Association of Professional Engineers of Ontario (PEO) v Ulrich, 2023 ONAPE 4

Date: 2023-05-26

Citation: Association of Professional Engineers of Ontario (PEO) v Ulrich, 2023 ONAPE 4

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Ulrich, 2023 ONAPE 4

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 Edwards J. Ulrich, P. E.ng. a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Edward J. Ulrich, P.ENG

PANEL MEMBERS: Robert Willson, P.Eng. CHAIR

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

Albert Sweetnam, P.Eng. MEMBER

Hearing Dates: 2023-04-11

Decision Date: 2023-05-26

Release of Written: 2023-05-26

Reasons:

NAME OF LAWYER Leah Price and Rachel Allen, Counsel for the Association (PEO)

NAME OF LAWYER Kevin Mitchell, Counsel for Edward J. Ulrich (Licence Holder)

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

DECISION AND REASONS

This Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (the “PEO”) convened a hearing remotely via Zoom on April 11, 2023, to consider the conduct of Edward J. Ulrich (“Mr. Ulrich”) as described more particularly herein.

Agreed Statement of Facts

The allegations against Mr. Ulrich as stated in the Agreed Statement of Facts (“ASF”), taken directly therefrom (without Schedules attached), are as follows:
At all material times, Ulrich was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”).
Ulrich is the owner and president of 992426 Ontario Inc., operating as Basic Industries Glazing (“BIG”). At all material times, neither Ulrich nor BIG held a valid Certificate of Authorization.
On or around September 21, 2017, Ulrich entered into an Agreement for Purchase and Sale (the “APS”) with KoenPack Canada Inc. (“KoenPack”). Under the APS, KoenPack agreed to purchase an industrial property owned by Ulrich and BIG located at 4684 Bartlett Road in Beamsville, Ontario (the “site”).
Pursuant to the APS, Ulrich and BIG were responsible for the design and construction of two additions to the site’s existing warehouse structure: a lean-to warehouse addition and a two-storey office addition (the “project”). The APS also included the following:

a. Ulrich and BIG were responsible for obtaining the necessary permits for the project;

b. The completion date for the sale would be October 16, 2017 (although the sale was actually completed on October 30, 2017), but BIG would continue to occupy part of the site as a tenant while construction was ongoing; and

c. Construction of both additions would be “fast-tracked” and would be completed by January 31, 2018.

On or about November 20, 2017, the Town of Lincoln (the “Town”) received a permit application from BIG. The application named BIG as the builder and identified Ulrich as the individual who would review and take responsibility for design activities. Included with the permit package were seven numbered drawings signed and sealed by Ulrich, including a foundation plan and foundation details, a site plan, and four above-grade drawings (collectively, the “Drawings”). Attached as Schedule “A” are copies of the Drawings. Ulrich also signed a Commitment for General Review, Structural. The Town issued foundation and above-grade shell permits for the project on December 4, 2017.
BIG began construction on both additions but the project was not completed by January 31, 2018. On or around January 31, 2018, Ulrich and BIG left the site at KoenPack’s request.
Ulrich admits that the Drawings were deficient for several reasons, including that they:

a. lacked material data and specifications;

b. lacked minimum information required under the Ontario Building Code, including sections 3.2, 3.3, 3.4, 3.6, 3.7 and 3.8;

c. cited an outdated version of the Ontario Building Code;

d. lacked wall reinforcement;

e. omitted a lateral force resisting system; and

f. otherwise fell below the standard of a reasonable and prudent practitioner.

Ulrich further admits that the Drawings failed to make reasonable provision for the safeguarding of life, health and property of the additions’ occupants.
PEO retained Steven J. Adema, P.Eng., of Tacoma Engineers Inc., as an independent expert to review the actions and conduct of Ulrich. He provided an expert report (the “Report”) dated September 23, 2021. Attached as Schedule “B” is a copy of the Report.
For the purposes of these proceedings, the Respondent accepts as correct the findings, opinions and conclusions contained in the Report as they relate to the Drawings only. The parties agree that there are no allegations or admissions being made in connection with the BIG’s or Ulrich’s activities in connection with the actual construction of the project, or in connection with the state of construction upon the departure of Ulrich and BIG from the site.
The Respondent admits that he failed to make reasonable provision in the Drawings 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.
By reason of the aforesaid, the parties agree that Ulrich is guilty of professional misconduct as follows:

a. Preparing and providing inadequate drawings and specifications for the project, amounting to professional misconduct as defined by sections 72(2)(a), (b), (d) and (j) of Regulation 941; and

b. Providing professional engineering services to the public without a valid Certificate of Authorization, amounting to professional misconduct as defined by section 72(2)(g) of Regulation 941.

Relevant Sections re Misconduct in Regulation 941

The following are the Sections cited regarding Mr. Ulrich’s professional misconduct in paragraphs 12(a) and (b) of the ASF, noted above – namely Subsections 72(2)(a), (b), (d), (g) and (j) of Regulation 941:

“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 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,

(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]

With respect to Section 72(2)(j), the parties stated that they agreed that Mr. Ulrich’s conduct was unprofessional, but his conduct was not alleged to be disgraceful or dishonourable.

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

Mr. Ulrich admitted to the information set out in the ASF. The Panel conducted a plea inquiry and was satisfied that Mr. Ulrich’s admissions were voluntary, informed and unequivocal. During the plea inquiry, Mr. Ulrich stated that he understood that the Panel was not bound by any agreement in the Joint Submission on Penalty, described below (“JSP”). He also clarified that, as per the ASF, he only agrees with the conclusions in the expert report which stated that the drawings at issue were deficient, but he does not agree that the building was unsafe.
Mr. Ulrich advised that shortly after the hearing, he would be sending a letter to the PEO’s Tribunal Office, regarding some personal information that he did not reveal at the hearing. However, Mr. Ulrich stated that he did not wish for the contents of the letter to have any bearing on the facts in the ASF and the penalty agreed upon in the JSP.
The Panel considered the ASF and finds, based on the evidence, that Mr. Ulrich committed the agreed upon acts, enumerated in the ASF, and that the facts support a finding of professional misconduct.

Joint Submission on Penalty & Penalty Ordered

As noted above, a 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, Ulrich shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently;

c) Pursuant to sections 28(4)(i) and 28(5) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication, with reference to names;

d) Pursuant to s. 28(4)(d) of the Act, it shall be a term, condition or restriction on Ulrich’s license that he shall, within fourteen (14) months of the date of the Discipline Committee’s decision, successfully complete PEO’s Advanced Structural Analysis (07-Str-A4) and Advanced Structural Design (07-Str-A5) examinations;

e) Pursuant to s. 28(4)(e) and (k) of the Act, a restriction shall be imposed upon Ulrich’s licence prohibiting him from practicing structural engineering, which restriction shall be suspended for a period of fourteen months from the date of the Discipline Committee’s decision. If Ulrich successfully completes the examinations referred to above at any time before or after the fourteen months period referred to above, this restriction shall be suspended indefinitely;

f) Pursuant to s. 28(4)(h) of the Act, Ulrich shall be required to pay a fine in the amount of $2500, within 30 days of the decision of the Discipline Committee; and

g) There shall be no order as to costs.

Regarding Subsection (c) of the JSP above, counsel for the Association noted that, pursuant to the Professional Engineers Act (the “Act”), when a suspension is ordered, publication in the official publication with names is mandatory.
Both counsel for the Association and counsel for Mr. Ulrich agreed that the penalty proposed in the JSP was appropriate in the circumstances.
Counsel for the Association presented the Panel with a number of cases in support of the argument that the penalty agreed to in the JSP falls within the range of penalties that have been previously ordered by discipline panels. 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…

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]

In addition, counsel for the Association stated that when the parties were negotiating regarding the appropriate penalty in this matter, both aggravating and mitigating factors in the case were considered. Aggravating factors included the fact that both Mr. Ulrich and his company were practicing without a Certificate of Authorization, as noted in the ASF. Mitigating factors included Mr. Ulrich’s cooperation with the Association and the fact that this was his first disciplinary finding.
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. Ulrich 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.
At the hearing, there was considerable discussion regarding item (e) of the JSP, which is quoted both above and below. The Panel expressed concern that the safety of the public would not be adequately protected if the licence restriction preventing Mr. Ulrich from practicing structural engineering was immediately suspended for 14 months pending the completion of examinations. The Association’s lawyer provided reassurances that this was considered during the penalty negotiations. In particular, PEO's position was that they made an assessment that there was minimal risk to the public, as the professional misconduct relates to Mr. Ulrich’s drawings, and they stated that that there was no evidence that the structure of the building was unsound. Another factor that informed the PEO’s assessment was that Mr. Ulrich does not appear to carry on an active practice as a structural engineer at this time. The Panel therefore determined that the high threshold detailed In Anthony-Cook was not met.
The Panel then advised the parties that the JSP would be accepted with written reasons to follow. Accordingly, the Panel accepts the JSP and orders:

a) Pursuant to s. 28(4)(f) of the Act, Ulrich shall be reprimanded, and the fact of the reprimand shall be recorded on the Register permanently. The Panel administered the reprimand on the date of the oral hearing, being April 11, 2023;

b) Pursuant to s. 28(4)(b) of the Act, Ulrich’s license shall be suspended for a period of two (2) months, commencing on a date to be agreed, such date to be no later than three (3) weeks after the date of the Discipline Committee’s decision. The parties decided that the suspension would commence on the same day as the hearing and the oral decision rendered at the hearing – i.e. April 11, 2023;

c) Pursuant to sections 28(4)(i) and 28(5) of the Act, the finding and order of the Discipline Committee shall be published in summary form in PEO’s official publication, with reference to names;

f) Pursuant to s. 28(4)(h) of the Act, Ulrich shall be required to pay a fine in the amount of $2500, within 30 days of the decision of the Discipline Committee; and

g) There shall be no order as to costs.