Association of Professional Engineers of Ontario (PEO) v. Jeganmohan et al, 2024 ONAPE 6

Date: 2024-10-23

Citation: Association of Professional Engineers of Ontario (PEO) v. Jeganmohan et al, 2024 ONAPE 6

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Jeganmohan et al, 2024 ONAPE 6

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 Visvalingam Jeganmohan, P.Eng., a member of the Association of Professional Engineers of Ontario and Venoth Engineering Ltd., a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Visvalingam Jeganmohan, P.ENG. and Venoth Engineering Ltd.

PANEL MEMBERS: David Germain, J.D. CHAIR Gordon Ip, P.Eng. MEMBER Albert Sweetnam, P.Eng. MEMBER

Hearing Dates: 2024-07-29

Decision Date: 2024-10-23

Release of Written: 2024-10-23

Reasons:

NAME OF LAWYER Leah Price and Justin Gattesco, Counsel for the Association (PEO)

NAME OF LAWYER Daniel R. Libman, Counsel for Visvalingam Jeganmohan, P.Eng. (Licence Holder) and Venoth Engineering Ltd.

NAME OF LAWYER David P. Jacobs, Independent Legal Counsel to the Tribunal

REASON FOR DECISION ON MOTION

Introduction

This matter was heard by a panel of the Discipline Committee of the Association of Professional Engineers of Ontario (“PEO”) on July 29, 2024 electronically by way of videoconference pursuant to the Rules of Procedure of the Discipline Committee of the Association of Professional Engineers of Ontario, the Professional Engineers Act (the “Act”), and the Statutory Powers Procedure Act.

Agreed Statement of Facts

The parties advised that agreement had been reached on the facts and the PEO filed an Agreed Statement of Facts, signed and dated on April 4, 2024, as an exhibit on consent. The Agreed Statement of Facts is reproduced here, except for the schedules referenced therein, as follows:

This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”) and the Respondents, Visvalingam Jeganmohan, P.Eng. and Venoth Engineering Ltd. (“VEL”) (collectively, the “parties”).

At all material times, Visvalingam Jeganmohan was a professional engineer licensed pursuant to the Act. Visvalingam Jeganmohan’s training and experience is in the field of mechanical engineering.
At all material times, VEL held a Certificate of Authorization (“C of A”) naming Visvalingam Jeganmohan, P.Eng. as the individual accepting professional responsibility for engineering services provided under the C of A. VEL self-identifies as specializing in mechanical engineering and its expertise is in mechanical engineering.
In or around November 2020, the complainant requested a quote from VEL for the provision of engineering services related to the removal and replacement of a structural wall (the “Project”).
On or around November 11, 2020, Venoth Jeganmohan, an engineer-in-training at VEL, provided a quote to the complainant. The quote identified Venoth Jeganmohan as an “Engineer”. On or around November 11, 2020, the complainant’s mother emailed Venoth Jeganmohan asking him to confirm that he was a “fully licensed Architectural/Structural Engineer”. On November 13, 2020, Venoth Jeganmohan responded “Fully licensed Professional Engineer in Ontario.”
At no relevant time was Venoth Jeganmohan a licensed professional engineer.
On February 8, 2021, Venoth Jeganmohan provided drawings for the Project signed and sealed by “V. Jeganmohan” and dated February 8, 2021, to the complainant and her contractor (the “Permit Drawings”). The seal applied to the drawings belongs to Visvalingam Jeganmohan.
On or around February 18, 2021, after the Permit Drawings had already been provided to the City of Hamilton for permit, Venoth Jeganmohan emailed corrected drawings to the contractor, also signed and sealed by “V. Jeganmohan” and dated February 8, 2021 (the “Updated Drawings”). The Updated Drawings were not provided to the City.
In response to a request from PEO’s investigator, on March 14, 2022, Visvalingam Jeganmohan provided a copy of the Updated Drawings and supporting calculations (the “Calculations”).
PEO retained Steven Adema, P.Eng. of Tacoma Engineers as an independent expert to review the actions and conduct of the Respondents. He issued a report dated January 24, 2023, which was revised on May 9, 2023. A copy of the revised report (the “Expert Report”) is attached hereto as Schedule “A”.
The Expert Report concluded that the Permit Drawings, the Updated Drawings and the Calculations (together, the “Drawings”) were deficient and failed to meet the standard of a reasonable and prudent practitioner, including that:

a. There is no indication in the Drawings that current material and design standards (using limit states design per Part 4 of the Ontario Building Code (“OBC”)) were followed.

b. The calculations only included the floor load and did not include additional roof loads, as required by section 4.1.1.3 of the OBC.

c. The Drawings failed to provide sufficient information, in that they: did not identify the relevant codes, standards and material specifications; did not provide construction sequencing notes or temporary shoring information; and did not provide sections or details.

d. The Drawings lacked information regarding what type of beam connection was intended.

e. The 3 ply 2x6 post design provided in the Permit Drawings was structurally inadequate considering the floor and roof loads. The 3 ply 2x8 post provided in the Updated Drawings was made structurally adequate through overdesign, but lacked specification regarding the post cap.

f. Bolt specifications added to the Updated Drawings provided for an insufficient number and length of bolts to fasten the LVL plies together.

g. The Updated Drawings removed the requirement to double the existing floor joists, which could result in partial collapse.

h. The minimum headroom requirements set out in section 9.5.3.1 of the OBC were not met.

For the purposes of these proceedings, the Respondents accept as correct the findings, opinions and conclusions in the Expert Report. The Respondents admit that they fell below the standards expected of a reasonable and prudent practitioner in the circumstances, and that they failed to make reasonable provision for complying with applicable standards and codes.
From approximately May 2021 to February 2022, the complainant attempted to reach VEL but was unsuccessful. In April 2022, she asked VEL to remove itself from the Project.
By reason of the aforesaid, the parties agree that the Respondents are guilty of professional misconduct as follows:

a. Negligence under sections 72(1) and 72(2)(a) of Regulation 941;

b. Failure 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 under section 72(2)(b);

c. Failure to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner under section 72(2)(d) of Regulation 941;

d. Undertaking work the practitioner is not competent to perform by virtue of the practitioner’s training and experience under section 72(2)(h) of Regulation 941; and

e. 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.

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.

Decision on Findings

At the hearing, Visvalingam Jeganmohan, P.Eng. and Venoth Engineering Ltd. confirmed that they admitted the allegations as set out in the Agreed Statement of Facts. We conducted an oral plea inquiry and were satisfied that the admissions were voluntary, informed, and unequivocal. The panel considered the Agreed Statement of Facts and found that the agreed facts support the findings of professional misconduct set out in paragraph 13 therein.

Joint Submission on Penalty and Costs

The parties advised the panel that they had agreed on a Joint Submission as to Penalty. The parties filed the Joint Submission as to Penalty and Costs, signed and dated on April 4, 2024, as an exhibit, on consent. The Joint Submission as to Penalty and Costs provides as follows:

The PEO, Jeganmohan and VEL make the following joint submission on penalty and costs:

a) Pursuant to s. 28(4)(f) of the Act, Jeganmohan and VEL 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, the Member’s licence and the Holder’s Certificate of Authorization shall be suspended for a period of two (2) months, commencing on the date of pronouncement of the Discipline Committee’s penalty decision;

c) The findings and order of the Discipline Committee shall be published in summary form under ss. 28(4)(i) and 28(5) of the Act, together with the names of the Member and the Holder;

d) Pursuant to s. 28(4)(d) and/or s. 28(4)(e) of the Act, it shall be a term, condition or restriction on Jeganmohan’s licence and VEL’s Certificate of Authorization that they shall be prohibited from providing structural engineering services; and

e) There shall be no order as to costs

Jeganmohan and VEL have had independent legal advice, or have had the opportunity to obtain independent legal advice, with respect to the penalty set out above.

Penalty Submissions

The parties generally agreed as to the aggravating and mitigating factors which underpinned their joint penalty submission. They urged the panel to accept and order the penalties proposed.
The PEO submitted, among other things, that the insufficient nature of the drawings at issue aggravated penalty and that the penalty should be mitigated by the fact that the member and holder were cooperative, entered into an Agreed Statement of Facts and a Joint Submission as to Penalty and Costs, expressed remorse and had no prior findings against them in their long careers in engineering. Visvalingam Jeganmohan, P.Eng. and Venoth Engineering Ltd. agreed as to the factors to be considered and submitted, in mitigation, that they took responsibility and spared the Discipline Committee from a contested hearing.
The parties submitted that the penalties proposed satisfied the penalty goals of specific deterrence, general deterrence, rehabilitation, and the maintenance of public confidence in the profession and the regulation of the profession. We were referred to the following decisions: Timothy Edward Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (Bradley); Association of Professional Engineers of Ontario (PEO) v Colas, 2018 ONAPE 6; Association of Professional Engineers of Ontario (PEO) v Shaw et al, 2022 ONAPE 5; Association of Professional Engineers of Ontario (PEO) v Ulrich, 2023 ONAPE 4.
The parties pled that we were bound by the ruling of the Supreme Court of Canada in R. Anthony-Cook, 2016 SCC 43, as applied in the professional discipline context in Bradley, for the principle that the public interest test applies to consideration of joint penalty submissions as follows:

[A] joint submission should not be rejected lightly, a conclusion with which I

agree. 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…

The parties relied on the facts and the cases provided to submit that the penalties proposed were within a reasonable range and in any event, met the public interest test.

Penalty Decision

We concluded that the proposed penalties were reasonable and in the public interest. Visvalingam Jeganmohan, P.Eng. and Venoth Engineering Ltd. co-operated with the PEO and, by agreeing to the facts and a proposed penalty, has accepted responsibility for their actions and avoided unnecessary expense to the PEO. The penalties proposed meet the goals of specific deterrence, general deterrence, rehabilitation, and the maintenance of public confidence in the profession and the regulation of the profession.
The panel thus made the following orders as to penalties as set out in the Joint Submission as to Penalty and Costs:

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

c) The findings and order of the Discipline Committee shall be published in summary form under ss. 28(4)(i) and 28(5) of the Act, together with the names of the Member and the Holder;

e) There shall be no order as to costs.

The foregoing is so ordered.
The parties waived appeal rights and the reprimand was administered thereafter.
The panel thanks counsel for their helpful assistance.