Association of Professional Engineers of Ontario (PEO) v Shaw et al, 2022 ONAPE 5

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

Date: 2022-12-02 Citation: Association of Professional Engineers of Ontario (PEO) v Shaw et al, 2022 ONAPE 5 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Shaw et al, 2022 ONAPE 5

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 Ludmila (Lucy) Shaw, P.Eng., a member of the Association of Professional Engineers of Ontario and LKS Consulting Inc., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Ludmila (Lucy) Shaw, P.Eng. and LKS Consulting Inc.

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

Hearing Dates: 2022-11-14 Decision Date: 2022-12-02 Release of Written Reasons: 2022-12-02

Counsel: Leah Price, Counsel for the Association (PEO) Michael Burokas, Counsel for Ludmila Shaw, P.Eng. and LKS Consulting Inc. David Jacobs, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1This 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 November 14, 2022.

The Allegations and the Agreed Statement of Facts

2Ludmila (Lucy) Shaw, P.Eng. (“Shaw”), LKS Consulting Inc. (“LKS”) and the Association entered into an Agreed Statement of Facts (“ASF”), as described more particularly herein. The ASF was signed by Shaw on her own behalf on July 28, 2022. It was also signed by Shaw on behalf of LKS on July 28, 2022. In addition, the ASF was signed by Counsel for the Association on October 26, 2022.

3The relevant parts of the ASF, taken directly therefrom (without attaching referenced Schedules), are as follows:

This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”), and the Respondents, Ludmila (Lucy) Shaw, P.Eng. (“Shaw”) and LKS Consulting Inc. (collectively, the “parties”).

1. At all material times, Shaw was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”).

2. At all material times, LKS Consulting Inc. (“LKS”) held a Certificate of Authorization (“CoA”) and listed Shaw as the individual taking responsibility for engineering services provided thereunder.

3. In 2017, the complainant Jay Lizzotte (“Lizzote”), a homeowner in Guelph, Ontario, verbally retained Shaw and LKS to design and prepare drawings for a detached garage in his backyard (the “project”).

4. LKS issued six drawings for the garage dated October 17, 2017, which were prepared, signed, and sealed by Shaw (the “Drawings”). On or about October 18, 2017, Lizzotte submitted a building permit application for the project, which included the Drawings, to the City of Guelph. On October 30, 2017, the City of Guelph issued a building permit for the project. Attached as Schedule “A” are copies of the Drawings.

5. In May 2018, construction began on the garage based on the Drawings. Construction of the project continued until around June 1, 2018, at which time the roof of the garage began to fail and noticeably sag.

6. Lizzotte retained Tacoma Engineers to review the Drawings and provide a structural analysis of the garage roof. The firm prepared a structural report (the “Tacoma Report”), which concluded, among other things, that the garage roof system was structurally inadequate, grossly under-designed, posed significant danger to any potential occupants, and was likely to collapse. Attached as Schedule “B” is a copy of the Tacoma Report. [DB 265-272]

7. Tacoma recommended that the garage roof be immediately replaced or reinforced. Lizzotte subsequently retained a construction company to repair the garage roof, which repair was completed in or around August 2018.

8. PEO retained Daria Khachi, P.Eng. to review the actions and conduct of the Respondents. He prepared a report (the “Dialog Report”) dated October 12, 2021, which concluded, among other things: that the critical roof members were designed to somewhere between 29%-44% of their required capacity in bending; that the design ignored the large connection requirements of the collar ties to the rafters; that the design did not comply with the Ontario Building Code; and that the Drawings did not provide proper construction details for the support of the steel beam above the garage doors. The Dialog Report further concluded that the design would have caused roof rafter failure and collar tie connection failure under snow loads, and that the public safety would have been at risk had the Drawings not been reviewed by Tacoma and corrected. Attached as Schedule “C” is a copy of the Dialog Report. [DB 327-334]

9. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Tacoma and Dialog 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 that the Respondents are guilty of professional misconduct as follows:

a. They prepared, signed, sealed and issued inadequate and deficient design drawings for the project, amounting to professional misconduct as defined by sections 72(2)(a), (b), (d) and (j) of Regulation 941 under the Act.

The Respondents have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to their agreement as to the facts, as set out above.

4With respect to section 72(2)(j) of Regulation 941 under the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Act”), noted in paragraph 10 of the ASF above, counsel for the Association advised that PEO was not seeking a finding that Shaw and LKS were guilty of “disgraceful” and “dishonourable” conduct but, rather, a finding that Shaw and LKS were guilty of “unprofessional” conduct.

Plea by Shaw and LKS

5Shaw and LKS 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 Shaw and LKS’ admissions and pleas were voluntary, informed and unequivocal.

Decision

6The Panel considered the ASF and finds that the facts support findings of professional misconduct as set out in it and, in particular, finds that Shaw and LKS 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 Shaw and LKS was “unprofessional”.

Joint Submissions as to Penalty and Costs

7The parties submitted a Joint Submission as to Penalty and Costs (“JSP”), the relevant parts of which are as follows:

The PEO, Shaw and LKS make the following joint submission on penalty and costs:

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

b) 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 six (6) weeks, commencing on the date of pronouncement of the Discipline Committee’s penalty decision;

c) The findings 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 the Holder;

d) Pursuant to s. 28(4)(d) [and] s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Shaw’s licence and LKS’s Certificate of Authorization that they shall be prohibited from providing structural engineering services;

e) If Shaw demonstrates her competence in structural engineering by successfully passing the following examinations administered by PEO, namely,

(i) 07-Str-A4 (Advanced Structural Analysis), and

(ii) 07-Str-A5 (Advanced Structural Design), the term, condition or restriction set out in subparagraph d) above shall be lifted; and

f) There shall be no order as to costs.

Shaw and LKS have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

8The Association provided the panel with relevant caselaw including the Divisional Court decision in Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (“Bradley”). The issue in Bradley was whether the discipline committee in that case erred in rejecting a joint submission on penalty. In Bradley, the court emphasized the stringent nature of the public interest test for rejecting a joint submission on penalty, set out by the Supreme Court of Canada in R. v. Anthony‐Cook, 2016 SCC 43, and confirmed that the public interest test applies to proceedings before professional discipline tribunals. The Court in Bradley noted 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 Bradley, 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.

9In the case at hand, this Panel accepts the Association’s submissions regarding the need for discipline panels to apply the public interest test stringently when considering altering or rejecting a joint submission on penalty. In addition, both parties agreed that the penalty proposed in the JSP is appropriate and reasonable. Counsel for Shaw and LKS stated that the objectives of general and specific deterrence are being met and stated that the suspension proposed in the JSP will have financial repercussions for Shaw and LKS.

Penalty Decision

10The Panel accepts the penalty proposed in the JSP as appropriate and, accordingly, orders:

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

b) 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 six (6) weeks, commencing on the date of pronouncement of the Discipline Committee’s penalty decision;

c) The findings 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 the Holder;

d) Pursuant to s. 28(4)(d) and s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Shaw’s licence and LKS’s Certificate of Authorization that they shall be prohibited from providing structural engineering services;

e) If Shaw demonstrates her competence in structural engineering by successfully passing the following examinations administered by PEO, namely,

(i) 07-Str-A4 (Advanced Structural Analysis), and

(ii) 07-Str-A5 (Advanced Structural Design),

the term, condition or restriction set out in subparagraph d) above shall be lifted; and

f) There shall be no order as to costs.

11The Panel concluded that the proposed penalty is reasonable and in the public interest. Shaw and LKS cooperated with the Association in this matter by agreeing to the facts and a proposed penalty and have accepted responsibility for their actions.

Reprimand

12The parties waived their rights to an appeal and the Panel administered an oral reprimand to Shaw and LKS immediately after the hearing.