Association of Professional Engineers of Ontario (PEO) v Sawchyn et al, 2023 ONAPE 11

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

Date: 2023-10-17

Citation: Association of Professional Engineers of Ontario (PEO) v Sawchyn et al, 2023 ONAPE 11

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Sawchyn et al, 2023 ONAPE 11

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 Trevor Norman Sawchyn, P.Eng., a member of the Association of Professional Engineers of Ontario, and Silver Lining Engineers Inc., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Trevor Norman Sawchyn, P.Eng. and Silver Lining Engineers Inc.

PANEL MEMBERS: Glenn Richardson, P.Eng. CHAIR

Jag Mohan, P.Eng. MEMBER

Reena Goyal, J.D. MEMBER

Hearing Dates: 2023-08-23

Decision Date: 2023-10-17

Release of Written: 2023-10-17

Reasons:

NAME OF LAWYER Leah Price and Olivia Eng, Counsel for the Association (PEO)

NAME OF LAWYER Trevor Norman Sawchyn and Silver Lining Engineers Inc., Self-represented

NAME OF LAWYER Susan Heakes, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1. The Panel of the Discipline Committee convened to hear and determine allegations of professional misconduct on the part of the respondents Mr. Trevor N. Sawchyn (the “Member”), a member of the Association of Professional Engineers of Ontario (the “Association” or “PEO”), and Silver Lining Engineers Inc. (a “Holder” or “Silver Lining”), a former holder of a Certificate of Authorization from the Association. The matter had been properly referred to us by the decision of the Complaints Committee dated March 30, 2022 (Exhibit 2). The Panel heard this matter on August 23, 2023, by means of an online video conference platform that was simultaneously broadcast in a publicly accessible format over the internet. All participants in the proceedings, including the Member on behalf of himself and the Holder, counsel for the Association and independent legal counsel attended via videoconference.

Agreed Statement of Facts

2. Counsel for the Association advised the Panel that the Association, the Member and the Holder had reached agreement on the facts. Counsel for the Association introduced an Agreed Statement of Facts signed by the parties on August 21, 2023 (Exhibit 4). The Agreed Statement of Facts (not including the Schedules) provides:

3. At all material times, Sawchyn was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”). Sawchyn holds a bachelor’s degree in mechanical engineering from Carleton University.

4. At all material times, SLE was the holder of a Certificate of Authorization (“C of A”) issued by the Association of Professional Engineers of Ontario. Sawchyn was identified as the individual who will take professional responsibility for the engineering services provided under the C of A.

5. The Complainant, Peter Wideman, was, at all material times, the Regional Project Engineer with the Ontario Ministry of the Environment and Climate Change (“Ministry”), which is the government agency responsible for the receipt and review of Records of Site Condition (“RSCs”) submitted by professionals, including professional engineers, under Part XV.1 of the Environmental Protection Act (the “EPA”) and for maintaining a database of submitted information concerning contaminants found on properties in Ontario. A copy of the Complaint is attached hereto as Schedule “A”.

6. Between 2016 and 2018, Sawchyn and SLE prepared and stamped a series of RSCs on behalf of different clients, which they submitted to the Ministry in respect of four properties located in or around Sault Ste. Marie, Ontario (the “RSC Submissions”). In these filings, Sawchyn acted as the Qualified Person as defined in O.Reg. 153/04 under the EPA.

7. The RSC Submissions were repeatedly found to be deficient on review by the Ministry. They were therefore not accepted for filing by the Ministry. In particular, the RSC Submissions were deficient as follows:

a. The RSC Submissions on all four properties had to be revised and re-submitted by Sawchyn and SLE multiple times, and at least one had to be further revised and resubmitted by another Qualified Person before it was acceptable to the Ministry.

b. All RSC Submissions submitted by Sawchyn and SLE were rejected by the Ministry multiple times, in each case with multiple valid deficiencies noted by the Ministry.

c. Sawchyn and SLE repeatedly took excessive amounts of time to revise and resubmit the RSC Submissions or to provide information requested by the Ministry following their initial or subsequent rejection. This included:

i. In the case of RSC #43442114, 32 Bay Street, the failure if Sawchyn and SLE to provide an updated legal survey, and their failure to provide copies of the Phase One Environmental Site Assessment (“P1ESA”) and Phase Two Environmental Site Assessment (“P2ESA”) reports relied upon, for more than one year after they were requested in deficiency notices by the Ministry; and

ii. In the case of RSC #43398414, 342 and 346 John Street, the failure of Sawchyn and SLE to provide copies of the P1ESA for approximately seven months after it was requested in deficiency notices by the Ministry to be submitted within two weeks.

d. Sawchyn and SLE repeatedly resubmitted RSC Submissions without having corrected valid deficiencies noted by the Ministry on their prior review. This included:

i. In the case of RSC #43398414, 342 and 346 John Street, which was rejected by the Ministry with 27 noted deficiencies; the resubmission by Sawchyn and SLE of revised RSC #43697497 which was again rejected with 27 noted deficiencies; and then the resubmission of further revised RSC #43822757, which was again rejected with 16 deficiencies still noted; and

ii. In the case of RSC #44091830, 346 Wellington Street, which was rejected by the Ministry with a notation of 12 listed deficiencies; resubmission by Sawchyn and SLE of a revised RSC, which was rejected a second time with many deficiencies still noted.

e. In support of RSC #43547659, 117 Spring Street, Sawchyn and SLE relied upon a P1ESA report as a primary support document, even though it had been completed by another practitioner, and not under their own supervision, as required by O.Reg. 153/04, such that the Ministry noted it was unclear how Sawchyn and SLE were able to make the necessary certifications based on that P1ESA.

f. In RSC #43442114, 32 Bay Street, submitted in support of the proposed redevelopment of a former gasoline station to residential use, Sawchyn and SLE stated that they had completed a P2ESA report, which if properly completed would have required at least three groundwater monitoring wells to have been installed on the property, when in fact no record of such wells had been submitted to the Ministry under the Ontario Water Resources Act, as required.

g. In RSCs #43398414, #43697497 and #43822757, Sawchyn and SLE failed to identify the location of a former underground storage tank for heating oil. Upon soil testing by a subsequent Qualified Person, the location of the former underground storage tank was found to be contaminated by a proscribed contaminant to levels that required soil remediation before the change to residential use that was applied for could be approved by the Ministry.

h. In support of RSC #44091830, prepared by Sawchyn and SLE on behalf of Northstar Consulting Inc. (“Northstar”) as agent for the property owner, Sawchyn and SLE submitted a Certificate of Status for Northstar, which had been falsely altered by an employee of SLE to show an incorrect issuance date, apparently to create the appearance that the document complied with the requirements O.Reg. 153/04.

6. PEO retained Thomas Grimminck, P.Eng., of Dillion Consulting Limited as an independent expert to review the conduct of the Respondents. He prepared a report dated March 1, 2022 (the “Expert Report”), a copy of which is attached as Schedule “B”. Mr. Grimminck concluded, among other things: that “Sawchyn did not comply with and showed a lack of awareness of the requirements of O.Reg. 153/04”; that “a reasonable and prudent practitioner would not have consistently had the issues that Sawchyn had with his RSC submissions” and Sawchyn “failed to meet the standard expected of a reasonable and prudent practitioner” in the circumstances; and that there were two specific examples of public safety concerns related to Sawchyn’s RSC submissions, as explained in the Expert Report.

7. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Expert Report. 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.

8. In connection with RSC #44091830, 346 Wellington Street, on September 17, 2019, Sawchyn and SLE were charged in the Ontario Court of Justice with submitting false or misleading information to the Ministry, contrary to s. 184(2) of the EPA, thereby committing an offence under s. 186(1) thereof. On March 2, 2020, Sawchyn pleaded guilty to that offence and was convicted and ordered to pay a fine of $5,000.

9. Sawchyn has thereby been found guilty of an offence relevant to his suitability to practice.

10. A reasonable and prudent practitioner would not have committed the errors, omissions or deficiencies particularized in paragraph 5 a. to h., above. There were no extenuating circumstances related to the subject properties that would account for the commission of these errors, omissions or deficiencies on the part of a reasonable and prudent practitioner, or that contributed to their commission by Sawchyn and SLE.

11. The acts and omissions by Sawchyn and SLE referred to in paragraphs 5 a. to h., above, all show a lack of awareness on their part of the requirements of O.Reg. 153/04, and a failure to make responsible provision for complying with that regulation and related standards, codes and other rules in relation to the work they undertook in the preparation and filing of the RSC Submissions.

12. While Sawchyn is and was qualified as a civil engineer, he had no special training or expertise in environmental matters, and he had insufficient experience in this area to competently undertake the preparation and filing of the RSC Submissions at the material time.

13. By reason of the foregoing, the parties agree that Sawchyn is guilty of professional misconduct as follows:

a. Professional misconduct as defined in ss. 28(2)(a) of the Act, in being found guilty of an offence relevant to his suitability to practice; and

b. Professional misconduct as defined in section 72(2)(h) of Regulation 941, in undertaking work for which he was not qualifies in all the circumstances.

14. It is further agreed that both Sawchyn SLE are guilty of professional misconduct as follows:

a. Professional misconduct as defined in section 72(2)(a) of Regulation 941, in being negligent in the preparation, revision and filing of the RSC Submissions and the documents required and relied upon in their support;

b. Professional misconduct as defined in section 72(2)(b) of Regulation 941, in failing to make reasonable provision for the safeguarding of the life, health and property of persons, including those who might subsequently reside in the subject properties; and

c. Professional misconduct as defined in section 72(2)(d) of Regulation 941, in failing to make responsible provision for complying with O.Reg. 153/04 and related standards, codes, and other rules in relation to the work they undertook in the preparation and filing of the RSC Submissions; and

d. Professional misconduct as defined in section 72(2)(j) of Regulation 941, conduct or an act relevant to the practice of professional engineering that, having regard to all circumstances, would reasonably be regarded by the engineering profession as unprofessional.

3. 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, set out above.

Plea by Member and Holder

4. The Member and Holder admitted to the allegations set out in paragraphs 13 and 14 of the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the admissions were voluntary, informed and unequivocal.

Decision

5. The Panel considered the Agreed Statement of Facts. It finds that the facts, as admitted, support findings of professional misconduct against the Member and Holder. In particular, the Panel finds that the Member and Holder committed acts of professional misconduct as follows:

a) They were negligent in the preparation, revision and filing of the RSC Submissions and the documents required and relied upon in their support, amounting to professional misconduct as defined by subsection 72(2)(a) of Regulation 941 under the Act;

b) They failed to make reasonable provision for the safeguarding of the life, health and property of persons, including those who might subsequently reside in the subject properties, amounting to professional misconduct as defined by subsection 72(2)(b) of Regulation 941 under the Act;

c) They failed to make responsible provision for complying with Ontario Regulation 153/04 to the Environmental Protection Act and related standards, codes, and other rules in relation to the work they undertook in the preparation and filing of the RSC Submissions, amounting to professional misconduct as defined by subsection 72(2)(d) of Regulation 941 under the Act; and

d) They engaged in conduct and acts relevant to the practice of professional engineering that, having regard to all the circumstances, would reasonably be regarded by the engineering profession as unprofessional, amounting to professional misconduct under subsection 72(2)(j) of Regulation 941 under the Act.

6. The Panel also finds that the Member committed acts of professional misconduct as follows:

a) He has been found guilty of an offence relevant to his suitability to practise, amounting to professional misconduct under subsection 28(2)(a) of the Act; and

b) He undertook work for which he was not qualified in all the circumstance, amounting to professional misconduct under subsection 72(2)(h) of Regulation 941 under the Act.

Reasons for Decision

Member

7. The Panel is of the view that the conduct admitted in paragraphs 1 to 14 of the Agreed Statement of Facts constitutes professional misconduct under subsections 72(2)(a), (b), (d), (j) and (h) of Regulation 941 under the Act and subsection 28(2)(a) of the Act. That the Member committed such acts is confirmed by the facts as agreed to by the parties in the Agreed Statement of Facts, admitted by the Member and accepted by the Panel.

Holder

8. With respect to the Holder, counsel for the Association submitted that facts contained and admitted by the Holder in the Agreed Statement of Facts concerning the conduct of the Holder were sufficient evidence of professional misconduct by the Holder. Counsel for the Association noted that, at the relevant times, the Holder held a Certificate of Authorization issued by the Association that listed the Member as a responsible engineer for the purposes of Section 47 of the Act.

9. The Panel accepts that the aforesaid evidence inculpating the Holder supports a finding of professional misconduct against the Holder, which employed the Member and for which the Member served as a responsible engineer at the relevant times. Accordingly, for reasons analogous to those outlined above with respect to the Member, the Panel finds the Holder, Silver Lining, guilty of professional misconduct under subsections 72(2)(a), (b), (d) and (j) of Regulation 941 under the Act.

Penalty

10. The Penalty received a Joint Submission as to Penalty and Costs (Exhibit 5) signed by the parties on August 22, 2023, as follows:

11. Trevor Norman Sawchyn, P.Eng. (“Sawchyn”), was at all material times a Member of the Association of Professional Engineers of Ontario (“PEO”). Silver Linings Engineers Inc. (“SEL”) was at all material times the Holder of a Certificate of Authorization issued by the PEO.

12. Sawchyn and SEL are the subject of a proceeding before a panel of the Discipline Committee of the PEO pursuant to section 28 of the Act.

13. The PEO, Sawchyn and SEL make the following joint submission on penalty and costs:

a) Pursuant to s. 28(4)(f) of the Act, Sawchyn and SEL 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 (should it be revived) shall be suspended for a period of four (4) months, commencing on October 30, 2023;

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/or s .28(4)(e) of the Act, it shall be a term, condition; and

e) There shall be no order as to costs.

4. Sawchyn and SEL have had independent legal advice or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

5. The Panel considered the Joint Submission as to Penalty and Costs and decided that it falls within a reasonable range of penalties.

6. In the circumstances of this case, the Panel is of the view that a reprimand, the fact of which is to be recorded permanently on the Register; a four-month suspension of the Member’s licence commencing October 30, 2023, such that he is restricted from practising professional engineering between October 30, 2023 and February 28, 2024 ; a term, condition or restriction on the Member’s licence and on the Holder’s Certificate of Authorization permanently prohibiting them from providing environmental engineering services, which prohibition shall include Environmental Site Assessments and Records of Site Conditions; and publication of the Panel’s findings and order with reference to the names of the Member and Holder, 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 maintaining the public’s confidence in the regulation of the profession.

7. The Panel acknowledges the Member’s cooperation with the Association through the Agreed Statement of Facts and Joint Submission as to Penalty and Costs. 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 completely detract from the aggravating factors, given the seriousness of the misconduct in question.

8. The Panel has been made aware of the significant and troubling shortcomings in the Member’s practice in this case. The Panel reiterates that the Member has been found guilty of negligence and of failing to take reasonable precautions to safeguard the life and health of those who were affected by and relied on his work.

9. 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 take a proportionate response to protect the public in the face of professional misconduct undermines that trust and harms both the reputation of the profession and the legitimacy of professional regulation.

10. In the circumstances of this case, the Panel is of the view that a reprimand, the fact of which is to be recorded permanently on the Register, together with the requirements and licence restrictions specified above, will maintain public confidence in the regulation of the profession and adequately provide for protection of the public and general deterrence to the profession at large.

11. Additionally, the Panel notes that the fact of a reprimand to be permanently recorded on the Register and publication of the Panel’s findings and reasons with names serves to promote both specific and general deterrence and reinforce the public confidence in the regulation of the profession. Publication demonstrates, both to the profession and to the public, the seriousness with which the Discipline Committee regards lapses of professional standards, and the penalties for engaging in such misconduct.

12. Accordingly, the Panel accepts the Joint Submission as to Penalty and Costs for the Member and the Holder, and orders as follows:

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

b) b) Pursuant to subsection 28(4)(b) of the Professional Engineers Act, the Member’s licence and the Holder’s Certificate of Authorization shall be suspended for a period of four months commencing October 30, 2023;

c) Pursuant to subsections 28(4)(d) and/or (e) of the Act, a term, condition or restriction shall be placed upon the Member’s licence and the Holder’s Certificate of Authorization, prohibiting them from providing environmental engineering services, which prohibition shall include Environmental Site Assessments and Records of Site Conditions;

d) Pursuant to subsections 28(4)(i) and 28(5) of the Act, the findings and order of the Discipline Panel shall be published in summary form, together with the names of the Member and the Holder; and

e) There shall be no order as to costs.

19. The Panel administered an oral reprimand to the Member and Holder immediately following the hearing.