Association of Professional Engineers of Ontario (PEO) v Gidamy et al, 2024 ONAPE 9

Discipline Committee of the Association of Professional Engineers of Ontario

Date: 2024-08-16 Citation: Association of Professional Engineers of Ontario (PEO) v Gidamy et al, 2024 ONAPE 9 Indexed as: The Association of Professional Engineers of Ontario (PEO) v Gidamy et al, 2020 ONAPE 9

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 Mohamed Hazem Gidamy, a former member of the Association of Professional Engineers of Ontario, and SSWA Inc. O/A SS Wilson Associates, a holder of Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Mohamed Hazem Gidamy and SSWA Inc. O/A SS Wilson Associates

PANEL MEMBERS: Reena Goyal, J.D. CHAIR Corrine Dimnik, P.Eng. MEMBER Margaret Judge, P.Eng. MEMBER

Hearing Dates: 2024-07-11 Decision Date: 2024-08-16 Release of Written Reasons: 2024-08-16

Counsel: Leah Price and Justin Gattesco, Counsel for the Association (PEO) Nisar Patel, Counsel for Mohamed H. Gidamy, P.Eng. (Licence Holder) and SSWA Inc. O/A SS Wilson Associates Jordan Stone, Independent Legal Counsel to the Tribunal

DECISION AND REASONS

1The Panel of the Discipline Committee met to hear this matter on July 11, 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. Mohamed Hazem Gidamy (“Mr. Gidamy” or the “Member”) and Omar Rahal, P.Eng., as a representative of SSWA Inc. o/a SS Wilson Associates (“SSWA” or the “Holder”) (collectively, the “Respondents”) were present and represented by the same counsel.

The Allegations

2The Panel was provided with the Notice of Hearing dated May 17, 2024 and a copy of the Complaints Committee decision dated December 6, 2023, which contained the Statement of Allegations that was referred to the Discipline Committee. The Respondents were alleged to have engaged in acts of professional misconduct as defined in sections 72(1) and 72(2)(a), (d), (i), and (j) of Ontario Regulation 941 under the Professional Engineers Act.

Agreed Statement of Facts

3Counsel for the Association advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, as follows:

1. Gidamy graduated from Alexandria University, Egypt, in 1968 with a Bachelor of Science Degree in Mechanical Engineering and from McMaster University in 1972 with a Masters of Engineering in Mechanical Engineering. He was licensed by PEO in January, 1974, and was designated a Consulting Engineer in 2002 or earlier. He remained continuously licensed until March 20, 2024, at which time he resigned his membership. Gidamy’s professional focus was acoustical engineering.

2. At all material times SSWA was the holder of a Certificate of Authorization (“C of A”), and Gidamy was the individual identified who took professional responsibility for the engineering services provided under the C of A.

3. In or around March 2018, DEL Property Management (“DEL”) contacted SSWA to obtain a quote and a proposal for a noise assessment study. The Complainant, Volodymyr Orlenko (“Orlenko”), was the owner of unit 1108 in the condominium. DEL had received complaints from Orlenko’s neighbour, the owner of unit 1206, about piano noise coming from Orlenko’s condo unit.

4. SSWA provided several proposals to DEL. Ultimately, it was decided that the testers would use “special keyboard procedures rather than [the piano player] playing specific songs or music” because their “noise testing requires more or less steady piano signals”.

5. On October 15, 2018, a representative of SSWA spoke on the phone with the neighbour who had made the noise complaints to DEL. The following day, the neighbour emailed SSWA to thank them for speaking with her. She also provided SSWA with additional information, including links to YouTube videos of Orlenko’s children playing piano.

6. On October 17, 2018, Gidamy advised DEL that it should launch an official complaint with the City of Toronto about the piano noise to see if DEL could enlist the City’s support. He provided DEL with the direct email of the City official he believed was the “head of that group” dealing with these types of complaints.

7. On October 31, 2018, Orlenko emailed SSWA with questions about the testing procedures and standards they would use. SSWA refused to respond directly to Orlenko and instead emailed DEL on November 1, 2018 with detailed answers to Orlenko’s questions. DEL sent these answers to Orlenko on November 2, 2018.

8. On November 5, 2018, Orlenko emailed SSWA with follow-up questions about their testing procedures and standards. Gidamy emailed DEL advising that SSWA would not address Orlenko’s questions unless DEL requested them to, and stating that it appeared “that the piano owner is trying to crack the system and create more confusion, distraction, and more cost to the condominium corporation.”

9. Ultimately, it was agreed between SSWA and DEL that SSWA would conduct sound testing between unit 1108 and 1206, and also between unit 1108 and two other neighbouring units (1107 and 1109). It appears Orlenko was not advised that testing would also take place in units 1107 and 1109. DEL instructed SSWA to copy Orlenko and DEL “at the same time” with all communications in relation to the sound test in units 1108 and 1206. DEL also advised SSWA by email dated March 14, 2019 that the “[i]nvoice for the sound test in units 1206 & 1108” was to be split between DEL and Orlenko, while the invoice for 1107 and 1109 was to be charged to DEL alone. SSWA confirmed these instructions by email dated March 15, 2019.

10. On March 22, 2029, Orlenko emailed SSWA, noting that he was retaining SSWA “jointly” with DEL, and asked a number of questions about testing procedures and cost. SSWA did not respond to Orlenko. On March 25, 2019, Orlenko followed up requesting a response to his previous email.

11. By an email dated March 26, 2019, Gidamy told Orlenko that all correspondence should be going through DEL. In response to Orlenko’s questions, he asserted that “this matter will be left to us completely without any interference of any kind from all parties” and requesting that Orlenko “govern [him]self” during the test.

12. On March 26, 2019, three employees on behalf of SSWA attended the condominium to conduct the noise study. Gidamy did not attend as he was on vacation out of the country, but he spoke to his employees on the phone during the testing.

13. Orlenko video-recorded the testing, with the permission of the SSWA employees. The video recordings show SSWA employees being directed by Gidamy to play the piano in Orlenko’s unit as loudly as possible. SSWA employees also commented that it was difficult to hear the piano in unit 1206.

14. On or around May 3, 2019, SSWA delivered the report of the study covering units 1108 and 1206 (the “First Report”). It was signed and sealed by Gidamy. Orlenko paid for 50% of the First Report. On or around May 9, 2019, SSWA delivered to DEL a further report signed and sealed by Gidamy, covering the other two units (the “Second Report”). The Second Report was not provided to Orlenko until March 12, 2021, at which time it was disclosed by DEL as part of the materials in a Superior Court action.

15. The First Report concluded that the piano noise was “clearly audible” in the receiver suite (1206) and in excess of both qualitative and quantitative sound level criteria. The First Report asserted that the impression of the SSWA employees at the testing “also confirmed the ‘clear audibility’ of the piano signals… under most operational scenarios.” The First Report made no mention of the comments of the SSWA employees to the contrary, referred to in paragraph 13 above.

16. Orlenko obtained three separate peer reviews of the First Report. They were all critical of the First Report. SSWA was made aware of these peer reviews and of inconsistencies between the video recording and statements made in the First Report. SSWA dismissed the criticism out of hand.

17. Orlenko filed a complaint with PEO on May 28, 2021. Attached as Schedule “A” is a copy of the complaint, without attachments.

18. On or around March 2, 2021, Gidamy emailed counsel for the condominium offering to complete additional testing for the nominal fee of $2 “with a single intent; being to help our clients case, and the helpless occupants enduring the unacceptable piano noise for the past several years.” Gidamy advised that SSWA would “consider this initiative to be a last ditch effort to implement justice to a victim of inconsiderate noise generators in such a situation.”

19. As part of its investigation of Orlenko’s complaint, PEO retained SLR Consulting (Canada) Ltd. (“SLR”) as an independent expert to review the work done by Gidamy and SSWA. SLR prepared a report dated June 30, 2023 (the “Expert Report”), signed and sealed by Darron Chin-Quee, M.B.A., P.Eng., LEED AP. Attached as Schedule “B” is a copy of the Expert Report, exclusive of appendices.

20. The Expert Report identified that the First Report and the Second Report were deficient for several reasons, including that:

a. Gidamy and SSWA misinterpreted the governing Code, the City of Toronto Noise By-Law (Toronto Municipal Code, Chapter 591, Noise) applying a “clearly audible” standard rather than the “likely to disturb” standard;

b. Gidamy and SSWA applied the “clearly audible” standard inconsistently and incorrectly;

c. Gidamy and SSWA incorrectly adapted and applied quantitative standards, including through use of a “tonal penalty”;

d. Gidamy and SSWA evaluated noise under staged absolute worst-case conditions instead of under normal reasonable worst-case conditions;

e. Gidamy and SSWA did not provide sufficient information to other reviewers so that the results and conclusions could be assessed reasonably; and

f. There are inconsistencies in the reporting of background values.

21. SLR concluded that the identified errors, omissions, and deficiencies by Gidamy and SSWA failed to meet the standards expected of a reasonable and prudent practitioner in the circumstances. For the purposes of these proceedings, the Respondents accept that the First Report and the Second Report were deficient, as outlined in paragraph 20 hereof, and that they failed to meet the standards expected of a reasonable and prudent practitioner in the circumstances.

22. Gidamy and SSWA agree that their actions were not in compliance with the fairness, loyalty, professional integrity, and competence required by the Professional Engineers Act, including by:

a. Engaging directly with Orlenko’s neighbour about her noise complaints and using her information to inform testing procedures and results, while refusing to engage directly with Orlenko;

b. Not disclosing to Orlenko that they provided the Second Report to DEL;

c. Accusing Orlenko, in emails to the condominium, of “trying to crack the system” when Orlenko made reasonable requests for information from SSWA;

d. Describing Orlenko, in Gidamy’s response to the complaint, as a “manipulative liar” with a “despicable attitude” who was “trying to demoralize the undersigned and divert my attention from the upcoming court case”; and

e. Admitting to the PEO investigator that there were errors in the SSWA Report but not amending the report or issuing an addendum.

23. Gidamy and SSWA agree that they failed to promptly, voluntarily, and completely disclose an interest that may be, or may be construed as, prejudicial to their professional judgment by preferring or appearing to prefer the condominium’s interests over Orlenko’s interests, despite having been retained and/or paid by both Orlenko and the condominium, including by:

a. Not disclosing to Orlenko or in its reports that Gidamy and SSWA were aware of the condominium’s intention to use the reports in court proceedings against Orlenko;

b. Refusing to engage directly with Orlenko; and

c. Acting or offering to act against Orlenko’s interests in performing the testing, preparing the reports, and/or offering to conduct additional testing to help the condominium’s legal case against Orlenko.

24. Gidamy and SSWA admit that they were negligent; that they failed to make reasonable provision for complying with applicable standards and codes; that they failed to make prompt, voluntary and complete disclosure of an interest, direct or indirect, that might in any way be, or be construed as, prejudicial to the professional judgment of the practitioner; and that they engaged in conduct relevant to the practice of professional engineering that would reasonably be regarded as unprofessional.

25. By reason of the foregoing, the parties agree that Gidamy and SSWA are guilty of professional misconduct under section 72(2) of R.R.O. 1990, Reg. 941 (“Regulation 941”), as follows:

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

b. They failed 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 amounting to professional misconduct as defined by section 72(2)(d) of Regulation 941;

c. They failed to make prompt, voluntary and complete disclosure of an interest, direct or indirect, that might in any way be, or be construed as, prejudicial to the professional judgment of the practitioner in rendering service to the public, to an employer or to a client, and in particular, without limiting the generality of the foregoing, carrying out any of the following acts without making such a prior disclosure:

5. Expressing opinions or making statements concerning matters within the practice of professional engineering of public interest where the opinions or statements are inspired or paid for by other interests.

amounting to professional misconduct as defined by section 72(2)(i) of Regulation 941; and

d. They 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 Member and/or Holder

4The Respondents admitted the allegations of professional misconduct set out in paragraph 25 of the Agreed Statement of Facts. A plea inquiry was conducted separately for Mr. Gidamy and the representative of the Holder. The Panel was satisfied that admissions made by Mr. Gidamy and the Holder were voluntary, informed, and unequivocal.

Decision on Misconduct

5The Panel considered the Agreed Statement of Facts and finds that the facts, as agreed, support a finding of professional misconduct. Of particular concern to the Panel is Mr. Gidamy’s failure to conduct himself in a manner that is honourable, professional, and becoming of a professional engineer, and the failure to abide by the laws, rules, guidelines, and requirements expected of a professional engineer.

6The Panel accordingly finds that the Respondents committed acts of professional misconduct as defined by subsections 72(1), 72(2)(a), (d), (i), and (j) of Regulation 941 under the Professional Engineers Act as set out in paragraph 25 of the Agreed Statement of Facts.

7As per section 22.1(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.” Although Mr. Gidamy is no longer a member of the PEO, he was a member when the conduct at issue occurred, and is therefore subject to the jurisdiction of the Discipline Committee.

Penalty

8Counsel for the Association advised the Panel that a Joint Submission as to Penalty and Costs (“JSP”) had been agreed upon, which provided, in part, as follows:

3. The PEO, Gidamy and SSWA make the following joint submissions on penalty and costs:

a. Pursuant to s. 28(4)(f) of the Professional Engineers Act, Gidamy and SSWA shall both be orally reprimanded, and the fact of the reprimand shall be recorded against SSWA’s listing on the Register for an unlimited period of time;

b. Pursuant to s. 28(4)(b) of the Professional Engineers Act, SSWA’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 decision on penalty;

c. Pursuant to s. 28(4)(e) and (k) of the Professional Engineers Act, in the event that Gidamy’s licence is reinstated, he shall be required to practise under the supervision of a professional engineer acceptable to the Registrar, and further, he shall not be permitted to act as responsible engineer for SSWA or any other certificate of authorization holder;

d. Pursuant to s. 28(4)(i) and 28(5) of the Professional Engineers Act, the findings and order of the Discipline Committee shall be published, with reference to names;

e. Pursuant to s. 28(4)(h) of the Professional Engineers Act, Gidamy or SSWA shall be required to pay a fine in the amount of four thousand dollars ($4,000) within thirty (30) days of pronouncement of the decision of the Discipline Committee, which requirement shall be a joint and several obligation on Gidamy and SSWA; and

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

9Counsel for the Association asked the panel to accept the JSP. Counsel advised that the test for rejecting a joint submission was stringent and that the JSP in this case was not so unhinged that its acceptance would bring the administration of justice into disrepute. After reviewing the aggravating and mitigating factors, counsel explained why the different components of the penalty achieved the principles of sanctioning, including deterrence, public protection, and maintenance of confidence in the profession. Counsel also took the Panel to several decisions, which were provided to show the penalties imposed in other cases (PEO v Ikpong; PEO v Karugu; PEO v Krupka).

10Counsel for the Respondents also asked that the JSP be accepted. Counsel submitted that Mr. Gidamy had had a lengthy career with no issues and was involved in the profession, including PEO committees. Likewise, SSWA had not had any prior issues since receiving a certificate of authorization over 25 years ago.

Penalty Decision

11After being presented by counsel for the parties with submissions regarding the aggravating and mitigating factors, the Panel is satisfied that the proposed penalty is not so unhinged that its acceptance would bring the administration of justice into disrepute.

12In the circumstances of this case, the Panel is of the view that a reprimand, the fact of which is to be recorded permanently on the Register; a suspension of the Holder’s Certificate of Authorization for two months; a requirement prohibiting Mr. Gidamy from practising professional engineering except under the direct supervision of another professional engineer who shall take professional responsibility for the work; a fine; and publication of the Panel’s findings and order with reference to the names of Mr. Gidamy and the Holder, is a reasonable outcome in this matter. A lesser penalty would fail to appropriately serve the aims of specific and general deterrence, protecting the public, and maintaining the public’s confidence in the regulation of the profession.

13The Panel acknowledges the Respondents’ cooperation with the Association through the Agreed Statement of Facts and JSP. These considerations, combined with his lack of a prior disciplinary history, are mitigating factors in determining an appropriate penalty. It is the Panel’s view, however, that these mitigating factors do not completely detract from the aggravating factors, given the seriousness of the misconduct in question.

14The Panel has been made aware of the significant and troubling shortcomings in Mr. Gidamy’s practice in this case. The Panel reiterates that Mr. Gidamy has been found guilty of negligence. Public trust is at the core of what it means to be a professional. Members of the public must have confidence that professionals are held to high standards of conduct and that serious breaches of those standards are dealt with appropriately. Failing to take a proportionate response to protect the public in the face of professional misconduct undermines that trust and harms both the reputation of the profession and the legitimacy of professional regulation.

15More specifically, the Panel is of the view that a reprimand, the fact of which is to be recorded permanently on the Register, together with the requirements and licence restrictions specified above, will maintain public confidence in the regulation of the profession and adequately provide for protection of the public and general deterrence to the profession at large.

16Additionally, the Panel notes that the fact of a reprimand to be permanently recorded on the Register and publication of the Panel’s findings and reasons with names serves to promote both specific and general deterrence and reinforce the public confidence in the regulation of the profession. Publication demonstrates, both to the profession and to the public, the seriousness with which the Discipline Committee regards lapses of professional standards, and the penalties for engaging in such misconduct.

17The Panel also considered the fact that Mr. Gidamy has retired and is no longer a member of the profession, whereas the Holder will continue to provide engineering services under a Certificate of Authorization. The terms of the order adequately account for the licensing status of Mr. Gidamy and the Holder to ensure protection of the public going forward.

18Accordingly, the Panel accepts the JSP and orders as follows:

1. Pursuant to s. 28(4)(f) of the Professional Engineers Act, Mr. Gidamy and SSWA shall be both be orally reprimanded, and the fact of the reprimand shall be recorded against SSWA’s listing on the Register for an unlimited period of time;

2. Pursuant to s. 28(4)(b) of the Professional Engineers Act, SSWA’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 decision on penalty (July 11, 2024);

3. Pursuant to s. 28(4)(e) and (k) of the Professional Engineers Act, in the event that Mr. Gidamy’s licence is reinstated, he shall be required to practise under the supervision of a professional engineer acceptable to the Registrar, and further, he shall not be permitted to act as responsible engineer for SSWA or any other certificate of authorization holder;

4. Pursuant to subsections 28(4)(i) and 28(5) of the Professional Engineers Act, the findings and order of the Discipline Committee shall be published, with reference to names; and

5. Pursuant to subsection 28(4)(h) of the Professional Engineers Act, Mr. Gidamy or SSWA shall be required to pay a fine in the amount of four thousand dollars ($4,000) within thirty (30) days of pronouncement of the decision of the Discipline Committee, which requirement shall be a joint and several obligation on Gidamy and SSWA.

19The order took effect on July 11, 2024 when it was pronounced orally during the hearing.

20The Panel issued an oral reprimand to the Respondents at the end of the hearing.