Association of Professional Engineers of Ontario (PEO) v Clark, 2023 ONAPE 10

Date: 2023-09-11

Citation: Association of Professional Engineers of Ontario (PEO) v Clark, 2023 ONAPE 10

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

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Clark, 2023 ONAPE 10

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 Derrick R. Clark, P. Eng., a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Derrick R. Clark, P.ENG.

PANEL MEMBERS: Aubrey Friedman, P.Eng. CHAIR

Alisa Chaplick, LL.B., LL.M. MEMBER

Rishi Kumar, P.Eng. MEMBER

Hearing Dates: 2023-08-16

Decision Date: 2023-09-11

Release of Written: 2023-09-11

Reasons:

NAME OF LAWYER Leah Price, Counsel for the Association (PEO_

NAME OF LAWYER Derrick R. Clark, Unrepresented

NAME OF LAWYER Jordan Glick, Independent Legal Counsel to the Tribunal

DECISIONS AND REASONS

1. This Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (“PEO” or the “Association”) convened a hearing remotely via Zoom on August 16, 2023, to consider the conduct of Derrick R. Clark (“Mr. Clark”) as described more particularly herein.

Agreed Statement of Facts

2. The allegations against Mr. Clark as stated in the Agreed Statement of Facts (“ASF”) taken directly therefrom (without Schedules attached), are as follows:

3. At all material times, Clark was a professional engineer licensed pursuant to the Act.

4. In or around July 2019, Clark was retained by 2B Developments to provide a Geotechnical Engineering Report and Ground Water Impact Assessment for a proposed development application at 27 O’Meara St, Ottawa (the “Property”). On or about August 6, 2019, Clark signed and sealed a report titled “Geotechnical Investigation Report 27 O’Meara Street” (the “Report”) on behalf of a company called EAU Structural and Environmental Services Ltd. (“EAU”). Attached as Schedule “A” is a copy of the Report. Neither EAU nor Clark held a Certificate of Authorization (“C of A”) at this time.

5. 2B Developments submitted the Report with its application for approval of the development to the City of Ottawa (the “City”).

6. The City found that the Report was identical in several respects to another Geotechnical Report for a separate application, originally submitted by Houle Chevrier Engineering Ltd (“HCEL”). The subject sites in the HCEL report are approximately 500 meters away from the Property.

7. On January 14, 2020, the City met with Clark to discuss the similarities between the reports. Clark was unable to provide an explanation as to why the reports were similar and expressed his intention to “withdraw” the Report.

8. On or about February 6, 2020, the City contacted the complainant, Brent Wiebe, P.Eng., Vice President of Operations Ontario at GEMTEC Consulting Engineers and Scientists Ltd, formerly known as HCEL. The City notified Wiebe of the similarities between the HCEL Report and Clark’s Report.

9. PEO retained Balwinder Singh, P.Eng., of Terraprobe Inc. as an independent expert to review the actions and conduct of the Respondent. He provided an expert report (the “Expert Report”) dated February 25, 2021, a copy of which is attached as Schedule “B”. The Expert Report concluded, among other things, that the Report signed and sealed by Clark was deficient and failed to meet the standard of a reasonable and prudent practitioner, including that it:

(a) duplicated large portions of the HCEL Report, which was based on findings of an adjacent site;

(b) relied on test results copied from the HCEL Report and did not reference any independent tests at the Property;

(c) provided recommendations based on the findings of another site, without assessing or verifying the site-specific conditions of the Property;

(d) failed to provide several analyses required by the Ontario Building Code; and

(e) failed to provide any reference to or guidance on the rock excavation process necessary to facilitate the development.

8. For the purposes of these proceedings, the Respondent accepts as correct the findings, opinions and conclusions contained in the Expert Report. The Respondent admits that he failed to make reasonable provision for the safeguarding of the public, that he failed to make responsible provision for complying with applicable standards and codes, and that he failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

9. Further, Clark signed and sealed the Report to 2B Developments despite neither Clark nor EAU holding a C of A.

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

(a) Producing, signing and sealing a deficient geotechnical engineering report for a proposed development that failed to meet the standard of a reasonable and prudent practitioner, amounting to professional misconduct as defined by sections 72(2)(a), (d) and (j) of Regulation 941;

(b) Failing to make reasonable provision for the safeguarding of life, health or property of the public, including the owners of the Property, by producing, signing and sealing the deficient geotechnical report, amounting to professional misconduct as defined by section 72(2)(b) of Regulation 941; and

(c) Providing engineering services to the public while not being the holder of a Certificate of Authorization contrary to s. 12(2) of the Act, amounting to professional misconduct as defined by section 72(2)(g) of Regulation 941.

3. The Respondent has had independent legal advice, or has had the opportunity to obtain independent legal advice, with respect to his agreement as to the facts, as set out above.

Relevant Sections re Misconduct in the Act and Regulation 941

4. The following are the subsections cited regarding Mr. Clark’s professional misconduct in paragraph 10 of the ASF, noted above-namely subsection 12(2) of the Professional Engineers Act (The “Act”) and subsections 72(2)(a), (b), (d), (g) and (j) of Regulation 941 of the Act.

Subsection 12(2) of the Act states –

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

Subsections 72(2)(a), (b), (d), (g) and (j) of Regulation 941 state -

“professional misconduct” means,

(a) negligence,

(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,

(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,

(g) breach of the Act or regulations, other than an action that is solely a breach of the code of ethics,

(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, [emphasis added]

Plea by Mr. Clark & Panel’s Finding re ASF

5. Mr. Clark admitted to the information set out in the ASF. With respect to subsection 72(2)(j) of Regulation 941, he stated that he was admitting that his conduct was disgraceful, dishonourable or unprofessional, as stipulated in the ASF, but not disgraceful, dishonourable and unprofessional. Counsel for the Association accepted this.

6. The Panel conducted a plea inquiry and was satisfied that Mr. Clark’s admissions were voluntary, informed and unequivocal.

7. The Panel considered the ASF and found, based on the evidence, that Mr. Clark committed the agreed-upon acts, enumerated in the ASF, and that the facts support a finding of professional misconduct. The Panel made a finding that Mr. Clark is guilty of professional misconduct, in accordance with subparagraphs 10 of the ASF, noted above.

Joint Submission on Penalty and Costs & Penalty Ordered

8. A Joint Submission on Penalty and Costs (“JSP”) was agreed to in this matter. The penalty requested in the JSP, taken directly therefrom, is as follows:

(a) Pursuant to s. 28(4)(f) of the Act, Clark 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, Clark’s licence shall be suspended for a period of four (4) months, commencing on the date of pronouncement of the Discipline Committee’s penalty decision or on September 1, 2023, whichever is later;

(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 name of the Member;

(d) Pursuant to s. 28(4)(d) and/or s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Clark’s licence that he shall be prohibited from providing geotechnical engineering services; and

(e) There shall be no order as to costs.

9. Clark has had independent legal advice, or has had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

10. Regarding subsection (b) of the Penalty in the JSP above, the Panel notes that, pursuant to the Act, when a suspension is ordered, publication in the official publication with names is mandatory.

11. Both counsel for the Association and Mr. Clark agreed that the penalty proposed in the JSP was appropriate under the circumstances. While Mr. Clark stated that he believes he has learned his lesson and that a reprimand is not strictly necessary, he stated that he is prepared to accept a reprimand from the Panel, as agreed upon in the JSP.

12. Counsel for the Association provided a case demonstrating that the penalty agreed to in the JSP falls within the range of penalties that have been previously ordered by discipline panels (Cao v. Association of Professional Engineers of Ontario, January 19, 2021, unreported). In addition, counsel for the Association presented caselaw regarding the high threshold that discipline panels must meet if they decide to reject a JSP, including the case Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (“Bradley”). Bradley, in turn, cited the Supreme Court of Canada decision R. v. Anthony-Cook, 2016 SCC 43 (“Anthony-Cook”) in which the Supreme Court of Canada stated the following:

…a trial judge or discipline panel should not depart from a Joint Submission on Penalty unless the proposed penalty would bring the administration of the discipline process into disrepute or would otherwise be contrary to the public interest. This is an undeniably high threshold to meet…

13. In Anthony-Cook, the Supreme Court of Canada also stated the following:

…a joint submission should not be rejected lightly…Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold… [emphasis added]

14. In addition, counsel for the Association noted aggravating and mitigating factors in this matter. One aggravating factor was the fact that Mr. Clark was providing engineering services without a Certificate of Authorization. Another aggravating factor was that he copied, in large part, a report without permission, and signed and sealed the report, which gives rise to public safety concerns. In addition, as per the Expert Report dated February 25, 2021, noted in the ASF, Mr. Clark’s report contained errors, omissions and deficiencies. Mitigating factors included the fact that Mr. Clark pled guilty as outlined in this Decision and Reasons, therefore avoiding a full hearing. In addition, counsel for the Association stated that there have been no prior disciplinary findings against Mr. Clark which is another mitigating factor.

15. Pursuant to Bradley and Anthony-Cook, the Panel does not believe this penalty is unhinged from the circumstances of the offence and the offender. Mr. Clark has co-operated with the Association and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions and has avoided unnecessary expense to the Association.

Penalty

16. The Panel advised the parties that the JSP would be accepted. Accordingly, the Panel accepts the JSP and orders:

(a) Pursuant to s. 28(4)(f) of the Act, Mr. Clark shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently. The parties agreed that the reprimand would be issued in writing, subsequent to the hearing, and it was issued on August 29, 2023;

(b) Pursuant to s. 28(4)(b) of the Act, Mr. Clark’s licence shall be suspended for a period of four (4) months, commencing on the date of pronouncement of the Discipline Committee’s penalty decision or on September 1, 2023, whichever is later;

(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 name of the Member;

(d) Pursuant to s. 28(4)(d) and/or s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Mr. Clark’s licence that he shall be prohibited from providing geotechnical engineering services; and

(e) There shall be no order as to costs.