Association of Professional Engineers of Ontario (PEO) v. Vickerman et al, 2024 ONAPE 3

Date: 2024-02-29

Citation: Association of Professional Engineers of Ontario (PEO) v. Vickerman et al, 2024 ONAPE 3

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

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Vickerman et al, 2024 ONAPE 3

IN THE MATTER OF a hearing under the Professional Engineers Act, R.S.O. 1990, c. P28;

AND IN THE MATER OF a complaint regarding the conduct of Granville B. Vickerman, P.Eng., a member of the Association of Professional Engineers of Ontario, and V.M.E. Technologies Inc., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineer of Ontario (PEO)

-and-

Granville B. Vickerman, P.ENG. and V.M.E. Technologies Inc.

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

Hearing Dates: 2023-11-20

Decision Date: 2024-02-29

Release of Written: 2024-02-29

Reasons:

NAME OF LAWYER Leah Price and Karen Bernofsky, Counsel for the Association (PEO)

NAME OF LAWYER Varoujan Arman, Counsel for Granville B. Vickerman (Licence Holder) and V.M.E. Technologies Inc.

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

AMENDED DECISIONS AND REASONS

1. The Panel of the Discipline Committee of Professional Engineers of Ontario (“PEO” or “Association”) convened to hear and determine allegations of professional misconduct on the part of Mr. Granville B. Vickerman, a member of the Association of Professional Engineers of Ontario (“Mr. Vickerman”), and V.M.E. Technologies Inc., a holder of a Certificate of Authorization from the Association (“VME”). The matter had been referred to the Discipline Committee by a decision of the Complaints Committee dated February 7, 2023. The Panel heard the matter on November 20, 2023, by means of an online video conference platform. All participants in the proceedings, including Mr. Vickerman, VME, Independent Legal Counsel to the Panel, counsel for the Association and counsel for Mr. Vickerman and VME attended via videoconference.

Agreed Statement of Fact

2. Counsel for the Association advised the Panel that the Association, Mr. Vickerman and VME had reached an agreement on the facts. Counsel for the Association introduced an Agreed Statement of Facts (“ASF”), which was signed by the parties on November 16, 2023.

3. The ASF (not including the Schedules) provides as follows:

4. Vickerman graduated from Concordia University in 1985 with a Bachelor of Engineering specializing in building engineering. He has been licensed with the PEO since 1988.

5. At all material times, VME (alternative name Granville B. Vickerman & Associates) was the holder of a Certificate of Authorization ("C of A") and listed Vickerman as the individual taking professional responsibility for engineering services provided thereunder.

6. The complainant, Dr. Navdeep Mehta ("Mehta"), is an individual residing in Sudbury, Ontario.

7. In or around May 2, 2008, Mehta submitted an application for a permit to the City of Greater Sudbury (the "City") for the addition of a new two-tier deck (the "Project") at the rear of his home located at 358 Stewart Drive in Sudbury, Ontario (the "Property''). As part of the permit application, the City received general standard deck sketches prepared by Mehta himself. The City issued the permit on May 15, 2008.

8. On August 19, 2008, Mehta received a proposal from Planet Earth Organic Landscaping Inc. ("Planet Earth") to perform demolition, tree removal, excavation, landscaping and Project construction. Mehta retained Planet Earth as the General Contractor. Planet Earth retained DSP Contracting Services ("DSP") as a subcontractor to complete the Project construction. Darren Parker ("Parker") was the owner and point of contact for DSP.

9. On September 25, 2008, Tony Pileggi ("Pileggi"), the City building inspector, reviewed some of the constructed Project foundations. He noticed the work did not generally match the permit drawings. As a result, Pileggi requested that Mehta submit revised drawings.

10. Parker prepared deck design sketches. Parker asked Vickerman to review, sign and seal the sketches. Vickerman signed and sealed the sketches (the "Sketches"). His seal is dated September 17, 2008. Attached as Schedule "A" are copies of the Sketches. The Sketches were subsequently submitted to the City.

11. The City placed a note on the Sketches stating that a general conformance letter was required at the final inspection.

12. On November 13, 2008, the City conducted a final inspection. It noted that the work was not complete. The inspection report also noted that an engineer's report was required from Vickerman.

13. On November 21, 2008, Vickerman issued a signed and sealed "Letter of General Conformance", which was filed with the City (the "General Review Report"), a copy of which is attached as Schedule "B".

14. The General Review Report did not make any reference to any interim or other site review conducted by Vickerman or anyone from his office. ln response to an inquiry from PEO's investigator, Vickerman advised on March 10, 2021, that, if no reference was made in the document to interim site reviews, then his office did not perform any. He further stated that his conclusion in this regard was reinforced by the fact that there were no site review reports filed with the City.

15. The General Review Report noted in relevant part:

This general review which was undertaken in accordance with Section 2.3.2 of the Ontario Building Code and the performance standards of the Professional of Ontario has determined that the components were constructed in general conformity with the documents that formed the basis for issuance of the building permit.

13. On June 30, 2009, Pileggi conducted a second final inspection of the Project, which again failed. He did not approve the Project citing the following reasons:

a. revised drawings were required for stairs and upper deck portion;

b. posts supporting stairs need to be supported; and

c. additional new piers may be requires.

14. On July 6, 2009, the City received revised sketches signed and sealed by Vickerman (but still dated September 17, 2008) which were substantively identical to the Sketches. Copies of these revised sketches are attached as Schedule "C". Included with the revised sketches was a new sheet entitled "upper and lower stair/landing". It was signed and sealed by Vickerman on July 3, 2009.

15. The City inspected and approved the Project on July 6, 2009.

16. According to Mehta, some of the Project piers gradually started to shift on the sloped bedrock in the north direction in 2016.

17. In June 2020, Mehta requested that Parker visit the site. Parker did so and provided Mehta with the building permit drawings and the sketches signed and sealed by Vickerman.

18. Mehta submitted a complaint to PEO, dated August 30, 2020. PEO received the complaint form and supporting documents by mail and filed the complaint on October 15, 2020.

19. PEO retained 1768509 Ontario Inc. o/a Duke Engineering. as independent experts to review the work done by Vickerman and VME. Daniel W. Duke, P. Eng., provided a signed and sealed report dated January 3, 2022 (the "Expert Report") setting out his findings, opinions and conclusions concerning the conduct of the Respondents in connection with the Sketches and the General Review Report.

20. The Expert Report concluded (among other things) that:

a. Since the maximum slope of the bedrock was not noted in the Sketches and the built up beam and posts exceeded their allowable spans and height, the Sketches should not have been signed and sealed by Vickerman;

b. The Respondents failed to conduct a site visit or inspection prior to completing the General Review Report;

c. The Respondents failed to set out any limitations in the General Review Report; and

d. The Respondents failed to retract or update the General Review Report after signing and sealing additional sketches on July 3, 2009.

21. Mr. Duke further opined in the Expert Report that, as a result of the above errors and omissions, Vickerman and VME failed to meet the standard expected of a reasonable and prudent practitioner in the circumstances.

22. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions from the Expert Report as set out in paragraphs 21 and 22, above. The Respondents admit that they failed to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

23. By reason of the foregoing, the parties agree that Vickerman and VME are guilty of professional misconduct under section 72(2) of R.R.O. 1990, Reg. 941 ("Regulation 941 "), as follows:

24. Vickerman and VME were negligent, amounting to professional misconduct under section 72(2)(a) of Regulation 941, by failing to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances, including by failing to:

a. identify the errors in the sketches/plans in relation to beam span, column height and/or slope of bedrock which would have been identified during a detailed review of the plans or calculations that a prudent practitioner would have completed;

b. conduct a site visit or inspection prior to issuing the General Review Report;

c. set out any limitations in the General Review Report; and

d. retract or update the General Review Report after signing and sealing additional sketches on July 3, 2009.

25. It is further agreed that, based on the foregoing, Vickerman and VME are guilty of professional misconduct as defined by section 72(2)(i) of Regulation 941 for conduct relevant to the practice of professional engineering that would reasonably be regarded as unprofessional.

26. The 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.

27. Counsel for the Association pointed out certain issues with Mr. Vickerman’s work in this matter. For instance, as per paragraph 11 of the ASF, the General Review Report referred to therein did not reference any site review conducted by Mr. Vickerman or anyone from his office. In a response to an inquiry from PEO’s investigator, Mr. Vickerman advised that if no reference was made to interim site reviews, none were performed by his office. In addition, Mr. Vickerman stated that this conclusion is reinforced by the fact that there were no site review reports filed with the City of Greater Sudbury.

28. Furthermore, the Expert Report referred to in the ASF concluded that Mr. Vickerman and VME’s work was problematic. For example, as per paragraph 20 of the ASF, the Expert Report stated that since the maximum slope of the bedrock was not noted in the Sketches and the built-up beam and posts exceeded their allowable spans and height, the Sketches should not have been signed and sealed by Mr. Vickerman. In addition, the Expert Report stated that Mr. Vickerman and VME failed to conduct a site visit or inspection prior to completing the General Review Report and failed to set limitations in the General Review Report. Furthermore, Mr. Vickerman and VME failed to retract or update the General Review Report after signing and sealing additional sketches on July 3, 2009. The Expert Report stated that, based on the errors and omissions noted above, Mr. Vickerman and VME failed to meet the standard expected of a reasonable and prudent practitioner in the circumstances.

Relevant Section re Misconduct in Regulation 941

7. The following subsections are cited regarding Mr. Vickerman and VME’s professional misconduct in paragraphs 23 to 25 of the ASF, noted above - namely 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)

“professional misconduct" means

(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]

8. As per paragraph 25 of the ASF, the Association was seeking a finding that the conduct of Mr. Vickerman and VME was “unprofessional” pursuant to Subsection 72(2)(j) of Regulation 941 and not “disgraceful” and “dishonourable” pursuant to Subsection 72(2)(j) of Regulation 941.

Plea by Mr. Vickerman & VME

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

Decision re ASF

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

Joint Submission on Penalty and Costs

11. The Parties advised the Panel that a Joint Submission as to Penalty and Costs (“JSP”) had been agreed upon in this matter. The JSP was signed on November 16, 2023. The relevant parts of the JSP, taken directly from the JSP, are as follows:

12. Granville B. Vickerman, P.Eng. (Vickerman"), and V.M.E. Technologies Inc. ("VME") are the Defendants in this matter. Vickerman was at all material times a member of the Association of Professional Engineers of Ontario ("PEO"). VME was at all material times the holder of a Certificate of Authorization issued by the PEO.

13. The Defendants are 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").

14. The PEO and the Defendants make the following joint submission on penalty and costs:

a. Pursuant to s. 28(4) of the Act, the Defendants shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of one year.

b. Pursuant to s. 28(4) of the Act, Vickerman's licence and VME's certificate of authorization shall both be suspended for a period of ten (10) days, commencing upon pronouncement of the Discipline Committee's penalty decision.

c. Pursuant to s. 28(4) of the Act, there shall be a term and condition on Vickerman's licence requiring him to successfully complete the National Professional Practice examination (the “NPPE”), within fourteen months after the date of pronouncement of the decision of the Discipline Committee (the “Date”).

d. Pursuant to s. 28(4) of the Act, a restriction shall be imposed upon Vickerman's licence prohibiting him from practicing professional engineering except under the direct supervision of another professional engineer who shall take professional responsibility for the work by affixing his or her signature and seal on every final drawing, report or other document prepared or sealed by Vickerman, which restriction shall be suspended for a period of fourteen months from the Date. If Vickerman successfully completes the NPPE at any time before or after the fourteen-month period referred to above, this restriction shall be permanently removed.

e. Pursuant to s. 28(4) and s. 28(5) of the Act, the findings and order of the Discipline Committee shall be published, with the reasons therefor, together with the names of the Defendants, in the official publication of the PEO.

f. There shall be no order as to costs.

12. The Defendants have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

Submissions & Analysis Regarding JSP

13. Counsel for the Association stated that an aggravating factor in this matter was sketches that gave rise to serious concerns. In particular, counsel stated that it is important that sketches should not be signed and sealed without careful review. Furthermore, counsel for the Association stated that the JSP provides for specific deterrence, as it punishes Mr. Vickerman and VME for the sketches giving rise to the serious concerns. Counsel for the Association also stressed the problematic nature of the lack of appropriate site reviews in this matter, which was reflected in the penalty of the JSP. In particular, counsel for the Association noted that Mr. Vickerman and VME failed to conduct a site visit or inspection prior to completing the General Review Report. The Panel considers this to be an aggravating factor, given that the General Review Report is an important document that is relied upon as part of the construction process.

14. In addition, counsel for the Association noted the requirement for Mr. Vickerman to pass the National Professional Practice Examination (“NPPE”) within fourteen months, as per the JSP. Counsel for the Association stated that passing the NPPE is necessary because, both the course and the NPPE examination deal with the importance of the seal and of carefully reviewing documents.

15. Counsel for the Association also noted that the JSP contains a restriction of practice supervision but suspends that restriction in the manner enumerated in the JSP. In particular, the JSP states that if Mr. Vickerman successfully completes the NPPE at any time before or after the fourteen-month period for passing the NPPE in the JSP, the restriction requiring practice supervision shall be permanently removed.

16. As per the JSP, Mr. Vickerman’s licence and VME’s Certificate of Authorization shall both be suspended for 10 days, commencing upon pronouncement of the Discipline Committee’s penalty decision. Pursuant to the Act, publication with names is necessary when a member receives a suspension , as in this case. The Panel believes that the suspension and publication with names supports both specific and general deterrence. The Panel also believes that a reprimand and the fact of the reprimand being recorded on the Register for one year, supports specific and general deterrence.

17. The Panel carefully considered the JSP. Counsel for the Association provided a case demonstrating that the penalty agreed to in the JSP falls within the range of penalties that have been previously ordered by discipline panels (Wang et al. v. Association of Professional Engineers of Ontario, dated September 23, 2022). 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…

18. 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]

19. Counsel for Mr. Vickerman and VME stated that the test laid out by the Association regarding accepting the JSP is well-settled law and that the penalty is in the range that should be accepted.

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

Penalty Decision

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

a. Pursuant to s. 28(4) of the Act, the Defendants shall be reprimanded, and the fact of the reprimand shall be recorded on the Register for a period of one year.

b. Pursuant to s. 28(4) of the Act, Vickerman's licence and VME's Certificate of Authorization shall both be suspended for a period of ten (10) days, commencing upon pronouncement of the Discipline Committee's penalty decision.

c. Pursuant to s. 28(4) of the Act, there shall be a term and condition on Vickerman's licence requiring him to successfully complete the National Professional Practice examination (the “NPPE”) within fourteen months after the date of pronouncement of the decision of the Discipline Committee (the "Date'').

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

e. Pursuant to s.28(4) and s. 28(5) of the Act, the findings and order of the Discipline Committee shall be published, with the reasons thereof, together with the names of the Defendants, in the official publication of PEO.

f. There shall be no order as to costs.

Reprimand

22. The Panel administered an oral reprimand to Mr. Vickerman and VME at the end of the hearing.