Association of Professional Engineers of Ontario (PEO) v Sawyer, 2021 ONAPE 26

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

Date: 2021-11-10

Citation: Association of Professional Engineers of Ontario (PEO) v Sawyer, 2021 ONAPE 26

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Sawyer, 2021 ONAPE 26

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 Richard N.A. Sawyer, P.Eng., a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers (PEO)

-and-

Richard N.A. Sawyer, P.ENG.

PANEL MEMBERS: Warren Turnbull, P.Eng. CHAIR Alisa Chaplick, LL.B., LL.M MEMBER Glenn Richardson, P.Eng. MEMBER

Hearing Dates: 2021-10-13

Decision Date: 2021-11-10

Release of Written Reasons: 2021-11-10

NAME OF LAWYER Matthew Howe (Polley Faith LLP), Counsel for the Association (PEO)

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

DECISION AND REASONS

1. 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 October 13, 2021.

The Allegations and the Agreed Statement of Facts

2. Richard N.A. Sawyer, P.Eng. (“Sawyer”) and the Association entered into an Agreed Statement of Facts (“ASF”), as described more particularly herein. The ASF was signed by Sawyer on October 9, 2021 and signed by Counsel for the Association on October 12, 2021. The relevant parts of the ASF, taken directly therefrom (without attaching referenced Schedules), are as follows:

3. “At all material times, Richard N.A. Sawyer, P.Eng. (“Sawyer”) was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”). Sawyer holds a bachelor’s degree in engineering from Queen Mary and Westfield College - University of London, United Kingdom.

4. In 2009, the Association of Professional Engineers of Ontario (“PEO”) gave consent to Sawyer to incorporate Sawyer Duncan Engineering Ltd. (“SDEL”), allowing him to use the term “engineering” in the business name on the condition that it obtained and maintained a valid certificate of authorization (“C of A”). This consent is attached as Schedule “A”.

5. Sawyer was, at all material times, a principal of SDEL.

6. SDEL subsequently applied for and was issued a C of A on or about 26 April 2012. At all material times while that C of A remained in force, Sawyer was listed as the individual accepting professional responsibility for engineering services provided under the C of A.

7. In or about 26 August 2015, SDEL’s C of A was cancelled by PEO due to non-payment of fees. SDEL submitted a partial application for a new C of A, however, that application was never completed. The application was closed by PEO as incomplete on or about 23 July 2018.

8. Steven Haddock, an Enforcement and Advisory Officer employed by PEO, wrote to SDEL by letter dated 2 September 2015. The letter, attached as Schedule “B”, required that SDEL amend its corporate name to remove the word “engineering” within 30 days in light of the lapse of its C of A. Representatives of PEO again wrote to SDEL and Sawyer to the same effect on the following dates:

a. 3 December 2015, attached as Schedule “C”

b. 18 February 2016, attached as Schedule “D”

c. 9 May 2016, attached as Schedule “E”

d. 7 July 2016, attached as Schedule “F”

e. 5 December 2016, attached as Schedule “G”; and

7. The letters dated 9 May 2016, 7 July 2016, and 5 December 2016 (Schedules E-G) also noted that SDEL maintains a website, sawyerduncan.ca (the “Website”), wherein it continued to hold itself out as being authorized by PEO to offer professional engineering services to the public, which was no longer the case. Those letters demanded remedial action by SDEL or Sawyer, such as obtaining a new C of A, to address both concerns.

8. Sawyer acknowledged receipt of this correspondence in a letter to PEO, sent by email, on 3 January 2017, attached as Schedule “H”. In this letter, Sawyer admitted that he stamped drawings for another company on their title block and did some limited part-time work for clients of SDEL. Sawyer also said he was fully prepared to renew his C of A. However, he did not obtain a C of A following this correspondence.

9. The Complaint herein dated 15 September 2020 was provided to Sawyer as prescribed by s. 24(1)(a) of the Act, attached as Schedule “I”. It includes the two concerns raised in prior correspondence and the failure of Sawyer to co-operate with PEO.

10. On or about 6 October 2020, Andy Dominski, Investigator of Regulatory Compliance with PEO (“Dominski”), spoke with Sawyer by phone. Sawyer said he did not get the Complaint and provided an email address where he could receive the Complaint; however, the email address provided by Sawyer was in fact the same email address to which PEO had previously directed the complaint and prior correspondence.

11. During this call, Sawyer told Dominski that he referred all inquiries he received through the Website to another professional engineer with a valid Certificate of Authorization. He also explained that he was still did some ad hoc engineering work for a company called Pioneer Steel. Sawyer told Dominski that his work for Pioneer Steel was not covered by a written contract, and that Sawyer simply sent Pioneer Steel a bill after each project he worked on.

12. Dominski informed Sawyer that he required a C of A for the work Sawyer was doing for Pioneer Steel. Sawyer indicated that he would get a C of A, take down The Website, dissolve the company, and provide a written response to the complaint. The summary of this conversation is attached as Schedule “J”. Dominski emailed the summary to Sawyer on or about 6 October 2020, attached as Schedule “K” requesting that he confirm the summary of the call contained in the call notes. Sawyer responded to confirm the call notes and to provide additional clarifications, attached as Schedule “L”. In this letter, Sawyer suggested that he did not need a C of A to work for Pioneer Steel, as he was effectively an employee of that company. Nonetheless, Sawyer confirmed that he would get a C of A if PEO determined that one was required.

13. On or about 4 November 2020, Dominski emailed Sawyer to confirm that he required a C of A to continue his work for Pioneer Steel, as it was “fee for service” work rather than “employment.” This email is attached as Schedule “M”. Moreover, Dominski noted that SDEL continued to “offer” professional engineering work to the public through The Website, and Sawyer was required to take The Website down and dissolve the company.

14. Despite repeated requests and cautions in writing, and while acknowledging the concerns raised by representatives of PEO and offering to take remedial actions at various times, Sawyer did not take remedial action until October 2021, as described below.

15. On or about 8 October 2021, following the scheduling of a hearing by the Discipline Committee with respect to this matter, and after PEO did significant work to prepare for the hearing, Sawyer applied for a C of A and took down The Website.

Offences

16. Section 12(2) of the Professional Engineers Act provides:

“No person shall offer to the public or engage in the practice of providing to the public services that are within the practice of professional engineering except under and in accordance with a certificate of authorization.”

17. Section 72(2)(g) of Regulation 941 under the Professional Engineers Act defines “professional misconduct” as including a “breach of the Act or regulations, other than an action that is solely a breach of the code of ethics.

18. Section 72(2)(j) of Regulation 941 under the Professional Engineers Act also defines “professional misconduct”:

“[C]onduct 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.”

19. Sawyer engaged in the business of providing services that are within the practice of professional engineering, and by offering to provide such services to the public, contrary to section 12(2) of the Professional Engineers Act, amounting to professional misconduct as defined in section 72(2)(g) of Regulation 941.

20. Sawyer failed to cooperate with remedial and enforcement actions proposed and required by representatives of PEO, in a manner that was unprofessional, amounting to professional misconduct as defined in section 72(2)(j) of Regulation 941.

21. Sawyer has had the opportunity to receive legal advice with respect to this agreed statement of facts, as set out above.”

22. With respect to section 72(2)(j) of Regulation 941 under the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Professional Engineers Act”), counsel for the Association advised that PEO was not seeking a finding that Sawyer was guilty of “disgraceful” and “dishonourable” conduct but, rather, a finding that Sawyer was guilty of “unprofessional” conduct.

Plea by Sawyer

4. Sawyer admitted to all of the facts set out above in the ASF and pled guilty to the allegations of professional misconduct therein. The Panel conducted a plea inquiry and was satisfied that Sawyer’s admissions and pleas were voluntary, informed and unequivocal.

Decision

5. The Panel considered the ASF and finds that the facts support findings of professional misconduct as set out in it and, in particular, finds that Sawyer committed the acts of professional misconduct enumerated. With respect to the allegations regarding section 72(2)(j) of Regulation 941, the Panel finds that the conduct of Sawyer was “unprofessional”.

Joint Submission on Penalty

6. The parties advised the Panel that a Joint Submission as to Penalty (“JSP”) had been agreed upon. The relevant parts of the JSP, taken directly therefrom, are as follows:

“The PEO and the Member make the following joint submission on penalty and costs:

a. Pursuant to s. 28(4)(f) of the Professional Engineers Act, the Member shall be reprimanded, and the fact of the reprimand shall be permanently recorded on the Register;

b. Pursuant to s. 28(4)(i) of the Professional Engineers Act, a summary of the findings and order of the Discipline Committee shall be published, together with the name of the Member, in the official publication of the PEO; and

c. Pursuant to s. 28(4)(j) of the Professional Engineers Act, the Member shall pay costs to the PEO in the amount of $2000.00.

The Member has had independent legal advice, or has had the opportunity to obtain independent legal advice, with respect to the penalty set out above.”

7. Counsel for the Association argued that this penalty is fair and reasonable in light of the circumstances and the caselaw to which counsel referred (CPSO v. Fenton, 2019 ONCPSD 34 and PEO v. Zdravko K. Georgiev, P. Eng., Discipline Committee of the PEO, March 13, 2012, Unreported).

8. Counsel for the Association noted both aggravating and mitigating factors in this case. Aggravating factors included the length of time that this matter has gone on for, starting in 2015, which necessitated this discipline process. Another aggravating factor noted by counsel for the Association was the fact that, in January 2017, Sawyer said he was fully prepared to renew his C of A, but he did not do so until just before the hearing in this matter. With respect to mitigating factors, among other things, counsel for the Association submitted that, while Sawyer was difficult to reach, he did not seem to ignore the authority of the Association and he did eventually remove his website and apply to renew his C of A.

Penalty Decision

9. The Panel accepts the penalties in the JSP as appropriate and, accordingly, orders:

a. Pursuant to s. 28(4)(f) of the Professional Engineers Act, the Member shall be reprimanded, and the fact of the reprimand shall be permanently recorded on the Register;

b. Pursuant to s. 28(4)(i) of the Professional Engineers Act, a summary of the findings and order of the Discipline Committee shall be published, together with the name of the Member, in the official publication of the PEO; and

c. Pursuant to s. 28(4)(j) of the Professional Engineers Act, the Member shall pay costs to the PEO in the amount of $2000.00.

10. The Panel concluded that the proposed penalty is reasonable and in the public interest. While Sawyer’s actions in this matter culminated in this hearing, ultimately, Sawyer cooperated with the Association in this matter. In particular, by agreeing to the facts and a proposed penalty, Sawyer has accepted responsibility for his actions and has avoided the necessity for a lengthier hearing than that which was conducted.

Reprimand

11. The parties waived their rights to an appeal and the Panel administered an oral reprimand to Sawyer immediately after the hearing.