Association of Professional Engineers of Ontario (PEO) v Naneff, 2024 ONAPE 2

Date: 2024-05-02

Citation: Association of Professional Engineers of Ontario (PEO) v Naneff, 2024 ONAPE 2

DISCIPLINE COMITTE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Naneff, 2024 ONAPE 2

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 Boris P. Naneff, P.Eng., a member of the Association of Professional Engineers of Ontario.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Boris P. Naneff, P.ENG

PANEL MEMBERS: Warren Turnbull, P.Eng. CHAIR

Reena Goyal, J.D. MEMBER

Paul Ballantyne, P.Eng. MEMBER

Hearing Dates: 2024-03-18

Decision Date: 2024-05-02

Release of Written: 2024-05-02

Reasons:

NAME OF LAWYER Leah Price and Cori Goldberger, Counsel for the Association (PEO)

NAME OF LAWYER Harp Khukh, Counsel for Boris P. Naneff (Licence holder)

NAME OF LAWYER Jordan Stone, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1. The Panel of the Discipline Committee met to hear this matter on March 18, 2024, 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”) and Mr. Boris Naneff, P.Eng. (the “Member” or “Mr. Naneff”), and his counsel.

The Allegations

2. The Panel was provided with the Notice of Hearing dated September 8, 2023, which attached the Statement of Allegations referred to the Discipline Committee by the Complaints Committee.

Agreed Statement of Facts

3. Counsel for the Association advised the Panel that the parties had reached agreement on the facts and introduced an Agreed Statement of Facts signed by Mr. Naneff on February 13, 2024, and by counsel for the Association on February 14, 2024. The Agreed Statement of Facts is quoted below. The schedules referenced in the Agreed Statement of Facts are not reproduced.

This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”), and the Respondent, Boris P. Naneff, P.Eng. (collectively, the “parties”).

1. At all material times, the Respondent was a professional engineer licensed pursuant to the Professional Engineers Act (the “Act”).

2. At all material times, the Respondent was the president of Rainbow Concrete Industries Limited (“RCIL”) and Granite Prestressed Concrete Limited (“GPCL”), and the sole owner of Concrete Holdings, which wholly owned RCIL and GPCL.

3. On or about September 27, 2013, the Respondent directed Joshua Cleave, an employee of RCIL and/or GPCL, to arrange to build a concrete arch structure (the “Arch”) over a private roadway on property operated by RCIL located in Sudbury, Ontario. The Respondent was aware that at the time, Cleave was an engineering graduate in 2007 who had not obtained his professional engineering license with PEO. Cleave later obtained his professional engineering license.

4. The Respondent directed Cleave to construct the Arch from existing materials on hand at RCIL, including precast concrete manhole segments that were to be stacked and used as vertical columns and a precast bridge deck segment to be used as a horizontal beam. The beam weighed approximately 30,000 pounds and was approximately 40 feet long. The Respondent did not obtain a building permit before directing the construction of the Arch, despite the requirement to do so under the Ontario Building Code.

5. The purpose of the Arch was to display signs to mark the entrance to the RCIL quarry and to advertise a public golf course that operated on or adjacent to the RCIL property. Many industrial vehicles and individuals – including RCIL employees, contractors, and members of the public – passed under the Arch every day. The Respondent drove under the Arch several times per week.

6. The Arch was completed on or about September 27, 2013. Despite the Respondent knowing that Cleave was not a professional engineer, he failed to follow-up on the project. The Respondent did not request Cleave to provide him with a design for review, did not supervise the construction of the Arch, and did not review its as-built condition.

7. Several months after the construction of the Arch, the Respondent learned that an over-height truck had become wedged under the Arch. As a consequence, RCIL employees increased the height of the Arch by two feet by installing an additional standard manhole segment to each column.

8. On or about February 15, 2017, RCIL employee Rheal Dionne drove a dump truck under the Arch. The box of the dump truck, which was inadvertently left in an elevated state, struck the beam of the Arch, which fell onto the cab of the truck, crushing Dionne fatally.

9. A subsequent Ministry of Labour investigation into the circumstances leading to Dionne’s death revealed that the Arch had been built without any type of connection between components and contrary to Ministry of Transportation clearance and signage standards. The Ministry of Labour concluded that the collapse of the Arch resulted from the inability of the structure to resist the impact load of the truck.

10. The Greater Sudbury Police Services (“GSPS”) commenced a criminal investigation into the collapse. As part of their investigation, GSPS retained 30 Forensic Engineering to perform an independent engineering assessment of the collapse. Derek Gibson, P.Eng., then at 30 Forensic, attended the site and examined the Arch. He determined that he was required by the Act as a licensed professional engineer to inform GSPS that the columns of the Arch, which were still standing, posed a risk to public safety. Gibson wrote a letter to GSPS dated June 25, 2018 (the “Gibson Letter”), in which he “strongly recommended that the two concrete pipe columns be disassembled immediately, as they endanger the safety and welfare of the public.” As a result, the columns were dismantled on or about July 4, 2018. Attached as Schedule “A” is a copy of the Gibson Letter.

11. On or about July 3, 2018, PEO received a complaint (the “Complaint”) against the Respondent from the investigating GSPS officer, Neil McNamara. The Complaint attached the Gibson Letter, and included allegations that the Respondent was negligent, failed to apply appropriate codes or standards, and failed to safeguard life, health, or property. The Complaint noted that the Ministry of Labour had laid charges in respect of this matter, and that there were “pending criminal charges”. Attached as Schedule “B” is a copy of the Complaint.

12. Following his attendance at the site and the issuance of the Gibson Letter, Derek Gibson prepared, signed, and sealed a report dated August 10, 2018 (the “30 Forensic Report”). Gibson found that the beam of the Arch had not been structurally connected to the concrete columns; that the columns bore on grade rather than on structural footings; and that the columns were constructed without mechanical connection between their constituent segments and without continuous vertical reinforcement. As a result, Gibson concluded that the Arch “was a hazardous and dangerous structure constructed without a building permit” which “was not constructed in accordance with the 2012 Ontario Building Code (OBC) Part 4 Structural Design and/or with sound engineering principles.” Attached as Schedule “C” is a copy of the 30 Forensic Report. The Respondent admits that the observations in the 30 Forensic Report are correct.

13. On or about July 26, 2018, the Respondent and his company were both charged with criminal negligence causing death. The charges were resolved by way of a plea bargain on or about February 12, 2019. Under the plea bargain, the company pleaded guilty and the charge against the Respondent was withdrawn. The Ministry of Labour withdrew its charges following the plea bargain.

14. PEO retained Daria Khachi, P.Eng., to review the Respondent’s actions and conduct. Khachi signed and sealed a report (the “Dialog Report”) dated March 1, 2021, in which he concluded that the Respondent “did not maintain the standards of a reasonable and prudent practitioner” with respect to the design, construction, evaluation, or review of the Arch. Khachi found that the Respondent’s conduct was inconsistent with generally accepted standards in the field of professional engineering, noting the absence of design drawings, the failure to obtain a permit, and the failure to perform construction reviews. Attached as Schedule “D” is a copy of the Dialog Report.

15. For the purposes of these proceedings, the Respondent does not challenge the findings, opinions and conclusions contained in the Dialog Report. The Respondent admits that he failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances and that he failed to make reasonable provision for the safeguarding of the life or health of persons passing under the Arch.

16. In particular, the Respondent admits that:

a. He failed to design the Arch as per applicable standards;

b. He failed to prepare or review any design for the Arch as per applicable standards;

c. He failed to supervise the construction of the Arch as per applicable standards;

d. He directed the building of an Arch that was inadequate and unsafe; and

e. He failed to evaluate or review the completed Arch.

17. Accordingly, the parties agree that the Respondent is guilty of professional misconduct as follows:

a. The Respondent failed to design the Arch, to supervise its construction, or to review its as-built condition, amounting to negligence and professional misconduct as defined by sections 72(1) and 72(2)(a) of Regulation 941;

b. The Respondent failed 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, amounting to professional misconduct as defined by section 72(2)(b) of Regulation 941;

c. The Respondent failed to make reasonable provision for complying with applicable standards and codes, amounting to professional misconduct as defined by section 72(2)(d) of Regulation 941; and

d. By reason of the foregoing, the Respondent engaged in conduct relevant to the practice of professional engineering that would reasonably be regarded as unprofessional, amounting to professional misconduct as defined by section 72(2)(j) of Regulation 941.

Plea by the Member

4. The Member admitted the allegations of professional misconduct set out in paragraph 17 of the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied the Member’s admissions were voluntary, informed and unequivocal.

Decision on Misconduct

5. The Panel has considered the Agreed Statement of Facts and the Member’s plea and finds the facts, as agreed, support findings of professional misconduct. In particular, the Panel finds the Member committed acts of professional misconduct as defined by sections 72(2)(a), (b), (d), and (j) of Regulation 941 under the Professional Engineers Act.

Joint Submission on Penalty

6. Counsel for the Association advised the Panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

7. Boris Naneff, P.Eng. (“Naneff”), was at all material times a Member of the Association of Professional Engineers of Ontario (“PEO”).

8. Naneff is the subject of a proceeding before a panel of the Discipline Committee of the PEO pursuant to section 28 of the Professional Engineers Act (the “Act”).

9. PEO and Naneff make the following joint submission as to penalty and cost:

a) Pursuant to s. 28(4)(f) of the Act, Naneff 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, Naneff’s license shall be suspended for a period of five (5) months, commencing on the date of pronouncement of the Discipline Committee’s decision on penalty;

c) Pursuant to sections 28(4)(i) and 28(5) of the Act, the findings 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)(h) of the Act, Naneff shall be required to pay a fine in the amount of five thousand dollars ($5,000), within ninety days after the pronouncement of the Discipline Committee’s decision on penalty; and

e) Pursuant to s. 28(4)(j) of the Act, Naneff shall be required to pay costs to PEO in the amount of fifteen thousand dollars ($15,000), within ninety days after the pronouncement of the Discipline Committee’s decision on penalty.

Submissions of Penalty

7. Counsel for the Association submitted the Panel must apply the test for assessing joint submissions as outlined in the Bradley v Ontario College of Teachers, 2021 ONSC 2303 decision. The Panel must accept the joint submission unless doing so would bring the administration of justice into disrepute.

8. Counsel for the Association discussed the aggravating and mitigating factors in this case. According to counsel, the primary aggravating factor was that the misconduct at issue created a risk to safety. The primary mitigating factor was the Member’s admission to engaging in professional misconduct.

9. Counsel for the Association also introduced two prior decisions of the Discipline Committee, which counsel suggested were reasonable comparator cases. These included the Braunsthein (2010) and Saunders (2016) decisions. Counsel submitted these cases to demonstrate the penalty proposed was within a reasonable range of outcomes.

10. Counsel for the Association advised that costs were included as part of the joint submission because of a previous (unsuccessful) abuse of process motion brought by the Member, and that the Member sought (and obtained) an adjournment of the previously scheduled November 2023 contested hearing dates after the Association had already incurred significant costs in preparing for the hearing.

11. Counsel for the Member submitted the Member had a lengthy career with no prior discipline and was admitting to the allegations, sparing the Association from having to proceed with a lengthy hearing. Counsel for the Member also emphasized the penalty was significant and meets the test for accepting a joint submission.

Penalty Decision

12. The Panel was satisfied that the Joint Submission as to Penalty would not bring the administration of justice into disrepute or be contrary to the public interest. The length of suspension and quantum of fine were consistent with what had been ordered in prior cases. Although the $15,000 costs amount is greater than ordered in the cases introduced by counsel for the Association, the Panel is satisfied the quantum is not so high so as to bring the administration of justice into disrepute warranting not accepting the joint submission arrived at through the cooperation of the parties and their counsel. The Panel is also mindful that costs are not a penalty and that what is a reasonable quantum of costs will vary based on the specific facts of each case.

13. As such, the Panel accepts the Joint Submission as to Penalty and orders as follows:

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

15. Pursuant to s. 28(4)(b) of the Act, the Member’s license shall be suspended for a period of five (5) months, commencing on the date of pronouncement of the Discipline Committee’s decision on penalty;

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

17. Pursuant to s. 28(4)(h) of the Act, the Member shall pay a fine in the amount of five thousand dollars ($5,000), within ninety days after the pronouncement of the Discipline Committee’s decision on penalty; and

18. Pursuant to s. 28(4)(j) of the Act, the Member shall pay costs to PEO in the amount of fifteen thousand dollars ($15,000), within ninety days after the pronouncement of the Discipline Committee’s decision on penalty.

19. The Panel issued the oral reprimand to the Member at the end of the hearing.