturer”) manufactured the component parts for all the Supplier’s greenhouses.
On or about October 16, 2017, Awad forwarded preliminary drawings to Amico for review.
On October 16, 2017, Dutot emailed Awad and asked: “Is there a separate loading drawing that will be coming so that we can design the foundation for this unit.”
On October 17, 2017, Awad emailed Dutot and advised: “Our engineer will write the loads on the drawings, including the point loads for the foundation.”
On or about October 17, 2017, Hum signed and sealed a set of eight drawings (“October Drawings”).
On or about October 17 and 18, 2017, Awad emailed Dutot point loads, which had been provided by Hum.
On October 18, 2017, Dutot emailed Awad and requested that Hum provide “horizontal” load data for the foundation and “dead” and “point” load data for objects hung from the interior of the Greenhouse.
On October 18, 2017, Awad emailed Dutot and provided the “horizontal”, “dead” and “point” loads received from Hum.
On or about November 4, 2017, Hum signed and sealed a second set of eight drawings (the “November Drawings”). The November Drawings supplemented the “ground snow”, “wind” and “rain” load data from the October Drawings with data regarding “reaction at each point - unfactored”, “horizontal load due to wind”, “max load for hanging on truss” and “max p[oin]t load for hanging equipment”.
On February 12, 2018, Dutot emailed KNH and requested additional load or support reactions data, including, “live”, “dead” and “service” load, and a copy of Hum’s C of A.
On February 14, 2018, Hum emailed Dutot a signed and sealed letter and provided further information regarding live loads, support reactions and compliance with snow loads under the Ontario Building Code.
On or about February 15, 2018, in response to repeated inquiries from Dutot regarding whether or not Hum had a C of A, Hum advised the Manufacturer that he would speak to PEO about obtaining a C of A.
On or about February 28, 2018, Hum advised the Manufacturer that he had taken specific steps to obtain his C of A, including speaking to a PEO representative and couriering a cheque to PEO. In fact, Hum had not spoken to PEO, couriered a cheque to PEO, or taken any steps to obtain a C of A, nor did he do so at any material time thereafter.
PEO retained Albert Schepers, P.Eng. as an independent expert to review the above-referenced drawings and correspondence. Schepers prepared a written report dated October 25, 2018 (the “Expert Report”). The Expert Report concluded at pages 10 and 11:
[T]hough there is sufficient detail on the drawings to assemble the structure, the drawings lack design information necessary to be fully understood and verified by another engineer. It is my opinion that the drawings, with respect to design information, do not conform to industry standards. The drawings are deficient as follows:
Lack of reference to the design codes;
Lack of reference to the design standards;
Only partial information on product material is included;
Design loads on the original drawings released and poorly referenced on the later release;
Failure to include the support reactions on the original drawings released and poorly indicated on the later release; and
Lack of detail and design assumptions for the foundations shown on the drawings so another engineer can prepare a site-specific design.
Further, it is my opinion that Mr. James C. Hum, P.Eng. failed to comply with codes, standards, and industry norms in failing to recognize this structure cannot be designed to the National Farm Building Code of Canada, specifically the assumption of the greenhouse being heated and the reduction of snow load due to melting, and, in not using the correct climate data for Windsor, did not appreciate location specific climate condition loading.
- On May 16, 2019, Schepers issued a second report (the “Supplementary Report”). The Supplementary Report concluded at pages 1 and 2:
Although some information was eventually provided over the course of months, it is my opinion the Mr. James C. Hum, P.Eng. did not provide the information which a reasonable and prudent practitioner of structural engineering should provide at the outset, nor did he ultimately provide all information which a reasonable and prudent structural engineer should provide regarding materials, reactions, standards and design codes.
For the purposes of this proceeding, the Respondent accepts as correct the findings, opinions and conclusions contained in the Expert Report and the Supplementary Report. The Respondent admits that he failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances, and that he failed to meet the minimum acceptable standard for engineering work of this type.
In addition to Ontario, Hum is, or has been, a licensed engineer in Quebec, Yukon, British Columbia, Alberta and Saskatchewan.
Hum has been the subject of the following prior professional discipline in British Columbia:
a. On July 20, 2011, Hum accepted a consent order with Engineers and Geoscientists British Columbia (“EGBC”) in which he admitted to allegations of “unprofessional conduct”. Hum failed to provide requested information or records in his possession or control, as required by the Engineers and Geoscientists Act. Hum was suspended, pending the satisfaction of conditions, and ordered to pay a fine of $5,000.
b. On August 12, 2013, a panel of the Discipline Committee of EGBC found Hum guilty of “unprofessional conduct” and “incompetence”. The findings related to four separate matters (referred to as the “Guardrail Matter, the “House Matter”, the “Wall Matter”, and the “Sign Matter”).
c. On August 27, 2013, following the penalty hearing, the panel cancelled Hum’s licence, imposed a penalty in the amount of $25,000, and ordered costs in the amount of $64,000.
- Hum has been the subject of the following prior professional discipline in Saskatchewan:
a. On January 22, 2015, a panel of the Discipline Committee of Professional Engineers and Geoscientists of Saskatchewan (“PEGS”) found Hum guilty of “professional misconduct”. By letter dated October 15, 2013, Hum was ordered to provide detailed information concerning the findings against him by EGBC. By letter dated December 4, 2013, Hum was ordered to provide information with respect to any engineering services provided since 1998 for projects or facilities located in Saskatchewan. Hum did not provide the information ordered. The panel found Hum guilty of “professional misconduct”. The panel ordered costs, not to exceed $10,000, a fine of $5,000, suspension pending compliance with the panel’s decision and further orders of the panel.
b. On December 8, 2016, a panel of the Discipline Committee of PEGS found Hum guilty of “professional incompetence” and “professional misconduct” in relation to the projects underlying the EGBC matter. The panel found Hum’s failure to appear or otherwise respond was additional evidence of “professional misconduct”. The panel ordered a reprimand, suspension pending compliance with conditions, attendance at the law and ethics seminar and completion of the professional practice exam, costs to a maximum of $10,000, and publication with names.
- By reason of the aforesaid, the parties agree that Hum is guilty of professional misconduct, as follows:
a. Signing and sealing structural drawings that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined in section 72(2)(a) of Regulation 941;
b. Signing and sealing structural drawings that failed to responsibly provide for compliance with applicable standards and codes, amounting to professional misconduct as defined in section 72(2)(d) of Regulation 941;
c. Offering and providing engineering services without a C of A, amounting to professional misconduct as defined in section 72(2)(g) of Regulation 941;
d. Providing engineering services in a dishonourable or unprofessional manner, amounting to professional misconduct as defined in section 72(2)(j) of Regulation 941.
Plea by Member and/or Holder
The Member admitted the allegations set out in paragraphs 26 (a) to 26 (d) in the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Decision
The Panel considered the Agreed Statement of Facts and finds that the facts, as agreed, support findings of professional misconduct and, in particular, it finds that the Member committed acts of professional misconduct as set out in paragraphs 26 (a) to 26 (d) of the Agreed Statement of Facts above.
Reasons for Decision
When presented with a guilty plea and an Agreed Statement of Facts, the Panel must still satisfy itself whether the facts presented support a finding with respect to each of the acts of professional misconduct alleged by the Association.
In this case, the Panel is of the view that the acts of professional misconduct alleged in paragraphs 26 (a) to 26 (d) of the Agreed Statement of Facts were clearly made out on the facts as agreed to by the parties and accepted by the Panel.
The Panel finds that the Member signed and sealed structural drawings that failed to meet the standard of a reasonable and prudent practitioner in numerous aspects, including: failing to include design loads and support reactions on the original drawings and only poorly referencing them on subsequent drawings; providing only partial information on product materials; and failing to provide sufficient detail and design assumptions for the foundations shown on the drawings to permit another engineer to prepare a site-specific design.
Moreover, the Panel finds that the Member signed and sealed structural drawings that failed to responsibly provide for compliance with applicable standards and codes, in that the Member failed to reference the applicable design codes and standards on the drawings; failed to recognize that the structure could not be designed to the National Farm Building Code of Canada with respect to assumptions regarding heating and snow load; and failed to use appropriate climate data for the intended location of the structure.
The Panel accepts the conclusions of the Expert Report and Supplementary Report regarding these obvious deficiencies in the drawings signed and sealed by the Member.
The Panel also finds that the Member clearly offered and provided engineering services to clients in Ontario without a C of A, as neither he nor KNH have ever held a C of A issued by PEO.
Regarding the allegation that the Member had provided engineering services in a dishonourable or unprofessional manner, Counsel for the Association submitted that the Member’s actions were both dishonourable and unprofessional. The Member made no submissions on this point.
The Panel notes that the terms dishonourable and unprofessional are disjunctive and that a finding could be made with respect to one, both, or neither of these terms; however, the Panel finds that both apply to the Member’s actions in the case at hand. While the Member’s shortcomings with respect to his structural drawings and provision of services without a C of A as outlined above were unprofessional, he likewise engaged in dishonourable conduct by falsely informing the Manufacturer that he had taken steps to obtain his C of A, including contacting and couriering a cheque to the Association, when he had not in fact done so. In the Panel’s view, the Member’s dishonesty with respect to these actions amounts to dishonourable conduct.
Penalty
Counsel for the Association advised the Panel that the parties were making a joint submission on penalty and provided a Joint Submission as to Penalty and Costs signed by the Member on January 21, 2020 and by the Association on January 22, 2020. The Joint Submission as to Penalty provided, in part, as follows:
- PEO and Hum make the following joint submission on penalty and costs:
a. Pursuant to s. 28(4)(a) of the Professional Engineers Act, Hum’s licence shall be revoked;
b. The finding and order of the Discipline Committee shall be published in summary form under s. 28(4)(i) and 28(5) of the Professional Engineers Act, with reference to names; and
c. There shall be no order with respect to costs.
Counsel for the Association submitted that the proposed penalty appropriately served the principles of sentencing, including the protection of the public, maintenance of the public’s confidence in the profession, and general deterrence. He noted that, given that it was proposed that the Member’s license would be revoked, the principles of individual deterrence and rehabilitation were not applicable.
Counsel for the Association pointed out that the Member had been subject to findings of professional misconduct and incompetence in British Columbia in relation to four separate matters, which resulted in the cancellation of his licence in August 2013; the Member had also been subject to a finding of professional misconduct in July 2011. Counsel for the Association noted that these findings were made prior to the Member’s actions in the present case, but had not served to change his behaviour. He also noted that the Member had been subject to findings of professional misconduct in Saskatchewan.
Counsel submitted that the penalty of revocation would put public safety first and maintain the public’s confidence in the regulation of the profession, in that the Member would no longer be able to offer his services as a professional engineer in Ontario. He further submitted that the penalty fell within a range of reasonable possible outcomes based on prior decisions by the Discipline Committee in similar circumstances.
The Member made no submissions regarding the proposed penalty.
Penalty Decision and Reasons
The Panel accepts the Joint Submission as to Penalty and Costs and, accordingly, orders as follows:
That the Member’s licence be revoked pursuant to s. 28(4)(a) of the Professional Engineers Act;
That the findings and order of the Panel be published in summary form with reference to names pursuant to s. 28(4)(i) and 28(5) of the Professional Engineers Act; and
That there shall be no order with respect to costs.
The Panel carefully considered the Joint Submission as to Penalty and Costs. It is a well-established principle of law that a disciplinary panel should not interfere with a joint submission on penalty except where the panel is of the view that to accept the joint submission would bring the administration of the disciplinary process into disrepute or otherwise be contrary to the public interest [See e.g., R. v. Anthony-Cook, 2016 SCC 43].
In the circumstances of this case, the Panel is of the view that the penalty of revocation, combined with the summary publication of the Panel’s findings and order with the Member’s name, appropriately serves and protects the public interest and falls within a reasonable range of possible outcomes. Far from bringing the administration of the disciplinary process into disrepute, this penalty reinforces for the public and the profession the seriousness with which acts of professional misconduct are regarded by the Discipline Committee.
The Panel agrees with the submissions of the Association that the penalty serves to protect the public by preventing the Member from offering engineering services in Ontario and provides general deterrence to the profession via publication of the finding and order.
The Panel acknowledges that revocation is the most severe penalty for a member of the profession; however, it notes that the Member’s acts of professional misconduct in this case were significant, repeated, and demonstrated serious shortcomings in his professional practice. The Panel is concerned that the substandard nature of the drawings he signed and sealed, if relied upon for construction, could have represented a risk to the public. The greenhouse is part of a healthcare facility that provides therapeutic services for children and must, therefore, conform to the Ontario Building Code. Specifically, the Ontario Building Code does not allow the National Farm Building Code’s reduced snow loads assumed by the Member. The Panel notes that the Member also displayed dishonesty when questions arose regarding his authorization to provide services in Ontario.
Further, the Panel observes that the Member has been found guilty of professional misconduct and incompetence and had his licence to practise cancelled or suspended in two other provinces. While these findings do not impact the specific facts of his misconduct in Ontario, it was concerning to the Panel that these findings predated the Member’s conduct at issue in this case but did not prevent his continued misconduct.
The Member’s cooperation with the Association through the Agreed Statement of Facts and Joint Submission on Penalty has demonstrated that he has accepted responsibility for his actions and has avoided unnecessary expense to the Association for a contested hearing. This is a mitigating factor, which Counsel for the Association submitted was reflected in the absence of a costs award or reprimand against the Member in the joint submission. The Panel also accepts that a reprimand would not be applicable in this case as the Member will not be practising in Ontario in future.
In light of the above, the Panel accepts that the Joint Submission as to Penalty and Costs is reasonable and appropriate in the circumstances.