Association of Professional Engineers of Ontario (PEO) v Zuleta Canido et al, 2024 ONAPE 1

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

Date: 2024-02-20 Citation: Association of Professional Engineers of Ontario (PEO) v Zuleta Canido et al, 2024 ONAPE 1 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Zuleta Canido et al, 2024 ONAPE 1

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 Javier A. Zuleta Canido, P. Eng., a member of the Association of Professional Engineers of Ontario, and JAZ Paramount Engineering Corp., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Javier A. Zuleta Canido, P.ENG. and JAZ Paramount Engineering Corp.

PANEL MEMBERS: Glenn Richardson, P.Eng. CHAIR Alisa Chaplick, LL.B., LL.M MEMBER Geoff Pond, P.Eng. MEMBER

Hearing Dates: 2023-12-14 Decision Date: 2024-02-20 Release of Written Reasons: 2024-02-20

NAME OF LAWYER: Leah Price, Counsel for the Association (PEO) NAME OF PARALEGAL: Holly Robertson, Counsel for Javier A. Zuleta Canido (Licence Holder) and JAZ Engineering Corp. NAME OF LAWYER: David Jacobs, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1The Panel of the Discipline Committee of the Association of Professional Engineers of Ontario (“PEO” or “Association”) convened to consider the conduct of the Respondents, Mr. Javier A. Zuleta Canido, P.Eng., a member of the Association (“Mr. Zuleta”), and JAZ Paramount Engineering Corp., a holder of a Certificate of Authorization from the Association (“JAZ”). The Panel heard the matter on December 14, 2023, by means of an online video conferencing platform.

Agreed Statement of Facts

2Counsel for the Association advised the Panel that the Association, Mr. Zuleta and JAZ had reached an agreement on the facts. Counsel for the Association introduced an Agreed Statement of Facts (“ASF”) dated August 15, 2023. During the hearing, the parties notified the Panel that there were two places in the ASF where additions needed to be made, as information had been left out inadvertently. The additions were agreed by the parties during the hearing. The Panel was provided with a revised copy of the ASF by the Association with the relevant additions included and distinguished with both underlines and square brackets. The ASF (not including the Schedules) provides as follows:

This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”), and the Respondents, Javier Zuleta Canido, P.Eng. (“Zuleta”) and JAZ Paramount Engineering Corp. (“JAZ”) (collectively, the “parties”).

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

2. At all material times, JAZ held a Certificate of Authorization (“C of A”) naming Zuleta as the individual accepting professional responsibility for engineering services provided under the C of A.

3. In or around January 2018, the complainant contracted with Remove & Restore Inc. (“R&R”) to a) waterproof the external foundation; b) install weeping tiles; and c) tie-in the new weeping tiles to the existing sump pump at the complainant’s residential property located at 231 St. Clair Blvd. in Hamilton, Ontario.

4. R&R completed the work from around March 26 to 29, 2018. On or around March 30, 2018, the work was backfilled, without any inspection by a City of Hamilton (the “City”) inspector or an engineer.

5. In or around May 2018, the City notified R&R that because the project had been backfilled prior to inspection, in order to close the permit R&R would either have to excavate the project for inspection by a City inspector or provide a review report from a professional engineer certifying the quality of the work based on photographs of the project taken before backfilling.

6. Sometime between May and July 2018, R&R retained JAZ to review photographs of R&R’s work and provide a general conformance report to the City.

7. On or around July 9, 2018, Mr. Zuleta signed and sealed a report purporting to verify that R&R’s “waterproofing to foundation wall was performed correctly” (the “JAZ Report”). It further stated that “Based on the observations on inspection; work was performed satisfactorily before wall was backfilled and project completed.” The JAZ Report included a “picture record” consisting of five photographs with descriptions. The weeping tiles were not mentioned explicitly in the JAZ Report, nor were they included in the photographs, except for the interior connection of the weeping tiles to the sump pump. Attached as Schedule “A” is a copy of the JAZ Report.

8. The JAZ Report was subsequently provided to the City which relied on the JAZ Report to close the permit.

9. The JAZ Report was deficient for several reasons, including that it:

   a. implied that JAZ had performed a site inspection of the work that provided the basis for the assurances made in the Report, despite no site inspection having been conducted;

   b. failed to state that the report relied on information other than a site inspection, including manufacturer’s materials and information from R&R;

   c. provided an insufficient description of the scope of JAZ’s review and the purpose of the report;

   d. failed to identify the relevant standards and codes and whether R&R’s work was completed in accordance with those standards and codes; and

   e. failed to state whether work was completed in conformance with the permit.

10. Following her concerns that her basement was damp and leaking, the complainant retained Joe Seymour, P.Eng. to review the system. He wrote a letter report dated September 22, 2021 (the “Seymour Report”), which concluded that the installation of the weeping tile by R&R did not comply with the standards set out in the Ontario Building Code, in that the weeping tiles were installed below the level of the floor slab. [Attached as Schedule “B” is a copy of the Seymour Report].

11. PEO retained Daniel Grant, P.Eng., of Harbourside Engineering Consultants, as an independent expert to review the conduct of the Respondents. He wrote a report dated February 21, 2023 (the “Grant Report”), which concluded, among other things, that the Respondents failed to meet the standard expected of a reasonable and prudent practitioner. The Grant Report noted that the Respondents neglected to consider the weeping tile, “which is a critical component of the drainage system”. Attached as Schedule “C” is a copy of the Grant Report.

12. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Seymour and Grant Reports. The Respondents admit that they failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

13. By reason of the aforesaid, the parties agree that the Respondents are guilty of professional misconduct as follows:

    a. They prepared, signed, sealed, and issued an inadequate and deficient review report, amounting to professional misconduct as defined by sections 72(2)(a), and [unprofessional conduct only under 72(2)] (j) of Regulation 941 under the Act.

3The Respondents have had independent legal advice or have had the opportunity to obtain independent legal advice, with respect to their agreement as to the facts, as set out above.

Relevant Section re Misconduct in Regulation 941

4The subsections cited in the ASF in respect of Mr. Zuleta and JAZ’s professional misconduct are subsections 72(2)(a) and 72(2)(j) of Regulation 941 of the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Act”).

Subsection 72(2)(a) of Regulation 941 states – “Professional misconduct” means,

(a) negligence,

Subsection 72(2)(j) of Regulation 941 states – “professional misconduct” means,

(j) conduct or an act relevant to the practice of professional engineering that, having regard to all the circumstance, would reasonably be regarded by the engineering profession as disgraceful, dishonourable, or unprofessional, [emphasis added]

5As per paragraph 13 of the ASF, the parties were only seeking a finding that the conduct of Mr. Zuleta and JAZ was “unprofessional” pursuant to Section 72(2)(j) of Regulation 941 and not “disgraceful” and “dishonourable” pursuant to Section 72(2)(j) of Regulation 941.

Plea by Mr. Zuleta and JAZ

6Mr. Zuleta and JAZ admitted to all of the facts set out above in the ASF and pled guilty to the allegations of professional misconduct therein. The Panel conducted a plea inquiry and was satisfied that Mr. Zuleta and JAZ’s admissions were voluntary, informed and unequivocal.

Decision regarding the ASF

7The Panel considered the ASF and determined that the facts support the findings of professional misconduct set out therein and, in particular, found that based on the evidence, Mr. Zuleta and JAZ committed the acts of professional misconduct as set out in it. With respect to the allegations regarding Section 72(2)(a) and (j) of Regulation 941, the Panel found that Mr. Zuleta and JAZ were “negligent” and “unprofessional” respectively.

8In reaching this decision, the Panel noted factors including Mr. Zuleta’s actions of signing and sealing a report dated July 9, 2018 (the “Report”) purporting to verify that Remove & Restore Inc. performed waterproofing to the foundation wall correctly. The Report was submitted to the City of Hamilton and relied on to close a permit. The Report was deficient, requiring a second engineer to be retained.

9The Panel also noted that the Report suggested that an inspection occurred despite there being no inspection, which left an inaccurate impression with the City of Hamilton. Furthermore, the Panel noted that the Grant Report, prepared by the independent expert retained by PEO and accepted as correct by the parties, stated that the Respondents failed to meet the standard of a reasonable and prudent practitioner.

Joint Submission on Penalty and Costs

10The Parties advised the Panel that a Joint Submission as to Penalty and Costs (“JSP”) had been agreed upon in this matter. The JSP was dated September 13, 2023. The relevant parts of the JSP, taken directly from the JSP, are as follows:

1. Javier Zuleta Canido (“Zuleta”) was at all material times a member of the Association of Professional Engineers of Ontario (“PEO”).

2. JAZ Paramount Engineering Corp. (“JAZ”) was at all material times the holder of a certificate of authorization issued under the Act.

3. Mr. Zuleta and JAZ are the subjects of a proceeding before a panel of the Discipline Committee of the PEO pursuant to section 28 of the Act.

4. The PEO, Mr. Zuleta and JAZ make the following joint submission on penalty and costs:

   a) Pursuant to s. 28(4)(f) of the Professional Engineers Act, Mr. Zuleta and JAZ shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for an unlimited period of time;

   b) The findings and order of the Discipline Committee shall be published in summary form under s. 28(4)(i) of the Act, with reference to names;

   c) Pursuant to s. 28(4)(g), (h) and (k) of the Act, Mr. Zuleta and JAZ shall be required to pay a fine in the amount of one thousand dollars ($1000) within thirty (30) days of the pronouncement of the decision of the Discipline Committee. This requirement to pay a $1000 fine shall be a joint and several obligation on Mr. Zuleta and JAZ;

   d) Pursuant to s. 28(4)(d) of the Act, there shall be a term, condition and restriction on Mr. Zuleta’s license requiring him to successfully complete the National Professional Practice Examination (the “Examination”), no later than fourteen (14) months after the date (the “Date”) that the Discipline Committee pronounces its decision;

   e) Pursuant to s. 28(4)(e) and (k) of the Act, a restriction shall be imposed upon Mr. Zuleta’s license prohibiting him from practicing professional engineering except under the direct supervision of another professional engineer who shall take professional responsibility for Mr. Zuleta’s professional engineering work by affixing his or her signature and seal on every final drawing, report, or other document prepared by Mr. Zuleta, which restriction shall be suspended for a period of fourteen (14) months from the Date. If Mr. Zuleta successfully completes the Examinations at any time before or after the fourteen-month period referred to above, this restriction shall be suspended indefinitely; and

   f) There shall be no order with respect to costs.

11Mr. Zuleta and JAZ have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

Caselaw

12The Panel carefully considered the JSP. Mr. Zuleta and JAZ’s representative did not make any submissions regarding the JSP. Counsel for the Association provided two cases, which she stated were not “on all fours” with the present case but showed the application of various elements of the penalties agreed to in the present case (Wang et al. v. Association of Professional Engineers of Ontario, dated September 23, 2022; and Ho v. Association of Professional Engineers of Ontario, dated September 17, 2014). 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”). Bradley stated the following at paragraph 14:

The public interest test in Anthony-Cook applies to disciplinary bodies. Any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected. In this case, the Discipline Committee clearly misunderstood the stringent public interest test, and impermissibly replaced the proposed penalty with its own view of a more fit penalty. This was an error, and we agree with the parties that the appeal should be allowed. [emphasis added]

In Anthony-Cook, the Supreme Court of Canada also stated the following, at paragraph 34:

...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]

Aggravating and Mitigating Factors

13Counsel for the Association stated that aggravating factors in the present matter included a short Report that inaccurately suggested a site inspection occurred, despite there being no site inspection. Another aggravating factor was that the Report, which was relied upon to close a permit, left an inaccurate impression with the City of Hamilton. Counsel for the Association also reiterated that the Grant Report, prepared by the independent expert retained by PEO, stated that the Respondents failed to meet the standard of a reasonable and prudent practitioner.

14Mitigating factors included the fact that there were no prior discipline decisions regarding the Respondents, and the fact that the Respondents cooperated with the Association and were quick to admit their errors. Another mitigating factor was that there was no public safety impact.

Further Submissions & ILC’s Advice

15Counsel for the Association stated that publication with names is important for general deterrence. In addition, the fine of $1000 is important for both general deterrence and specific deterrence, as it reinforces that professional misconduct will be punished with a fine, where appropriate. Furthermore, counsel for the Association stated that the penalties noted in sections (d) and (e) of the JSP will assist with public protection to ensure similar misconduct on the part of the Respondents will not reoccur. As well, the Panel finds that the reprimand and the fact of the reprimand being recorded on the Register for an unlimited period of time supports both specific and general deterrence.

16Independent Legal Counsel stated that he takes no issue with counsel for the Association’s submissions and that the parties should have a high degree of certainly that if they enter into a negotiated settlement, the penalty will not be departed from lightly.

Panel’s Conclusion

17The Panel concluded that the proposed penalty is reasonable and in the public interest. While Mr. Zuleta’s actions in this matter culminated in this hearing, ultimately Mr. Zuleta cooperated with the Association in this matter. In particular, the Panel notes Mr. Zuleta’s cooperation with the Association by negotiating the ASF and JSP, and notes that Mr. Zuleta has demonstrated that he has accepted responsibility for his actions. By agreeing to the facts and a proposed penalty, Mr. Zuleta has also avoided the necessity for a contested hearing, which would be of a longer duration than the hearing that was conducted.

Penalty Decision

18The Panel accepts the penalties in the JSP as appropriate, and accordingly orders:

a) Pursuant to s. 28(4)(f) of the Professional Engineers Act, Mr. Zuleta and JAZ shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for an unlimited period of time;

b) The findings and order of the Discipline Committee shall be published in summary form under s. 28(4)(i) of the Act, with reference to names;

c) Pursuant to s. 28(4)(g), (h) and (k) of the Act, Mr. Zuleta and JAZ shall be required to pay a fine in the amount of one thousand dollars ($1000) within thirty (30) days of the pronouncement of the decision of the Discipline Committee. This requirement to pay a $1000 fine shall be a joint and several obligation on Mr. Zuleta and JAZ;

d) Pursuant to s. 28(4)(d) of the Act, there shall be a term, condition and restriction on Mr. Zuleta’s licence requiring him to successfully complete the National Professional Practice Examination (the “Examination”), no later than fourteen (14) months after the date (the “Date”) that the Discipline Committee pronounces its decision;

e) Pursuant to s. 28(4)(e) and (k) of the Act, a restriction shall be imposed upon Mr. Zuleta’s licence prohibiting him from practising professional engineering except under the direct supervision of another professional engineer, who shall take professional responsibility for Mr. Zuleta’s professional engineering work by affixing his or her signature and seal on every final drawing, report or other document prepared by Mr. Zuleta, which restriction shall be suspended for a period of fourteen (14) months from the Date. If Mr. Zuleta successfully completes the Examinations at any time before or after the fourteen-month period referred to above, this restriction shall be suspended indefinitely; and

f) There shall be no order with respect to costs.

Reprimand

19The Panel administered an oral reprimand to Mr. Zuleta and JAZ at the end of the hearing.