Association of Professional Engineer of Ontario (PEO) v Self et al, 2022 ONAPE 4

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

Date: 2022-11-17 Citation: Association of Professional Engineer of Ontario (PEO) v Self et al, 2022 ONAPE 4 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Self et al, 2022 ONAPE 4

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 actions and conduct of Stephen R.H. Self, P.Eng., a member of the Association of Professional Engineers of Ontario and Self, Stephen Robert Harwin, a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Stephen Self, P.ENG. and Self, Stephen Robert Harwin

PANEL MEMBER: Glenn Richardson, P.Eng. CHAIR David Germain, J.D. MEMBER John Tyrrell, P.Eng. MEMBER

Hearing Dates: 2022-10-24 Decision Date: 2022-11-17 Release of Written Reasons: 2022-11-17

Counsel: Leah Price, Counsel for the Association (PEO) Shawn Stewart, Counsel for Stephen Self (Licence Holder) and Self, Stephen Robert Harwin (Holder of Certificate of Authorization) Jordan Glick, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

[1]. The Panel of the Discipline Committee heard this matter on October 24, 2022, by means of an online video conference platform, which was simultaneously broadcast in a publicly accessible format over the internet. All participants in the proceedings, including counsel for the Association of Professional Engineers of Ontario (the “Association” or “PEO”) and the member, Stephen Self (the “Member” or “Self”), represented by Shawn Stewart, attended via videoconference. The member represented the Holder, Self, Stephen Robert Harwin (“SSE” or the “Holder”).

[2]. The parties advised the panel that the matter would proceed on an uncontested basis as they had settled on an agreed statement of facts as well as a joint submission on penalty.

Agreed Statement of Facts and Allegations

[3]. The Panel was provided with an Agreed Statement of Facts (“ASF”) that contained the Statement of Allegations against the Member. The ASF was signed by the Member on August 24, 2022, and by the Association on October 3, 2023. The ASF provided as follows (references to the attached schedules are omitted for the purposes of this Decision):

1. At all material times, Self was a professional engineer licensed pursuant to the Professional Engineers Act (“Act”). Self holds a bachelor’s degree in applied science from Waterloo University. Self’s focus is on structural engineering, and he and SSE have no academic training and no experience or expertise in environmental engineering or in septic system design.

2. At all material times SSE was the holder of a Certificate of Authorization (“C of A”). Self was listed as the responsible engineer for the purposes of section 17 of the Act in connection with the professional engineering services provided by SSE.

3. The Complainant, Allen Sadler (“Sadler”) was, at all material times, the owner of an undeveloped parcel of land less than 1-acre in area, located at 7560 Cornell Trail in the Municipality of Lambton Shores, Ontario (the “Property”). In or about November 2019, Sadler engaged Self and SSE without a written contract, to design and obtain the permits required to construct an onsite septic system for a new seasonal dwelling on the Property.

4. Between March and July 2020, Self and SSE prepared two sets of designs for a conventional septic system (the “Designs”), which were signed and sealed on May 4 and July 13, 2020, respectively. At least one of the Designs was submitted to the County of Lambton (the “County”) which had jurisdiction over the approval of designs and the issuance of permits for the construction of a septic system on the Property.

5. The Designs did not comply with the requirements of Part 8 of the Ontario Building Code (the “Code”) governing such structures. In particular, the Designs failed to comply, or to demonstrate compliance, with at least the following provisions of the Code:

a. Sentence 8.2.1.2 and Appendix “A” Section A-8.2. 1.2(1) – failure to include a Site Evaluation;

b. Sentence 8.7.3.2(1)(e) - elevation of absorption trenches;

c. Section 8.7.4.1 – loading requirements; and Section 8.2.1.6.B – minimum clearance distances.

6. The County refused to issue the permits applied for because Self and SSE’s Designs did not comply with the Code, and also because they did not take proper account of the small lot size, its location on a flood plain, the presence of a high groundwater table, and other considerations which resulted in the Ausable Bayfield Conservation Authority (“ABCA”) concluding that the Property should be considered “hazardous”. ABCA’s approval of the location of the septic system was required, in addition to the County’s approval of the design, before a permit would be issued, and ABCA also refused its approval.

7. PEO retained an independent expert to review the work done by Self and SSE. The independent expert prepared a report dated June 25, 2021, as well as an Addendum dated March 23, 2022 (collectively, the “Expert Reports”).

8. The independent expert’s comments included that (i) the Designs by Self and SSE did not meet the minimum requirements of the OBC, and that (ii) they suggest a lack of expertise and understanding in the field of onsite sewage system had been constructed as originally designed by Self, then in independent expert’s opinion it would not have provided a sewage system of adequate size, nor would the required vertical separation from the high groundwater table have been provided. An undersized sewage system constructed in close proximity to the water table would not have provided adequate treatment of the wastewater, and this would have presented a potential risk to the environment and public health.

9. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Expert Reports. The Respondents admit that they failed to make reasonable provision for the safeguarding of the public, that they failed to make responsible provision for complying with applicable standards and codes, and that they failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

10. By reason of the aforesaid, the parties agree Self and SSE are guilty of professional misconduct under section 72(2) of R.R.O 1990, Reg. 941 (“Regulation 941”), as follows:

a. They prepared, signed, and sealed inadequate and deficient designs for a septic system, which designs also failed to meet applicable Code requirements, amounting to professional misconduct as defined in section 72(2)(a), (b) and (d) of Regulation 941;

b. They undertook work they were not competent to perform by virtue of their training and experience, amounting to professional misconduct as defined in section 72(2)(h) of Regulation 941; and

c. The conduct of Self and SSE described herein was unprofessional, and therefore also amounted to professional misconduct as defined in section 72(2)(j) of Regulation 941.

Plea

[4]. The Panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed, and unequivocal. The Member admitted the allegations set out in paragraph 10 (a), (b) and (c) of the ASF.

Decision

[5]. The panel accepted Mr. Self’s plea and the facts set out in the agreed statement of facts. The panel found Mr. Self and SSE guilty of professional misconduct under section 28(2)(b) of the Professional Engineers Act and s. 72(2)(a), (b), (d), (h) and (j) of Regulation 941 under that Act. The panel made no finding with respect to s. 72(2)(f) of Regulation 941 as alleged at paragraph 10(c) of the Statement of Allegations as Mr. Self and SSE did not admit to the allegation and no evidence was presented to support a finding under this section.

Reasons for Decision

[6]. When presented with a guilty plea and ASF, the Panel must still satisfy itself whether the facts presented support a finding with respect to each of the acts of professional misconduct alleged by the Association.

[7]. In this case, the Panel is of view that the acts of professional misconduct admitted to in paragraphs 10 (a), (b) and (c) of the ASF were amply made out on the facts as greed to by the Member, SSE and the Association and accepted by the Panel. In particular, the Panel finds that the Member and Holder committed acts of professional misconduct as set out in paragraphs 10 (a), (b) and (c) of the ASF.

Joint Submission as to Penalty and Costs

[8]. Counsel for the Association, Ms. Price, advised the Panel that the Member, the Holder and the Association were making a joint submission on penalty and provided a Joint Submission as to Penalty and Costs (“JSP”) signed by the Member on August 24, 2022, and by the Association on October 3, 2023.

[9]. PEO, Self and SSE made the following joint submission as to penalty and costs:

1. Pursuant to s. 28(4)(f) of the Act, Self and SSE shall be reprimanded, and the facts of the reprimand shall be recorded on the Register permanently.

2. Pursuant to s. 28(4)(b) of the Act, the Member’s licence and the Holder’s Certificate of Authorization shall be suspended for a period of three (3) weeks, commencing on the date od pronouncement of the Discipline Committee’s penalty decision.

3. The finding and order of the Discipline Committee shall be published in summary form under ss. 28(4)(i) and 28(5) of the Act, together with the names of the Member and Holder.

4. Pursuant to s.28(4)(d) and/or s. 28(4)(c) of the Act, it shall be a term, condition or restriction of Self’s licence and SSE’s Certificate of Authorization that they shall be prohibited from providing environmental engineering services.

5. If Self demonstrates this competence in environmental engineering by successfully passing the following examinations administered by PEO, namely,

i) 18-ENV-A1 - Principles of Environmental Engineering,

ii) 18-ENV-A4 - Waste and Wastewater Engineering, and

iii) 18-ENV-B2 - Water Resources,

the term, condition or restriction set out in paragraph 4. Above shall be lifted and

6. There shall be no order as to costs.

Submission of the Association

[10]. The Association provided the panel with previous cases including Bradley v. Ontario College of Teachers, 2021 ONSC 2303. This decision by the Divisional Court emphasized the stringent nature of the public interest test set out in R. v. Anthony‐Cook, 2016 SCC 43, [2016] 2 S.C.R. 204 and confirmed that it applies to disciplinary bodies such as this Panel. The Court noted in its decision that any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected. In that case, the Court found that the Discipline Committee clearly misunderstood the stringent public interest test, and impermissibly replaced the proposed penalty with its own view of a more fit penalty.

[11]. This element of the decision is provided here as otherwise, members of the Association are unlikely to know about this important development in Common Law.

[12]. The Panel accepts the Association’s submission regarding the need for discipline panels to apply the public interest test stringently when considering altering or rejecting a JSP.

Penalty Decision

[13]. Counsel for the Association submitted that the penalty set out in the JSP fell within a reasonable range of penalties imposed in previous cases and appropriately served the principles of sentencing, including the protection of the public and maintenance of the public’s confidence in the profession.

[14]. Counsel for the Association further submitted that the Member had fully cooperated with the Association’s investigation and had no prior disciplinary history.

[15]. The Association provided support for the appropriateness of the penalty with reference to prior decisions of the DIC.

[16]. The Panel carefully considered the JSP. The Panel is reluctant to interfere with a joint submission on penalty except where it is of the view that to do so would bring the administration of the disciplinary process into disrepute or would be contrary to the public interest.

[17]. In the circumstances of this case, the Panel is of the view that the penalty set out in the JSP, including publication of the Panel’s findings and order with reference to the Member’s name is a reasonable outcome in this matter; a lesser penalty would fail to appropriately serve the aims of specific and general deterrence, protecting the public, and maintenance of the public’s confidence in the regulation of the profession.

[18]. The Panel acknowledges the Member’s cooperation with the Association through the ASF. These considerations, combined with his lack of a prior disciplinary history, are mitigating factors in determining an appropriate penalty. It is the Panel’s view, however, that these mitigating factors do not detract from the seriousness of the misconduct in question.

[19]. The Panel notes that the Member has been found guilty of professional misconduct as they signed and sealed inadequate and deficient designs for a septic system, which failed to meet applicable Code requirements and were outside of the Member’s area of expertise of structural engineering. The field of Environmental Engineering is a highly specialized field which requires specific training and knowledge.

[20]. Public trust is at the core of what it means to be a professional. Members of the public must have confidence that professionals are held to high standards of conduct and that serious breaches of those standards are dealt with appropriately. Failing to practice within one’s area of expertise undermines that trust and harms both the reputation of the profession and the legitimacy of professional regulation

[21]. The Panel questioned whether the prohibition in item 4 of the JSP on providing “environmental engineering services” was sufficiently precise. The Parties agreed that, while a precise definition of “environmental engineering services” is difficult to formulate, this category of engineering services is well understood among professional engineers. On that basis, the Panel was satisfied with the wording of this portion of the penalty.

[22]. The Panel notes that publication of its findings and reasons with the names serves to promote general deterrence of the profession and reinforce the public confidence in the regulation of the profession. Far from bringing the administration of the disciplinary process into disrepute, publication demonstrates, both to the profession and to the public, the seriousness with which the DIC regards significant lapses of professional standards and the penalties for engaging in such misconduct.

[23]. Accordingly, the Panel accepts the JSP for the Member and orders as follows:

1. Pursuant to s. 28(4)(f) of the Act, Self and SSE shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently.

2. Pursuant to s. 28(4)(b) of the Act, the Member’s licence and the Holder’s Certificate of Authorization shall be suspended for a period of three (3) weeks, commencing on the date of pronouncement of the Discipline Committee's penalty decision.

3. The finding and order of the Discipline Committee shall be published in summary form under ss. 28(4)(i) and 28(5) of the Act, together with the names of the Member and Holder.

4. Pursuant to s.28(4)(d) and/or s. 28(4)(c) of the Act, it shall be a term, condition or restriction on Self's licence and SSE's Certificate of Authorization that they shall be prohibited from providing environmental engineering services.

5. If Self demonstrates this competence in environmental engineering by successfully passing the following examinations administered by PEO, namely,

i) 18-ENV-A1 - Principles of Environmental Engineering,

ii) 18-ENV-A4 - Waste and Wastewater Engineering, and

iii) 18-ENV-B2 - Water Resources

the term, condition or restriction set out in paragraph 4. above shall be lifted; and

6. There shall be no order as to cost.

[24]. The Panel pronounced its determinations as to conviction and penalty at the conclusion of the hearing on October 24, 2022 and advised that these written reasons were to follow. At the hearing, after the pronouncement of the penalty the Member waived his right to appeal and thus the effective date of the decision is October 24, 2022.

[25]. At the conclusion of the hearing, the Panel administered a reprimand to the Member and Holder.