DISCIPLINE COMMITTEE OF THE ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO (PEO)
Indexed as: The Association of Professional Engineers of Ontario (PEO) v Malyshev, 2024 ONAPE 1
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 Andrey Malyshev, formerly a member of the Association of Professional Engineers of Ontario.
BETWEEN:
The Association of Professional Engineers of Ontario (PEO)
-and-
Andrey Malyshev
PANEL MEMBERS: Robert Willson, P.Eng. CHAIR
Reena Goyal, J.D. MEMBER
Geoffrey Pond, P.Eng. MEMBER
Hearing Dates: 2025-01-30
Decision Date: 2025-03-21
Release of Written: 2025-03-21
Reasons:
NAME OF LAWYER Leah Price and Justin Gattesco, Counsel for the Association (PEO)
NAME OF LAWYER Andrey Malyshev, Unrepresented and not present
NAME OF LAWYER Jordan Stone, Independent Legal Counsel to the Tribunal
DECISION AND REASONS
Overview
A hearing was convened electronically via Zoom videoconference on January 30, 2025 to hear and determine allegations of professional misconduct against Andrey Malyshev (“Mr. Malyshev”). Mr. Malyshev did not attend and did not have legal representation and the hearing proceeded in his absence.
After considering the evidence and submissions of Professional Engineers Ontario (“PEO” or the “Association”), the Panel does not find Mr. Malyshev guilty of professional misconduct under subsection 28(2)(a) of the Act nor under subsection 72(2)(j) of Regulation 941 to the Act.
Allegations
The allegations against Mr. Malyshev are stated in the Statement of Allegations dated September 17, 2024. The relevant parts of the Statement of Allegations are as follows:
Malyshev was licensed pursuant to the Act from October 2010 until March 26, 2024, when his license was cancelled due to non-payment of fees.
Future Bakery is a family-run bakery located in Etobicoke, Ontario that is popular within the Ukrainian-Canadian community. In early 2022, Future Bakery placed a large “Stand with Ukraine” banner on its store front.
On or around March 9, 2022, Toronto Police Services (“TPS”) arrested Malyshev in relation to several acts of vandalism committed against Future Bakery between February and March 2022. TPS charged Malyshev with the following seven offences under the Criminal Code of Canada (the “Criminal Code”):
a. Counts 1 and 2: “Possess weapon for committing offence” contrary to section 88(1) of the Criminal Code for his alleged actions in carrying a knife attached to a pole around Future Bakery on March 6 and 9, 2022.
b. Counts 3-6: “Mischief to property under $5000” contrary to section 430(4) of the Criminal Code for his alleged actions in tearing the banner using his hands on February 26, 2022, in splashing black paint against the banner on February 28, 2022, in throwing a jar against Future Bakery’s wall on March 4, 2022, and in cutting Future Bakery’s banner into pieces using a blade on March 6, 2022.
c. Count 7: “Mischief to property over $5000” contrary to section 430(3) of the Criminal Code for his alleged actions in spraying anti-Ukrainian slogans on Future Bakery’s banner and wall on February 7, 2022.
Malyshev’s arrest received widespread media attention and the attacks on Future Bakery were condemned by members of the public, particularly in light of the recently commenced war against Ukraine.
On March 10, 2022, a complaint was filed with PEO against Malyshev in relation to the conduct for which he was arrested. PEO assigned an investigator to look into the complaint. On or about March 16, 2022, Malyshev was informed of the complaint against him via email and asked to provide, within three weeks, a response and any supporting materials. On or about the same day, Malyshev replied via email and acknowledged receipt of the notice of the complaint against him.
On or about October 12, 2022, PEO’s investigator emailed Malyshev, noting that he had not yet responded to the complaint, and again requested his response and any material that he wished to provide. By email dated October 12, 2022, Malyshev replied: “… At this time, I am unable to comment on any rumours.”
Malyshev was again contacted by PEO’s investigator on March 6, 2023. By email dated March 7, 2023, he responded in part as follows:
“ I already said I do not comment on rumors.
I do not know this [name of complainant], whoever this might be so you can return that complaint right back to them.
Please do not bother me with this again.”
- On July 26, 2023, the criminal proceedings against Malyshev concluded as follows:
a. Malyshev pleaded guilty to one count of mischief to property under $5000 under section 430(4) of the Criminal Code for his actions in cutting Future Bakery’s banner into pieces on March 6, 2022, using a blade attached to the end of a pole. The remaining charges were withdrawn, in accordance with a plea agreement reached between the Crown and counsel for the defense.
b. Malyshev admitted to committing all the acts of vandalism that he was alleged to have committed, except for painting anti-Ukrainian slogans on Future Bakery’s wall on February 7th. The Crown read all the admitted facts into the court’s record at the hearing.
c. In accordance with the joint recommendation on penalty made between the Crown and the defense, Malyshev was sentenced to a conditional discharge with 12 months’ probation and was ordered to pay $1073.50 to Future Bakery as restitution and $100 to the court as the victim surcharge fine.
In her submissions at the hearing, counsel for the defense stated, among other things, that Malyshev is a “university educated engineer and continues to work in that field. Both of his parents were also engineers”.
In his comments, the trial judge noted as aggravating facts: that this was not a single act by Malyshev, but rather multiple acts of vandalism over a period of time; and that there was a significant impact on the owner and the employees of Future Bakery, who became afraid for their safety.
It is therefore alleged that Malyshev is guilty of professional misconduct because he has been found guilty of an offence relevant to suitability to practice, upon proof of such conviction, under section 28(2)(a) of the Act.
It is also therefore alleged that Malyshev is guilty of professional misconduct for engaging in conduct relevant to the practice of professional engineering that would reasonably be regarded as disgraceful, dishonourable, or unprofessional under section 72(2)(j) of Regulation 941 of the Act.
Because Mr. Malyshev was not present, Mr. Malyshev was deemed to deny the allegations.
Decision to proceed in the absence of Mr. Malyshev
As Mr. Malyshev was not present at the time specified for the commencement of the hearing in the Notice of Hearing, the Panel took a fifteen-minute break before the commencement of the hearing to see if he and/or a representative would arrive at the hearing. That did not occur, and the Panel commenced the hearing immediately following the fifteen-minute break.
Counsel for the Association provided an affidavit of service which detailed the efforts to serve Mr. Malyshev. The affidavit indicated that he had been served the Notice of Hearing by email and that three attempts at personal service were made to a variety of addresses linked to Mr. Malyshev. The Panel was satisfied that Mr. Malyshev was given reasonable notice of the hearing pursuant to sections 6 and 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and that the hearing could proceed in his absence.
The Evidence
Court Records
The PEO filed a variety of court documents from Mr. Malyshev’s criminal proceedings, which were admissible under the Evidence Act, R.S.O. 1990, c. E.23 and the common law doctrine of exemplification. These documents included a certified copy of the Court Information, a certified copy of Mr. Malyshev’s probation order, and a certified copy of transcripts from his guilty plea and sentencing.
These documents showed that Mr. Malyshev pled guilty to one count of mischief to property under $5,000 contrary to section 430(4) of the Criminal Code for willfully damaging the business banner of Future Bakery on March 6, 2022 (the “Offence”). He received a conditional discharge and was sentenced to 12 months of probation. The facts read into the record and agreed to by Mr. Malyshev are as follows:
MR. KENNY: Yes, Your Honour. The facts being
alleged are as follows. By way of background the
Future Bakery Limited is a Ukrainian based family
operated bakery. It is located at 106 North Queen
Street in Etobicoke. At the front of that bakery
there's a large banner that says Stand with Ukraine
as well as a Join the Resistance banner.
By way of background for Mr. Malyshev. He does not
have a criminal record and he was not known to
police before this occurred.
On Saturday, February 26, 2022, at approximately 8
PM the accused was seen on security video
approaching the Future Bakery and ripping portions
of the Stand with Ukraine banner off using his
hands. Two days later, on Monday, February 28,
2022, at approximately 3:30 AM, the accused,
observed on security video, defacing the Stand with
Ukraine by splashing some black paint on it. On
Friday, March the 4th, 2022, at approximately 11:44
PM, the accused was seen on security video again
approaching the Future Bakery. He had what
appeared to be a jar in his right hand. He
approached the bakery, he threw the jar against the
wall, but then continued walking on North Queen
Street. On Sunday, March the 6th, 2022 at 10:22
PM, the accused was then seen on security video
approaching the Future Bakery. He was holding a
hockey stick with what with what appeared to be a
blade attached to the end of it. He approached the
Stand with Ukraine banner and cut the banner in
several sections.
Three days later, on Wednesday, March 20, sorry
March 9th, 2022, three officers from the Major
Crime Unit at 22 Division were conducting
surveillance at Future Bakery due to the multiple
acts of vandalism. At approximately 12:26 AM, the
officer observed the accused walking in the area of
the bakery at Medulla Avenue and North Queen Street
in Etobicoke. He was carrying a long pole in his
right hand. This pole was found to have a knife
attached to the end of the pole. He was then seen
getting into a black Honda Civic and leaving the
area. He was the sole occupant of the vehicle. The
accused was pulled over by police in the area of
Lower Sherbourne Avenue and Lakeshore Boulevard
East in the City of Toronto and taken into custody.
He was given his rights to counsel and transported
to 11 Division pending a show cause hearing.
While detained Mr. Malyshev gave a statement to
police, and he admitted to damaging the banner on a
number of occasions. He indicated to the police,
his motivation behind these offenses was a concern
that the banner was a call for Canada to join in
the war in Ukraine, which would then lead to
increased casualties. Crown does not dispute Mr.
Malyshev’s state of motivation and is not alleging
that these offences were motivated by hate.
Those are the facts alleged by the Crown in this
case.
THE COURT: Thank you, Mr. Kennedy. Mr. Melcher, if
you can stand up, please, Sir. Are those facts
correct? Is that what happened?
ACCUSED: Yes.
- In pronouncing judgment, the judge gave reasons for accepting the parties’ joint submission, including that Mr. Malyshev’s motivation for his conduct was based on anti-war sentiments and his view that the banners he vandalized might be a call for others to get involved in the war between Russia and Ukraine. The judge specifically stated that the case was not being proceeded with as a hate crime.
Testimony of Arjang Tavassoli
The PEO also called one witness, Arjang Tavassoli, a senior investigator at PEO. Mr. Tavassoli’s testimony focused primarily on identifying and authenticating various documents obtained in the investigation into the complaint against Mr. Malyshev, including the complaint, a news release, and email correspondence with Mr. Malyshev.
On March 16, 2022, the PEO received a complaint against Mr. Malyshev relating to the criminal charges against him. On March 16, 2022, Mr. Malyshev was sent a copy of the complaint by a PEO investigator and advised that his response was required within three weeks. Mr. Malyshev responded that same day to confirm receipt, but provided no response.
On October 12, 2022, a PEO investigator emailed Mr. Malyshev to advise that the PEO had not received a written response and that the PEO required his response to the complaint. He responded that same day and stated, “Thank you for contacting me. At this time, I am unable to comment on any rumours”.
On March 6, 2023, Mr. Tavassoli emailed Mr. Malyshev to advise that the complaint file had been assigned to him and asked Mr. Malyshev to confirm the best email to contact him at. Mr. Malyshev responded as follows:
Arjang,
I already said I do not comment on rumors.
I do not know this [Complainant’s name], whoever this might be so you can return that complaint right back to them.
Please do not bother me with this again.
Thank you,
Andrey
- Mr. Tavassoli testified that nothing further was received from Mr. Malyshev after this email.
Submissions by the PEO
Counsel for the PEO submitted that the court documents filed were sufficient to prove that Mr. Malyshev had committed the Offence. Likewise, counsel stated that the Panel could rely on the transcripts containing Mr. Malyshev’s admissions to the facts underlying the Offence as well as other acts of vandalism he committed on February 26, 2022, February 28, 2022, and March 4, 2022.
PEO submitted that the Offence was relevant to Mr. Malyshev’s suitability to practise because it called into question whether he was of good character. PEO stated that to become licensed as an engineer, you need to be of good character (section 14(1)(e) of the Act) and a license can be refused, suspended or revoked if the past conduct of an applicant or holder of a license affords reasonable belief that the person will not engage in the practice of professional engineering in accordance with the law and with honesty and integrity (section 14(2)(a)). Thus, an offence that calls into question an engineer’s good character can be relevant to their suitability to practice, as a person cannot be licensed as an engineer unless they are of good character.
PEO argued that the Offence called into question Mr. Malyshev’s good character, and was therefore relevant to suitability to practise, for a number of reasons, including that: repeated acts of vandalism demonstrated a lack of judgment; his conduct was repeated and intentional; his conduct could damage the public’s perception of the engineering profession; and he relied on his status as an engineer in mitigation during his criminal sentencing, creating a nexus between his actions and his professional engineering license.
PEO also submitted that a criminal offence does not need to be related to technical engineering skills to be relevant to suitability to practise. PEO argued that an offence could be relevant to the suitability to practise even if it occurred outside the practise of engineering.
PEO directed the Panel to three prior decisions that they submitted supported that the Offence was relevant to suitability to practise, including Davies v. Ontario College of Pharmacists, PEO v. Marouf, and PEO v. Karolak.
The PEO also directed the Panel to the Code of Ethics for professional engineers in section 77 of the Regulation. The PEO argued that the Code of Ethics places importance on an engineer’s duty to the public, including fidelity to public needs, regarding the practitioner’s duty to public welfare as paramount, and endeavouring at all times to enhance the public regard for the practitioner’s profession. The PEO argued that the Code of Ethics makes clear that the profession places great importance on public perception and trust and that Mr. Malyshev’s conduct diminished the public’s trust and confidence in the profession.
PEO advanced similar arguments for why a finding of disgraceful, dishonourable, and unprofessional conduct under subsection 72(2)(j) of the Regulation should be made in relation to the Offence and other acts of vandalism Mr. Malyshev committed. In addition, PEO argued that a finding of disgraceful, dishonourable and unprofessional conduct should be made against Mr. Malyshev as a result of his conduct towards the PEO during the investigation. Namely, through his dismissive emails and failure to provide a substantive response, Mr. Malyshev showed a complete disregard for his regulator. The PEO added that this conduct was aggravated by the fact that Mr. Malyshev had admitted his conduct to police, but dismissed the allegations as rumors to the PEO and never provided a substantive response.
Decision
The Panel does not make a finding of professional misconduct under section 28(2)(a) of the Act. The Panel does not believe that the PEO has demonstrated that the Offence is sufficiently relevant to suitability to practice engineering.
Furthermore, we do not find that the Offence, Mr. Malyshev’s generally dismissive responses to the PEO investigator’s emails on each of October 12, 2022, and March 6, 2023, or his failure to provide a substantive response to the complaint constitute professional misconduct contrary to section 28(2)(b) of the Act and section 72(2)(j) of Regulation 941.
Reasons for Decision
- The Panel has jurisdiction to make findings of professional misconduct against Mr. Malyshev. Although Mr. Malyshev’s license was cancelled in March 2024, the conduct at issue occurred prior to this date while he held an active licence. As such, the Panel has jurisdiction to make findings of professional misconduct under section 22.1 of the Act.
Allegation of being found guilty of an offence relevant to suitability to practise
Section 28(2)(a) of the Act allows a finding of professional misconduct to be made against Mr. Malyshev if he “has been found guilty of an offence relevant to suitability to practise, upon proof of such conviction”.
Counsel for the Association submitted sufficient evidence to establish that Mr. Malyshev had been found guilty of the Offence. However, we do not find the Offence is sufficiently “relevant to suitability to practise” engineering as is required under subsection 28(2)(a).
Counsel for the Association submitted the Offence is relevant to the suitability to practice because during submissions at the criminal proceedings, counsel for Mr. Malyshev stated, among other things, that Mr. Malyshev is a “university educated engineer and continues to work in that field. Both of his parents were also engineers”.
However, there is no mention in the Statement of Allegations that Mr. Malyshev relied on his designation as a licensed professional engineer, but rather only that he is a “university educated engineer and continues to work in that field”. Further, these submissions were made during defence counsel’s submissions on penalty rather than in support of a finding of guilt for the Offence. In other words, the fact that Mr. Malyshev was a licensed engineer was unrelated to his committing the Offence itself.
Counsel for the Association argued that the Offence itself need not be related to the practice of engineering for the purpose of making a finding of professional misconduct under subsection 28(2)(a) of the Act. In support of this position, counsel for the Association brought to the Panel’s attention the following cases: Davies v. Ontario College of Pharmacists, Association of PEO v. Marouf, and PEO v. Karolak. The Panel finds that each of these cases are meaningfully distinguishable from the case at hand, as follows.
In Davies v. Ontario College of Pharmacists, the offence at issue pertained to a conviction for tax evasion under the federal Income Tax Act by a corporation operating a pharmacy. Regulatory proceedings were subsequently brought by the Ontario College of Pharmacists against the two individual pharmacist shareholders and directors of the corporation operating the pharmacy, wherein they were found to be guilty of professional misconduct by virtue of the tax evasion conviction. In upholding the decision, the Ontario Divisional Court found that it was not unreasonable for the relevant Discipline Panel to have concluded that the pharmacists’ participation in their closely-held corporation’s tax evasion was conduct that reflected adversely on the profession as well as on themselves and could therefore be characterized as conduct “relevant to the practice of pharmacy” that “would reasonably be regarded by the members of the professional as disgraceful, dishonourable and/or unprofessional”.
In the Panel’s view, Davies is distinguishable from the case at hand because the offence itself directly pertained to the practice of pharmacy in that the tax evasion (relating to certain tax filings with undeclared volume rebates received from drug companies) was committed for the benefit of the pharmacy business and/or the pharmacist defendants practising as pharmacists. But for being pharmacists operating a pharmacy business, the tax evasion would not have occurred.
Similarly, in the case of PEO v. Marouf, the subject offence pertained directly to the practice of engineering. There the member was convicted for criminal fraud for having created and distributed fictitious invoices for engineering supplies and services. Again, like in Davies, but for the member having been a professional engineer, the criminal offence could not have occurred. In both Davies and Marouf, the subject offenders relied on their professional designations in order to commit the criminal offences.
Finally, in PEO v. Karolak, a Panel of the Discipline Committee found the member was guilty of professional misconduct under subsection 28(2)(a) of the Act after having been convicted of uttering a death threat against the spouse of the judge that presided over the member’s family law proceedings. However, in that case, the email that the death threat was contained within was sent in response to a complaint that had been filed by the spouse with the PEO. Had the member not been a professional engineer governed by the PEO, the spouse could not have filed the complaint and the retaliatory criminal offence would not have occurred.
For these reasons, the case law presented by the counsel for the Association do not support a finding of professional misconduct under section 28(2)(a) of the Act. In the case at hand, the Offence would have occurred irrespective of Mr. Malyshev being a professional engineer. The conduct occurred outside of his professional life and was unrelated to the practice of engineering.
In the alternative, counsel for the Association submitted a finding of professional misconduct under subsection 28(2)(a) of the Act is appropriate when found to be in breach of the good character requirement under subsection 14(1)(e) of the Act. However, subsection 14(1)(e) of the Act pertains to the requirement for a Member to be “of good character” at the time a Registrar issues a licence to the Member. That is not the case here.
Counsel for the PEO also addressed section 14(2)(a) of the Act, which provides that a license can be suspended or revoked where the past conduct of the licensee provides reasonable and probable grounds for the belief that they will not engage in the practice of professional engineering in accordance with the law and with honesty and integrity. The Offence does not suggest that Mr. Malyshev would not practice professional engineering with honesty and integrity or in accordance with the law. While Mr. Malyshev broke the law, he did so in his private capacity unrelated to his engineering practice. No evidence was presented that he has ever broken a law or been dishonest in his nearly 15 years of being a licensed engineer. Furthermore, the medical evidence in the criminal proceeding indicated Mr. Malyshev is unlikely to reoffend, and that he was remorseful for his actions and cooperative with the criminal prosecutor.
Allegation of engaging in disgraceful, dishonourable, or unprofessional conduct
For a finding of professional misconduct to be made under section 72(2)(j) of the Regulation, the conduct at issue must be “relevant to the practise of professional engineering”. For the reasons previously outlined, the Panel does not believe the Offence or the acts of vandalism committed by Mr. Malyshev are sufficiently relevant to the practice of professional engineering to warrant a finding of professional misconduct.
In addition, while the Panel does not condone the Member’s generally dismissive responses to the PEO investigator on each of October 12, 2022 and March 6, 2023, it was not unreasonable for the Member not to provide any substantive response to the PEO investigator while the criminal trial was still pending (for risk that any such comments provided to the PEO investigator could be used against him in the criminal proceedings). In the circumstances of this case, the Panel is not prepared to make a finding of professional misconduct.
The Panel notes that PEO’s investigations often are conducted after all other agencies have completed their investigations and proceedings related to the complaint. For example, PEO did not proceed with its case against the engineers involved in the Downsview stage collapse until all Ministry of Labour, criminal and civil litigation had been dealt with. In the present case there was a substantial temporal overlap between the criminal and regulatory proceedings.
Publication
- Pursuant to section 28(6) of the Act, where an allegation of professional misconduct is not proven, a member is entitled to have the determination published in the official publication of the Association upon request. That section provides as follows:
Publication on request
(6) The Discipline Committee shall cause a determination by the Committee that an allegation of professional misconduct or incompetence was unfounded to be published in the official publication of the Association, upon the request of the member of the Association or the holder of the certificate of authorization, temporary licence, provisional licence or limited licence against whom the allegation was made.
- As the allegations were not proven, the Panel will not be making an order for publication. However, if Mr. Malyshev makes a request for publication, a summary of the Panel’s decision will be posted in the official publication of the Association.