Association of Professional Engineers of Ontario (PEO) v Tucker et al, 2024 ONAPE 10

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

Date: 2024-07-16 Citation: Association of Professional Engineers of Ontario (PEO) v Tucker et al, 2024 ONAPE 10 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Tucker et al, 2024 ONAPE 10

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 Philip Frank Bruce Tucker, P.Eng., a member of the Association of Professional Engineers of Ontario, and Tucker, Philip Frank Bruce O/A Designfab, a holder of a Certificate of Authorization.

Between:

The Association of Professional Engineers of Ontario (PEO)

-and-

Philip Frank Bruce Tucker, P.ENG. and Tucker, Philip Frank Bruce O/A Designfab

Panel Members: Reena Goyal, J.D. CHAIR Charles McDermott, P.Eng. MEMBER Serge Robert, P.Eng. MEMBER

Hearing Dates: 2024-06-04 Decision Date: 2024-07-16 Release of Written Reasons: 2024-07-16

Counsel: Leah Price and Justin Gattesco, Counsel for the Association (PEO) Ada Jeffrey, Counsel for Philip Frank Bruce Tucker, P.Eng. (Licence Holder) and Tucker, Philip Frank Bruce O/A Deisgnfab Susan Heakes, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1The Association of Professional Engineers of Ontario (the “Association”) alleged that Philip Frank Bruce Tucker (“Tucker”) and Phil Frank Bruce Tucker o/a Designfab (“Designfab”) were guilty of professional misconduct in respect of design plans they signed and sealed for three residential projects between May 2020 and June 2022. It was alleged the design plans failed to meet applicable codes and standards and did not safeguard the health or property of the owners.

2For reasons set out below, the panel of the Discipline Committee (the “Panel”) finds that Tucker and Designfab committed professional misconduct resulting in a breach of each of subsections 72(2)(a), (b), (d), (h) and (j) of R.R.O 1990, Reg. 941 ("Regulation 941") to the Act. The Panel accepts the joint submission of the parties on penalty whereby Tucker, who resigned his membership in the Association prior to the hearing, is ordered to receive a reprimand and pay a fine of $1,000; and that Tucker will be required to practice under supervision if his licence is reinstated in the future. No costs are ordered.

Agreed Statement of Facts

3The parties submitted an Agreed Statement of Facts dated May 15, 2024, stating as follows:

1. At all material times, Tucker was a professional engineer licensed pursuant to the [Professional Engineers] Act. Tucker holds a Bachelor of Applied Science degree in Mechanical Engineering granted by the University of Waterloo in 1981. Tucker's professional focus at the time of licensure and until shortly before the events in issue was on mechanical engineering, particularly in industrial workplaces. He and Designfab have no special training or expertise in structural engineering related to residential property development or redevelopment.

2. At all material times Designfab was the holder of a Certificate of Authorization. Tucker was the individual identified who will take professional responsibility for engineering services provided under the Certificate of Authorization.

3. The Complainant, Jocelyn Roi-Pattison ("Roi-Pattison") was, at all material times, the Chief Building Official of the Township of Tiny ("Township"), and as such had primary responsibility for the review of building permit applications that were filed with the Township on each of the three projects described below, based on design plans prepared, signed and sealed by Tucker and Designfab.

4. Between May 2020 and June 2022, Tucker and Designfab prepared three sets of design drawings (the “Designs”) in support of building permit applications to the Township for the development or redevelopment of three residential properties, as follows:

a. drawings were prepared by Tucker and Designfab and signed and sealed by Tucker with the date June 29, 2020, indicting that they were for a “PERMIT” application (the “Property 632 Drawings”), relating to a property at 632 Concession Rd. 18 West in the Township (“Property 632”), and were submitted to the Township in support of the owner’s request for a building permit to construct or complete an addition to the existing dwelling (“Project 632”);

b. revised drawings were prepared by Tucker and Designfab and signed and sealed by Tucker with the date February 18, 2022, also indicting they were for a “PERMIT” application (the “Property 17 Drawings”) relating to property at 17 Thunder Bay Lane in the Township (“Property 17”), and were re-submitted to the Township, after responding to an initial round of review comments, in support of the owner’s request for a building permit to construct a new cottage (“Project 17”); and

c. drawings were prepared by Tucker and Designfab and signed and sealed by Tucker with the date May 26, 2022, also indicating they were for a “PERMIT” application (the “Property 29 Drawings”) relating to a property at 29 Baseline Rd. S. in the Township (“Property 29”), in support of the owner’s request for a building permit for a major renovation, including the tear-down and rebuilding of existing structural elements of the existing residence on that property (“Project 29”).

5. On review on behalf of the Township, Roi-Pattison refused to issue the permits requested by the property owners based upon the Designs, noting in each case that they were lacking a lot of important information, including:

a. in the case of the Property 632 Drawings “all required dimensions, framing and connection information, room labelling, smoke/co detector locations, elevation drawings, etc.”;

b. in the case of the Property 17 Drawings, “footing sizes; foundation damproofing, drainage layer and drainage tile information including stone cover; bottom plate connection including sill gasket; door lintel schedule; basement insulation information; attic hatch size and location along with R-value for attic insulation; deck framing information; spatial separation percentages for both side elevations”; and

c. in the case of the Property 29 Drawings, "existing footing information and proposed foundation construction (kitchen and mudroom); size, depth, backfill height, damproofing, drainage layer, weeping system; unknown if basement and main level insulation values match EEDS; no floor framing noted; ... dimensions are required on all floorplans, no roof framing information in area to be re-built, 6x6 beam proposed has no span and bearing posts have unknown support below, etc."

6. The PEO retained Nathan J. Proper, P.Eng., of Tacoma Engineers, Inc. as independent reviewer to review the work done by Tucker and Designfab. Proper's comments concluded that each of the Designs failed to include details required to meet applicable standards of completeness governing the design of residential structures, as set out in:

a. clause 1.1 (2)(a) of the Ontario Building Code Act ("OBC Act") ("sufficiently detailed to permit the design to be assessed for compliance with this Act"),

b. clause 4.3.6.2 of CSA 086-14 - Engineering Design in Wood ("design standards used, as well as material or product standards applicable to the members and details depicted"), and

c. PEO Guideline "Structural Engineering Design Services for Buildings Guidelines" dated June 2017 ("all standards and codes information" and "all design criteria" including loads is "missing").

7. Proper also concluded that each of the Designs also:

a. failed to comply, or to demonstrate compliance, with applicable provisions of Part 9 of the Ontario Building Code ("OBC'):

b. failed to provide information that was required to confirm structural adequacy; and

c. based on the information that was provided, included structurally inadequate elements or connections, including some which were highly overstressed and at risk of collapse.

8. Proper concluded that the identified errors, omissions and deficiencies in the Designs by Tucker and Designfab failed to meet standards and codes applicable to all three projects; that they would not be expected of a reasonable and prudent practitioner in the circumstances; and that they had an actual or potential public safety impact.

9. Based on these facts, it is alleged that Tucker and Designfab are guilty of professional misconduct under section 72(2) of R.R.O 1990, Reg. 941 ("Regulation 941"), as follows:

a) The failure of the Designs to meet applicable codes and standards, and to provide information sufficient to confirm the structural adequacy of all elements of new construction and all connections between elements of new and existing construction, would not be expected of a reasonable and prudent professional engineering practitioner. It is therefore alleged that Tucker and Designfab are guilty of negligence amounting to professional misconduct as defined in section 72(2)(a) of Regulation 941.

b) It is alleged that Tucker and Designfab are guilty of failing to make reasonable provision for the safeguarding of the health or property of the owners or other persons using the properties who foreseeably may have been affected by the Designs, amounting to professional misconduct as defined in section 72(2)(b) of Regulation 941.

c) For all the same reasons, it is alleged that Tucker and Designfab are guilty of failure to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules, amounting to professional misconduct as defined in section 72(2)(d) of Regulation 941.

d) While Tucker is qualified as a mechanical engineer, he had no recent training or expertise in structural engineering for residential buildings governed by Part 9 of the OBC and had insufficient experience in these areas to competently undertake the design of new construction or renovation of residential buildings at the material time. It is therefore alleged that Tucker and Designfab are guilty of professional misconduct as defined in section 72(2)(h) of Regulation 941 in undertaking this work in all the circumstances.

e) Further, it is alleged that the conduct of Tucker and Designfab described herein was unprofessional, and therefore also amounted to professional misconduct within section 72(2)(i) of Regulation 941.”

4Tucker and Designfab agree they failed to maintain the standards a reasonable and prudent practitioner would maintain in the circumstances; that they failed to make reasonable provision for the safeguarding of life, health or property; and that they failed to make reasonable provision for complying with applicable standards and codes.

5The parties agree and submit that Tucker and Designfab are accordingly guilty of professional misconduct under section 72(2) of Regulation 941 as set out in paragraph 9 of the Statement of Facts.

Decision on Finding

6The Panel has considered the Agreed Statement of Facts and find that Mr. Tucker and Designfab are guilty of professional misconduct as alleged.

7The Panel also conducted a plea inquiry and was satisfied that Mr. Tucker and Designfab’s admissions were voluntary, informed and unequivocal.

Joint Submission on Penalty

8A Joint Submission on Penalty signed on May 17, 2024, by Tucker and on May 27, 2024, by counsel for the Association was submitted to the Panel as follows:

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

b. Pursuant to s. 28(4)(e) and (k) of the Professional Engineers Act, in the event that Tucker’s license is reinstated, he shall be required to practice under the supervision of a professional engineer acceptable to the Registrar, and further, he shall not be permitted to act as responsible engineer for any certificate of authorization holder;

c. Pursuant to s. 28(4)(i) of the Professional Engineers Act, the findings and order of the Discipline Committee shall be published in summary form, with reference to names;

d. Pursuant to s. 28(4)(h) of the Professional Engineers Act, Tucker shall be required to pay a fine in the amount of one thousand dollars ($1000) within thirty (30) days of the decision of the Discipline Committee; and

e. There shall be no order with respect to costs.”

9The Joint Submission on Penalty also notes Tucker resigned his licence effective May 13, 2024, and has or will shortly cancel the Certificate of Authorization for Designfab.

Decision on Penalty

10The purpose of sanctions in this type of professional discipline matter is to provide specific deterrence to the member who has committed professional misconduct and general deterrence to the members of the profession at large. Sanctions are intended to demonstrate to the public that the Association is serious about disciplining its members for contravention of the Professional Engineers Act and Regulations, to protect the public and to maintain public confidence in the profession.

11Where there is a joint submission from the parties about the appropriate sanction, the agreement reached by the parties is entitled to a high level of deference. A joint submission should be adopted unless it is contrary to the public interest, and it would bring the regulatory process into disrepute because it is beyond the reasonable range of sanction for similar professional misconduct. As stated by Justice Moldaver in the Supreme Court of Canada decision of R. v. Anthony Cook, rejection denotes a joint submission “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons … to believe that the proper functioning of the justice system had broken down” (para 34).

12Counsel for the Association and counsel for Tucker and Designfab together submit that the Joint Submission on Penalty is reasonable and fair, and that its acceptance will not bring the justice system into disrepute.

13Counsel for the Association submits that Tucker’s resignation and the cancellation of the Certificate of Authorization means there is no longer an issue of public protection. If Tucker’s licence is reinstated in the future, he will be required to practise under the supervision of another engineer approved by the Association. Counsel for the Association advises that it is available to Tucker to seek to have this condition reviewed and/or lifted in the future if and as appropriate.

14Counsel for the Association refers the Panel to three cases where other Discipline Committee panels have sanctioned engineers appearing before them following their resignation: Famigletti (November 2, 2012), Etches (April 16, 2024) and Karugu (June 3, 2024). Although there are slight variations on the conditions that were imposed if the former member sought reinstatement, the cases generally confirm that setting such conditions are an appropriate sanction to ensure the public is protected.

15The reprimand given to Tucker and Designfab demonstrates the Association has taken the professional misconduct of Tucker and Designfab very seriously. The publication of the Decision also serves as a deterrent to other members of the Association.

16Tucker and Designfab have taken responsibility for their misconduct by signing the Agreed Statement of Facts and the Joint Submission on Penalty. The Panel further notes the cooperation demonstrated by Tucker and Designfab in resolving this matter with the Association without a contested hearing.

Order

17For these reasons, the Panel makes the following order:

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

b. Pursuant to subsection 28(4)(e) and (k) of the Professional Engineers Act, in the event that Tucker’s licence is reinstated, he shall be required to practise under the supervision of a professional engineer acceptable to the Registrar, and further, he shall not be permitted to act as responsible engineer for any Certificate of Authorization holder;

c. Pursuant to subsection 28(4)(i) of the Professional Engineers Act, the findings and order of the Discipline Committee shall be published in summary form, with reference to names;

d. Pursuant to subsection 28(4)(h) of the Professional Engineers Act, Tucker shall be required to pay a fine in the amount of one thousand dollars ($1,000) within thirty (30) days of the decision of the Discipline Committee; and

e. There shall be no order with respect to costs.

18The Panel issued an oral reprimand to the Respondents at the end of the hearing.```