Association of Professional Engineers of Ontario (PEO) v Torkan, 2021 CanLII 155041

Date: 2021-03-21

Citation: Association of Professional Engineers of Ontario (PEO) v Torkan, 2021 ONAPE 19

Indexed as:

The Association of Professional Engineers of Ontario (PEO) v Torkan, 2021 ONAPE 19

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 Behnam Torkan, P. Eng., a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Behnam Torkan

PANEL MEMBERS:

David Germain, J.D.

CHAIR

Paul Ballantyne, P.Eng.

MEMBER

John Tyrell, P. Eng.

MEMBER

Hearing Dates:

2020-10-19

Decision Date:

2021-03-21

NAME OF LAWYER

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

NAME OF LAWYER

Member is self-represented

NAME OF LAWYER

David Jacobs, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

This Panel of the Discipline Committee convened to hear and determine allegations of professional misconduct against the Respondent, Benham Torkan (“Torkan”), a member (the “Member”) of the Association of Professional Engineers of Ontario (the “Association” or “PEO”), which had been properly referred to us. The Panel heard this matter on October 19, 2020 by means of an online video conference platform, which was simultaneously broadcast in a publicly accessible format over the internet. All participants in the proceedings, including the Member, self-represented, and Counsel for the Association attended via videoconference.

Agreed Statement of Facts and Allegations

Counsel for the Association, Leah Price, advised the Panel that the Association and the Member had reached agreement on the facts, and introduced an Agreed Statement of Facts (ASF) signed by the Respondent on September 27, 2020 and by the Association on October 13, 2020. She advised the Panel that the matter would proceed on an uncontested basis as the parties had also settled on a joint submission on penalty (“JSP”).

The Agreed Statement of Facts provided as follows (note - we have retained references to schedules which had been attached to the ASF, but which are not included with this Decision):

This Agreed Statement of Facts is made between the Association of Professional Engineers of Ontario (“PEO”), and the Respondent, Benham Torkan, P.Eng. (collectively, the “parties”).

At all material times, Behnam Torkan (“Torkan”) was a professional engineer licensed pursuant to the Professional Engineers Act, whose practice focused on structural engineering.
On August 21, 2014, Torkan signed and sealed a structural review for Fairway Building Products L.P. (“FBP”), an American company that supplies deck and porch railing systems (the “Torkan Review”). Attached as Schedule “A” is a copy of the Torkan Review.
FBP intended to market the railing systems in Canada. The Torkan Review stated that the railing system was “designed to comply with the structural and other requirements of Canadian standards”. The purpose of the Torkan Review was stated therein to be “to describe the loading and analyze the behavior of the railing under given loads and recommending guidelines in the installation processes of the railing system”.
The calculations in the Torkan Review omitted the height of the handrails and overstated the spacing of posts, the combination of which resulted in the potential for overstress as determined in accordance with the National Building Code. As well, the Torkan Review incorrectly relied upon a combined resistance of the steel post and aluminum sleeve, when only the post was connected to the base plate.
PEO retained an independent expert to examine the Torkan Review. In two reports, the expert concluded that the Torkan Review contained a number of errors, including the ones identified in paragraph 4 hereof, and that Torkan fell below applicable standards in preparing the Torkan Review. Attached collectively as Schedule “B” are the two expert reports.
For the purposes of these proceedings, Torkan accepts as correct the findings, opinions and conclusions contained in the expert reports. Torkan admits that he failed to make reasonable provision for the safeguarding of the public, that he failed to make responsible provision for complying with applicable standards and codes, and that he failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.
On December 6, 2018, a Hearing Panel under the Engineering and Geoscience Professions Act of Saskatchewan convicted Torkan of professional misconduct in connection with the same structural review (the Torkan Review), which he had signed and sealed utilizing his seal under the Saskatchewan legislation. Attached as Schedule “C” is a copy of the first page of the Saskatchewan Torkan Review (showing the seal). Attached as Schedule “D” is a copy of the decision of the Hearing Panel.
At the time he signed and sealed the Torkan Review, Torkan did not hold a Certificate of Authorization.
By reason of the aforesaid, the parties agree that Torkan is guilty of professional misconduct as follows:

a. He signed and sealed an inadequate structural review, amounting to professional misconduct as defined by sections 72(2)(a), (b), (d) and (j) of Regulation 941 under the Professional Engineers Act; and

b. He provided professional engineering services to the public while not being the holder of a Certificate of Authorization contrary to section 12(2) of the Professional Engineers Act, amounting to professional misconduct as defined by section 72(2)(g) of Regulation 941.

Plea

The Member admitted the allegations set out in the ASF. The Panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed, and unequivocal.

Decision

The Panel accepted Mr. Torkan’s plea and the facts set out in the ASF. On that basis, the Panel found Mr. Torkan guilty of professional misconduct under section 28(2)(b) of the Professional Engineers Act and sections 72(2)(a), (b), (d), (g) and (j) of Regulation 941 under that Act as follows:

Reasons for Decision

When presented with a guilty plea and an ASF, the Panel must still satisfy itself that the facts presented support a finding with respect to each of the acts of professional misconduct alleged by the Association.

The Panel considered the ASF. It finds that the facts agreed to by the Member and the Association, and accepted by the Panel, support findings of professional misconduct against the Member, and that the acts of professional misconduct alleged in paragraphs 9 a. and b. of the ASF were amply made out.

Penalty

Counsel for the Association, Ms. Price, advised the Panel that the Member and the Association were making a joint submission on penalty and provided a Joint Submission as to Penalty and Costs (“JSP”) signed by the Member on September 27, 2020 and by the Association on October 13, 2020.

PEO and Torkan make the following joint submission as to penalty and costs:

a) Pursuant to section 28(4)(f) of the Act, Torkan shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently;

b) Pursuant to section 28(4)(b) of the Act, Torkan’s licence shall be suspended for a period of seven (7) calendar days, commencing on a date to be agreed, such date to be no later than three (3) weeks after the date of the Discipline Committee’s decision;

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

d) Pursuant to section 28(4)(d) of the Act, it shall be a term or condition on Torkan’s licence that he shall, within fourteen (14) months of the date of the Discipline Committee’s decision, successfully complete PEO’s Advanced Structural Analysis (16-CIV-B1) and Advanced Structural Design (16-CIV-B2) examinations;

e) Pursuant to sections 28(4)(b) and (k) of the Act, in the event Torkan does not successfully complete the examinations set out in d), his licence shall be suspended for a period of ten (10) months, or until he successfully completes the examinations, whichever comes first; and

f) There shall be no order as to costs.

Legal Issues that Arose in the Course of the Hearing

Before addressing the appropriateness of the proposed penalty, the Panel will deal with related procedural and jurisdictional issues that arose in the course of the hearing.

Following the Association's submissions on penalty, which were made jointly on behalf of the Association and the Member, the ILC raised a concern that one component of the agreed penalty was illegal, unlawful and unenforceable.

The Association responded to the ILC’s advice on both procedural and substantive grounds. We will deal with the procedural question first, before addressing the substance of the ILC’s advice, and the Association’s submissions on that advice.

The Procedural Issue

Six days before the hearing in this matter, Counsel for the Association wrote to the Chair of the Discipline Committee providing the ASF and JSP, and making the following request:

“We respectfully request that the Panel carefully review the enclosed. Should there be any concerns whatsoever about the form or substance of the documents enclosed, in the interests of fairness, we ask that we be notified in advance of the hearing, so we may be properly prepared to deal with any issues raised.”

Neither the Association, nor the Member, were advised of any such concerns.

Counsel for the Association submitted that, because she had been given no advance notice of the ILC’s advice and the concerns that it raised, an unfair situation had arisen. She further submitted that the Tribunal had a duty to advise the parties in advance of any concern that it may have with the proposed penalty.

Despite these submissions, Counsel for the Association had evidently anticipated the ILC’s advice. Counsel for the Association advised that she was, in fact, prepared to proceed to address the Panel’s jurisdiction with respect to the proposed penalty. In light of her readiness to proceed, the Panel finds that there was no procedural unfairness in this case. It is, therefore, unnecessary to consider the Association’s submissions on this point any further.

The Jurisdictional Issue

Independent Legal Counsel’s Advice

As noted above, the ILC advised the Panel and parties that the following portion of the JSP was illegal, unlawful and unenforceable:

The ILC’s advice was that the jurisdiction of the Discipline Committee is limited by statute and that a future suspension of this sort cannot be imposed under section 28(4)(k) of the Act. In the ILC's opinion, this penalty is illegal for three reasons:

Any penalty must flow from a finding of misconduct. However, this penalty would flow from failure to pass an exam, which the Member was not charged with. The ILC advised that section 28(4)(k) of the Act allows the suspension of a penalty, but not the imposition of a future penalty that is conditional on a future act;
This penalty would be procedurally unfair as it would punish the Member for something which is not part of the ASF. Further, there was no suggestion that a ten-month suspension was justified by the severity of the Member's misconduct; and
That the penalty was based on a future act that may or may not constitute misconduct, given that the Member might be precluded from passing the exam by any number of factors, other than a failure to master the subject matter.

The ILC also referred the Panel to two prior decisions, Taha and Panetta.

In both of these cases, the Discipline Committee was presented with joint submissions on penalty that contained penalties in essentially the same form as here: the member was required to pass an exam, failing which his licence would be suspended for a significant period.

In Panetta, a panel of the Discipline Committee, differently constituted, found:

... the Panel remained concerned that it did not have the power under section 28(4)(k) to impose a future suspension on Mr. Panetta in the event that he did not satisfy the imposed penalty of successful completion of the course within 18 months.

No further analysis was provided in that decision. However, that panel went on to determine that, instead of making a ten-month suspension contingent on failure to pass an exam, it would simply impose a ten-month suspension.

In Taha, a different panel of the Discipline Committee, provided further analysis, as follows:

The Panel does not believe that it has the power under section 28(4)(k) to make the order sought by the Association; to order the imposition of an additional penalty, in the form of an additional suspension, if an order provision is not satisfied in the future. The Panel does not interpret section 28(4)(k) of the Act as permitting this type of penalty.

The Panel interprets this section as allowing for the suspension or postponement of an imposed penalty provision pending the future completion of a course. The words "direct that the imposition of a penalty shall be suspended" mean that a penalty must exist, and must be ordered before the Discipline Committee can direct, under section 28(4)(k), that the imposition of that existing penalty shall be suspended. ... The 24-month suspension that [the Association] seeks is not an existing penalty sought to address the Panel's findings. Rather, it is an additional penalty sought for a future failure. ... section 28(4)(k)(i) does not give the Panel the power to impose a 24-month suspension for a possible future failure of the member that is not based on the Panel's findings of professional misconduct.

These findings were essentially in line with the ILC's advice.

Submissions of the Association

The Association made a number of submissions, both in support of the JSP and in response to the ILC's advice. The Panel summarizes these submissions as follows.

Firstly, the Association submitted that there is ample precedent for the Discipline Committee imposing penalties in the same form as part e) of the JSP. She provided the Panel with a chart outlining more than 30 decisions since the early 2000s wherein a penalty of this type had been imposed.

The Association went on to provide excerpts from case law regarding the importance of consistency in administrative decision making.

Secondly, the Association submitted that the ILC's reading of the statute is unduly narrow and fails to consider the public interest. Counsel for the Association submitted that the Act should be given a large and liberal interpretation in accordance with section 64 of the Legislation Act. She also submitted that the Panel ought to look beyond section 28(4)(k) and to consider its powers in light of all of section 28(4) including, in particular, subsection (d), which reads:

[The Discipline Committee may…]

(d) impose terms, conditions or limitations on the licence or certificate of authorization, temporary licence, provisional licence or limited licence, of the member or holder, including but not limited to the successful completion of a particular course or courses of study, as are specified by the Discipline Committee;

The Association submitted that the potential suspension in item e)of the JSP should be understood, not as a contingent penalty for failure to sit an exam, but as part of a set of terms and conditions imposed on the Member's licence. According to the Association, section 28(4)(d) gives the panel plenary authority to impose any condition(s) on a Member’s licence that are in the public interest under the circumstances. Section 28(4)(k) provides interpretive assistance in that it shows that the Act contemplates conditions that are contingent and/or that may have effect in the future. Finally, the Association noted the words “or any combination of them”, which are found after the list of potential penalties at the end of section 28(4). These words empower the Discipline Committee to craft a penalty that combines elements of the enumerated items.

Analysis

This Panel prefers the submissions of the Association to the advice of the ILC on this jurisdictional question.

Specifically, the Panel agrees that the ILC’s focus on section 28(4)(k) alone is overly narrow. The decisions in Taha and Panetta appear to have been decided solely on the basis of this subsection as well, and without the benefit of the detailed submissions made by the Association in this case.

The Panel is not persuaded by the Association’s submissions regarding the need for a broad and liberal interpretation of section 28(4) of the Act. This is, after all, a penal provision. Nonetheless, the Panel accepts the Association’s submissions regarding the need for consistency in administrative decision-making, as well as the Tribunal’s long history of imposing penalties of this nature.

Ultimately, the Panel was persuaded primarily by the Association’s characterization of item e) of the JSP as a condition on the Member’s licence, imposed pursuant to section 28(4)(d) of the Act. From a common-sense perspective, there is a public interest in compelling compliance with the requirement to pass an examination. A condition on a member’s licence that requires him or her to sit an exam, without consequences for failure to do so, would be a toothless condition that does little to protect the public. It would also be a waste of resources to require the Association to commence a further proceeding in the event that a member fails to fulfill a condition of this nature, as the ILC suggested may be appropriate. The goals of certainty, efficiency and the protection of the public interest are best served by spelling out the consequences of failure to pass an exam in advance through a comprehensive, multi-part condition on the Member's licence. The Panel finds that under section 28(4) of the Act, including, in particular, subsections (d) and (k), it has the power to impose just such a condition.

In accordance with the Association’s submissions, which were not opposed by the Member, the panel will alter the penalty set out in the JSP to include reference to subsection 28(4)(d) in item e).

Penalty Decision

Counsel for the Association submitted that the penalty set out in the JSP fell within a reasonable range of penalties imposed in previous cases and appropriately served the principles of sentencing, including the protection of the public and maintenance of the public’s confidence in the profession.

Counsel for the Association further submitted that the Member had fully cooperated with the Association’s investigation, had no prior disciplinary history, except in Saskatchewan, relating to the same facts.

The Association provided support for the appropriateness of the penalty, with reference to prior decisions of the Discipline Committee.

The Panel carefully considered the JSP. The Panel is reluctant to interfere with a joint submission on penalty, except where it is of the view that to do so would bring the administration of the disciplinary process into disrepute or would be contrary to the public interest.

In the circumstances of this case, the Panel is of the view that the penalty set out in the JSP, including publication of the Panel’s findings and order with reference to the Member’s name, is a reasonable outcome in this matter; a lesser penalty would fail to appropriately serve the aims of general deterrence, protecting the public, and maintenance of the public’s confidence in the regulation of the profession.

The Panel acknowledges the Member’s cooperation with the Association through the ASF. These considerations, combined with his lack of a prior disciplinary history, are mitigating factors in determining an appropriate penalty. It is the Panel’s view, however, that these mitigating factors do not detract from the seriousness of the misconduct in question.

The Panel has already detailed the significant and troubling shortcomings in the Member’s practice in this case. The Panel reiterates that the Member has been found guilty of negligence and of failing to take reasonable precautions to safeguard the life and health of those who were affected by and relied on his work. The seriousness of these findings cannot be overstated.

Public trust is at the core of what it means to be a professional. Members of the public must have confidence that professionals are held to high standards of conduct and that serious breaches of those standards are dealt with appropriately. Failing to take a proportionate response to protect the public in the face of professional misconduct undermines that trust and harms both the reputation of the profession and the legitimacy of professional regulation.

The Panel notes that publication of its findings and reasons, with the names, serves to promote general deterrence of the profession and reinforce the public confidence in the regulation of the profession. Far from bringing the administration of the disciplinary process into disrepute, publication demonstrates, both to the profession and to the public, the seriousness with which the Discipline Committee regards significant lapses of professional standards and the penalties for engaging in such misconduct.

Accordingly, the Panel accepts the JSP for the Member and orders as follows:

a) Pursuant to section 28(4)(f) of the Act, Torkan shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently;

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

e) Pursuant to sections 28(4)(b), (d) and (k) of the Act, in the event Torkan does not successfully complete the examinations set out in d), his licence shall be suspended for a period of ten (10) months, or until he successfully completes the examinations, whichever comes first; and

f) There shall be no order as to costs.

The Panel pronounced its determinations as to conviction and penalty at the conclusion of the hearing on October 19, 2020 and advised that these written reasons were to follow. At the hearing, after the pronouncement of the penalty, the Member waived his right to appeal and, thus, the effective date of the decision is October 19, 2020.

At the conclusion of the hearing, the Panel administered a reprimand to the Member.