Association of Professional Engineers of Ontario (PEO) v Bassily et al, 2023 ONAPE 3

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

Date: 2023-04-27 Citation: Association of Professional Engineers of Ontario (PEO) v Bassily et al, 2023 ONAPE 3 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Bassily et al, 2023 ONAPE 3

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 Moheb (Michael) Bassily, P. Eng., a member of the Association of Professional Engineers of Ontario and MBECO Engineering Ltd., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Moheb (Michael) Bassily, P.ENG. and MBECO Engineering Ltd.

PANEL MEMBERS: Michael Wesa, P. Eng. CHAIR David Germain, J.D. MEMBER Rishi Kumar, P. Eng. MEMBER

Hearing Dates: 2023-02-13 Decision Date: 2023-04-27 Release of Written Reasons: 2023-04-27

Counsel: Andrew Faith and Emily Young, Counsel for the Association (PEO) Michael Burokas, Counsel for Moheb Bassily (Licence Holder) and MBECO Engineering Ltd. (Holder of Certificate of Authorization) Jordan Stone, Independent Legal Counsel to the Tribunal

AMENDED DECISION AND REASONS

[1]. The Panel of the Discipline Committee met to hear this matter on February 13, 2023 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 Mr. Bassily (the “Member”) and counsel for the parties attended via videoconference.

Allegations

[2]. Counsel for the Association filed a Notice of Hearing dated November 7, 2022 (Exhibit 1) and a Statement of Allegations dated May 22, 2022 (Exhibit 2). The allegations contained in the Statement of Allegations are as follows:

1. At all material times, Bassily was a professional engineer licensed pursuant to the Act.

2. At all material times, MBECO Engineering Ltd. (“MBECO”) held a Certificate of Authorization (“CofA”) and listed Bassily as the individual taking professional responsibility for engineering services provided thereunder.

3. In or around 2019, Creative Carriage Ltd. (“Creative Carriage”) sought to add a building extension to its manufacturing facility located in St. George, County of Brant (the “Facility”). Creative Carriage retained several contractors and engineers to assist with the construction of the building addition (the “Project”).

4. Under the Ontario Building Code, the Facility and the proposed building addition would require a standpipe system throughout for fire protection.

5. On or around June 2019, one of the Project’s contractors retained Gerald Catt, P. Eng. to design a fire protection system for the building addition. Catt prepared drawings that implemented a standpipe system for the Facility’s building addition. Catt signed and sealed the drawings on or about September 6, 2019 (the “Original Drawings”).

6. The Original Drawings required the implementation of a “fire pump” in order to maintain certain water pressure and to comply with the Ontario Building Code and the NFPA-14.

7. Due COVID-19, the fire pump required in the Original Drawings was unavailable during construction. As a result, in or around August 2020, Heritage Sprinkler Design Inc. (“Heritage”) was retained to prepare drawings and calculations for a design that did not require a fire pump.

8. On or about September 4, 2020, Heritage retained Bassily and MBECO to review and approve the new drawings and calculations. Bassily signed and sealed the drawings on or about September 4, 2020 (the “Revised Drawings”). Bassily also signed and sealed the hydraulic calculations on the same day (the “Hydraulic Calculations”).

9. The Revised Drawings stated:

THE SCOPE OF THIS DRAWING IS TO DETERMINE IF THE EXISTING STANDPIPE SYSTEM AS INSTALLED AT THE CREATIVE CARRIAGE FACILITY CAN BE SUPPLIED WITHOUT THE NEED FOR A FIRE PUMP AND STILL MEET OBC REQUIREMENTS FOR STANDPIPE DEMAND.

10. The Revised Drawings and Hydraulic Calculations, signed and sealed by Bassily, were deficient for several reasons, including:

a. the standpipe system provided coverage in the building addition and not in the entire Facility as required by the Ontario Building Code;

b. the design provided for a factor of safety that fell below the industry norm;

c. the Revised Drawings did not include piping dimensions;

d. the Hydraulic Calculations did not consider potential friction loss;

e. the length of the underground supply pipe was inconsistent with the Original Drawings and Google Maps information resulting in an impact on the hydraulic calculations;

f. the Hydraulic Calculations used an incorrect fixed loss value for the backflow preventer; and

g. the Hydraulic Calculations considered the flow for only one hose station, rather than the cumulative flow at the two most hydraulically remote hose stations.

11. It is therefore alleged that Bassily and MBECO are guilty of professional misconduct by reviewing and approving inadequate design drawings and calculations for the project, amounting to professional misconduct as defined by sections 72(2)(a), (b), (d), (j) of Regulation 941.

Agreed Statement of Facts

[3]. Counsel for the Association advised the Panel that the parties had reached an agreement on the facts and introduced an Agreed Statement of Facts, dated February 8, 2023 (Exhibit 3), which provides as follows:

1. Mr. Michael Bassily, P.Eng. (“Bassily”) is, and was at all material times, a professional engineer licensed in good standing pursuant to the Professional Engineers Act (the “Act”). He has been licensed under the Act since 1992. Before becoming a licensee in Ontario, Bassily was registered or licensed with the Egyptian Society of Engineers and the Egyptian Syndicate of Engineers.

2. At all material times, MBECO Engineering Ltd. (“MBECO”) held a Certificate of Authorization and listed Bassily as the individual taking professional responsibility for engineering services provided thereunder.

3. The complainant Gerald Catt, P. Eng (“Catt”) is, and was at all material times, a professional engineer licensed in good standing pursuant to the Act. He was first licensed in 1976. He is also designated a Consulting Engineer and Building Design Specialist.

4. In 2019, Creative Carriage Ltd. (“Creative Carriage”) sought to add a building extension to its single-story manufacturing facility located in St. George, County of Brant (the “Facility”). Creative Carriage retained several contractors and engineers to assist with the construction of the building addition (the “Project”).

5. Before Creative Carriage had sought to add the addition, its manufacturing facility had a building area that was under the threshold in the Ontario Building Code (“OBC”) requiring a standpipe system for fire protection purposes.

6. With the proposed addition, the total building area met the OBC threshold. Accordingly, the OBC required the building to have a standpipe system.

7. Around June 2019, on of the Project’s contractors retained Catt to design a fire protection system for the building addition, among other things. Catt prepared drawings that implemented a standpipe system for the Facility’s building addition. Catt signed and sealed the drawings on September 6, 2019 (the “Original Drawings”). He also prepared calculations to support the Original Drawings, which he signed and sealed on the same day.

8. The Original Drawings included a fire pump to maintain a certain level of water pressure and to comply with the OBC and the National Fire Protection Association’s Standard for the Installation of Standpipe and Hose Systems (“NFPA-14”).

9. As a result of supply chain issues caused by the COVID-19 pandemic, the fire pump required in the Original Drawings was not available during construction of the building addition.

10. Consequently, one of the Project’s contractors retained Paul Flanagan of Heritage Sprinkler Design Inc. (“Heritage”) to prepare drawings and calculations for a design that did not require a fire pump. Flanagan prepared drawings that appear to be a modified version of the Original Drawings, without a fire pump (the “Revised Drawings”).

11. On September 4, 2020, Heritage retained Bassily and MBECO to review and approve the Revised Drawings and accompanying calculations (the “Hydraulic Calculations”). Bassily signed and sealed the Revised Drawings and the Hydraulic Calculations on the same day, September 4. The Revised Drawings and Hydraulic Calculations are attached as Schedule “A”.

12. The Revised Drawings had the following text contained within a notice box:

THE SCOPE OF THIS DRAWING IS TO DETERMINE IF THE EXISTING STANDPIPE SYSTEM AS INSTALLED AT THE CREATIVE CARRIAGE FACILITY CAN BE SUPPLIED WITHOUT THE NEED FOR A FIRE PUMP AND STILL MEET OBC REQUIREMENTS FOR STANDPIPE DEMAND.

13. On September 18, 2020, Catt filed a complaint to the Association about the Revised Drawings and Hydraulic Calculations.

14. The Association obtained an expert report authored by Leslie Sims, P.Eng., dated May 5, 2021 (the “Sims Report”). A redacted copy of the Sims Report is attached as Schedule “B”. Bassily and MBECO do not contest the findings, opinions, and conclusions contained in the Sims Report, as redacted. They admit the findings, opinions, and conclusions contained in the Sims Report to the extent set out below.

15. Bassily and MBECO admit that the Revised Drawings and the Hydraulic Calculations were deficient and that they failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances by signing and sealing the Revised Drawings and Hydraulic Calculations.

16. In particular, Bassily and MBECO admit that:

a. The Revised Drawings did not include specified dimensions for the pipes making up the standpipe system. They also did not include pipe elevations. The dimensions and elevations used in the Hydraulic Calculations therefore could not be verified.

b. The Hydraulic Calculations did not consider potential friction loss.

c. The length of the underground supply pipe shown on the Revised Drawings was inconsistent with the length shown in the Original Drawings and information sourced from Google Maps.

d. The water supply information came just under the NFPA-14 requirement that it be no more than one year old.

17. Bassily and MBECO admit that, in the circumstances, including as outlined in paragraph 18, the standards of reasonable and prudent professional engineering required them to ensure all pipes were accurately dimensioned and to consider friction loss, which they failed to do. Failing to meet these standards meant that the hydraulic calculations could not be performed with certainty.

18. Bassily and MBECO admit that the safety factor they relied on in the Hydraulic Calculations (3.714 psi, less than 5% of the available water supply) was insufficient in these circumstances. It created a risk that even a relatively minor loss in water pressure could have resulted in the standpipe system failing to deliver the required water supply.

19. Bassily and MBECO admit that a reasonable and prudent professional engineer in the circumstances would have provided for a higher safety factor. The Association notes the opinion in the Sims Report that a safety factor of at least 10% of the available water supply is recognized as good engineering practice in the industry.

20. In addition, Bassily and MBECO admit that they failed to comply with OBC section 3.2.9.6(1), which requires calculating flow at the two hydraulically most remote hose stations. Contrary to this requirement, the Hydraulic Calculations calculated the flow rate from only one hose station and only considered the flow at the second most hydraulically remote hose station through deduction.

21. The Association acknowledges that using a single flow rate from one hose station may be more hydraulically demanding than what OBC section 3.2.9.6(1) requires. However, a reasonable and prudent professional engineer in the circumstances would have calculated flow rate according to the requirements of the OBC.

22. On September 29, 2020, approximately one month after Bassily’s calculations, Tidal Wave Fire Sprinkler Systems conducted a flow test on the two most hydraulically remote hose stations at the project and found the flow in excess of the requirements in OBC section 3.2.9.6(1).

23. Based on the preceding facts, the Association, Bassily, and MBECO agree that Bassily and MBECO are guilty of professional misconduct under section 72(2) of R.R.O 1990, Reg. 941 (“Regulation 941”), as follows:

a. They committed acts or omissions in carrying out the work of a practitioner that constitute a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances, contrary to section 72(2)(a) of Regulation 941; and

b. They failed to make responsible provision for complying with applicable codes in connection with work being undertaken by or under their responsibility, contrary to section 72(2)(d) of Regulation 941.

[4]. Counsel for the Association advised that they were withdrawing the allegation that the Member and MBECO Engineering Ltd. (the “Holder”) contravened s. 72(b) and (j) of Regulation 941.

Plea

[5]. The Member and Holder admitted the allegations set out in the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the Member’s and Holder’s admissions were voluntary, informed and unequivocal.

Decision

[6]. The Panel accepted the Member’s and Holder’s admissions and the facts set out in the Agreed Statement of Facts. On that basis, the Panel found the Member and Holder guilty of professional misconduct under section 28(2)(b) of the Professional Engineers Act (the Act) and section 72(2)(a) and (d) of Regulation 941 under the Act.

Joint Submission on Penalty

[7]. The parties filed a joint submission on penalty (“JSP”) (Exhibit 4), which read as follows:

1. Pursuant to s. 28(4)(d) of the Professional Engineers Act (the “Act”), there shall be a term and condition on Bassily’s licence requiring Bassily to successfully complete the Certified Water-Based Systems Professional (CWBSP) Online Learning Path – Premium course, offered by the National Fire Protection Association, within 18 months from the date of pronouncement of the decision of the Discipline Committee (the “Date”);

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

3. Pursuant to 28(4)I(i) and (k) of the Act, a restriction shall be imposed on Bassily’s licence prohibiting Bassily from practicing professional engineering except under the direct supervision of another professional engineer who shall take professional responsibility for the work by affixing their signature and seal on every final drawing, report, or other document prepared by Bassily, which restriction shall be suspended for a period of 18 months from the Date. If Bassily successfully completes the remedial course within or after the time period contemplated in paragraph 1 above, this restriction shall be suspended indefinitely;

4. Pursuant to to s. 28(4)(e)(i) and (k) of the Act, a restriction shall be imposed on MBECO’s Certificate of Authorization prohibiting MBECO from offering or providing professional engineering services except under the direct supervision of another professional engineer who shall take professional responsibility for the work by affixing their signature and seal on every final drawing, report, or other document prepared by Bassily, which restriction shall be suspended for a period of 18 months from the Date. If Bassily successfully completes the remedial course within or after the time period contemplated in paragraph 1 above, this restriction shall be suspended indefinitely; and

5. No order as to costs.

6. For clarity, the Association, Bassily, and MBECO make no joint submission as to publication pursuant to s. 28(4)(i) of the Act of the Discipline Panel’s findings and order in the official publication of PEO, either in detail or in summary and with or without names, and will address this issue before the Panel.

[8]. 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 the maintenance of the public’s confidence in the profession. The Association provided support for the appropriateness of the penalty with reference to prior decisions of the Discipline Committee.

[9]. Counsel for the Member submitted that the JSP was appropriate and that the coursework would address any public protection concerns.

The Issue of Publication

[10]. As noted in the final paragraph of the JSP, the parties were not able to agree on the issue of publication. The parties made submissions on this issue and the Panel was called upon to determine whether its decision would be published with or without names under section 28(4)(i) of the Act, which provides as follows:

(4) Where the Discipline Committee finds a member of the Association or a holder of a certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty of professional misconduct or to be incompetent it may, by order,

(i) subject to subsection (5) in respect of orders of revocation or suspension, direct that the finding and the order of the Discipline Committee be published in detail or in summary and either with or without including the name of the member or holder in the official publication of the Association and in such other manner or medium as the Discipline Committee considers appropriate in the particular case;

[11]. The Association requested that the Panel’s decision be published with names. Counsel for the Association, Ms. Young, submitted that an order for publication pursuant to s. 28(4)(i) of the Act would best serve the goals of deterrence and of maintaining public confidence in the discipline process. She submitted that, in the interest of openness and transparency and in keeping with the open court principle, decisions of the Discipline Committee should generally be published, unless the Member has provided sufficiently compelling reasons to not order publication.

[12]. In support of her submissions, Ms. Young referred to two decisions. First, she cited the decision and reasons of the Discipline Committee in the matter of Paul D. Rew and Rubicon Environmental (2008) Inc, which states:

The publication of the decision of the Panel with the Member’s name serves both specific and general deterrence, in that it illustrates to both the Member and the profession at large that instances of neg¬ligent practice will result in an appropriate response by the Association and the Discipline Committee. Publication also helps to maintain the public’s confidence in the discipline process.

[13]. Second, she referred to the decision of the Discipline Committee of the Ontario College of Social Workers and Social Service Workers in Ontario College of Social Workers and Social Service Workers v Rozina Shaheen, 2019 ONCSWSSW 9. At paragraph 36, this decision reads:

Having considered the submissions, the case law and the evidence, the Panel decided that its findings and order should be published with the Member’s name. The Member did not provide sufficient compelling evidence that if the decision is published with her name it will pose a serious risk that cannot be prevented through reasonably alternative measures. Publication of the name of a Member who has been found guilty of professional misconduct is consistent with the statutory mandate of the Discipline Committee and is important in demonstrating to the public how the Discipline Committee responds to misconduct. Publication also has a general deterrent value and reflects transparency and openness while ensuring public protection and accountability.

[14]. Counsel for the Member and Holder requested that the Panel not order publication and, in the alternative, requested that any publication be without names. He noted that the Act mandates publication in certain cases, but not in the circumstances of this case. Mr. Burokas submitted that the misconduct by the Member was marginal and did not actually impact public safety and that the Member had held a licence since 1992. He submitted that these factors should be considered in support of a departure from the general rule on publication. He also submitted that the goals of deterrence had been met by the lengthy process and expense involved in this discipline proceeding, as well as by the other penalties set out in the JSP.

[15]. Finally, Mr. Burokas submitted two prior decisions of the Discipline Committee wherein publication with names was not ordered. In an unnamed decision published in the September 2007 issue of Engineering Dimensions, a panel found on the facts before it that:

Regarding the publication of names in the official journal of the association, the Panel found this was not a serious case of professional misconduct and, as such, a specific deterrent was not warranted;

[16]. In another unnamed decision published in the December 2018 issue of Engineering Dimensions, a panel found:

There was no apprehension that the Member lacked technical competence or posed a danger to the public. The Panel considered the two previous discipline decisions referred by counsel for the Association, and found that they provide reasonable guidance with respect to penalty.

[17]. Mr. Burokas disagreed that there is any binding test that requires the Panel to order publication in the absence of a compelling reason to the contrary. He suggested that the task for the Panel was to assess whether the goals of sanctioning, including specific and general deterrence can be met without publication, or without the publication of names. In his submission, the goals could be met without publication, and therefore the deleterious effects of publication (i.e. attaching specific allegations and findings to the Member’s name) were not necessary.

[18]. In reply, counsel for the Association submitted that without publication, the goal of general deterrence is not served. She submitted that the September 2007 case involved misconduct that was minimal. Because the present case deals with fire protections, it was not minimal. She noted that the December 2018 case involved a joint submission to publish without names.

[19]. Independent legal counsel provided the Panel with advice on its discretion regarding publication. He advised that he was not aware of any specific test that is binding on this Panel. The Discipline Committee of the PEO is one of very few professional discipline bodies in Ontario that has discretion to decline to publish or to publish without names. Independent legal counsel noted that the entirety of the Panel’s decision would be recorded in the register pursuant to section 21(1)3.1 of the Act. He also noted that the open court principle does apply and that the request being made is in the nature of a publication ban, which in a court context would require that a party establish a serious risk to the public interest to prevent publication.

Penalty Decision

[20]. The Panel concluded that the proposed penalty in the JSP is reasonable and in the public interest. The Member and the Holder have co-operated with the Association and, by agreeing to the facts and a proposed penalty, have accepted responsibility for their actions and have avoided unnecessary expense to the Association.

[21]. In the circumstances of this case, the Panel is of the view that the penalty set out in the JSP, including a reprimand recorded on the Register, is a reasonable outcome that serves the aims of specific and general deterrence. Similarly, the requirement that the Member pass an examination, or practice under the direct supervision of another professional engineer, serves the goals of protecting the public and maintaining the public’s confidence in the regulation of the profession.

Decision on the Issue of Publication

[22]. On the question of publication, the Panel determined that its decision would be published in the official publication of the Association with names.

[23]. The Panel accepts Mr. Burokas’ suggestion that the issue of publication must be approached mainly using the principles of sanctioning. This Panel finds that those principles, along with the public interest in openness and transparency in the discipline process, justify publication with names in this case.

[24]. Publication with names serves three purposes in this case: openness, transparency and general deterrence. The Panel finds that the goal of general deterrence is best served by the publication of its decision for all members of the profession. While it may be possible to find the details of any discipline decision in the public register, members of the profession would not be aware of it without searching. In our view, members of the profession should be made aware that instances of misconduct may, and often will, be published with names. Publication with names serves this goal.

[25]. We also find that that the openness and transparency of the discipline process would be significantly lessened by not publishing the Panel’s findings or by not publishing with names.

[26]. With respect to any reputational harm to the Member that may arise from publication, the Panel notes that prospective clients would, in any event, be able to find the Panel’s full reasons by searching the Member in the public register. As such, any additional reputational harm that would arise from publication in this instance would likely be minimal.

[27]. Taking all of these factors into consideration, the Panel orders publication with names.

[28]. The Panel therefore orders:

1. Pursuant to s. 28(4)(d) of the Professional Engineers Act (the “Act”), there shall be a term and condition on Moheb Bassily’s (the “Member”) licence requiring the Member to successfully complete the Certified Water-Based Systems Professional (CWBSP) Online Learning Path – Premium course, offered by the National Fire Protection Association, within 18 months from the date of pronouncement of the decision of the Discipline Committee (the “Date”);

2. Pursuant to s. 28(4)(f) of the Act, the Member and MBECO Engineering Ltd. (the “Holder”) shall be reprimanded, and the fact of the reprimand shall be permanently recorded on the Register;

3. Pursuant to s. 28(4)(e)(i) and (k) of the Act, a restriction shall be imposed on the Member’s licence prohibiting the Member from practicing professional engineering except under the direct supervision of another professional engineer who shall take professional responsibility for the work by affixing their signature and seal on every final drawing, report, or other document prepared by the Member, which restriction shall be suspended for a period of 18 months from the Date. If the Member successfully completes the remedial course within or after the time period contemplated in paragraph 1 above, this restriction shall be suspended indefinitely;

4. Pursuant to s. 28(4)(e)(i) and (k) of the Act, a restriction shall be imposed on the Holder’s Certificate of Authorization prohibiting the Holder from offering or providing professional engineering services except under the direct supervision of another professional engineer who shall take professional responsibility for the work by affixing their signature and seal on every final drawing, report, or other document prepared by the Member, which restriction shall be suspended for a period of 18 months from the Date. If the Member successfully completes the remedial course within or after the time period contemplated in paragraph 1 above, this restriction shall be suspended indefinitely; and

5. Pursuant to section 28(4)(i) of the Act, the findings and order of the Discipline Committee shall be published in summary form together with the names of the Member and Holder in the official publication of the Association.