Association of Professional Engineers of Ontario (PEO) v Karugu et al, 2024 ONAPE 8

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

Date: 2024-06-03 Citation: Association of Professional Engineers of Ontario (PEO) v Karugu et al, 2024 ONAPE 8 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Karugu et al, 2024 ONAPE 8

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 George W. Karugu, P.Eng., a former member of the Association of Professional Engineers of Ontario, and Karugu Consulting Inc., a former holder of Certificate of Authorization.

Between:

The Association of Professional Engineers of Ontario (PEO)

-and-

George W. Karugu, P.ENG. and Karugu Consulting Inc.

Panel Members: Eric Bruce, J.D. CHAIR Corrine Dimnik, P.Eng. MEMBER John Tyrrell, P.Eng. MEMBER

Hearing Dates: 2024-04-29 and 2024-04-30 Decision Date: 2024-06-03 Release of Written Reasons: 2024-06-03

Counsel: Leah Price and Justin Gattesco, Counsel for the Association (PEO) George W. Karugu (Licence Holder) and Karugu Consulting Inc., Self-represented Jordan Stone, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1The Panel of the Discipline Committee met to hear this matter on April 29 and 30, 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. George W. Karugu (“Karugu”). Karugu, who also appeared on behalf of Karugu Consulting Inc. (“KCI”), was not represented by legal counsel during the hearing.

The Allegations

2The Panel was provided with the Notice of Hearing dated March 20, 2024, and the decision of the Complaints Committee dated November 6, 2023, with an attached statement of allegations.

3Following initial submissions by the parties on the first day of the hearing, the matter was adjourned to permit the parties to engage in settlement discussions.

Agreed Statement of Facts

4On the second day of the hearing, 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 Karugu and countersigned by counsel for the Association on April 29, 2024. The relevant sections of the Agreed Statement of Facts provide as follows:

1. At all material times, Karugu was a professional engineer licensed pursuant to the Act. Karugu holds a BSc. in Civil Engineering from the University of Nairobi.

2. At all material times, KCI was the holder of a Certificate of Authorization #Cl 00226262 ("C of A") issued by the Association on August 24, 2015. Karugu was employed by KCI, and was the individual at KCI taking professional responsibility for engineering services provided under the C of A.

3. On November 14, 2022, KCI’s C of A was cancelled for non-payment of the annual fee. On December 31, 2023, Karugu's license was cancelled for non-payment of the annual fee.

4. The Complainant, Dhruman Patel ("Dhruman"), engaged KCI and Karugu under two separate instruments signed on March 13, 2021, to provide services in connection with his applications for approvals and permits required for the construction of a new 2 ½ storey single family dwelling (the "Project") on a 7,000 square metre lot at 3503 New Street, Burlington (the "Property").

5. Dhruman filed a complaint to the Association dated November 22, 2022 alleging among other things that Karugu: failed to attend a hearing before the City of Burlington's Committee of Adjustment which took place on October 26, 2022; prepared, signed and sealed drawings for the Project that did not comply with the applicable Burlington zoning by-law; failed to meet agreed-upon progress deadlines for the Project; and that Karugu became unresponsive to communications from Dhruman relating to his work on the Project in the summer of 2022. Attached as Schedule "A" is a copy of the Complaint Form, without attachments. [Schedule “A” has not been reproduced here.]

6. Karugu in fact failed to attend the Committee of Adjustment hearing referred to above. A representative of KCI did attend the hearing, but the Committee of Adjustment ruled against Dhruman on all points. Thereafter, Karugu failed to respond to communications from either Dhruman or the KCI representative, such that the issues arising out of the Committee of Adjustment's ruling were not resolved. Ultimately, Dhruman was required to retain other professionals in order to proceed with the Project.

7. On November 29, 2022, the Association provided copies of the Complaint Form and attachments to Karugu and KCI in accordance with s. 24(1)(a) of the Act, requesting their written response to the complaint within 3 weeks.

8. Despite appropriate follow-up emails sent by the Association on December 22, 2022 and January 11, 2023, and calls resulting in one voicemail message left for Karugu on January 23, 2023, the Association received no response from Karugu or KCI until an email from Karugu dated February 15, 2023. That email provided no substantive response to the complaint, instead stating only:

“I have been unwell and out of the country. I'm now better and should be able to travel back by the end of this month or early next month. I would like to request you to allow me to address the complaint on my return."

9. A follow-up email from the Association to Karugu and KCI dated February 16, 2023 established a March 3, 2023 deadline for their response to the complaint, and set out detailed questions to be addressed therein. Karugu and KCI have not responded to that email or to the questions it posed.

10. Despite further follow-up emails from the Association to Karugu and KCI sent on May 4, June 9, and August 28, 2023, no further response from Karugu or KCI was received by the Association to its requests for a written response to the complaint, for answers to the questions posed, or for production by Karugu and KCI of the documents and information requested by the Association, or otherwise.

11. As a result of the failure of Karugu and KCI to respond to or co-operate with the Association in its investigation, the Association has been unable to assess whether the complaint by Dhruman against them involves other professional misconduct, and whether to take further appropriate action in the public interest in response to that complaint.

12. By reason of the forgoing, the parties agree that Karugu and KCI failed to carry out their professional obligations to their client and failed to co-operate with the Association's investigation, and as such are guilty of professional misconduct under section 28(2)(b) of the Professional Engineers Act, in that their conduct was unprofessional within the meaning of section 72(2)(j) of Regulation 941.

Plea by Member and/or Holder

5On behalf of KCI and himself, Karugu admitted the allegations of professional misconduct set out in paragraph 12 of the Agreed Statement of Facts. The Panel conducted a plea inquiry and was satisfied that Karugu’s admissions on behalf of himself and KCI were voluntary, informed, and unequivocal.

Decision

6The Panel considered the Agreed Statement of Facts and finds that the facts, as agreed, support a finding of professional misconduct. In particular, the Panel finds that Karugu and KCI committed acts of professional misconduct as defined by section 72(2)(j) of Regulation 941 under the Professional Engineers Act, namely engaging in “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 […] unprofessional.”

Reasons for Decision on Misconduct

7The Panel retains jurisdiction in this matter despite the fact that Karugu is no longer a member of the Association and KCI is no longer the holder of a Certificate of Authorization. As per section 22.1 of the Professional Engineers Act, a “member who resigns or a holder of a […] certificate of authorization that is cancelled or revoked continues to be subject to the jurisdiction of the Association in respect of any professional misconduct or incompetence referable to a time when the person was a member or holder.” The Panel notes that at the time of the main events in question Karugu was still a member of the Association and KCI was a holder of a Certificate of Authorization.

8The professional misconduct in this matter relates, in essence, to non-responsiveness by Karugu and KCI, both to their client and to the Association. It is obvious that failing to respond to repeated attempts at contact by a client or PEO without reasonable excuse would be considered unprofessional by members of the engineering profession.

9The Panel observes that during PEO’s investigation of this matter Karugu provided only one email response on February 15, 2023. Although that email explained that he had been ill and was out of the country, it also reported that he was now well and should be in a position to respond in the near future. Yet, Karugu provided no response despite repeated further inquiries from PEO. It was only on the first date of this hearing that Karugu finally engaged with PEO.

10The Panel accepts that personal or health emergencies may sometimes impact an engineer’s ability to respond to inquiries from a client or PEO in a timely fashion; however, there is nothing on the record before the Panel that would explain Karugu’s lengthy and repeated failure to respond to the inquiries in this case. The Panel notes that professional engineers are required to co-operate with and meaningfully respond to PEO as their regulatory body, including during investigations into their conduct. Failing to do so can raise concerns regarding an engineer’s governability and willingness to be held to professional standards.

11In light of the above, the Panel has no hesitation in finding that the actions of Karugu and KCI in this matter would reasonably be regarded as unprofessional within the meaning of section 72(2)(j) of Regulation 941.

Penalty

12Counsel for the Association advised the Panel that a Joint Submission as to Penalty and Costs had been agreed upon. It provided, in part, as follows:

4. The PEO, Karugu and KCI make the following joint submission on penalty and costs:

a. 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.

b. Pursuant to s. 28(4)(h) of the Act, Karugu shall be required to pay a fine in the amount of one thousand dollars ($1000) to the Minister of Finance for payment into the Consolidated Revenue Fund within ninety (90) days of the pronouncement of the decision of the Discipline Committee.

c. Karugu is not currently a member of the Association but is entitled to seek reinstatement of his license to practice as a professional engineer upon compliance with the requirements of Section 51.1 of Regulation 941. Therefore, if, as and when Karugu's license is reinstated, he shall be required to pay a fine in the amount of $1,000 to the Minister of Finance for payment into the Consolidated Revenue Fund within 30 days of reinstatement pursuant to section 28(4)(h) of the Act; and, pursuant to section 28(4)(e), there shall be a term, condition or restriction on his license prohibiting him 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 Karugu ("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).

d. Pursuant to subsection 28(4)(k) of the Act, the imposition of the penalties set out in item c) above shall be postponed until the reinstatement, if any, of Karugu's license, at which time the penalties set out in item c) above shall be automatically imposed, such that they shall be conditions of the reinstated license; and

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

13Counsel for PEO submitted that the proposed penalty served the principles of sanctioning, as follows:

• The publication of the Panel’s decision as well as the fines imposed serves as both a general and specific deterrent.
• Conditionally imposing an additional fine and supervisory terms, conditions or restrictions on Karugu’s licence should he ever have his licence reinstated serves to protect the public and to maintain the public’s confidence in PEO’s regulation of the profession.

14Counsel for PEO further submitted that the Panel has jurisdiction to impose the penalty requested. Counsel referred to the decision of the Discipline Committee in PEO v. Famiglietti, dated November 2, 2012, in which an analogous conditional penalty was imposed. Counsel also referred to two additional decisions of the Discipline Committee (PEO v. Saunders, dated March 18, 2016; PEO v. Etches, dated April 16, 2024), which she submitted illustrated that the proposed outcome was within the range of acceptable outcomes in similar, albeit not identical, circumstances.

Penalty Decision

15The Panel accepts the Joint Submission as to Penalty and Costs and orders as follows:

1. 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.
2. Pursuant to s. 28(4)(h) of the Act, Karugu shall be required to pay a fine in the amount of one thousand dollars ($1,000) to the Minister of Finance for payment into the Consolidated Revenue Fund within ninety (90) days of the pronouncement of the decision of the Discipline Committee.
3. If, as and when Karugu’s licence is reinstated: a. pursuant to section 28(4)(h) of the Act, he shall be required to pay a fine in the amount of $1,000 to the Minister of Finance for payment into the Consolidated Revenue Fund within thirty (30) days of reinstatement; and, b. pursuant to section 28(4)(e), there shall be a term, condition or restriction on his licence prohibiting him from practising 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 Karugu ("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).
4. Pursuant to subsection 28(4)(k) of the Act, the imposition of the penalties set out in item (3) above shall be postponed until the reinstatement, if any, of Karugu's licence, at which time the penalties set out in item (3) above shall be automatically imposed, such that they shall be conditions of the reinstated licence.

Reasons for Penalty

16The Panel carefully considered the Joint Submission on Penalty and Costs and accepted its terms. It is a well-established principle of law that a disciplinary panel should not interfere with a joint submission on penalty except where the panel is of the view that to accept the joint submission would bring the administration of the disciplinary process into disrepute or otherwise be contrary to the public interest (see, e.g., Bradley v. Ontario College of Teachers, 2021 ONSC 2303.) The Panel notes that this is a stringent test, and it should only consider rejecting a joint submission where the proposal could be seen as “unhinged” from the circumstances of the case.

17In the present case, the Panel is satisfied that the penalty protects the public and serves the principles of general and specific deterrence, and maintenance of the public’s confidence in the profession.

18At the outset, the Panel notes that Karugu is no longer a member of the Association and KCI is no longer the holder of a Certificate of Authorization. Accordingly, neither is engaged in the practice of professional engineering or poses a present risk to the public. The Panel acknowledges, however, that Karugu is entitled to seek reinstatement of his licence, and that, depending on the time since his suspension for non-payment of fees, this may be a purely administrative process. In these circumstances, the Panel is of the view that conditionally imposing a supervision requirement if Karugu’s licence is ever reinstated appropriately protects the public and helps to maintain the public’s confidence in the profession. This requirement ensures that Karugu will have appropriate oversight by another engineering professional, who can take responsibility for his work and reply to all concerns or inquiries in a timely fashion.

19Similarly, the Panel accepts that the imposition of a two-part fine—one immediate, and one upon reinstatement—serves as both a specific deterrent to Karugu and a general deterrent to the engineering profession at large. The Panel agrees with the comments in PEO v Riggs (issued September 7, 2021), which dealt with concerns of unresponsiveness by an engineer, that it is “important to send a message to the engineering profession that these kinds of responses to their regulator, or lack thereof, are unprofessional and a breach of the Regulation.” The Panel notes that publication of its findings in summary form with reference to names will further help to deter similar conduct both from other members of the profession and Karugu himself.

20The Panel points out that by failing to respond to his client and PEO in a timely fashion, Karugu has caused significant time and expense for PEO to investigate and prosecute this matter. Although the Panel was concerned by Karugu’s extended lack of response to his client and PEO, it was reassured by Karugu’s eventual cooperation and his agreement to an uncontested hearing. This suggests to the Panel that Karugu has demonstrated some remorse and insight into the issues that led to this matter.