Association of Professional Engineers of Ontario (PEO) v Naneff, 2023 ONAPE 12

Date: 2023-02-13

Citation: Association of Professional Engineers of Ontario (PEO) v Naneff, 2023 ONAPE 12

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

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Naneff, 2023 ONAPE 12

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 Boris P. Naneff, P. Eng., a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Boris P. Naneff, P. ENG.

PANEL MEMBERS: Glenn Richardson, P.Eng. CHAIR

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

Gary Thompson, P. Eng. MEMBER

Hearing Dates: 2023-01-09

Decision Date: 2023-02-13

Release of Written: 2023-02-13

Reasons:

NAME OF LAWYER Leah Price and Cori Goldberger, Counsel for the Association (PEO)

NAME OF LAWYER Mark Wiffen, Counsel for Boris P. Naneff (Licence Holder)

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

DECISION AND REASONS ON MOTION

1. The Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (the “PEO” or the “Association”) convened a motion hearing remotely via Zoom on January 9, 2023. The motion hearing was convened to consider the possible delay in a PEO investigation regarding the conduct of Mr. Boris Naneff, P.Eng. (“Mr. Naneff” or the “Moving Party”) as described more particularly herein.

2. The motion is dismissed. Two of the Panel members (Glenn Richardson and Gary Thompson) find that while Mr. Naneff established that there was inordinate delay, he failed to establish that this delay caused significant hearing or personal prejudice to himself or that it resulted in an abuse of process. One of the Panel members (Alisa Chaplick) disagrees with the majority’s finding that there was inordinate delay, but concurs that Mr. Naneff failed to establish that he was prejudiced by the delay or that there was an abuse of process. The Panel is unanimous in its decision that the motion should be dismissed and that the hearing of this matter on the merits should be scheduled as soon as possible, subject to the availability of witnesses.

Overview of Facts

3. On February 15, 2017, Rheal Dionne, an employee of Rainbow Concrete Industries Ltd. (“RCIL”), a company owned by Mr. Naneff, was driving a dump truck through an arch (the “Arch”) that Mr. Naneff had directed to be built over a road leading into a golf course and a quarry. This Arch was located on lands operated by RCIL. Mr. Dionne failed to lower the box of his truck while driving and he struck the top of the beam of the Arch, which fell on the cab of the truck, killing Mr. Dionne. The accident was investigated by both the Ministry of Labour (“MOL”) and the Greater Sudbury Police Service (“GSPS”). Charges of criminal negligence causing death were laid against RCIL and Mr. Naneff under the Criminal Code. These charges were resolved by a plea bargain under which RCIL pleaded guilty to one count of criminal negligence causing death and the charges against Mr. Naneff were withdrawn. As part of the plea bargain, RCIL had to pay $200,000 to Mr. Dionne’s family.

4. The GSPS investigating officer made a complaint to the PEO (the “Complaint”) which was received on July 3, 2018. The Complaint alleged negligence, failure to apply an appropriate code or standard, and failure to safeguard life, health or property.

5. The Complaint was referred to the Discipline Committee on July 6, 2022. In the Statement of Allegations dated July 7, 2022, it is alleged that Mr. Naneff is guilty of professional misconduct under subsections 72(2)(a), (b), (d), (j), and (m) of Regulation 941 of the Professional Engineers Act (the “Act”). These subsections read as follows:

(2) For the purposes of the Act and this Regulation,

“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,

(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

(m) permitting, counselling or assisting a person who is not a practitioner to engage in the practice of professional engineering except as provided for in the Act or the regulations,

6. Mr. Naneff seeks a stay of the discipline proceedings due to delay, stating that the proceedings are over 4.5 years’ old with no hearing date scheduled.

Tests to be Applied Where There is Delay

7. In the Supreme Court of Canada decision, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (“Abrametz”), the Court found that there are two ways in which delay may constitute an abuse of process: first, where the fairness of a hearing has been compromised; and second, where significant prejudice has come about due to inordinate delay.

8. The Court in Abrametz described the test for hearing fairness as follows:

The The fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable, or evidence has been lost… (para 41)

9. Where the delay has not affected the fairness of a hearing, the Court in Abrametz found that the appropriate test to determine if the delay amounts to an abuse of process has the following three steps:

10. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and

11. Second, the delay itself must have caused significant prejudice;

12. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute. (para. 101)

(a) Hearing Fairness

10. The parties did not spend significant time making submissions on the impact of the alleged delay on hearing fairness, but they did touch on all of the major points regarding hearing fairness, due to the overlap between this test and the test for an abuse of process.

11. The Panel finds that the Moving Party has not established that the hearing will be unfair as a result of any delay. The Panel examined the relevant factors to determine whether any delay impairs Mr. Naneff’s ability to answer the complaint against him, such as whether memories have faded, essential witnesses are unavailable or evidence has been lost. As described more particularly below, fading memories are expected in investigations of dated allegations. In addition, as described more particularly below, there is no evidence that essential witnesses will definitely be unavailable at the hearing on the merits. Furthermore, with respect to evidence being lost, the PEO argues that their evidentiary record is well preserved. Counsel for Mr. Naneff presents insufficient evidence that any critical evidence has been lost. His arguments about evidence being lost appear to mostly fall within the categories of fading memories and speculation about the availability of a witness which are dealt with below.

12. Having decided that Mr. Naneff has not met the test regarding lack of hearing fairness, the Panel must move on to the three-step test established by the Supreme Court in Abrametz that addresses whether the delay constitutes an abuse of process.

(b) Abuse of Process

Step 1 – Has there been Inordinate Delay?

Time Period for Assessing Delay

13. Counsel for Mr. Naneff argues that there has been inordinate delay in the investigation. With respect to the time period for assessing delay, Abrametz states at para [58]:

When assessing the actual time period of delay, the starting point should be when the administrative decision maker’s obligations, as well as the interests of the public and the parties in a timely process are engaged. It should end when the proceeding is completed, including the time taken to render a decision.

14. Counsel for Mr. Naneff states that in the case at hand, the starting period for assessing delay is no later than July 3, 2018, which is the date when the Complaint was made. He also states that there is no current known end date, given that a hearing has not been scheduled and a decision on the merits has not been released. Counsel for Mr. Naneff states that the current time that has elapsed since the starting period of July 3, 2018 to the time of the motion hearing date has been four-and-a-half years. He states that under the circumstances of this case, this is inordinate delay.

15. Counsel for the Association counters these arguments, in part by stating that when the Discipline Committee requested that the parties provide Statements of Readiness (“Statements”) in this matter, the PEO advised that it was prepared to proceed to a hearing as early as December 2022, subject to the availability of witnesses. Mr. Naneff’s counsel sought and obtained a two-week extension for Mr. Naneff’s Statement, which he delivered on August 11, 2022. Mr. Naneff’s Statement indicated that Mr. Naneff intended to bring this motion for delay and the parties agreed to a timetable regarding next steps.

16. The Panel notes counsel for the Association’s point with respect to the timeline, i.e. that it was prepared to proceed with the hearing on the merits earlier than this motion took place. Nonetheless, the Panel follows the Supreme Court of Canada’s determination in Abrametz that the time period for delay does not end until the proceeding is completed, including the time taken to render a decision. Accordingly, although both sides have salient points regarding the timeline for proceeding to a hearing, it is clear that the time is still ticking, as no hearing has been set and no decision on the merits has been released.

Three Time Periods in this Matter

17. Counsel for Mr. Naneff states that there are three distinct time periods in this matter, as described more particularly below and as follows:

18. The period from July 2018, when the Complaint was received by the PEO, to November 2019, when the matter was first reviewed by the Complaints Committee (“Period 1”). (Note that the Complaints Committee “deferred resolution” at that time, finding that additional information was required.)

19. The period from November 2019, when the first Complaints Committee met regarding this matter, to July 2022, when the Complaints Committee reviewed the matter a second time and referred it to the Discipline Committee (“Period 2”).

20. The present period running from the date of the second referral to the Complaints Committee through to the end of a hearing on the merits (“Period 3”).

Period 1 – July 2018 to November 2019

18. Counsel for Mr. Naneff submitted that Period 1, which was approximately 16 months, leading up to the first Complaints Committee meeting, was not in and of itself problematic. He notes that during this period, the PEO’s actions included obtaining copies of the GSPS file and the MOL file, which the PEO states was heavily redacted, seeking and receiving comments from Mr. Naneff through his counsel and preparing the matter for review at the Complaints Committee.

Period 2 – November 2019 to July 2022

19. Counsel for Mr. Naneff submitted that the matter becomes particularly problematic in Period 2. According to counsel for Mr. Naneff, and the record which he provided to the Panel, during Period 2 the following occurred:

(a) Approximately three months after the initial Complaint’s Committee meeting, the Registrar issued a Registrar’s Investigation Order;

(b) By May 2020, two examinations were conducted: an individual named Josh Cleave who was allegedly “running the install” (although there was some debate over how involved he was) was examined in April 2020; and Mr. Naneff was examined on May 6, 2020;

(c) In January 2021, the PEO retained an expert to review this matter, who prepared an Expert Report and provided it to the PEO in March 2021;

(d) The PEO completed the Registrar’s Order Investigation Report (“Investigation Report”) in March 2022, which the PEO provided to Mr. Naneff’s counsel in April 2022; and

(e) In July 2022, the matter was considered at a second Complaints Committee meeting and referred to the Discipline Committee.

20. With respect to Period 2, the PEO submits that on February 25, 2020, PEO issued a summons to obtain the MOL’s unredacted investigation report and that this report was obtained on April 27, 2020.

21. Counsel for Mr. Naneff states that there was an approximately seven-month time frame in Period 2, during which nothing was done in the investigation, i.e. from June 2020 when the undertakings were answered by Mr. Naneff, to January 2021 when the expert who prepared the Expert Report was retained by PEO.

22. In addition, counsel for Mr. Naneff characterizes Period 2 as a nearly two-year delay. He states that other than the Expert Report received by the PEO in March 2021, none of the evidence referenced in the March 2022 Investigation Report post-dated Mr. Naneff’s May 6, 2020 examination. He also states that after the March 2021 Expert Report, it took PEO approximately one year to prepare the March 2022 Investigation Report.

23. Counsel for the Association takes issue with the characterization of some of the timelines presented by counsel for Mr. Naneff. For example, counsel for the Association states that the process of preparing the Investigation Report required consultation with internal stakeholders and external counsel. Nevertheless, there was no dispute between the parties that Mr. Naneff’s counsel did not receive the Investigation Report until April 2022.

Period 3 – July 2022 to End of Hearing on the Merits

24. With respect to Period 3, counsel for Mr. Naneeff does not make any significant comments, but he states that by the time the matter is complete, over five years will have passed. Counsel for Mr. Naneff argues that under the circumstances, this delay is inordinate.

Analysis of Test 1 – Inordinate Delay

25. The majority of the Panel (Glenn Richardson and Gary Thompson) find that there was inordinate delay in the circumstances of this case. They find that the investigation was not particularly complex, especially given that the MOL’s file provided to the PEO investigator would have likely provided a great deal of assistance with the PEO’s investigation. In addition, the majority of the Panel is concerned with the approximately seven-month time frame in Period 2, i.e. from June 2020 when the undertakings were answered by Mr. Naneff, to January 2021 when the expert who prepared the Expert Report was retained by the PEO. They also note the approximately one-year period that lapsed between the production of the March 2021 Expert Report and the March 2022 Investigation Report. In conclusion, the majority of the Panel finds that the Moving Party has established that there has been inordinate delay in the circumstances of this case.

Step 2 – Has there been Significant Prejudice Caused by the Delay?

26. Given the majority finding that there was inordinate delay, it is necessary to proceed to Steps 2 of the 3 step test in Abrametz. According to the Court in Abrametz, inordinate delay is not enough to find an abuse of process. In addition to inordinate delay, there must be significant prejudice either to hearing fairness or to the individual, caused by the delay. The Panel finds that neither of these significant prejudices arise in this case.

Hearing Prejudice

27. The Panel finds that there has not been significant hearing prejudice caused by the delay. Counsel for Mr. Naneff argues that in the present case, there are critical issues which depend on the recollection of witnesses as to the events surrounding the construction of the Arch, which has been dismantled. He also states that a witness, Jan Drutkowski, who was one of the workers who installed the Arch, is in ill health and may not be able to testify at the hearing on the merits. In particular, counsel for Mr. Naneff states that Mr. Drutkowski suffers from heart issues and is on long term disability from his job. However, counsel for Mr. Naneff did not make the argument that Mr. Drutkowski will definitely be unable to testify at the hearing on the merits but fairly stated that it would depend on his health at that time.

28. As noted above, based on the caselaw and the facts in the current case, the Panel finds that there has not been significant hearing prejudice caused by the delay. The Panel notes that in the Supreme Court of Canada case, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), the Court held that a party seeking a stay of proceedings bears “a heavy burden” and the delay must have caused actual prejudice which must be “of such magnitude that the public’s sense of decency and fairness is affected” (para 133). The Panel also notes that in Law Society of Upper Canada v. Davies Bagambiire, 2012 ONLSHP 122 (“Bagambiire”) the Law Society Hearing Panel found inordinate delay but refused to find abuse of process because the moving party failed to demonstrate prejudice caused by the delay. In Bagambiire, the Panel noted that “fading memories are to be expected in any investigation of dated allegations” (para 33).

29. The Panel finds that proceeding with the case on the merits would not affect the public’s sense of decency and fairness, as described more particularly below. The Panel also finds that based on the current record, there is no evidence that Mr. Drutkowski will definitely be unable to testify at the hearing on the merits. In addition, the Panel takes into account the hearing panel’s comments in Bagambiire regarding fading memories being expected. Based on the evidence, the Panel finds that Mr. Naneff failed to establish that there has been significant hearing prejudice caused by the delay.

Personal Prejudice

30. The Panel also finds that Mr. Naneff has failed to establish that there has been significant personal prejudice caused by the delay. Counsel for Mr. Naneff presented two medical letters to the Panel regarding possible personal prejudice – one from a doctor and one from a dentist. Based on the evidence, counsel for Mr. Naneff argued that the ongoing stress of the proceeding has caused Mr. Naneff physical issues which did not previously exist, e.g. grinding his teeth to such an extent that his teeth have cracked and worn away, leading to a recent six hour dental procedure.

31. Counsel for Mr. Naneff also argued that this matter received significant public attention at the time of the accident which caused the death of Mr. Dionne, and that the attention returned when the criminal proceedings were resolved in 2019. He states that the attention gradually “died away” but that a PEO hearing would likely result in renewed public interest, causing additional reputational harm to Mr. Naneff. Finally, counsel for Mr. Naneff submits that if the matter had proceeded to a hearing promptly, these issues would have been avoided, or at least significantly ameliorated.

32. Counsel for the Association, on the other hand, argues that in Abrametz, the Court noted that where a party experiences significant prejudice, that prejudice must be caused by the inordinate delay and not by the fact of the proceedings. In addition, counsel for the Association states that it is speculative to link Mr. Naneff’s stress or health issues to the PEO investigation. Counsel for the Association also suggests that these issues are just as easily attributable to the criminal proceedings, the fact that RCIL had to pay Mr. Dionne’s family $200,000 and/or the stress involved in running the five companies owned by Mr. Naneff.

33. With respect to possible media or public attention, counsel for the Association states that there is no evidence that there was any public or media attention relating to the PEO investigation or the laying of the charges under the Act.

34. The Panel agrees with arguments made by counsel for the Association, finding that Mr. Naneff’s health problems could be the result of the criminal proceedings and the fact that RCIL had to pay Mr. Dionne’s family $200,000, rather than the delay in the PEO investigation. In addition, the fact that Mr. Naneff owns and runs five companies, could also have a detrimental personal impact on Mr. Naneff. The Panel also believes that any possible renewed public or media attention, during the PEO hearing on the merits, is speculative. The Panel finds that Mr. Naneff has failed to establish that there has been significant personal prejudice caused by the delay.

Step 3 – Has Abuse of Process Been Established?

35. Since the Panel has found that Mr. Naneff has not met the tests for hearing prejudice and personal prejudice, it is not necessary to analyze whether an abuse of process has been established. However, for the sake of completeness, the Panel has decided to proceed to this stage of the analysis. In this regard, the Panel finds that even if Mr. Naneff met the tests for hearing prejudice and personal prejudice, he has not established that there has been an abuse of process.

36. Counsel for Mr. Naneff submits that the combined effect of the delay and prejudice, which he addresses in this motion hearing, compels a remedy. He argues that the PEO has only made “token attempts” to explain the significant delay and that the evidence of Mr. Naneff about the personal impact of the delay on him has not been challenged. Counsel for Mr. Naneff states that at this point in the proceeding, there is no certainty as to when any hearing will be completed and it is appropriate to grant Mr. Naneff a remedy.

37. Counsel for the Association, on the other hand, states that in Blencoe, the Court affirmed that there will not be a finding of abuse of process, even if there has been both inordinate delay and significant prejudice caused by the delay (and as noted above, significant prejudice was not found in this motion), unless,

[T]he damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. (para 120)

38. Counsel for the Association states that public confidence in the regulation of the engineering profession would be imperiled if this motion were granted and Mr. Naneff’s conduct was not scrutinized by a Discipline Panel in a hearing on the merits.

39. This Panel agrees with counsel for the Association. In particular, the Panel finds that if the issues in this matter are never tested in a hearing on the merits, the public would lose confidence in the regulation of the engineering profession. This is especially true given that there was a death that occurred in this matter.

Conclusion

40. Mr. Naneff has not met the test regarding lack of hearing fairness. The Panel does find, by a majority of 2 to 1, that there has been inordinate delay in this matter. Nevertheless, the Panel unanimously finds that there has not been significant hearing prejudice or personal prejudice caused by the delay. Given the Panel’s unanimous findings regarding hearing prejudice and personal prejudice, it was not necessary for the Panel to determine whether an abuse of process has been established. However, for the sake of completeness, the Panel undertook this analysis and unanimously found that even if there was significant hearing prejudice or personal prejudice caused by the delay, there was no abuse of process. Accordingly, this motion is dismissed.

Direction Respecting Hearing Date

41. Counsel for the Association requested that the Panel direct that the hearing on the merits of this matter should be scheduled as soon as possible, subject to the availability of witnesses. The Panel agrees with this and hereby makes the requested direction for the hearing of this matter on the merits to be scheduled as soon as possible, subject to the availability of witnesses.

REASONS FOR DECISION (ALISA CHAPLICK)

42. Alisa Chaplick: I concur in the unanimous decision of the Panel that this motion should be dismissed because the Moving Party failed to establish that the hearing would be unfair or that there was an abuse of process. In particular, I agree with the reasons of Glenn Richardson and Gary Thompson relating to Step 2 (no prejudice) and Step 3 (no abuse of process). I also agree that the hearing on the merits should be scheduled as soon as possible.

43. I do not agree that there has been clear, cogent and compelling evidence that there has been an inordinate delay in this matter. The parties agreed, based on caselaw, that there is no magic number regarding the amount of time passed that would constitute inordinate delay. What is more important is what occurred during the relevant periods of time.

44. When assessing whether inordinate delay occurred in this case, I believe that weight should be placed on PEO’s arguments that even though the MOL investigation report was provided during Period 1, noted above, it was highly redacted and the PEO was required to issue a summons for the unredacted MOL investigation report which was not obtained until April 27, 2020. Weight should also be placed on the PEO’s argument that the process of preparing the March 2022 Investigation Report required consultation with internal stakeholders and external counsel.

45. Furthermore, Mr. Naneff did not raise the issue of delay on the record during the course of the investigation, despite the fact that he had legal representation early in the investigation. In Abrametz, the Court noted that all parties have a responsibility to ensure that the investigation and prosecution move forward in an expeditious matter. In particular, the Court held as follows:

As soon as delay becomes a concern, the affected party should seek to use all available procedures to move matters forward. The tribunal may often have internal procedures for dealing with delay; the party complaining of delay should avail itself of these. Even if there are no such procedures, the affected party should raise the issue of delay on the record, by means such as correspondence or oral submissions.

46. Here, if Mr. Naneff was concerned that the investigation was not being concluded more expeditiously, particularly after his examination in May 2020 and his production of answers to undertakings, he should have made enquiries and complained about the delay in the process. There is no record of Mr. Naneff contacting the PEO from June 2020 until 2022 to raise the issue of delay.

47. For the above reasons, I do not agree that there has been clear, cogent and compelling evidence that there has been an inordinate delay in this matter.