Association of Professional Engineers of Ontario (PEO) v. Etches et al., 2024 ONAPE 4

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

Date: 2024-04-16 Citation: Association of Professional Engineers of Ontario (PEO) v Etches et al, 2024 ONAPE 4 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Etches et al, 2024 ONAPE 4

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 Thomas A. Etches, P.Eng., a member of the Association of Professional Engineers of Ontario and Etches Thomas A, a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Thomas A. Etches, P.ENG. and Etches Thomas A

PANEL MEMBERS: Charles McDermott, P.Eng. CHAIR David Germain, J.D. MEMBER John Tyrrell, P.Eng. MEMBER

Hearing Dates: 2023-12-18 and 2023-12-19 Decision Date: 2024-04-16 Release of Written Reasons: 2024-04-16

Counsel: Leah Price and Justin Gattesco, Counsel for the Association (PEO) Thomas A. Etches, P.Eng. (Licence Holder) and Etches Thomas A, Self-represented David Jacobs, Independent Legal Counsel to the Tribunal

DECISIONS AND REASONS

[1]. This Panel of the Discipline Committee (the “Panel”) of the Association of Professional Engineers of Ontario (“PEO” or the “Association”) convened a hearing remotely via Zoom on December 18 and 19, 2023, to consider the conduct of Thomas A. Etches, P.Eng. (Etches), and Etches Thomas A (alternative name: T.A. Etches Engineering (TAEE) (collectively, the Respondents) as described more particularly herein.

Agreed Statement of Facts

[2]. The parties reached an agreed statement of facts (“ASF”), which reads (without the Schedules) as follows:

“This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”), and the Respondents, Thomas Etches, P.Eng. (“Etches”) and Etches, Thomas A. (Alternative name: T.A. Etches Engineering (“TAEE”)) (collectively, the “parties”).

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

2. At all material times, TAEE held a Certificate of Authorization (“C of A”) and listed Etches as the individual taking responsibility for engineering services provided thereunder.

3. At all material times, Etches performed engineering work through TAEE.

4. On or around July 8, 2021, Boylo Gospodinov submitted a building permit application for a “tiny home” to the building department in Thornloe, Ontario (the “Thornloe project”). The application contained structural design plans signed and sealed by Etches, dated June 20, 2014 (the “Roy Drawings”). Attached as Schedule “A” is a copy of the Roy Drawings.

5. Etches was not aware that the Roy Drawings would be submitted for the Thornloe project.

6. On or around September 28, 2021, Peter Nietlispach submitted a building permit application for a seasonal cottage to the building department in Coleman, Ontario (the “Coleman project”). The application contained structural design plans signed and sealed by Etches, dated September 24, 2021 (the “Nebraska Drawings”). Attached as Schedule “B” is a copy of the Nebraska Drawings.

7. Nietlispach oversaw both the Thornloe and Coleman projects. Nietlispach had asked Etches to review, seal and sign both sets of structural design plans.

8. David Barton, the Township’s Chief Building Official, reviewed the applications for the Thornloe and Coleman projects and had concerns about the design plans.

9. Barton ultimately denied the building permit applications for both projects in part for lack of detail on the design plans.

10. The Roy Drawings and the Nebraska Drawings, as signed and sealed by Etches, were deficient for several reasons, including that:

a. the plans were missing data as required under the Building Code Act, 1992, including climatic data, design loads, design codes, and materials standards and grades;

b. the plans were lacking foundation data, or information about who was designing the foundation;

c. the plans were missing “connection” data regarding the framing plans of the floor, roof, walls, and ancillary structures;

d. the plans lacked sufficient information to assess the structural adequacy of the buildings; and

e. the plans failed to comply with PEO guidelines, CSA 086-09, or CSA 086-14 standards as applicable. Etches advises that he would have provided the missing information had he been asked to do so.

11. PEO retained Nathan Proper, P.Eng., of Tacoma Engineers, as an independent expert to review the conduct of the Respondents. He wrote a report dated October 31, 2022 (the “Proper Report”), which concluded, among other things, that the drawings signed and sealed by the Respondents failed to comply with applicable standards and codes, and that the Respondents failed to meet the standard expected of a reasonable and prudent practitioner. Attached as Schedule “C” is a copy of the Proper Report.

12. For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions contained in the Proper Report.

13. By reason of the aforesaid, the parties agreed that the Respondents are guilty of professional misconduct in connection with the drawings as follows:

a) Negligence, amounting to professional misconduct as defined by sections 72(1) and 72(2)(a) of Regulation 941; and

b) Failure to make responsible provision for complying with applicable standards and codes in connection with work being undertaken by the practitioner, amounting to professional misconduct as defined by section 72(2)(d) of Regulation 941.

[3]. 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.”

Relevant Sections of Regulation 941

[4]. The following are the subsections cited regarding the Respondents’ professional misconduct in paragraph 13 of the ASF, noted above—namely subsection 72(2)(j) of Regulation 941 of the Professional Engineers Act, R.S.O. 1990, c. P.28 (the “Act”).

[5]. Subsection 72(1) of Regulation 941:

“…negligence” means 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. (“negligence”) R.R.O. 1990, Reg. 941, s. 72 (1); O. Reg. 657/00, s. 1 (1).”

[6]. Subsections 72(2)(a) and (d) of Regulation 941:

“professional misconduct” means,

(a) negligence,

(d) failure to make responsible provision for complying with applicable statues, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner,”

Plea by the Respondents

[7]. The Respondents admitted to the facts set out in the ASF. The Panel conducted a plea inquiry and was satisfied that the Respondents’ admissions were voluntary, informed and unequivocal.

Panel’s Finding re ASF

[8]. The Panel considered the ASF and found, based on the evidence, that the Respondents committed the agreed-upon acts, enumerated in the ASF, and that the facts support a finding of professional misconduct. The Panel made a finding that Etches and TAEE are guilty of professional misconduct, in accordance with paragraph 13 of the ASF, noted above.

Joint Submission on Penalty

[9]. The parties advised the Panel that they had prepared a joint submission on penalty, the text of which is repeated below:

“1. Thomas A. Etches (“Etches”) was at all material times a member of the Association of Professional Engineers of Ontario (“PEO”).

2. Etches, Thomas A. (Alternative name: T.A. Etches Engineering (“TAEE”)) was at all material times the holder of a certificate of authorization issued under the Act.

3. Etches and TAEE are the subjects of a proceeding before a panel of the Discipline Committee of the PEO pursuant to section 28 of the Act.

4. Etches advises that he has ceased practice and has retired.

5. The PEO, Etches and TAEE make the following joint submission on penalty and costs:

a) Pursuant to s. 28(4)(f) of the Professional Engineers Act, Etches and TAEE 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)(d) and (e) of the Act, there shall be a term, condition or restriction on the license and certificate of the Respondents, prohibiting them from practicing professional engineering except under the direct supervision of another professional engineer who shall take responsibility for the work; and that other professional engineer shall: (i) sign and affix his or her seal to every final drawing, specification, plan, or other document sealed by Etches (“Document(s)”); or (ii) sign and affix his or her seal to a letter that shall be attached to, and shall be referred to in, all Document(s), which letter shall confirm that the other professional engineer has directly supervised and takes responsibility for the Document(s); and

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

Etches and TAEE have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.”

[10]. The panel considered the joint submission on penalty, the submissions from the parties and ILC’s advice. In addition, the panel has taken into account Etches’ decision to cease practising as a professional engineer.

[11]. The Panel concluded that the proposed penalty is reasonable and in the public interest. The Respondents have co-operated with the Association and, by agreeing to the ASF and a proposed penalty, have accepted responsibility for their actions and have avoided unnecessary expense to the Association.

[12]. In the circumstances of this case, the Panel is of the view that the penalty set out in the joint submission on penalty, including a reprimand recorded on the Register is a reasonable outcome that serves the aims of specific and general deterrence. Similarly, the requirement that the member practice under the direct supervision of another professional engineer, serves the goals of protecting the public and maintaining the public’s confidence in the regulation of the profession.

[13]. The panel finds that the joint submission on penalty meets the stringent public interest test and is not unhinged from the circumstances of the offences and the member and holder.

Order

[14]. The Panel ordered the following:

a) Pursuant to Section 28(4)(f) of the Professional Engineers Act, Etches and TAEE 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 Section 28(4)(i) of the Act, with reference to names;

c) Pursuant to Sections 28(4)(d) and (e) of the Act, there shall be a term, condition or restriction on the licence and certificate of the Respondents, prohibiting them from practicing professional engineering except under the direct supervision of another professional engineer who shall take responsibility for the work; and that other professional engineer shall: (i) sign and affix his or her seal to every final drawing, specification, plan, or other document sealed by Etches ("Documents)"); or (ii) sign and affix his or her seal to a letter that shall be attached to, and shall be referred to in, all Document(s), which letter shall confirm that the other professional engineer has directly supervised and takes responsibility for the Documents; and

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

[15]. The Panel issued the oral reprimand to the Respondents at the end of the hearing.