Association of Professional Engineers of Ontario (PEO) v Assaad et al, 2023 ONAPE 8

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

Date: 2023-06-19 Citation: Association of Professional Engineers of Ontario (PEO) v Assaad et al, 2023 ONAPE 8 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Assaad et al, 2023 ONAPE 8

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 Emad F.H. Assaad, P.Eng., a member of the Association of Professional Engineers of Ontario and 1885219 Ontario Inc. O/A ASPA Engineering and Welding Solutions, a holder of a Certificate of Authorization.

Between: The Association of Professional Engineers of Ontario (PEO) -and- Emad F.H. Assaad, P.ENG. and 1885219 Ontario Inc. O/A ASPA Engineering and Welding Solutions

Panel Members: Glenn Richardson, P.Eng. CHAIR Jag Mohan, P.Eng. MEMBER Eric Bruce, J.D. MEMBER

Hearing Dates: 2023-05-15 Decision Date: 2023-06-19 Release of Written Reasons: 2023-06-19

Counsel: Leah Price, Counsel for the Association Michael Burokas, Counsel for Emad F.H. Assaad (Licence Holder) and 1885219 Ontario Inc. (Holder of Certificate of Authorization) Jordan Glick, Independent Legal Counsel to the Tribunal

Decisions and Reasons

1The Panel of the Discipline Committee met to hear this matter on May 15, 2023, by means of an online video conference platform that was open to observers from the public. All participants in the proceeding attended via videoconference, including counsel for the Association of Professional Engineers of Ontario (the “Association” or “PEO”), Mr. Emad F.H. Assaad, P.Eng. (the “Member” or “Assaad”), and legal counsel for the Member and 1885219 Ontario Inc. o/a ASPA Engineering and Welding Solutions (“ASPA”).

The Allegations

2The Panel was provided with the Notice of Hearing dated March 22, 2023, and the decision of the Complaints Committee dated October 25, 2022.

The Agreed Statement of Facts

3Counsel for the Association advised the Panel that the parties had reached an agreement on the facts and introduced an Agreed Statement of Facts signed by Assaad and ASPA on April 22, 2023, and by Counsel for the Association on April 25, 2023. The Agreed Statement of Facts is set out below. (The schedule referenced in the Agreed Statement of Facts is not reproduced here and references to the “Respondents” in the Agreed Statement of Facts refer to Assaad and ASPA.)

1. At all material times, Assaad was a professional engineer licensed pursuant to the Act. Assaad holds a Bachelor of Science degree in civil engineering from Alexandria University.

2. At all material times, ASPA was the holder of a Certificate of Authorization #C100231140 issued by the Association of Professional Engineers of Ontario ("C of A"). Assaad was the individual identified who will take professional responsibility for engineering services provided under the C of A.

3. The Complainant, Heather Liddycoat, P.Eng. ("Liddycoat"), was, at all material times, a professional engineer licensed by the PEO who was employed by Witzel Dyce Engineering Inc. ("WDEI") in connection with its role as the primary structural engineer for a child-care center addition to Saginaw Public School (the "Project").

4. Assaad and ASPA were retained by Custom CAD Consulting Inc. ("CCCI"), a sub-sub-contractor on the Project, to provide the Open Web Steel Joist ("OWSJ") design for the Project based on WDEI's drawings. To perform that service, Assaad and ASPA used a computer program called RISA 3D.

5. On August 17, 2021, Assaad and ASPA issued OWSJ shop drawings which were signed and sealed by Assaad for CCCI (the "Initial OWSJ Shop Drawings"). Assaad and ASPA further created an unsigned joist calculation package dated August 25, 2021, using the RISA 3D program ("Initial OWSJ Calculations"). On review by WDEI and Liddycoat, both were rejected and required to be resubmitted with notes as follows:

   a. The following errors, omissions and defects were required to be corrected:

   i. the joists calculations and joist configuration were incorrect;

   ii. the deflection and axial force diagrams were not in accordance with usual engineering practice in respect of OWSJ design;

   iii. boundary conditions were not appropriate for the joist layout;

   iv. the diagonal members on the joists were facing the wrong direction; and

   v. the design documents were missing required information on several aspects, and specifically on: the joist spacing; the line loads being applied to the joists; loading information for uplift and snow pile up; bridging layout and details; and the boundary conditions, specifically whether they were fixed or roller at one end.

   b. These defects suggested to WDEI and Liddycoat that Assaad and ASPA did not understand the concepts involved in OWSJ design.

   c. They also suggested to WDEI and Liddycoat that Assaad and ASPA did not understand the proper use or population of the RISA 3D computer program in the manner required to generate a correct and appropriate OWSJ design.

   d. WDEI and Liddycoat required the revised design and calculations "to be stamped by two engineers licensed in the province of Ontario".

6. The Initial OWSJ Shop Drawings and Initial OWSJ Calculations did not comply with applicable standards and codes, and specifically did not comply with the requirements of the Ontario Building Code ("OBC”) and of CSA Standard S16-14, Design of Steel Structures, applicable to these OWSJ steel joist designs.

7. Assaad and ASPA reissued and resubmitted a revised set of shop drawings signed and sealed by Assaad dated September 9, 2021, and a series of 10 joist reports apparently outputted from the RISA 3D program, dated September 8 and 9, 2021 (together the "Revised OWSJ Design").

8. The Revised OWSJ Design attempted to address the comments noted by WDEI and Liddycoat regarding boundary conditions and the direction of the diagonal members, but it did not otherwise address the noted comments or revise the OWSJ design parameters and RISA 3D models on which the Initial OWSJ Shop Drawings and Initial OWSJ Calculations were based. As a result, on review by WDEI and Liddycoat, the Revised OWSJ Design drawings were found to have many of the same errors, omissions, and deficiencies in the OWSJ design to those previously noted and described in paragraphs 5-6, above. Those same errors, omissions and deficiencies were also present in subsequent design drawings, calculations and RISA 3D outputs sent by Assaad and ASPA to WDEI and Liddycoat between September 10 and September 13, 2021.

9. On September 14, 2021, Liddycoat advised Assaad by email that she intended to make a complaint to PEO. The complaint was filed the next day.

10. On or about September 15, 2021, Assaad and ASPA engaged Brian Waddell, P.Eng. ("Waddell") as a second professional engineer to assist in the completion of the OWSJ design and to satisfy the second seal requirement referred to above. The final shop drawings were signed and sealed by both Assaad and Waddell. They, together with the final joist calculations, were reviewed and accepted by Liddycoat on or about October 12th [2021].

11. PEO acknowledges that Assaad cooperated with all involved through the process referred to above, and that he attempted to correct the errors noted by WDEI and Liddycoat.

12. PEO retained Nathan Proper, P.Eng., to review the actions and conduct of the Respondents. He prepared a report (the "Tacoma Report") dated April 4, 2022, which concluded, among other things: that the Respondents failed to comply with the codes and standards applicable to the design of OWSJs; that the errors, omissions, and deficiencies identified in the Tacoma Report would not be expected of a reasonable and prudent practitioner; that the Respondents failed to meet the standard expected of a reasonable and prudent practitioner in the circumstances; and that there was a small potential safety impact as a result of the failure to comply with the standards and codes. Attached as Schedule "A" is a copy of the Tacoma Report.

13. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Tacoma 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.

14. The acts and omissions by Assaad and ASPA referred to in paragraphs 5-8, above, show a lack of awareness on their part of the requirements of the OBC and of CSA Standard S16-14 applicable to OWSJ designs, and a failure to make responsible provision for complying with that code, that standard, and other rules in relation to the work they undertook in the preparation of OWSJ drawings and calculations.

15. While Assaad is and was qualified as a civil engineer, he had no special training or expertise in steel joist design, and he had had very little prior experience in the use of the RISA 3D program. Assaad was therefore not competent to undertake the OWSJ design for the Project.

16. By reason of the aforesaid, the parties agree that Assaad and ASPA 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 submission of the Initial OWSJ Shop Drawings and Initial OWSJ Calculations, the Revised OWSJ Design, and other OWSJ design documents provided to WDEI and Liddycoat between August 17 and September 13, 2021;

    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 use the child-care center addition to Saginaw Public School [in Cambridge, Ontario];

    c. Professional misconduct as defined in section 72(2)(d) of Regulation 941, in failing to make responsible provision for complying with the requirements of the OBC and of CSA Standard S16-14 applicable to OWSJ steel joist designs in relation to the Project; and

    d. Professional misconduct within section 72(2)(j) of Regulation 941, in that the conduct of the Respondents was unprofessional.

17. Further, it is agreed that Assaad is guilty of professional misconduct as defined in section 72(2)(h) of Regulation 941, in that he undertook work for which he was not qualified in all the circumstances.

Plea by Member and/or Holder

4On behalf of himself and ASPA, the Member admitted the allegations set out in paragraphs 16(a) to 16(d) and 17 of the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed, and unequivocal.

Decision

5The Panel considered the Agreed Statement of Facts and finds that the facts, as agreed, support findings of professional misconduct and, in particular, it finds that the Member and ASPA committed acts of professional misconduct as set out in paragraphs 16(a) to 16(d) and 17 of the Agreed Statement of Facts, above.

Reasons for Decision

6When presented with a guilty plea and an Agreed Statement of Facts, the Panel must still satisfy itself whether the facts presented support a finding with respect to each of the acts of professional misconduct alleged by the Association.

7In this case, the Panel is of the view that the acts of professional misconduct alleged in paragraphs 16(a) to 16(d) and 17 of the Agreed Statement of Facts were amply made out on the facts agreed to by the Member, ASDA, and the Association and accepted by the Panel.

8The Panel accepts the conclusions of the Tacoma Report, which identified numerous concerns with the stamped drawings and calculations submitted by Assaad and ASPA in respect of the proposed OWSJ. These concerns included:

• Failure to apply wind loads as required by relevant codes and standards;
• Incorrect modelling of the OWSJs with incorrect supports (restraints) at several nodes;
• Incomplete drawings and missing design loads and details;
• Incorrect display of critical details related to the eccentricity of the OWSJ nodes; and
• Using different yield strengths in the analysis versus what was shown on the drawings.

9Subsection 72(1) of the Regulation defines negligence as “an act or an omission in the carrying out of the work of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.” In light of the multiple deficiencies identified above, the Panel accepts that Assaad and ASPA were negligent in their design of the OWSJ and failed to make reasonable provision for the safeguarding of the life, health, and property of the persons who might subsequently use the child-care centre addition to the school. Similarly, Assaad and ASPA failed to make responsible provision for complying with the requirements of the applicable code and standards applicable to the work undertaken.

10Given that the Member admitted he had no special training or expertise in steel joist design, and he had very little prior experience with the software program used to design the OWSJ, the Panel finds that the Member undertook work for which he was not qualified in the circumstances.

11It was particularly concerning to the Panel that the Member undertook work that was beyond the scope of his competence. The Panel points out that recognizing one’s limitations is a central aspect of being a professional. It is unfortunate that the Member did not appear to have recognized his limitations in the area of OWSJ design from the outset, but the Panel is reassured by the fact that he eventually retained the assistance of a second engineer to complete the design work to an acceptable standard.

12The Panel is satisfied that by undertaking work for which he was not qualified and demonstrating a lack of appropriate care in his execution of such work, the conduct of the Member and ASPA would reasonably be regarded as unprofessional by members of the engineering profession.

Penalty

13Counsel for the Association advised the Panel that a Joint Submission as to Penalty and Costs had been agreed upon. The Joint Submission as to Penalty and Costs provided, in part, as follows:

3. The PEO, Assaad and ASPA make the following joint submission on penalty and costs:

   a. Pursuant to s. 28(4)(f) of the Act, Assaad and ASPA 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 shall be suspended for a period of one (1) month commencing on the date of pronouncement of the Discipline Committee's penalty decision;

   c. The findings and order of the Discipline Committee shall be published in summary form under s. 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 or restriction on Assaad's licence and ASPA's Certificate of Authorization that they shall be prohibited from providing structural engineering services, except that they shall be permitted to continue to carry out steel connections reviews, so long as such reviews do not involve Open Web Steel Joists;

   e. If Assaad demonstrates his competence in structural engineering by successfully passing the following examinations administered by PEO, namely,

    i. 07-Str-A4 (Advanced Structural Analysis), and
   
    ii. 07-St-A5 (Advanced Structural Design),
   

   the term, condition or restriction set out in subparagraph d) above shall be lifted; and

   f. There shall be no order as to costs.

14Counsel for the Association submitted that the Panel had the jurisdiction to order the penalty as presented by the parties and that the penalty appropriately served the principles of sentencing, as follows:

• The restriction on Assaad’s ability to practise structural engineering, subject to the exception for steel connection reviews, provides immediate protection to the public.
• The suspension, reprimand, and publication of the Panel’s decision with reference to names serves both general and specific deterrence and helps to uphold the public’s confidence in the profession.
• The ability for Assaad to demonstrate competence through the completion of the specific examinations provides the potential for remediation and rehabilitation.

15Counsel for the Association noted that Assaad had cooperated throughout the investigation, which served as a mitigating factor. She also referred the panel to two decisions of the Discipline Committee (PEO v. Colas, dated December 10, 2018, and PEO v. Shaw, dated December 2, 2022), which she submitted showed that the proposed penalty fell within the range of acceptable outcomes ordered in similar circumstances.

16Counsel for the Member submitted that Assaad had shown insight and cooperation throughout the process from the beginning and had tried to work collaboratively with the complainant to resolve the issues identified with his design work. He noted that the Member had no prior disciplinary history and had been a member in good standing with PEO since 1995. Counsel for the Member further submitted that the exception to the prohibition on providing structural engineering services was negotiated between experienced legal counsel and also took into account the views of PEO’s expert based on a review of drawings by Assaad.

Penalty Decision

17The Panel accepts the Joint Submission as to Penalty and Costs and orders as follows:

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

2. Pursuant to s. 28(4)(b) of the Act, the Member's licence and the Holder's Certificate of Authorization shall be suspended for a period of one (1) month commencing on the date of pronouncement of the Discipline Committee's penalty decision;

3. 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;

4. Pursuant to s. 28(4)(d) and/or s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Assaad's licence and ASPA's Certificate of Authorization that they shall be prohibited from providing structural engineering services, except that they shall be permitted to continue to carry out steel connections reviews, so long as such reviews do not involve OWSJ;

5. If Assaad demonstrates his competence in structural engineering by successfully passing the following examinations administered by PEO, namely,

   a. 07-Str-A4 (Advanced Structural Analysis), and

   b. 07-St-A5 (Advanced Structural Design),

6. There shall be no order as to costs.

Reasons for Penalty

18The Panel carefully considered the Joint Submission on Penalty and Costs. It is a well-established principle of law that a disciplinary panel should not interfere with a joint submission on penalty except where the panel is of the view that to accept the joint submission would bring the administration of the disciplinary process into disrepute or otherwise be contrary to the public interest (see, e.g., Bradley v. Ontario College of Teachers, 2021 ONSC 2303.)

19The Panel is satisfied that the penalty protects the public and serves the principles of general and specific deterrence, rehabilitation, and maintenance of the public’s confidence in the profession.

20The Panel accepts that the immediate restriction on the Member’s licence and on ASDA’s Certificate of Authorization appropriately protects the public by prohibiting him from providing structural engineering services. The panel notes that the exception to this prohibition, which allows the Member to conduct steel connections reviews, was narrowly tailored and supported by a review of previous work submitted by the Member to PEO for that purpose, demonstrating that Assaad is competent in this area of engineering.

21The Panel notes that the restriction shall remain in place until the Member successfully completes two examinations in structural engineering to demonstrate his current competence in this area. The Panel believes that this appropriately balances the need to protect the public while allowing the Member an opportunity to demonstrate rehabilitation should he wish to practise in this area in future.

22Similarly, the Panel is of the view that the period of suspension, the reprimand, and the publication of its reasons in summary form with reference to names will serve the purpose of both general and specific deterrence, as well as help to uphold the public’s confidence in the regulation of the engineering profession. These measures demonstrate to the public and the profession that practising beyond the scope of one’s competence will be taken seriously by PEO and result in significant consequences.

23The Panel was reassured in its conclusions by the cooperation of the Member throughout the investigation, including his guilty plea and agreement to an agreed statement of facts and joint submission on penalty. This suggests to the Panel that the Member has demonstrated insight into the issues identified in his practice and has the ability to better recognize the limits of his competence in future. The Panel also noted that this was the Member’s first appearance before the Discipline Committee, which was a further mitigating factor.

24Finally, the Panel notes that the penalty ordered in this matter is in line with two previous decisions of the Discipline Committee that dealt with similar cases involving inadequate structural designs. The Panel is therefore of the view that it falls within a reasonable range of penalties ordered in previous cases.

25For all of the above reasons, the Panel accepted the Joint Submission as to Penalty and Costs. The Panel delivered the reprimand immediately following the conclusion of the hearing. During the reprimand, the Panel highlighted the importance of recognizing the limits of one’s competence, of having an established quality assurance process to identify errors and omissions, and of remembering that while software is an important tool, it does not replace the need for an engineer’s analytical skills.