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, 2021 ONAPE 24
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, and 2021-07-14
Decision Date:
2021-09-07
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
This Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (the “Association” or “PEO”) convened a hearing remotely via Zoom to hear this matter on July 12, 13 and 14, 2021. Brian P.M. Riggs, P.Eng. (“Riggs”) and Riggs Engineering Ltd. (“REL”) were not present at the hearing and not represented. However, the Panel made an oral finding, at the start of the hearing, that appropriate notice was given to Riggs and REL and that the hearing could properly proceed, as described in more detail below.
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 read 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.”
Plea of the Member and/or Holder and Background Information
As noted above, Riggs was not present at the hearing and he was not represented. He did not make a plea in this matter. At the start of the hearing, the Panel adjourned for 30 minutes to give him an opportunity to attend in the event that he was late. He did not attend.
Counsel for the Association submitted that, even in the absence of Riggs and REL, the onus remains on PEO to prove the charges in the Statement of Allegations. However, she also stated that the fact that Riggs was not there does not mean a higher standard of proof should be applied to the allegations. She submitted that the standard of proof remains the balance of probabilities. In support of this proposition, she cited The Association of Professional Engineers of Ontario v. Rew, (2020 ONSC 6018).
As stated above, the Panel made an oral finding, at the start of the hearing, that appropriate notice of the hearing was given to Riggs and REL, and that the hearing could properly proceed. This was on the basis of evidence given by PEO’s Tribunal Administrative Officer, Svitlana Tereshchenko. Ms. Tereshchenko affirmed that she served Riggs by e-mailing Riggs the Notice of Hearing at his e-mail address, in accordance with Section 4 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, currently in effect. In addition, Counsel for the Association advised that PEO has regularly communicated with Riggs by e-mail at the e-mail address with which they used to serve him. On the basis of the foregoing, the Panel finds that Riggs was given appropriate notice, and the hearing could proceed.
Given that Riggs and REL were not present nor represented, they were deemed to have denied the allegations in the Statement of Allegations.
Counsel for the Association introduced the Registrar’s Certificate of Authorization for Riggs and REL. This Certificate of Authorization shows that Riggs is currently licensed by PEO, and REL is currently a holder of a Certificate of Authorization. The Panel found that, at all material times, Riggs was a professional engineer licensed pursuant to the Act, and REL held a Certificate of Authorization which listed Riggs as a licence holder responsible for the services provided under the Certificate of Authorization.
The Evidence
The Witnesses
The first individual who testified on behalf of the Association was Geoffrey Cade (“Cade”). Cade testified that he was employed with the Ausable Bayfield Conservation Authority (“ABCA”) since 2006. His job is to review permit applications to make sure that the work proposed in the permits, if allowed, does not exacerbate flooding and erosion in conservation areas. His job includes a supervisory function.
The second individual who testified on behalf of the Association was the person who had filed the complaint which led to the referral of charges to the Discipline Committee, the complainant, Dr. Paula Bourner (“Bourner”). Bourner testified that she has a Doctorate in English Literature and has worked as a Professor and a high school teacher. She is currently retired. As set out in the Statement of Allegations, Bourner owned the property that was at issue in this matter at the relevant times (the “Property”).
The third individual who testified on behalf of the Association was Teresa Veldhuis (“Veldhuis”). Veldhuis testified that she has a P.Eng. as a licenced engineer in Ontario and has been an Investigator at PEO for approximately 7.5 years. Veldhuis’ evidence will be discussed below, including in the section regarding Riggs and REL’s failures to cooperate with the investigation.
The fourth individual who testified on behalf of the Association was Botel Chiu (“Chiu”). Chiu was a “participant expert” as described below.
The fifth and final individual who testified on behalf of the Association was Shahram Heidari (“Heidari”). Heidari was qualified as an independent expert by the Panel, as described below. An outline of some of Heidari’s relevant qualifications is also described below.
The Panel found that all of the witnesses testified in a genuine and credible manner.
Cade’s Testimony
As noted above, Cade was a Supervisor at ABCA. Cade’s testimony included the following information and documentation. On October 27, 2009, Cade wrote a letter to Bourner and her partner at the time, Charlene Pond (“Pond”), stating that the application to construct a retaining wall at the Property was incomplete and listing the items that needed to be submitted.
Cade testified that he was the supervisor of Andrew Bicknell, P.Eng. (“Bicknell”), Regulations Coordinator at ABCA. A letter from Bicknell to Bourner and Pond dated February 22, 2010 identified many concerns regarding the Project, and then stated the following, “We wish to remind you that your file at this stage is considered to be incomplete as there has been no formal Engineering study submitted to-date to support your proposal and the Authority is not yet in receipt of any design details or fees as of yet. We would strongly urge you at this stage to consult with your Agents in regard to this proposal.”
An e-mail from Riggs with the subject “Bourner/Pond cottage north of Bayfield”, sent August 24, 2010 at 1:32 p.m., set out various options which were discussed, including moving the cottage, which was rejected. At that time, a second option was contemplated as follows, “A steel sheet pile wall 5 to 6 metres from the cottage wall [sic] also discussed. It was noted this wall would have to have wales at two levels. The wales would have to be tied into the bank (presumably with long helical piers) so that the stability of the overall slope was enhanced.” The e-mail later stated, “Pond/Bourner expressed a general preference for a steel sheet pile solution at the top of the bank (the cost is [sic] not yet been considered).” This second option was incorporated into a report by Atkinson, Davies Inc. dated September 14, 2010, which will later be referred to by Chiu and Heidari as the LVM letter or report.
On September 30, 2010, Bicknell sent another letter to Bourner and Pond stating that the information which had been submitted was unclear and the application was considered to be incomplete.
Cade testified that a Permit, valid from September 29, 2011 to September 28, 2012, was issued based, in part, on Drawing MA-01. The Permit was issued for the purpose of “erecting a retaining wall structure and related works affecting the lake bank”.
Cade also testified that ABCA issued a permit valid from November 5, 2015 to November 4, 2016 to Bourner as owner of the Property, with the Agent listed as, “exp Services Inc. (Bo Chiu)”, for “allowing repair/remediation of existing retaining wall and associated works”.
Bourner’s Testimony
Bourner testified about what she observed at the Property, including sunken down stones and a failing retaining wall, appearing approximately two years after the wall was constructed. Bourner testified that, after the above problems started occurring, she was unable to enjoy the Property and spent considerable time and money dealing with the remedial work. Bourner also testified that Riggs only came to see the Property once upon learning of the problems and then failed to return to the Property, as expected, or communicate with her and her lawyer.
In addition, Bourner testified as to a letter dated September 29, 2015 from EBS Geostructural Inc. to exp Services Inc. (“exp”) to the attention of Chiu. As noted below, exp was retained by EBS Geostructural Inc. to assist with the work at the Property on or around July 24, 2015. The September 29, 2015 letter was an agreement to put in helical piers at the Property pursuant to the terms in the letter. In addition, there was an invoice to Bourner from EBS Geostructural Inc. dated December 22, 2015 in the amount of $98,875.00 (incl. HST) for the “Supply and installation of Chance Helical Pier Tie-Backs for existing retaining wall”.
Veldhuis’ Testimony
As noted above, Veldhuis’ evidence will be discussed below in the section regarding Riggs and REL’s failure to cooperate with the investigation.
Chiu’s Testimony
Chiu - “Participant Expert”
As described below, Chiu was qualified by the Panel as a “participant expert”.
Chiu - Qualifications
The evidence showed that Chiu has an M.Eng., specializing in Geotechnical Engineering. He studies slope stability and deals with retaining structures. He is the Vice President, Earth & Environmental, at exp and has a number of individuals reporting to him. exp holds a Certificate of Authorization from PEO. As noted above, exp was retained by EBS Geostructural Inc. to assist with the Project on or around July 24, 2015.
Westerhof v. Gee Estate
In support of the concept of qualifying individuals such as Chiu as Participant Experts, Counsel for the Association cited Westerhof v. Gee Estate (2015 ONCA 206) (“Westerhof”) which reads, in part, as follows:
60Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:
the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
61Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.
The Association submitted that Chiu is a participant expert because he made observations during his participation in the events at issue when he was retained to assist with the Project.
Independent Legal Counsel for the Panel pointed out that Westerhof dealt with the Rules of Civil Procedure, but stated that this does not mean it is inapplicable in the case before us.
The Panel found that Chiu’s experience and involvement in the Project qualifies him as a Participant Expert.
Chiu - Evidence
Chiu testified that he was contacted by Bourner’s lawyer, Anne Kennedy, in 2014, at which time he was retained to assess the condition of the retaining structure and slope at Bourner’s Property. Chiu testified that he was provided with relevant documents at that time.
In Chiu’s report dated January 12, 2016, he described Riggs’ drawing as follows, “…the existing retaining wall structure is supported by Steel Sheet Pile (SSP) and horizonal supports. The horizontal support ends tie to buried sheet piles. The tie-back retaining wall consists of four (4) bays. The south section consists of one (1) bay and the north section consists of three (3) bays. The length of the wall is approximately 13.7 m running south to north…” In Chiu’s testimony, he stated that Riggs designed a “dead man system”. He also stated that this system is commonly used; however, in Bourner’s situation, there was not enough room for the dead man system, in his view.
With respect to rectifying the situation, Chiu sent an e-mail to Chris Metaxas, P.Eng., a Project Manager at EBS Geostructural Inc. (who also became involved in rectifying the situation at the Property but did not testify at this hearing), dated July 24, 2015. In the e- mail, Chiu said, “We think we can use the helical piers to tie the system back to restore the integrity.” In a different e-mail on July 24, 2015 to Chris Metaxas, Chiu states, “Our thought is to add another waler(s) and install some helical piers from the face of the SSP to the soils behind the retaining wall…” Chiu testified that this was because the retaining wall was falling and moving outward. The photographic evidence filed lent support to his conclusions about the condition of the retaining wall.
On January 12, 2016, three of the engineers at exp, including Chiu, wrote a letter to Bourner, with a copy to her lawyer, Ms. Kennedy. The letter states, in part, “…The sheeting wall was turned away, bended/bulged and distorted especially at location where maximum bending moment occurs.” The letter also states, “Helical Pier tie-backs were recommended by LVM in the report dated September 2010. Helical pier is a form of “twisted” anchor for foundation stabilization and can be used as a tie-back. A SSP anchor system was designed by Riggs Engineering instead of this tie-back system.”
Heidari’s Testimony
Mr. Heidari, M.A.Sc., P.Eng. is a principal of Tarra Engineering & Structural Consultants Inc. (“Tarra”). He graduated from a Civil Engineering undergraduate program in 1989 and received a Master of Engineering Science (Foundation and Geostructural) in 1991 from Tehran Polytechnic University. He has been working as a designer and engineer since early 1989 in Iran and the Middle East region and, in Canada, since 1996. He received his professional engineering designation in August 2000. Since 1998, he has worked primarily in the geostructural engineering field in Ontario and across Canada.
The Panel reviewed Heidari’s extensive qualifications, including the foregoing, and agreed to qualify him as an expert witness in geostructural and structural engineering, with particular expertise in design and evaluation of shoring and earth retaining structures.
The Association had requested that Heidari conduct a review of the work done by Riggs and REL in relation to the engineering design for a retaining wall at the Property.
On June 11, 2020, Heidari provided the Association with a report (“Expert Report”) in a document entitled, “Independent Review of Earth Retention Structure”. The Expert Report contained the following conclusions (references to earlier paragraphs in the Expert Report are not included here):
a. In our opinion the concept of using a sheet pile retaining wall with cellular retention buried sheets connected to dead man is a reasonable option for the site condition. It is not however clear from the information provided that the applicable design criteria, codes and factor of safety have been adequately applied in this design. As noted in paragraphs “3”, ”4”, “5” above the supports and their connections appear to be inadequate to provide minimum Factor of Safety as prescribed in the applicable design codes and guidelines.
b. Drawing MA-01, New Retaining Wall, dated September 2, 2011 as noted in the paragraphs “i” above has been signed by a professional engineer, it is reasonable to assume it ought to provide adequate and reasonable level of information that allows understanding, evaluation and execution of the construction, as mentioned in paragraphs “1” and “2”, the drawing lacks this important and critical information.
c. Given the issues identified in the paragraphs “a” and “b” the drawing provided in our opinion fails to meet the standard of reasonable and prudent engineering practice.
d. The insufficient information and procedures could have caused safety concerns during the construction. Upon completion of the wall construction it is noted that the wall lacks adequate support and stiffness and it is entirely possible that could be a safety concern for the occupant of the property.
Decision
(i) Onus and Standard of Proof
The Association bears the onus of proving the allegations in accordance with the standard of proof on a balance of probabilities.
(ii) Decision
Having considered the evidence and the onus and standard of proof, the Panel finds that the Association met its onus and proved that Riggs and REL committed acts of professional misconduct as alleged in paragraph 9 of the Statement of Allegations. In particular, Riggs and REL: (a) prepared and provided 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) failed to cooperate with the Complaints Committee’s investigation, amounting to professional misconduct as defined by Section 72(2)(j) of Regulation 941.
There was significant overlap between the Panel’s findings of professional misconduct under the different heads of professional misconduct set out in Regulation 941. Accordingly, while the Panel made efforts to separate its reasons based on each individual ground of professional misconduct alleged by the Association, many of the facts and reasons will be applied to more than one ground of professional misconduct.
Reasons for Decision
Are Riggs and REL guilty of professional misconduct for 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?
The Panel finds that the evidence establishes that drawing MA-01 was stamped by Riggs and that this drawing formed the basis for the permit issued by ABCA, as well as the basis for the design of the retaining wall.
As noted above, this decision will address Sections 72(2)(a), (b), (d) and (j) under separate subheadings, directly below:
Did Riggs and REL commit professional misconduct as defined in Section 72(2)(a) of the Regulation by being negligent?
The Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(a) of the Regulation by being negligent.
Negligence is a defined term in Section 72(1) of the Regulation, as follows:
“negligence” means an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.
Furthermore, Section 72(2)(a) of the Regulation states:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(a) negligence,
The Panel finds that the evidence, delineated above, supports a finding that Riggs and REL were negligent. Such negligence is made out by the multiple times that incomplete information was provided to ABCA, as described above, before the Permit was issued. Negligence was also evident in the pictures at the Property provided by the Association, including pictures of the failing retaining wall, a destroyed staircase, and sunken down stones. Further, the letter dated January 12, 2016 by Chiu (and others, as noted above) to Bourner, c/o Ms. Kennedy, states in part, “…The sheeting wall was turned away, bended/bulged and distorted especially at location where maximum bending moment occurs.” Chiu’s evidence was that this pointed to system failure and, on the basis of the evidence of system failure, which the Panel accepts as proven, the Panel finds that Riggs was negligent as defined in the Regulation.
As stated above, the January 12, 2016 letter also says, “Helical Pier tie-backs were recommended by LVM in the report dated September 2010. Helical Pier is a form of “twisted” anchor for foundation stabilization and can be used as a tie-back. A SSP anchor system was designed by Riggs Engineering instead of this tie-back system.” In addition, the Heidari Expert Report dated June 11, 2020 notes a second letter from LVM which was in evidence, stating, “From the LVM letter May 17, 2011 it appears that specific recommendation was made with regards to the construction equipments [sic] and their impact on the applied surcharge load on the wall. There are no indications that these requirements were considered or included in the design of the retaining wall.” This shows that, while the Helical Pier tie-backs were recommended to be implemented into the original construction, they were not incorporated by Riggs. The lack of incorporation of Helical Piers by Riggs, as recommended by LVM, is another example of negligence, in contravention of Section 72(2)(a) of the Regulation.
In addition, Heidari testified that drawing MA-01 did not contain enough information and, in particular, did not contain the information that one would expect to see in order to perform a “peer review”. Heidari testified that, even though he tried to give Riggs “the benefit of the doubt”, when reviewing the drawing, it was deficient, as described herein.
On the basis of the above information, the Panel finds that Riggs was negligent in contravention of Section 72(2)(a) of the Regulation, as the acts and omissions in the carrying out of the work of the practitioner described constitute a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.
Did Riggs and REL commit professional misconduct as defined by Section 72(2)(b) of the Regulation by failing to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible?
The Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(b) of the Regulation by failing to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible.
Section 72(2)(b) of the Regulation states:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(b) failure to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible,
In an e-mail from Chiu to Chris Metaxas at EBS Geostructural Inc. dated July 24, 2015, Chiu writes, “The SSP retaining wall was installed a few years ago and is showing a lot of distresses.” In another e-mail of the same day from Chiu to Chris Metaxas, Chiu states, “The SSP retaining wall is moving.”
In addition, in the Expert Report, Heidari notes the following in the “Conclusions” section:
a. In our opinion the concept of using a sheet pile retaining wall with cellular retention buried sheets connected to dead man is a reasonable option for the site condition. It is not however clear from the information provided that the applicable design criteria, codes and factor of safety have been adequately applied in this design. As noted in paragraphs “3”, ”4”, “5” above the supports and their connections appear to be inadequate to provide minimum Factor of Safety as prescribed in the applicable design codes and guidelines. [emphasis added]
d. The insufficient information and procedures could have caused safety concerns during the construction. Upon completion of the wall construction it is noted that the wall lacks adequate support and stiffness and it is entirely possible that could be a safety concern for the occupant of the property. [emphasis added]
Note, that when Heidari refers to paragraphs 3, 4, and 5 in (a), he is referring to the “Observations and Assessment” section of his Expert Report. Paragraphs 3, 4, and 5 read as follows:
Based on the potential active failure zone, there seems to be insufficient distance to develop sufficient passive resistance for this type of dead man system.
Since the only stiffening support is at the top of the dead man system, there is insufficient support to transfer tensile load to the full surface area of the dead mans.
The bend at the side W200x43 upper wale did not appear to have any stiffener or connection detail, which may not handle the eccentric bending moment form the tensile load.
The evidence shows that the stairs leading from the cottage had collapsed, and it was fortuitous that no one was injured by this. The panel finds that this, combined with the evidence noted above, demonstrates that Riggs and REL failed to make reasonable provision for the safeguarding of life and property of a person. The evidence also shows legitimate concerns by both Chiu and Heidari regarding the safety of the work done by Riggs and REL. Given this evidence, as well as the evidence noted above with respect to negligence, which the Panel found was proven, the Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(b) of the Regulation by failing to make reasonable provision for the safeguarding of life, health or property of a person who may be affected by the work for which the practitioner is responsible.
Did Riggs and REL commit professional misconduct as defined by Section 72(2)(d) of the Regulation by failing to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner?
The Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(d) of the Regulation by failing to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner.
Section 72(2)(d) of the Regulation states:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(d) failure to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner,
The Panel finds that the Retaining Wall was work for which Riggs was responsible. In particular, Drawing MA-01 dated September 2, 2011 for the Retaining Wall was stamped by Riggs. The Panel also accepts evidence from Cade that ABCA relied on Drawing MA-01 in approving the Permit.
In addition, the Panel accepts the evidence of Chiu that the dead man system designed by Riggs is commonly used. However, as noted by Chiu, in Bourner’s situation, there was not enough room for the dead man system. Nevertheless, the system was installed as designed, and then it began failing. In Chiu’s report to Bourner dated January 12, 2016, he discussed the “Stable Slope Analysis” that he conducted on the retaining wall. He concluded that the retaining wall failed various safety analyses and wrote, “…the retaining wall is considered unstable and repair will be required to stabilize the condition, based on observed distress and slope analyses.” Chiu’s evidence was that he repaired the retaining wall using helical ties, which was originally suggested for the Property, but not chosen by Riggs.
In addition, the Panel accepts the evidence of Heidari that the approach used by Riggs had deficiencies. Heidari’s evidence was that stresses were in excess of Ontario Building Code limits and that there was not enough distance to develop sufficient passive resistance for the type of dead man system that Riggs chose.
Heidari also provided evidence to Veldhuis, in an e-mail dated November 10, 2020, that drawing MA-01 was missing “Loading information”, the “Resistance method” and “the material specifications including the steel Grade, minimum acceptable yield and thicknesses”, all of which are required by Section 4 of the Ontario Building Code.
Heidari’s evidence was also that, without a design summary, which was not provided by Riggs, it was not possible to confirm compliance with certain CSA Standards. In addition, critical information which was required to show consideration of the design guidelines in the Canadian Foundation Engineering Manual was missing.
Furthermore, in the November 10, 2020 e-mail from Heidari to Veldhuis, Heidari states that the information that was missing from drawing MA-01 is critical for any reviewer in understanding the design approach and assessing safety.
Having considered the above evidence, the Panel accepts Chiu’s and Heidari’s evidence and finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(d) of the Regulation by failing to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner.
Did Riggs and REL commit professional misconduct as defined by Section 72(2)(j) of the Regulation by being unprofessional?
The relevant section of the Regulation pertaining to this issue is as follows:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(j) conduct or an act relevant to the practice of professional engineering that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional,
Counsel for the Association stated that they were not arguing that the impugned conduct or acts of Riggs and REL were “disgraceful” and “dishonourable”, as noted in the Regulation, but that they were “unprofessional”.
Counsel for the Association pointed out that, as per the plain wording of Section 72(2)(j), the issue is whether the conduct amounts to failure to cooperate as, “would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional, [emphasis added]”.
Evidence of unprofessional conduct includes the following:
Bourner’s testimony that Riggs only came to see the Property once upon learning of the problems and then failed to return to the Property as expected.
Bourner’s testimony that Riggs did not communicate with Bourner and her lawyer regarding the issues with the Property after the visit to the Property noted directly above.
The evidence, noted herein, that only one drawing, being MA-01, was provided to the Association and its expert, Heidari, to conduct a “peer review”.
Heidari’s testimony, noted above, that drawing MA-01 did not contain enough information and, in particular, did not contain the information that one would expect to see in order to perform the “peer review”.
Counsel for the Association argued that it was surprising that there was not more information available regarding the Project from Riggs and REL. The Panel accepts this evidence and finds that Riggs’ and REL’s conduct “would reasonably be regarded by the engineering profession” as “unprofessional” pursuant to Section 72(2)(j) of the Regulation. In addition to these specific examples, the Panel finds the totality of Riggs’ and REL’s conduct in this matter to be unprofessional as defined in Section 72(2)(j) of the Regulation.
Are Riggs and REL guilty of professional misconduct as defined by Section 72(2)(j) of Regulation 941 for failing to cooperate?
Did Riggs and REL commit professional misconduct as defined by Section 72(2)(j) of the Regulation for failing to cooperate with the Complaints Committee’s investigation?
The Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(j) of the Regulation for failing to cooperate with the Complaints Committee’s investigation. As noted above, Section 72(2)(j) of the Regulation states:
(2) For the purposes of the Act and this Regulation,
“professional misconduct” means,
(j) conduct or an act relevant to the practice of professional engineering that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional,
In addition, as noted above, counsel for the Association stated that they were not arguing that the impugned conduct or acts of Riggs and REL were “disgraceful” and “dishonourable”, but that they were “unprofessional”.
The Panel finds that the Investigator, Veldhuis, made numerous attempts to contact Riggs. In particular, the evidence shows that Veldhuis made approximately 18 attempts to contact Riggs throughout the course of the investigation. The evidence shows that, despite these attempts, the only document that Riggs provided to Veldhuis was Drawing MA-01. In addition, he failed to respond to specific questions posed by Veldhuis and made commitments to Veldhuis that were often unfulfilled. Examples of Veldhuis’ attempts to contact Riggs and her interactions with Riggs include the following:
The note to file dated July 21, 2016 being a record of a phone conversation between Veldhuis and Riggs. The call was made by Veldhuis. In this call, Veldhuis notes that she has contacted Riggs several times regarding the complaint and has not heard back. She also states that she spoke with the receptionist at Riggs’ office twice, and the receptionist said Riggs would call her back. In this call, Riggs also confirms his e-mail address. Veldhuis mentions that she has questions about the Project at issue and that she will send him an e-mail with information again. Riggs undertakes to review and “get on this”.
The note to file dated June 8, 2017 being a record of phone conversation between Veldhuis and Riggs. The call was made by Veldhuis. In the call, Veldhuis asks Riggs why he did not respond to her e-mails. She states that, when they last spoke, he said he would respond. Riggs states that he put it off and that he will look at it today and respond. Veldhuis asks Riggs when she will receive a response and Riggs says he will respond “today”. He states that he may not answer all of Veldhuis’ questions, but it will be a start.
On June 9, 2017, Riggs e-mailed Veldhuis stating, “We were retained by Overholt Excavating to undertake two projects at the Pond/Bourner property. The works were undertaken in 2011. I will provide more complete details one week from today.”
On June 16, 2017, Riggs provided another brief response to Veldhuis. Much of the response focuses on how and when Riggs got paid for the Project. In this communication, Riggs attaches the MA-01 drawing. Veldhuis testified that she did not receive any further responses from Riggs following this response on June 16, 2017.
On June 25, 2018, Veldhuis e-mails Riggs, giving him an opportunity to respond to information that she has in her possession regarding the file, including the report from “exp Services Inc.”. Veldhuis also asks Riggs some questions. Riggs fails to respond to this e-mail.
The evidence reveals that, in spite of Veldhuis’ multiple attempts to contact Riggs, he only responded twice by e-mail, and they only spoke twice. Many times, he completely ignored Veldhuis or made commitments regarding responding to Veldhuis that he did not keep. The Panel finds that this conduct amounts to failure to cooperate. In other words, the conduct “would reasonably be regarded by the engineering profession” as “unprofessional” pursuant to Section 72(2)(j) of the Regulation. It is important to send a message to the engineering profession that these kinds of responses to their regulator, or lack thereof, are unprofessional and a breach of the Regulation.
Accordingly, as noted above, the Panel finds that Riggs and REL committed professional misconduct as defined by Section 72(2)(j) of the Regulation for failing to cooperate with the Complaints Committee’s investigation.
Penalty
Having found Riggs and REL guilty of professional misconduct, as noted above, the Panel directs that a subsequent hearing on penalty be convened as soon as possible.