Association of Professional Engineers of Ontario (PEO) v Malo et al, 2021 CanLII 155257

Association of Professional Engineers of Ontario (PEO) v Malo et al

Date: 2021-04-15

Citation: Association of Professional Engineers of Ontario (PEO) v Malo et al, 2021 ONAPE 21

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

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Malo et al, 2021 ONAPE 21

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 R. Malo, P. Eng., a member of the Association of Professional Engineers of Ontario, and Form Architecture Engineering, a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

James R. Malo, P.ENG. and Form Architecture Engineering

PANEL MEMBERS: Kathleen Robichaud, LL.B. CHAIR

Ishwar Bhatia, P.Eng. MEMBER

Gary Thompson, P.Eng. MEMBER

Hearing Dates: 2020-11-04 and 2020-11-05

Decision Date: 2021-04-14

Release of Written: 2021-04-15

Reasons:

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

NAME OF LAWYER Mike Maher, Counsel for James R. Malo (Licence Holder)

NAME OF LAWYER Jordan Lester and Michael Caza, Counsel for Form Architecture Engineering (Counsel for Form Architecture)

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

DECISIONS AND REASONS

1. This panel of the Discipline Committee convened to hear and determine allegations of professional misconduct against the Respondents, James R. Malo, a former member (“Malo”) of the Association of Professional Engineers of Ontario (the “Association” or “PEO”) and Form Architecture Engineering (“FAE” or the “Holder”), a holder of a Certificate of Authorization from PEO. The allegations had been properly referred to the Discipline Committee. The panel heard this matter on November 4 and 5, 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 attended by videoconference.

The Allegations

2. Two complaints were filed with PEO concerning the alleged conduct or actions of the Respondents. The Complaints Committee of PEO referred the first complaint to the Discipline Committee on November 2, 2017 (“Matter 1”). On June 13, 2018, the hearing in Matter 1 was adjourned to a date to be determined. On April 24, 2019, it was again adjourned, on consent, to permit a Registrar’s Investigation to be completed. A second complaint was filed following the Registrar’s Investigation. The second complaint was referred to the Discipline Committee from the Complaints Committee in July 2019 (“Matter 2”). A Pre-Hearing Conference was held on September 25, 2019. At the Pre-Hearing Conference, an Order was made on consent to consolidate Matters 1 and 2 for hearing. The Notice of Hearing was issued on September 11, 2020 in respect of the hearing of the consolidated matters.

Agreed Statement of Facts

3. An Agreed Statement of Facts was filed on October 23, 2020, as follows (reference to schedules which were attached is retained, but the attached is retained, but the attachments omitted):

“This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”) and the Respondents James R. Malo (“Malo”) and Form Architecture Engineering ("FAE") (collectively, the “parties'').

1. The Respondent Malo was a professional engineer licensed pursuant to the Professional Engineers Act. Kuch Stephenson Gibson Malo Architects & Engineers obtained Certificate of Authorization (“C of A”) number 10055885 on February 20, 2002. That C of A remained in place when Kuch Stephenson Gibson Malo Architects & Engineers changed its name to FAE on April 20, 2011. Malo was the individual taking responsibility for the professional engineering services provided under the C of A from March 26, 2002 until March 21, 2018. Malo resigned his membership effective May 6, 2019. FAE continues to hold a C of A.

2. PEO received a Complaint dated August 9, 2013 from Paul Barnwell, P.Eng., relating to structural engineering designs and drawings done by the Respondents on a school in Thunder Bay (the “School''). Attached as Schedule “'A”, is a copy of this complaint. This matter (“Matter 1") was referred to the Discipline Committee (“DIC”) on November 2, 2017. Attached as Schedule “B” is a copy of the Statement of Allegations in Matter 1. As can be seen from the Statement of Allegations, the issue in Matter 1 is that the designs and drawings in question were allegedly deficient in that they allegedly failed to properly account for snow loads.

3. After Matter 1 was referred to DIC, it was brought to PEO's attention that a second school had been constructed utilizing Malo' s and FAE designs, which designs were also allegedly deficient in that they allegedly failed to properly account for snow loads. As a result, the Deputy Registrar, Regulatory Compliance, issued a Registrar's Investigation (“RI”) Order under s. 33 of the Professional Engineers Act. Attached as Schedule “C” is a copy of the RI Order.

4. The DIC hearing in Matter 1 was adjourned sine die on July 13, 2018 (and again on April 24, 2019), on consent, to await the outcome of the Rl. Malo executed an Undertaking that, pending the hearing, he would not design, or sign and seal the design, of any roof structures. As noted above, Malo has since resigned, and his licence was accordingly cancelled.

5. The R1 eventually involved examination of over 45 structures. The examination was conducted by PEO, together with its independent expert, in co-operation with FAE, together with its consultants. It resulted in a Registrar's Investigation Report dated May 28, 2019, which in tum resulted in a Complaint made by Irena Gawelek, P.Eng., the investigator under the RI. Attached as Schedule “D” is a copy of the Complaint and attached RI Report. This Complaint (Matter 2) was referred to DIC by the Complaints Committee in July, 2019. Attached as Schedule “E” is a copy of the Statement of Allegations in Matter 2. As can be seen, Matter 2 raises the same or very similar issues as are raised in Matter I, but involved additional structures.

6. On consent of the parties, Patrick Quinn, P.Eng., the Presiding Chair at the Pre-Hearing Conference, ordered that Matter I and Matter 2 be consolidated, and that they be heard together. Attached as Schedule “F” is a copy of this order.

THE BUILDINGS AND THE DESIGN ISSUES

7. The parties agree that the following list of structures (the “Buildings”), encompassed by the now consolidated matter, were deficiently designed:

a. La Verendrye Secondary School, 175 High Street North, Thunder Bay. Built in or about 2003/2004.

b. St. Martin School, 17 Cartier Drive, Terrace Bay, Ontario. Built in or about 2005/2006. (FAE Project Number: 200401)

c. George Jeffrey Children’s Centre, 200 Brock Street East, Thunder Bay. Built in or about 2007/2008. (FAE Project Number: 2006072)

d. Confederation College - Shuniah Building Addition & Renovation, 1450 Nakina Drive, Thunder Bay. Built in or about 20I0. (FAE Project Number: 2009020)

e. Isabella Retirement Living Residence. 1350 Isabella Street East, Thunder Bay. Built in or about 2010. (FAE Project Number: 2009030)

f. Confederation College Bio-Mass Learning & Research Centre, 1450 Nakina Drive, Thunder Bay. Built in or about 2011/ 2012. (FAE Project Number: 2009031)

g. Kingsway Park School Addition, 315 Empire Avenue, Thunder Bay. Built in or about 2017. (FAE Project Number: 2016062)

h. St. Joseph’s Care Group-Sister Margaret Smith Addiction Treatment Centre, 30I Lillie Street North, Thunder Bay. Built in or about 2007/2008. (FAE Project Number: 2009062)

i. Thunder Bay Social Service Administration Board - Office Building, 231 May Street South, Thunder Bay. Built in or about 20l0/2011. (FAE Project Number: 2009062)

j. Wayne Toyota - Addition, 787 Central Avenue, Thunder Bay. Built in or about 2011/2012. (FAE Project Number: 2011011)

k. Tom Jones Corp - Health Services Building, 1040 Oliver Road, Thunder Bay. Built in or about 2012/2013. (FAE Project Number: 20I2076)

l. Our Lady of Loretto-Church Elevator Addition, Thunder Bay. (FAE Project Number: 2014009)

m. SportChek Intercity Shopping Centre - Expansion, Thunder Bay. (FAE Project Number: 2014005)

n. Northwood Mall No Frills - Canopy Entrance Addition, Thunder Bay. (FAE Project Number: 2013042)

o. TBCDSB Holy Cross School - Addition & Renovations, Thunder Bay. (FAE Project Number: 2013005)

p. TBCDSB St. Martin School - Addition & Renovations, Thunder Bay. (FAE Project Number: 2013004)

q. TBayTel Design - Build Office Buildings, Thunder Bay. (FAE Project Number: 2012056)

r. TBCDSB St. Jude - School Addition & Renovations, Thunder Bay. (FAE Project Number: 2012031)

s. TBCDSB St. Bernard School - Addition & Renovations, Thunder Bay. (FAE Project Number: 2012030)

t. Northwood Park - Plaza Canopy Addition, Thunder Bay. (FAE Project Number: 2010027)

u. Ignace WORLD Hub Recreational Facility, Ignace. (FAE Project Number: 2010011)

v. Rural 60 Plus Seniors Centre - Addition, Kakabeka Falls. (FAE Project Number: 2009085)

w. Gore Motors Express Service - Addition & Renovation, Thunder Bay. (FAE Project Number: 2006047)

x. CSDCAB Ecole Franco Superieur School - Addition, Thunder Bay. (FAE Project Number: 2006008)

y. TBayTel Work Centre - Addition, Thunder Bay (FAE Project Number: 2005086)

8. Malo designed all the Buildings listed above, and signed and sealed all the structural design drawings for the Buildings. The drawings were issued under FAE’s C of A.

9. The Buildings listed at subparagraphs (a), (b), (c), (e) and (g) of paragraph 7 were deficiently designed because the snow accumulation loads that were utilized did not comply with Ontario Building Code (the “Code”) requirements.

10. The Buildings listed at subparagraphs 7(d), (f), (i), (l), (m), (n), (q), (s), (t), (u), (v) and (w) were deficiently designed in that snow accumulation load values were not properly identified on sealed drawings.

11. The Buildings listed at subparagraphs 7(h), (w), (x) and (y) were deficiently designed in that the designer utilized a Wind Exposure Factor (Cw) less than 1.0, contrary to the Code requirements.

12. The Buildings listed at subparagraphs 7(o), (p), (r) and (s) were deficiently designed in that the designer utilized an Importance Factor that did not comply with the Code requirements for the building's appropriate classification.

13. PEO retained Will Teron, P.Eng., of Tacoma Engineers (“Tacoma”), as an independent expert to review the drawings made available to PEO, and to comment upon the snow load issue. He provided four expert reports commenting on eleven (11) of the Buildings. Copies of these reports (the “Expert Reports”) are attached hereto as Schedules “G. through “J”. The Expert Reports concluded that the roofs of the Buildings listed at subparagraphs 7(a) through (i) above were deficient in that they were designed based on a roof snow load less than that specified in the Code. In addition, Tacoma concluded that the design deficiencies in the drawings in connection with the Buildings listed at subparagraphs 7(a), 7(b), 7(c), 7(e) and 7(g) were of such a magnitude that they represented a significant risk to the safety of the public.

14. The as-built condition of the Building listed in subparagraph 7(b) above was the subject of an engineering analysis by a team of engineers retained by or on behalf of FAE. They included Peter Halsall, P.Eng., RWDI and Lea Consulting Ltd. This team determined that, in their opinion, based on examination of excess capacity in a number of the structural elements as well as wind study modelling, this Building was not a significant safety risk to the public and required only minor work to satisfy snow load requirements. PEO takes no position on whether this opinion is correct or not.

15. The as-built condition of the Buildings listed in subparagraphs 7(f) and 7(h) was the subject of a detailed examination and engineering analysis by Jamie Pilot. P.Eng., the current responsible engineer under FAE's C of A. He determined that, in his opinion, while the design of these buildings was not compliant with the OBC, the as-built structures were sufficient to support OBC defined loads and did not pose a safety risk. On the basis of that opinion, no work was required by the municipality to be carried out on these Buildings to satisfy snow load requirements. PEO takes no position on whether Mr. Pilot's opinion was correct or not.

16. FAE undertook to review all the projects identified in the RI, and provided a report dated February 26, 2019, a copy of which is attached hereto as Schedule “K”. That report covered 31 structures that had not been reviewed by Tacoma. FAE's report identified Buildings which did not include snow load information, Buildings which used Cw< I.O, Buildings in which the designer used an importance factor, Is=1.0 rather than Is=1.15, and Buildings which did not identify the snow loads used in the design. FAE's report also identified certain structures, wherein examination of relevant components as built ("reverse engineering") showed that they satisfied Code required loads, despite the fact that the drawings either did not identify the snow loads, or used incorrect snow loads. FAE's report noted that the roofs of the Buildings listed at subparagraphs 7(q) and (s) were not Code compliant even as-built. FAE determined in their engineering judgement that as-built capacities of these structures were in such proximity to Code-required specified loads that when factored, would be considered satisfactory to accommodate loading requirements imposed on them and therefore required no remediation efforts.

17. For the purposes of these proceedings, and subject to the foregoing, the Respondents accept as correct the findings, opinions and conclusions in the Expert Reports, and admit that the roof designs and the associated drawings in connection with the Buildings described above in paragraphs 7, 9, 10, 11 and 12 failed to make responsible provision for complying with applicable statutes, regulations and codes. The Respondents further admit that the engineering work in relation to the design of the roofs of the Buildings fell below the expected standards that a reasonable and prudent practitioner should maintain in the circumstances, and did not make reasonable provision for the safeguarding of life, health or property of the persons affected by the work.

18. The parties therefore agree that the Respondents are guilty of professional misconduct as follows:

a. Issuing structural drawings for the construction of buildings 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. Issuing structural drawings for the construction of buildings 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. Issuing structural drawings for the construction of buildings that failed to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws, amounting to professional misconduct as defined by section 72(2)(d) of Regulation 941: and

d. Issuing structural drawings for the construction of buildings in an unprofessional manner, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.

The Respondents have, or have had, the opportunity to obtain independent legal advice with respect to their agreement as to the facts as set out above.”

Plea by Member and by the Holder

4. James R. Malo, P.Eng., the Licence Holder and a former member of the Association of Professional Engineers of Ontario (“Malo”), and Form Architecture Engineering (“FAE”), a holder of a Certificate of Authorization, through its counsel, both admitted to the allegations set out in the Agreed Statement of Facts. The panel conducted a plea inquiry and was satisfied that the admissions of each of the parties were each voluntary, informed and unequivocal.

Decision Regarding the Allegations of Professional Misconduct

5. The panel considered the Agreed Statement of Facts and finds that the facts support a finding that Malo committed acts of professional misconduct as alleged in paragraphs 18. a., b., c., and d. of the Agreed Statement of Facts, and further finds that the facts support a finding that FAE committed acts of professional misconduct as alleged in paragraphs 18 a, b, c, and d of the Agreed Statement of Facts, as follows:

6. Issuing structural drawings for the construction of buildings 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;

7. Issuing structural drawings for the construction of buildings 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;

8. Issuing structural drawings for the construction of buildings that failed to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws, amounting to professional misconduct as defined by section 72(2)(d) of Regulation 941: and

9. Issuing structural drawings for the construction of buildings in an unprofessional manner, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.

Joint Submission as to Penalty and Costs with respect to the Member, Malo

6. The parties provided a joint submission as to penalty orally, and then confirmed it in writing by the parties. No witnesses were called with respect to the issue of penalty as it related to Malo. The joint submission provided as follows:

“Joint Submission as to Penalty and Costs

1. This Joint Submission as to Penalty and Costs was made between James R. Malo and the Association of Professional Engineers of Ontario.

2. James R. Malo (“Malo”) was at all material times a Member of the Association of Professional Engineers of Ontario (“PEO”). Malo was the subject of a proceeding before a panel of the Discipline Committee of the PEO pursuant to section 28 of the Professional Engineers Act.

3. The PEO and Malo made the following joint submission on penalty and costs:

a) Pursuant to s. 28(4)(a) of the Professional Engineers Act, Malo’s licence shall be revoked;

b) Pursuant to s. 28(5) of the Professional Engineers Act, the order of the Discipline Committee shall be published, with reference to Malo’s name.

c) There shall be no order as to costs, and there shall be no fines imposed.

Malo has had independent legal advice with respect to the penalty set out above.”

Panel Decision and Reasons on as to Penalty for Malo

7. It is well established that a joint submission as to penalty should not be lightly disregarded. It is only where the circumstances are such that the proposed penalty is contrary to the public interest and/ or it would bring the administration of justice into disrepute that it should be varied.

8. The panel considered the joint submission. For the reasons set out below, the panel accepts the joint submission as to penalty and costs proposed by the Association and Malo, and orders that:

9. Pursuant to s. 28(4)(a) of the Professional Engineers Act, Malo’s licence shall be revoked;

10. Pursuant to s. 28(5) of the Professional Engineers Act, the order of the Discipline Committee shall be published with reference to Malo’s name.

11. There shall be no order as to costs, and there shall be no fines imposed.

12. Revocation of a licence is a penalty that is typically reserved for the most serious of offences with shorter term suspensions considered first. Malo was nearing the end of his career at the time of the complaints. He chose to surrender his licence. The panel saw no reason to vary the agreement to revoke rather than suspend his licence. Malo admitted guilt. Malo also agreed to the order being published with reference to his name. The proposed penalty addressed the key principles in respect of the imposition of penalties including: a) protection of the public; b) maintenance of professional standards; c) maintenance of public confidence in the ability of the profession to regulate itself; and d) general deterrence. Revocation of member’s licence and publishing a member’s name in the “Gazette” sends a message to practicing members that the PEO considers its responsibility seriously in protecting the public from unsafe conditions and that it upholds its high competency standards. It encourages members to meet the standards of the profession and discourages them from failing to do so. In addition, the member had already resigned and so there would not be an issue of public safety going forward. Given that that the member had already resigned and would, therefore, no longer be practicing engineering, the principles of specific deterrence and rehabilitation were less relevant as they related to the penalty with respect to Malo.

13. In summary, the panel was satisfied that, in the circumstances, the penalty addressed the considerations it should address and that there was no compelling reason to deviate from the penalty jointly submitted by the parties.

DECISION AND REASONS WITH RESPECT TO PENALTY AND COSTS WITH RESPECT TO FAE, THE HOLDER OF THE CERTIFICATE OF AUTHORIZATION

Overview

11. The Association and FAE did not agree on an appropriate penalty. FAE called two witnesses to give evidence with respect to penalty: Jamie Pilot, P.Eng. (“Pilot”) and Peter Halsall, P.Eng. (“Halsall”). Both parties made submissions on penalty.

12. The Association and FAE agreed that FAE should be reprimanded pursuant to paragraph 28(4)(b) of the Professional Engineers Act, R.S.O. 1990 C. P.28 (“PEA”). The Association took the position that the fact of the reprimand should be recorded on the Register permanently. FAE took the position that the reprimand should be recorded for a period of one year and, after that, it should be expunged form the record. The parties also disagreed as to whether FAE’s name should be published. The Association submitted that the name should be published in the “Gazette”, and FAE opposed publication of the name.

Evidence on Penalty

13. Pilot testified that he joined FAE in 2006. He initially apprenticed under Malo. By the time of the hearing, he had become a partner and the structural engineer responsible for the licence of the holder of the Certificate of Authorization, FAE. He is a member in good standing of the Association. He testified that he was not aware of any complaints against FAE, other than these two. He was first made aware of the issues with the projects that were the subject of the complaints in Matter 1 when the first complaint was filed. He wanted to “dive into the issues” at the time when the Registrar’s Investigation was ordered. He wanted to know things like whether the complaints were valid; whether there were buildings in need of remediation; if so, what work needed to be done to determine this and to in turn remediate the buildings if needed. Pilot gave evidence that FAE undertook an investigation of its own. He reported an intensive review was conducted involving many hours of work and long hours spent by him in addition to his regular work. He described acting on a sense of responsibility to his clients and the to the public; a desire to protect FAE’s professional reputation and an acceptance of responsibility. He reported that no one at FAE said that this was “not our problem”. He had the support of his partners in completing the review of previous projects and of completing remediation work at the expense of FAE. He expected that the overall cost of the review work in lost billings and remediation work exceeded $250,000.00.

14. Pilot gave evidence of the steps that FAE had taken and continued to take to ensure that the issues that gave rise to the complaints would not occur again. He gave evidence of putting a peer review process in place. He explained that FAE had developed a quality assurance process to ensure that designs were safe and Ontario Building Code compliant, including hiring outside consultants to do review work or design work as needed. He discussed there being proper training instituted for everyone involved in the design process; support for continuing professional development; networking as they were in a small practice; and proper record keeping to ensure that the quality review process was being followed. Pilot reviewed what he had learned from the process, stressing the importance of quality assurance and of having a network of outside people to confer with in small firm and a small community.

15. Pilot confirmed, that in some cases, steps had to be taken immediately by FAE to ensure public safety. These steps included notifying the building owners and ensuring that there was a plan in place for snow management. FAE provided a large number of documents to the Registrar for the Registrar’s Investigation. FAE was cooperative with the Registrar’s Investigation and throughout the process.

16. Halsall testified that he was a consulting engineer who had mostly worked in management services since 1977. He worked with his father’s engineering firm, Halsall Engineering, a firm that provided service to buildings in need of remediation. Halsall continued to develop engineering experience including in the conduct of forensic evaluation. He was involved with the design review process in the registrar’s investigation into the complaints.

17. Halsall gave evidence regarding the review process and the complexities of reviewing the large body of work that was the subject of the Registrar’s Investigation. He stated that there was no need to force Pilot to do anything; that he was inspired by Pilot. He described the context: working in a small practice in a small community and the importance of setting up outside networks. He testified that FAE’s and Pilot’s conduct in response to the complaints as both professional and honourable. He considered FAE to be a firm that “did the right thing”.

Arguments on Penalty

Summary of Submissions of Counsel for the Association

18. Counsel for the Association agreed that Pilot had been helpful and cooperative. She noted that the designs at issue had not been done by Pilot. Pilot was not the responsible engineer. She noted that Pilot was not considered to be technically incompetent. Counsel submitted, nonetheless, with respect to FAE, the misconduct was very serious. Counsel for the Association pointed out that there were 25 buildings at issue. The buildings included two schools. The owners of the buildings and the Chief Building Official had to be notified of the deficiencies. Some of the buildings needed immediate temporary remediation to avoid possible public safety risk. FAE, the Holder of the C of A, was guilty of serious misconduct.

19. Counsel for the Association referred to PEO v. Houston T. Engio, P.Eng. and Houston Engineering & Drafting Inc., [2016] “Engineering Dimensions”, November/December, page 40 (“Engio”), and made note of paragraph 11 which set out the objectives of penalty. In terms of protection of the public, Counsel for the Association submitted that the Association did not have a concern for future protection of the public, but general deterrence remained an important consideration that required that other holders of Certificates of Authorization be aware that serious misconduct is treated seriously, and submitted that this requires that the name of the Holder be published, that holders know that their name will be published, referring to paragraph 19 of Engio, which discussed the need to denounce misconduct by publishing. Counsel for the Association also pointed that out that the protection of the reputation of the profession required publication of the name of the Holder of the Certificate of Authorization, FAE, in the circumstances of this case. Counsel for the Association referred to Ontario College of Social Workers and Social Service Workers v Rozina Shaheen, 2019 ONCSWSSW 9, especially in relation to the principle that not publishing should be a rare exception and require compelling reasons.

20. On the issue of the Association’s request for the penalty to include a reprimand being placed on the record permanently, Counsel for the Association referred to decisions including PEO v. Gerard Van Iterson, P.Eng. and 694470 Ontario Ltd. o/a Unicorn Engineering, [2018] “Engineering Dimensions”, March/April, page 32 (“Van Iterson”). In Van Iterson, the parties had agreed on a time-limited reprimand, but the Discipline Committee decided that a timed reprimand was not acceptable. Counsel for the Association submitted that the conduct of FAE was at least as serious in this case, if not more so, than the conduct at issue in Van Iterson and, as such, a time-limited reprimand was not appropriate.

21. Counsel for the Association disagreed that the publication of names and a permanent reprimand amounted to a punishment of Pilot for something in the future. It was to reflect the conduct of FAE that had occurred in the past. She referred to the Agreed Statement of Facts in that the design failures were agreed to have represented a significant risk to the public. She submitted that the case law supported a permanent reprimand in cases of serious misconduct.

Summary of Submission of Counsel for FAE

22. Counsel for FAE pointed out that Malo was the responsible member at the time that the designs in issue were stamped. He described Malo as being FAE in effect until Malo was replaced by Pilot, at which time Pilot became FAE. Counsel expressed that it would be unfair to put this stain on Pilot who was now the responsible engineer and who, Counsel submitted, would be affected by a reprimand that Counsel for FAE argued should follow Malo, not FAE. He reviewed Pilot’s evidence regarding the internal review efforts of FAE and submitted that such efforts were made out of concern for public safety. He argued that there was no deliberate disregard for the Ontario Building Code or for public safety, that, rather, it was a misunderstanding of the Code or of the application of it in the particular circumstances that lead to the complaint. He pointed out the comprehensive quality assurance process and peer review process that FAE had put in place at its own expense and at its own initiative. He pointed out that Halsall had given evidence that there were no concerns with Pilot’s technical competence. He submitted, in all of the circumstances, that FAE did not deserve to have its name published.

23. Counsel for FAE reviewed to case law with respect to the principles on the appropriateness of penalty. In particular, he referred to the “Gazette” of the Association of Professional Engineers of Ontario, November/December 2018, at pages 30-32, and to the “Gazette” of the Association of Professional Engineers of Ontario, September/October 2014, at pages 26-28, in support of FAE’s position that a time-limited reprimand without names being published was appropriate given that, in his submission, there was no danger to the public expected in the future, and no current issue with technical competence. He also pointed out that this was a first offence for FAE. He distinguished the Engio case stating that, in Engio, the member had approved shoring designs without even looking at them; the designs in that case were described as incoherent and the member gave misleading evidence and had prior convictions. He pointed out that, in other decisions where there was a permanent reprimand, the member was continuing to practice. In this case, Malo had resigned and his licence had now been revoked.

24. Counsel for FAE summarized by stating that a permanent reprimand and the publication of names was tantamount to penalizing Pilot for the conduct of Malo. FAE was cooperative. It took steps without being asked. There was no evidence that there was any future risk of danger to the public.

Comments by ILC

25. The panel sought the advice of Independent Legal Counsel (“ILC”) on the issue of the scope of its jurisdiction to order a time-limited reprimand and on the issue of whether a reprimand could be published with or without names. ILC advised that the panel can only do what the statute permits. ILC submitted that previous decisions of the Discipline Committee are not binding on this panel, but that decisions of the courts are binding. He pointed that that his advice was not binding on the panel.

26. He pointed to subsection 28(4) of the PEA which sets out the powers of the panel. Subparagraph (f) specifically states that the Discipline Committee can:

require that the member or the holder of the certificate of authorization, temporary licence, provisional licence or limited licence be reprimanded, admonished or counselled and, if considered warranted, direct that the fact of the reprimand, admonishment or counselling be recorded on the register for a stated or unlimited period of time; a reprimand can be recorded for a limited time

27. ILC advised that a licence suspension must be published, whereas reprimands do not have to be published. ILC advised that the open court principle may not be engaged by the issue of publication of the name of FAE. He submitted that, in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), referred to in the decision in Ontario College of Social Workers and Social Service Workers v Rozina Shaheen, that the case dealt with a request for a publication ban.

28. In ILC’s view, the Engio case was wrongly decided to the extent that it may be read as fettering the discretion of the panel to determine whether a reprimand should be recorded for a limited amount of time or indefinitely. He pointed out that it was provided for guidance.

29. Counsel for the parties agreed that the panel had jurisdiction to order that the reprimand be recorded on the Register, and that the reprimand could be time limited or permanent. Both Counsel agreed that the panel had jurisdiction to order publication of the decision and of the reprimand with or without names.

Penalty Decision

30. The panel makes the following order as to a penalty:

31. Pursuant to paragraph 28(4)(f) of the PEA, FAE shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of one year.

32. Pursuant to paragraph 28(4)(i) and subjection 28(5) of the PEA, the Decision and Order of the Discipline Committee shall be published in PEO’s official publication with reference to names; and

33. There shall be no order as to costs.

Reasons for Penalty Decision

31. The panels considered application of the following principles:

a) Protection of the public;

b) Maintenance of professional standards;

c) Maintenance of public confidence in the ability of the profession to regulate itself;

d) General deterrence;

e) Specific deterrence; and

f) Rehabilitation.

32. No single principle should govern. The decision should balance aggravating and mitigating factors.

33. The panel was mindful of the fact that FAE was cooperative in an extensive investigation of its projects involving a considerable amount of time, effort and support by FAE. The panel was impressed with the response of FAE in dealing with the complaint, including by conducting its own review, taking remediation steps, setting up quality control processes and generally taking responsibility for the design deficiencies. The panel considered the time and effort and out-of-pocket expense incurred by FAE in determining an appropriate penalty, as well as what the panel found to be a genuine desire and concrete steps taken to ensure that the previous misconduct not be repeated. The panel would hope that other members and holders will follow the example of FAE and of Pilot in the event that an error in their own work or that of the holder of a Certificate of Authorization for which they find themselves now responsible is found.

34. The panel acknowledges that the Discipline Committee should act to deter members from similar acts of misconduct by imposing a meaningful, but reasonable penalty. The panel decided, given the special circumstances of this case, that the publication of the Decision and Reasons, with names, and of the reprimand being recorded for a limited time period is sufficient in all of the circumstances.

35. The panel did not find that, in all of the circumstances of this case, a permanent reprimand being recorded on the record of FAE was warranted.

36. The panel concluded that the penalty it has ordered is reasonable and in the public interest. FAE cooperated with the Association. It agreed on the facts, has accepted responsibility for its actions, and has avoided unnecessary expense to the Association. It was not, in the panel’s view, unreasonable for FAE to contest parts of the penalty requested by the Association. The panel found the evidence of FAE on the issue of penalty helpful in making its decision. As such, the panel finds that an award of costs was not warranted.

37. In summary, the panel finds that the penalty ordered is reasonable and that public confidence in the ability of the Association to be a self-regulator of the profession is satisfied by the penalty.