DISCIPLINE COMMITTEE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)
Indexed as:
The Association of Professional Engineers of Ontario (PEO) v Riggs et al (Penalty), 2021 ONAPE 25
IN THE MATTER OF In the matter of a hearing under the Professional Engineers Act, R.S.O. 1990, c. P. 28
AND IN THE MATTER OF a complaint regarding the conduct of Brian P.M. Riggs, P.Eng., a member of the Association of Professional Engineers of Ontario and Riggs Engineering Ltd., holder of a Certificate of Authorization.
BETWEEN:
The Association of Professional Engineers of Ontario (PEO)
-and-
Brian P.M. Riggs and Riggs Engineering Ltd.
PANEL MEMBERS:
Charles McDermott, P. Eng.
CHAIR
Alisa Chaplick, LL. B., LL.M.
MEMBER
Gary Thompson, P. Eng.
MEMBER
Hearing Date(s):
2021-07-12, 2021-07-13, 2021-07-14 and 2021-01-18
Decision Date:
2021-12-13
NAME OF LAWYER
Leah Price, Counsel for the Association of Professional Engineers of Ontario (PEO)
Alysha Shore, Co-counsel for the Association of Professional Engineers of Ontario (PEO)
NAME OF LAWYER
Brian P.M. Riggs and Riggs Engineering Ltd. Were not present and were not represented.
NAME OF LAWYER
David Jacobs, Independent Legal Counsel to the Tribunal
DECISION AND REASONS ON PENALTY
This Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (the “Association” or “PEO”) convened a hearing on the merits of this matter remotely via Zoom on July 12, 13 and 14, 2021.
The decision on the merits was released by the Panel on September 7, 2021, in which Brian P.M. Riggs, P.Eng. (“Riggs”) and Riggs Engineering Limited (“REL”) were found guilty of professional misconduct as described herein.
The Panel convened a hearing remotely via Zoom to hear arguments related to penalty in this matter on October 18, 2021 (“Penalty Hearing”). In both the hearing on the merits and the Penalty Hearing, Riggs and REL were not present at the hearing and not represented. In addition, in both the hearing on the merits and the Penalty Hearing, the Panel adjourned for 30 minutes at the start of the hearing to give Riggs and REL the opportunity to attend. However, Riggs and REL did not attend at either hearing. The Panel made an oral finding, at the start of both the hearing on the merits and the Penalty Hearing, that appropriate and timely notice was given to Riggs and REL, and that the hearing on the merits and the Penalty Hearing could properly proceed.
This is the Decision and Reasons on Penalty.
The Allegations
The allegations against Riggs and REL are stated in the Statement of Allegations dated November 26, 2020. The relevant parts of the Statement of Allegations, which were also included in the September 7, 2021 Decision in the hearing on the merits, are as follows:
It is alleged that Brian P.M. Riggs, P.Eng. (“Riggs”) and Riggs Engineering Ltd. (“REL”) are guilty of professional misconduct as defined in the Act and Regulation 941.
At all material times, Riggs was a professional engineer licensed pursuant to the Act.
At all material times, REL held a Certificate of Authorization (“CoA”) and listed Riggs as a licence holder responsible for the services provided under the CoA.
In 2009, the complainant hired Overholt Excavating Services Ltd. (“Overholt”) to conduct an investigation and make recommendations for shoreline protection and the construction of a retaining wall on the complainant’s property. In turn, Overholt hired REL to design the wall.
Riggs provided Overholt drawings for a shoreline protection project which he signed and sealed on or about September 8, 2010. Thereafter, Riggs prepared Drawing MA-01, “Bourner and Pond Shoreline Protection” [sic], for the retaining wall, which he signed and sealed on or about September 2 or 12, 2011.
The shoreline protection project was completed in 2010. In the Fall of 2011, Overholt completed construction of the retaining wall based on Riggs’ design.
In the Spring of 2014, the complainant noticed that the wall was failing. Problems included the sheet piles turning, tension cracks in the earth developing near the wall and near the complainant’s cottage, and settlement of the armour stones near the shore and the backfill behind the wall.
On July 6, 2015, the complainant submitted a complaint against Riggs to PEO. Riggs was uncooperative with the PEO investigator. He failed to respond to numerous inquiries of the PEO investigator over the course of the investigation and provided only a small number of the requested documents.
The investigation concluded that Riggs’ drawing MA-01, “Bourner and Pond Shoreline Protection,” [sic] was deficient and failed to meet the standard of a reasonable and prudent practitioner, including that it:
(a) Did not include any specific design criteria, design parameters or loading information required for proper understanding and evaluation of the work by the contractor or any reviewer;
(b) Lacked critical specifications, material properties, construction procedure instructions and notes;
(c) Provided for insufficient distance to develop adequate passive resistance for the type of wall system;
(d) Provided insufficient support to transfer tensile load to the full surface area;
(e) Did not provide for any stiffener or connection detail on the bend at the side W200x43 upper wale, which may not handle eccentric bending from the tensile load; and
(f) Contemplated a system that was relatively water-tight, which could cause groundwater to build up behind the shoring system, and failed to indicate whether such hydrostatic pressure was considered in the design below the drainage tiles or in any other methods.
- It is, therefore, alleged that Riggs and REL are guilty of professional misconduct as follows:
(a) Preparing and providing inadequate design drawings and specifications for a retaining wall, amounting to professional misconduct as defined by Sections 72(2)(a), (b), (d) and (j) of Regulation 941; and
(b) Failing to cooperate with the Complaints Committee’s investigation, amounting to professional misconduct as defined by Section 72(2)(j) of Regulation 941.”
In the September 7, 2021 Decision, the Panel found Riggs and REL guilty of professional misconduct on all of the grounds alleged in paragraphs 9(a) and (b) of the Statement of Allegations, quoted directly above.
Submissions on Penalty and Decision and Reasons on Penalty
The Association is seeking the following penalty:
Revocation of Riggs’ licence and REL’s Certificate of Authorization pursuant to Section 28(4)(a) of the Professional Engineers Act (the “Act”),
The findings and order of the Discipline Committee, regarding both the hearing on the merits and the Penalty Hearing, shall be published with names pursuant to Sections 28(4)(i) and 28(5) of the Act, and
Costs in the amount of $25,000 shall be paid jointly and severally by Riggs and REL pursuant to Section 28(4)(j) of the Act.
Revocation
Counsel for the Association argues that Riggs’ licence and REL’s Certificate of Authorization should be revoked, citing Section 28(4)(a) of the Act, which reads as follows:
Powers of Discipline Committee
(4) Where the Discipline Committee finds a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty of professional misconduct or to be incompetent it may, by order,
(a) revoke the licence of the member or the certificate of authorization, temporary licence, provisional licence or limited licence of the holder;
Ungovernability
In support of its argument that Riggs’ licence and REL’s Certificate of Authorization should be revoked, Counsel for the Association argues that Riggs is ungovernable. In particular, Counsel for the Association argues that, in this matter, Riggs’ technical misconduct was very serious, and it was coupled with both an uncaring attitude and contempt for his client and the Association. In addition, Counsel for the Association argues that, since Riggs is ungovernable, there is no chance of remediation or rehabilitation of his conduct.
In support of its argument that Riggs is ungovernable, counsel for the Association cites paragraphs from The Law Society of Upper Canada v. Robin Douglas Scott, 2006 ONLSHP 48 (“Scott”) regarding ungovernability including the following:
A finding of ungovernability is based on a case-by-case analysis. The guiding principle is the public interest. It is essential that members of this profession be willing to be governed by the Society, and to adhere to its dictates. Otherwise, the public cannot be protected…
Factors which inform the determination whether a member is ungovernable include the following:
(a) The nature, duration and repetitive character of the misconduct;
(b) Any prior discipline history;
(c) Any character evidence;
(d) The existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
(e) The degree of willingness to be governed by the Society;
(f) Medical or other evidence that explains (though does not excuse) the misconduct;
(g) The likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts;
(h) The member's ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.
- An assessment of ungovernability, which would lead to disbarment, ought to hold primary the protection of the public interest and ensure that the Society retains the capacity to regulate the member and ensure that that interest is protected…
With respect to factor (a) set out in Scott, Counsel for the Association argues that there was a long duration during which Riggs and REL showed an unwillingness to be governed. Regarding factor (b), Counsel for the Association acknowledges that this was Riggs’ and REL’s first offence. With respect to factor (c), Counsel for the Association argues that there is no evidence of Riggs’ positive character, but there is evidence that he was uncaring in his response to the property owner, Paula Bourner. Regarding factor (d), Counsel for the Association argues that Riggs and REL showed no remorse nor understanding of the seriousness of this situation. Regarding factors (e), (g) and (h), Counsel for the Association argues that Riggs and REL are ungovernable, as described more particularly herein and with respect to factor (f), Counsel for the Association argues that there is no evidence explaining the misconduct.
Independent Legal Counsel advised that it is up to the Panel to make a decision regarding the penalty proposed by the Association. Counsel for the Association set out the considerations in this matter fairly, and all of the proposed penalties sought are within the jurisdiction of the Discipline Committee. He noted that it is critical for a member to recognize the authority of his or her regulator and that ungovernability is very serious and can result in revocation.
The Panel concludes that the proposed penalty of revocation is appropriate and in the public interest. The Panel finds that, in this matter, Riggs and REL made very serious technical failings and that they are ungovernable and have no chance of rehabilitation. The Panel also accepts Counsel for the Association’s arguments that, in his very infrequent communications with the Association, Riggs showed no remorse nor understanding of the seriousness of this matter. In addition, as noted above, Riggs failed to attend both the hearing on the merits and the Penalty Hearing. Finally, the Panel accepts Counsel for the Association’s arguments regarding the applicability of the factors in the Scott decision, quoted above. Riggs’ lack of participation and cooperation with the Association necessitated both the three-day hearing on the merits and the one-day Penalty Hearing, resulting in considerable expense to the Association. While there is one mitigating factor regarding the lack of a prior discipline history on the part of Riggs and REL, the Panel finds that the aggravating factors significantly outweigh the sole mitigating factor. In light of the above, the Panel has decided to revoke Riggs’ licence and REL’s Certificate of Authorization.
Publication
Counsel for the Association argues that the findings and order of the Discipline Committee must be published with names. In support of this argument, Counsel for the Association cites Section 24(4)(i) and Section 28(5) of the Act, which read as follows:
(4) Where the Discipline Committee finds a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty of professional misconduct or to be incompetent it may, by order,
(i) subject to subsection (5) in respect of orders of revocation or suspension, direct that the finding and the order of the Discipline Committee be published in detail or in summary and either with or without including the name of the member or holder in the official publication of the Association and in such other manner or medium as the Discipline Committee considers appropriate in the particular case;
Publication of revocation or suspension
(5) The Discipline Committee shall cause an order of the Committee revoking or suspending a licence or certificate of authorization, temporary licence, provisional licence or limited licence to be published, with or without the reasons therefor, in the official publication of the Association together with the name of the member or holder of the revoked or suspended licence or certificate of authorization, temporary licence, provisional licence or limited licence. [emphasis added]
Counsel for the Association notes that, pursuant to Section 28(5) of the Act, directly above, if the Panel suspends or revokes Riggs’ license and/or REL’s Certificate of Authorization, the decision of the Panel must be published with names. The Panel agrees that this accords with the plain wording of Section 28(5) of the Act.
As noted above, the Panel has decided to revoke Riggs’ license and REL’s Certificate of Authorization. Therefore, the Panel’s findings will be published in the Association’s official publication with names. The question remains as to whether the Panel’s findings should be published in full or in summary. Counsel for the Association states that the Association is content to let the Panel make this determination without providing detailed submissions on this issue.
Given the length of the decision in the hearing on the merits and this Penalty Decision, the Panel has decided that it would be impractical to publish the Panel’s full findings on this matter in the official publication of the Association. Instead, the Panel has decided that it will publish a summary of its findings regarding the hearing on the merits and this Penalty Decision in the Association’s official publication.
Costs
Counsel for the Association also seeks costs payable jointly and severally by Riggs and REL pursuant to Section 28(4)(j) of the Act, which reads as follows:
Powers of Discipline Committee
(4) Where the Discipline Committee finds a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty of professional misconduct or to be incompetent it may, by order,
(j) fix and impose costs to be paid by the member or the holder to the Association;
Counsel for the Association argued that this section gives the Panel wide discretion in granting costs. Counsel for the Association presented a Bill of Costs totalling over $43,000. This included the costs of the independent expert in this matter and the costs of external legal counsel. It did not account for the time expended by internal legal counsel. The actual costs award sought, of $25,000, is less than 60% of the Association’s actual expenditures put forth in the Bill of Costs.
The Panel agrees that the proposed costs award is reasonable in light of the facts and the case law cited by Counsel for the Association (Engineers and Geoscientists v. Chrysanthous, P.Eng., Discipline Committee of the B.C. Engineers and Geoscientists, Decision and Order on Costs, October 27, 2018 and PEO v. Houston T. Engio, P.Eng. et al., Discipline Committee of the PEO, Decision and Reasons on Penalty, July 6, 2016, Unreported). As noted above, it is only a fraction of the Association’s actual costs. The Panel also believes that this costs award is reasonable in light of the findings of the Panel in this matter regarding Riggs’ and REL’s technical failings and ungovernability. In addition, this costs award is important in sending a message to members of the PEO that professional misconduct, including ungovernability, will not be tolerated by the Association. The Panel, therefore, finds that costs in the amount of $25,000 must be paid jointly and severally by Riggs and REL.
Order
The Panel orders the following:
Revocation of Riggs’ licence and REL’s Certificate of Authorization pursuant to Section 28(4)(a) of the Act;
A summary of the findings and order of the Discipline Committee regarding both the hearing on the merits and the Penalty Hearing shall be published with names pursuant to Sections 28(4)(i) and 28(5) of the Act; and
Costs in the amount of $25,000 shall be paid jointly and severally by Riggs and REL pursuant to Section 28(4)(j) of the Act.