Association of Professional Engineers of Ontario (PEO) v DiGiovanni, 2021 ONAPE 27

Discipline Committee of the Association of Professional Engineers of Ontario (PEO)

Date: 2021-12-13 Citation: Association of Professional Engineers of Ontario (PEO) v DiGiovanni, 2021 ONAPE 27 Indexed as: The Association of Professional Engineers of Ontario (PEO) v DiGiovanni, 2021 ONAPE 27

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 Franco DiGiovanni, LEL, a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Franco DiGiovanni, LEL

PANEL MEMBERS: Robert Wilson, P.Eng. CHAIR Brian Ross, P.Eng. MEMBER Eric Bruce, J.D. MEMBER

Hearing Dates: 2021-11-30 Decision Date: 2021-12-13 Release of Written Reasons: 2021-12-13

Counsel: Leah Price and Alysha Shore, Counsel for the Association (PEO) James R. Lane, Counsel for Franco DiGiovanni, LEL David Jacobs, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1This Panel of the Discipline Committee heard this matter on November 30, 2021, by means of an online video conference platform open to public observers. All participants in the proceedings, including Counsel for the Association of Professional Engineers of Ontario (the “Association” or “PEO”), Dr. Franco DiGiovanni, LEL (the “Member” or “DiGiovanni”), and Counsel for the Member attended via videoconference.

The Allegations

2The Panel was provided with three Statements of Allegations dated July 16, 2021, arising out of three separate decisions of the Complaints Committee against the Member. By order of the Discipline Committee dated November 25, 2020, the three matters were consolidated to be heard together as the present matter. A combined set of allegations, with particulars, was set out in the Agreed Statement of Facts discussed below.

Agreed Statement of Facts

3Counsel for the Association advised the Panel that the parties had reached agreement on the facts, and introduced an Agreed Statement of Facts signed by the Member on November 25, 2021, and by counsel for the Association on November 26, 2021. The Agreed Statement of Facts provided as follows, with references to schedules omitted:

1. DiGiovanni has held a limited licence issued pursuant to section 18 of the Professional Engineers Act (the “Act”) since August 25, 2017. Since June 27, 2018, DiGiovanni’s engineering practice has been limited to:

“All work associated with Air Assessments, Primary Noise Screening and Secondary Noise Screening but excluding Noise Assessments which require an Acoustic Assessment Report (AAR) and Acoustic Audits.”

2. From September 15, 2017 to March 14, 2019, Airzone One Ltd. (“Airzone”) was the holder of Certificate of Authorization (“CoA”) which named DiGiovanni as the individual accepting professional responsibility for services provided by Airzone thereunder. From April 10, 2019 to February 27, 2020, DiGiovanni was named as one of the individuals accepting professional responsibility for services provided under the CoA held by Hemmera Envirochem Inc. (“Hemmera”).

3. On July 4, 2018, DiGiovanni filed a complaint with PEO against the late Robin Brown, P.Eng. (“Brown”) and his company, Rubidium Environmental Inc. (the “Brown Complaint”). The Brown Complaint was not referred to the Discipline Committee. [Schedule omitted]

4. The circumstances leading up to the complaint are as follows. Phoenix Manufacturing Ltd. (“Phoenix”) had retained Airzone to assist with the preparation of an Environmental Activity and Sector Registry (EASR) registration. Airzone completed an Odour Screening Report (OSR) which advised that an Odour Best Management Practice Plan (OBMPP) was required. Phoenix questioned the report and contacted Brown, who indicated that he believed that an OBMP was not required. DiGiovanni then engaged in an email exchange with Brown concerning the matter. On or about June 13, 2018, DiGiovanni emailed Brown as follows:

“The discussion I wish to have with Robin is in regards to potential professional malpractice on his part. It would be in his best interest to talk to me first before this proceeds any further.”

Brown wrote back saying DiGiovanni’s allegations against him were “frivolous and vexatious”, and threatening “sanctions” against DiGiovanni if he elected to continue acting “in a vexatious manner”. DiGiovanni the filed his complaint with PEO.

5. In or about spring 2018, Airzone was retained by Lucy Johnston, a resident of the municipality of Thames Centre, who was opposed to a proposal by AAROC Aggregates to build and operate a gravel pit (the “Donnelly Pit”). AAROC had retained Melanie Horton (“Horton”), a professional planner, as its planning consultant. A meeting to discuss the proposal was held by the municipal council of Thames Centre on April 23, 2018. At that meeting, DiGiovanni gave a presentation in opposition to the proposal. [Schedules omitted]

6. During DiGiovanni’s presentation, he alleged that Horton failed to meet her duties as a planner by not having an air quality study completed. He questioned her competence as a planner and suggested that Thames Centre Council initiate a malpractice suit against her. At the conclusion of his presentation, DiGiovanni handed out his card, and offered his services to the municipality to carry out an air quality assessment.

7. On July 16, 2018, DiGiovanni emailed Marc Bancroft, the municipality’s planner in relation to the Donnelly Pit, copying all Thames Centre municipal councillors, and threatening to file a “complaint of professional malpractice with OPPI” against him due to his assent to Horton’s view that the Donnelly Pit required no air quality assessment. [Schedule omitted]. This prompted counsel for Middlesex County to write to DiGiovanni on August 7, 2018, to request that he “cease and desist all harassment”. [Schedule omitted]. Complaints were filed that same month with the Ontario Professional Planners Institute (“OPPI”) against both Horton and Bancroft by DiGiovanni’s client, Ms. Johnston, with DiGiovanni’s assistance (the “Horton Complaint” and the “Bancroft Complaint”). Neither the Horton Complaint nor the Bancroft Complaint were referred to the Discipline Committee. [Schedule omitted]

8. On January 17, 2019, DiGiovanni was quoted in a local newspaper as saying that the Donnelly Pit’s approval was “a case of how planners don’t follow their requirements” and that “we had submitted complaints about the two planners” involved, referring to the Horton and Bancroft Complaints. [Schedule omitted]

9. On April 26, 2019, in accordance with a contract between Airzone and the Town of Caledon, DiGiovanni signed a peer review report (the “Peer Review Report”) on an air quality assessment prepared by Brian Sulley, P.Eng. (“Sulley”) of RWDI Inc. (“RWDI”) regarding a proposed quarry. In the Peer Review Report, DiGiovanni wrote, “I would question the competency of Mr. Sulley to conduct such work”. [Schedule omitted]. DiGiovanni did not complete the project, and another peer reviewer was retained by Caledon.

10. On October 30, 2019, DiGiovanni and approximately 70 other practitioners, as well as clients or potential clients and government representatives, attended a conference of the Air and Waster Management Association (the “October 2019 Conference”). DiGiovanni gave a presentation entitled: “Major Issues with current Land Use Compatibility Tests for Air Quality”. [Schedule omitted]. The following events occurred during the October 2019 Conference:

a. One of the slides in DiGiovanni’s presentation stated, “Planners can make bad mistakes when they deviate outside their own field” and, with respect to the Donnelly Pit, another slide was entitled: “The Case of the Ludicrous Decisions” and stated, “Submitted malpractice complaint to OPPI”. During the presentation, DiGiovanni mentioned Horton and her firm by name and stated that the OPPI’s non-referral of the complaint was “ludicrous” and was itself being investigated by DiGiovanni.

b. Two slides addressed air quality assessments prepared respectively by Nigel Taylor, a designated environmental professional, and Scott Penton, P.Eng. (“Penton”), principals of Novus Environmental Inc. (“Novus”) who were in attendance. One slide read: “Novus submission had most of the classic problems - a good teaching case”, and DiGiovanni stated, “We should thank [Taylor] because this is an example of how not to do a project”. DiGiovanni described Novus’s work as incompetent and accused Penton and Taylor of malpractice because they had not completed cumulative effects assessments with respect to two projects.

c. Penton rose and, with the Chair’s permission, defended Novus. He commented that DiGiovanni appeared to feel only he could do air quality assessments properly, threatened an ethics complaint against DiGiovanni and made an obscene gesture, to which DiGiovanni responded from the stage with a different obscene gesture. Penton and DiGiovanni exchanged more words as DiGiovanni left the stage, in the course of which DiGiovanni called Penton a “fat cunt” - a comment overheard by a number of others.

11. On January 22, 2020, DiGiovanni gave a presentation at a public meeting hosted by the Association of Citizens Together in Our Nassagaweya (ActionMilton). [Schedule omitted]. The presentation was filmed by ActionMilton and posted to its public social media page (Facebook). The video was available to any member of the public. The presentation focused on DiGiovanni’s “very cursory review” (his words) of the Air Quality Assessment and Best Management Practices Plan for Dust for the proposed Reid Road Reservoir Quarry (RRRQ), both dated June 20, 2018. The reports were prepared by Sulley and RWDI as part of the application for licence process made by James Dick Construction. Copies of the report were publicly available. DiGiovanni had no involvement in the project. At no time prior to the presentation did DiGiovanni inform Sulley or RWDI that he intended to make the presentation. DiGiovanni’s slides identified the proponent and made allegations of inappropriate conduct on the part of Sulley and RWDI. In response to a question about the proponent’s air quality assessment, DiGiovanni told the audience, among other things:

“The people involved in doing the assessment are engineering professionals, and engineering professionals are supposed to keep as paramount public safety in their mind, ahead of any of the factors of the clients, or their own interests at all. They might argue, if you question them, they might try and argue that those values that they got in Guelph are representative of the values here. It would be very difficult for them to make that argument, and I think even you guys would kind of see that that is a ridiculous argument. So it kind of calls in question even the competence or the honesty of the people involved. I don’t know which, but there is something not right there.”

12. The Complainants in this consolidated matter are Horton, Penton and Sulley. [Schedule omitted]. Following the filing by Penton and Sulley of their complaints to PEO, DiGiovanni filed complaints with PEO against them. These complaints were not referred to the Discipline Committee. DiGiovanni has facilitated or filed eight separate complaints against professionals involved in environmental planning, none of which have been referred to discipline as of the date hereof.

13. DiGiovanni now accepts that his conduct was unprofessional, and he sincerely regrets making the statements referred to above and in the attached schedules. If DiGiovanni were to testify, he would say that his conduct arose out of concern for the public. He has executed a letter of apology and retraction [Schedule omitted].

14. DiGiovanni admits that his behaviour, including his obscene gesture, his presentations, his emails, his public statements and his oral comments, as referred to above, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional under section 72(2)(j) of Ontario Regulation 941. DiGiovanni further admits that his conduct directed against Penton, Sulley and Brown, including his emails, public statements, presentations, and the filing of vexatious and retaliatory complaints to the PEO, constituted harassment under section 72(2)(n) of Ontario Regulation 941. DiGiovanni admits that his course of conduct included making disparaging remarks about other professionals, including engineering professionals, which were heard by clients or potential clients of those other professionals. DiGiovanni engaged in a course of conduct as against Penton, Sulley and Brown that he knew, or ought reasonably to have known, was unwelcome and that might reasonably be regarded as interfering in a professional engineering relationship.

15. By reason of the aforesaid, the parties agree that DiGiovanni is guilty of professional misconduct, as follows:

a. Conduct as against the Complainants, as well as Brown, Taylor and Bancroft, that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as disgraceful, dishonourable or unprofessional, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941 under the Act; and

b. Harassment as against Penton, Sulley and/or Brown, amounting to professional misconduct as defined by section 72(2)(n) of Regulation 941.

Plea by Member

4The Member admitted the allegations set out in paragraphs 15(a) and (b) of the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed, and unequivocal.

Decision

5The Panel considered the Agreed Statement of Facts and finds that the facts, as agreed, support findings of professional misconduct and, in particular, it finds that the Member committed acts of professional misconduct as set out in paragraphs 15(a) and (b) of the Agreed Statement of Facts, as above.

Reasons for Decision

6When presented with an admission of professional misconduct and an Agreed Statement of Facts, the Panel must still satisfy itself that the facts presented support a finding of professional misconduct with respect to each of the acts as alleged by the Association.

7In this case, the Panel is of the view that the acts of professional misconduct in paragraphs 15(a) and (b) of the Agreed Statement of Facts were clearly made out by the facts as agreed to by the parties and accepted by the Panel.

8Firstly, the Panel notes that the terms disgraceful, dishonourable and unprofessional are disjunctive and that a finding could be made with respect to all, some, or none of these terms; however, the Panel finds that all three apply to the Member’s actions in the case at hand.

9The Member engaged in a litany of conduct that would reasonably be regarded by the engineering profession as unprofessional, including the following:

• Impugning without reasonable basis the competence, honesty, motives, and integrity of other regulated professionals, both in writing and in public forums, on multiple occasions.

• Making intemperate and inappropriate remarks with respect to other regulated professionals and threatening or suggesting that legal or regulatory action should be taken against them.

• Filing vexatious or retaliatory complaints against other regulated professionals who had expressed concerns regarding his behaviour.

10The Panel also finds that the Member’s actions were disgraceful and dishonourable. In particular, the Member’s use of an obscene hand gesture and a vulgar and misogynistic obscenity to refer to a professional colleague during a public forum was both disgraceful and dishonourable. Further, the Member’s calling into question the honesty and integrity of other regulated professionals in public fashion based on his disagreement with their professional opinions was dishonourable.

11The Panel also accepts that, as it relates to the complainants Penton, Sulley and Brown, the Member’s behaviour amounted to harassment as defined in section 72(2)(n) of Regulation 941. Harassment is defined therein as follows:

“engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome and that might reasonably be regarded as interfering in a professional engineering relationship”

12With respect to the complainant Penton, the Member made a presentation at a public conference in which he described the work of Penton’s company as incompetent, and accused him of malpractice. He also referred to Penton using an obscene hand gesture and a vulgar and misogynistic obscenity. These actions were clearly vexatious. They also took place in the presence of other practitioners, government representatives and current and potential clients of Penton. It should have been obvious to the Member that such comments and conduct, expressed in such an unprofessional and disgraceful manner, would have been unwelcome and could interfere in Penton’s professional engineering relationships.

13With respect to the complainant Sulley, the Member criticized a project on which Sulley had consulted. Despite having made only a cursory review of the matter, the Member alleged that multiple errors had been made and specifically called into question the competence and the honesty of the professionals involved. These comments were made in a public forum and were recorded and made available online. Such intemperate and vexatious remarks would, obviously, have been unwelcome and could reasonably be regarded as interfering with Sulley’s professional engineering relationships.

14With respect to the complainant Brown, the Member sent an email to his company, alleging "potential professional malpractice on his [Brown’s] part”, and wrote that it “would be in his best interest to talk to me [DiGiovanni] before this proceeds any further.” The Member’s allegation of professional malpractice, combined with the insinuation of further action should Brown not respond to him, was vexatious and should reasonably have been understood to be unwelcome. The Member subsequently filed a complaint against Brown. Given that these communications were sent to Brown’s company, it can reasonably be regarded as interfering with his professional engineering relationships.

Penalty

15Counsel for the Association advised the Panel that the parties were making a joint submission on penalty, and provided a Joint Submission as to Penalty and Costs signed by the Member on November 25, 2021 and by counsel for the Association on November 26, 2021. It provided, in part, as follows:

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

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

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

d. Pursuant to section 28(4)(d) of the Act, it shall be a term or condition on DiGiovanni’s licence that he shall, within eighteen (18) months of the date of the Discipline Committee’s decision, successfully complete the National Professional Practice Examination (NPPE); and

e. There shall be no order as to costs.

16Counsel for the Association submitted that the proposed penalty appropriately served the principles of sentencing, including general and specific deterrence, rehabilitation and maintenance of the public’s confidence in the profession. She noted that the imposition of a significant suspension and publication of the Panel’s decision and order in summary form, with reference to names, would serve to deter the Member from engaging in similar conduct and would send a message to members of the profession that such conduct would be appropriately punished. She submitted that the requirement to complete the NPPE, which includes elements dealing with ethical and professional conduct, would help to rehabilitate the Member. Counsel also asserted that protection of the public was not at issue in this matter as the Member’s conduct was directed at other professionals, not clients.

17Counsel for the Member submitted that the Member’s agreement to admit his conduct, his submission of a letter of apology to the affected parties, and his acceptance of responsibility for his actions all served as mitigating factors. Counsel for the Member also submitted that the Member was prepared to begin serving the proposed suspension and to receive the proposed reprimand immediately following the Panel’s decision.

Penalty Decision and Reasons

18The Panel accepted the Joint Submission as to Penalty and Costs, and issued the following order:

1. Pursuant to section 28(4)(f) of the Act, the Member shall be reprimanded immediately following the hearing, and the fact of the reprimand shall be recorded on the Register permanently;

2. Pursuant to section 28(4)(b) of the Act, the Member’s licence shall be suspended for a period of three (3) months, commencing immediately following the hearing;

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

4. Pursuant to section 28(4)(d) of the Act, it shall be a term or condition on the Member’s licence that he shall, within eighteen (18) months of the date of the Discipline Committee’s order, successfully complete the National Professional Practice Examination (NPPE); and

5. There shall be no order as to costs.

19The Panel carefully considered the Joint Submission as to Penalty and Costs. It is a well-established principle of law that a tribunal should not interfere with a joint submission on penalty, except where the tribunal is of the view that to accept the joint submission would bring the administration of justice into disrepute or otherwise be contrary to the public interest (R. v. Anthony-Cook, 2016 SCC 43). The Divisional Court in Bradley v. Ontario College of Teachers, 2021 ONSC 2303, confirmed that this public interest test applies to disciplinary bodies, such that any disciplinary body that intends to reject a joint submission must apply this test and “show why the proposed penalty is so ‘unhinged’ from the circumstances of the case that it must be rejected.”

20In the circumstances of this case, the Panel agrees with the Association that the penalty falls within a reasonable range of outcomes and appropriately serves the principles of general and specific deterrence, rehabilitation, and maintenance of the public’s confidence in the profession.

21The Panel was concerned that the Member engaged in conduct that was clearly unprofessional and that was not in keeping with the expectations of civility and professional courtesy applicable to members of the profession. Instances of professional disagreement must be handled in an appropriate fashion and expressed in a respectful, ethical and reasonable manner.

22Regardless of his motivations, the Member unfairly impugned the competence, honesty, motives and integrity of both professional engineers and other professionals. He did this on multiple occasions, both in written communications and in public forums. In certain instances, his conduct was so inappropriate as to be considered disgraceful, dishonourable and as harassment. He also resorted to vexatious and retaliatory complaints against the professionals who were affected by his actions.

23This type of behaviour merits strong condemnation by the Panel, which is achieved by the delivery of a reprimand and the imposition of a period of suspension. These outcomes, in addition to publication of the Panel’s decision in summary form with reference to names, serve to deter both the Member from reoffending, and the profession, as a whole, from engaging in similar conduct.

24The Panel was reassured with the proposed penalty by several mitigating factors, including the Member’s submission of a letter of apology addressed to the relevant complainants. The Member’s cooperation with the Association through the Agreed Statement of Facts and Joint Submission on Penalty has demonstrated that he has accepted responsibility for his actions and has avoided unnecessary expense to the Association for a contested hearing. The Panel considers this evidence of the Member’s steps towards rehabilitation, which will be supplemented by the requirement that he complete the NPPE. The NPPE will provide the member with additional reinforcement of the importance of professional civility and ethical conduct in his practice.

25The Panel is of the view that the penalty, taken together, demonstrates that the Association takes matters of unprofessional, disgraceful, dishonourable and harassing conduct by its members seriously and, thereby, helps to maintain the public’s confidence in its regulation of the profession.

26For all the above reasons, the Panel accepted the Joint Submission as to Penalty and Costs. Counsel for the Member and Counsel for the Association confirmed that they waived their right of appeal from the Panel’s order, and the Panel delivered the reprimand immediately following the conclusion of the hearing.