Association of Professional Engineers of Ontario (PEO) v. Feng et al, 2025 ONAPE 2

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

Date: 2025-03-10

Citation: Association of Professional Engineers of Ontario (PEO) v. Feng et al, 2025 ONAPE 2

Indexed as: The Association of Professional Engineers of Ontario (PEO) v Feng et al, 2025 ONAPE 2

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 Jiande (Frank) Feng, P.Eng., a member of the Association of Professional Engineers of Ontario, and Frontop Engineering Limited, a holder of a Certificate of Authorization.

BETWEEN:

The Association of Professional Engineers of Ontario (PEO)

-and-

Jiande (Frank) Feng, P.ENG., and Frontop Engineering Limited

PANEL MEMBERS: Albert Sweetnam, P.Eng. CHAIR Evelyn Spence, LL.B. MEMBER Serge Robert, P.Eng. MEMBER

Hearing Dates: 2025-02-26

Decision Date: 2025-03-10

Release of Written Reasons: 2025-03-10

Counsel: Justin Gattesco and Hanna Plummer, Counsel for the Association (PEO) Jakub Schnitzler and Sarah Wise, Counsel for Jiande (Frank) Feng, P.Eng. (Licence Holder) and Frontop Engineering Limited Jordan Stone, Independent Legal Counsel to the Tribunal

AMENDED DECISION AND REASONS

Introduction

1. This matter involving Jiande (Frank) Feng, P.Eng. (“Mr. Feng” or the “Member”), and Frontop Engineering Limited (“FEL”) was heard by a panel of the Discipline Committee of the Association of Professional Engineers of Ontario (the “Association”) on February 26, 2025. It was heard electronically by way of videoconference pursuant to the Rules of Procedure of the Discipline Committee of the Association of Professional Engineers of Ontario as amended, the Professional Engineers Act, and the Statutory Powers Procedure Act.

The Agreed Statements of Facts

2. At the outset of the hearing, counsel for the Association entered into evidence: (a) the Notice of Hearing, dated January 20, 2025; (b) the decision of the Complaints Committee, dated October 9, 2024, which attached the Statement of Allegations, dated October 7, 2024; and (c) the Registrar’s Certificate, dated February 21, 2025.

3. Counsel for the Association also advised the panel that the parties had reached an agreement on the facts and introduced an Agreed Statement of Facts (“ASF”) signed by Mr. Feng on February 14, 2025, and by counsel for the Association on February 21, 2025. The relevant portions of the ASF are reproduced below:

This Agreed Statement of Facts is made between the Association of Professional Engineers (“PEO”), and the Respondents, Jiande (Frank) Feng, P.Eng. (“Feng”) and Frontop Engineering Limited (“FEL”) (collectively, the “parties”).

1. At all material times, Feng was a professional engineer licensed pursuant to the Act. Feng was first licensed in 2002 and has practised continuously as a Professional Engineer since that time.

2. At all material times, FEL held a Certificate of Authorization (“C of A”) naming Feng as the individual accepting professional responsibility for engineering services provided under the C of A.

3. FEL was established in 2005 and is an architectural and multi-engineering consulting company based in Markham, Ontario. FEL offers noise and vibration monitoring services for construction sites.

4. A key part of the vibration monitoring services provided by FEL involves the installation of vibration monitoring station units (“VMS units”). The VMS units measure the vibrations experienced at the subject site, in order to ascertain whether they are within acceptable limits. The VMS units used by FEL were manufactured by GeoSonics, an American seismic instrumentation company. GeoSonics offers routine calibration services for its VMS units. Following calibration, GeoSonics issues a calibration certificate which attests to the reliability and accuracy of a VMS unit’s measurements.

5. In or around August 10, 2021, Duron Ontario Limited (“DOL”) awarded FEL a contract to provide vibration monitoring services for a construction project at the TTC Rosedale Station (“Rosedale”).

6. On or around March 30, 2022, FEL installed two vibration monitoring sensor units with serial numbers 3831 and 3888 (the “Rosedale VMS units”) at the Rosedale site.

7. On or around April 21, 2022, Feng signed and sealed a vibration monitoring report for Rosedale (the “Rosedale Report”). The Rosedale Report enclosed two calibration certificates marked with serial numbers 3942 and 4887 (the “initial Rosedale calibration certificates”) purportedly issued by GeoSonics for the two Rosedale VMS units. Attached hereto as Schedule “A” is a copy of the initial Rosedale calibration certificates.

8. The initial Rosedale calibration certificates were incorrect, since they contained identical calibration dates, certificate numbers and readings, and their serial numbers did not match the serial numbers of the Rosedale VMS units.

9. On or around May 9, 2022, FEL submitted two revised calibration certificates to DOL (the “revised Rosedale calibration certificates”), marked with serial numbers 3942/4887 and 3882/4677. These calibration certificates were also incorrect, because their serial numbers did not match those of the Rosedale VMS Units installed on site. Attached hereto as Schedule “B” is a copy of the revised Rosedale calibration certificates.

10. On or around June 16 and August 8, 2022, FEL signed and sealed a revised vibration monitoring report for Rosedale (the “Revised Rosedale Report”), which enclosed new calibration certificates that correctly matched the serial numbers of the Rosedale VMS units (3831 and 3888). This final set of certificates was accurate. Attached hereto as Schedule “C” is a copy of the Revised Rosedale Report.

11. The initial and revised Rosedale calibration certificates were incorrect because they either used duplicate certificate data or mismatched serial numbers, or both.

12. In or around October 2021, Dufferin Construction Company (“DCC”) awarded FEL a contract to provide vibration monitoring services for a construction project at the CN Milton Logistics Hub (“Milton”).

13. On or around February 24, 2022, FEL installed four vibration monitoring station units with serial numbers 3810, 3830, 3832, and 3889 (the “Milton VMS units”) at the Milton site.

14. On around March 21, 2022, Feng signed and sealed a vibration monitoring report for Milton (the “Milton Report”), which attached four calibration certificates marked with serial numbers 3837, 3941, 3944 and 3957 (the “initial Milton calibration certificates”), purportedly for the four Milton VMS units. The initial Milton calibration certificates were incorrect, because the serial numbers did not match the serial numbers of the Milton VMS units and they contained identical calibration dates, numbers and readings. Attached hereto as Schedule “D” is a copy of the Milton Report.

15. On or around May 11, 2022, FEL submitted four revised calibration certificates to DCC (the “revised Milton calibration certificates”). The revised Milton calibration certificates were accurate. Attached hereto as Schedule “E” are copies of the revised Milton calibration certificates.

16. The initial Milton calibration certificates were altered versions of the certificate originally issued for Milton VMS unit 3889. Similarly, the revised Rosedale calibration certificates for VMS units 3942 and 4887 were altered versions of the certificate originally issued for Milton VMS unit 3889. These alterations were evident because the certificate numbers and readings were identical, the handwriting on the pages was identical, and the font style, location and orientation matched across these certificates.

17. On June 7, 2022, PEO received a complaint from Alan Oldfield, P.Eng., the Associate Vice President of AECOM. According to the complainant, AECOM was hired in the role of “Owner’s Engineers” for the two projects described above. AECOM was concerned about the legitimacy of the calibration certificates FEL had submitted as part of its reports. These concerns cast doubt on the validity of the data collected by FEL. The data was required to identify any potential for building or structural damage and to provide a record of compliance of vibration limits under applicable bylaws. A copy of the complaint (without attachments) is attached as Schedule “F”.

18. PEO communicated the complaint in this matter to Feng and FEL on June 14, 2022.

19. On August 17, 2022, Feng and FEL responded to PEO through counsel. In their response, Feng and FEL acknowledged and apologized for mistakenly sending wrong information and inapplicable and incorrect calibration certificates to DCC. The response noted that FEL had set up a management team to organize and correct the documentation of its instruments and had designated a qualified team member to be responsible for all instrument calibration. FEL also reviewed calibration sheets from 20 other projects to ensure there were no similar problems.

20. On March 21, 2023, Feng and FEL provided further submissions to PEO through counsel. In their response, Feng and FEL similarly acknowledged mistakenly sending wrong information and inapplicable and incorrect calibration certificates to DOL. The response referenced corrective steps taken by FEL which were largely consistent with the initial response of August 21, 2022.

21. Feng and FEL continued to offer their cooperation throughout the duration of PEO’s investigation. On May 28, 2024, Feng and FEL provided further submissions to PEO through counsel, in which they acknowledged ultimate responsibility for the submission of the incorrect calibration certificates.

22. Feng has also engaged in a number of education programs and conferences to improve his skills, including:

a. “Basic Machinery Vibrations Online (SI Version)”, presented by the Vibration Institute;

b. “Professional Ethics for Engineers”, presented by the Association of Consulting Engineering Companies Ontario;

c. “ABCs of Engineering Ethics – The Project Management Triangle”, presented by the Association of Consulting Engineering Companies Ontario;

d. The 2024 Geodetic Picnic; and

e. The 2024 Tunneling Association of Canada Conference;

23. Feng also attended the Annual General Meeting of the Canadian Council of Independent Laboratories on April 29, 2024. He also enrolled in relevant coursework for the 2025 calendar year, including “Critical Communication Skills – Senior Document Review Workshop”, presented by the Ontario Society of Professional Engineers. Feng also registered for membership in the Vibration Institute for 2025.

24. In late 2024, Feng and FEL developed a written Calibration Documentation Management Plan (the “Plan”). The Plan was provided to PEO in or about December, 2024. Following review and comments by PEO, counsel for the Respondents provided a revised Calibration Documentation Management Plan (the “Revised Plan”), which is acceptable to PEO. Attached as Schedule “G” is a copy of the Revised Plan. Feng and FEL confirm that the Revised Plan has been implemented, or will be fully implemented in accordance with its terms by no later than February 20, 2025.

25. By reason of the aforesaid, the parties agree that Feng and FEL are guilty of professional misconduct as follows:

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

b. 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 the Member

4. Mr. Feng, on behalf of himself and FEL, admitted the allegations of professional misconduct set out in paragraph 15 of the Statement of Allegations and reproduced in paragraph 25 of the ASF. The panel conducted a plea inquiry and was satisfied that Mr. Feng’s admissions on behalf of himself and FEL were voluntary, informed and unequivocal.

Decision and Reasons for Findings

5. The panel carefully considered the ASF, together with Mr. Feng’s admissions, and concludes that the facts and evidence support findings of professional misconduct, as alleged and admitted to. Specifically, the panel finds that Mr. Feng and FEL committed acts of professional misconduct as defined by sections 72(1) and 72(2)(a) and (j) of Regulation 941 under the Professional Engineers Act (the “Act”). With respect to section 72(2)(j), the panel finds that the conduct of Mr. Feng and FEL would reasonably be regarded as unprofessional.

Joint Submission on Penalty and Costs

6. Counsel for the Association advised the panel that a Joint Submission as to Penalty (“JSP”) had been agreed upon. The relevant portions of the JSP are as follows:

a) Pursuant to s. 28(4)(f) of the Act, Feng and FEL shall both be reprimanded, and the fact of the reprimand shall be recorded on the Register for an unlimited period of time;

b) Pursuant to section 28(4)(b) of the Act, the (sic) Feng’s licence shall be suspended for a period of one (1) month, commencing ninety (90) days after the day the penalty decision is pronounced by the Discipline Committee;

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

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

Penalty

7. Counsel for the Association and for the Defendants (together, “Counsel”) submitted that the panel must apply the test for assessing joint submissions as outlined in the Bradley v Ontario College of Teachers, 2021 ONSC 2303 decision. That decision reinforced that a panel must accept parties’ joint submissions as to penalty unless doing so would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

8. The panel was directed to consider various prior decisions of the Discipline Committee, which Counsel suggested were reasonable comparator cases. These included the Gomes (2016), Schor (2018), Tessler and Sonterlan (2019), Vujnovic (2019), Wang (2022) and Clark (2023) decisions. Counsel submitted these cases to demonstrate that the penalty proposed in the JSP falls within a reasonable range of outcomes, as required by the Bradley decision.

9. Counsel highlighted to the panel the aggravating and mitigating factors in this case. The primary aggravating factor was that the misconduct at issue undermined the validity of vibration testing done at two separate sites, which resulted in non-compliance with applicable bylaws and construction safety standards.

10. On the other hand, Counsel noted that Mr. Feng and, as applicable, FEL, undertook several mitigating steps after the complaint against them was initiated. This included developing an action plan to mitigate against any further risks of recurrence; voluntarily enrolling in a number of educational programs to improve Mr. Feng’s skills and competencies; and developing and working collaboratively with the Association to revise a management plan for calibration documentation, which was implemented prior to the hearing date.

11. Mr. Feng also co-operated with the Association throughout the investigation and ensuing proceedings, accepted responsibility for his actions, and showed genuine remorse for his wrongdoings. Furthermore, by agreeing to the facts and the proposed penalty, Mr. Feng and FEL avoided unnecessary expense for the Association in pursuing this regulatory matter.

12. Finally, it was noted that Mr. Feng has been licensed as a professional engineer in Ontario since 2002, with no prior disciplinary findings against him, and with no conditions, terms, conditions or restrictions on his licence or on FEL’s Certificate of Authorization.

Penalty Decision

13. Upon considering the parties’ submissions, the panel accepts the JSP, concluding that the proposed penalties are reasonable and consistent with what has been ordered in prior analogous cases. The penalty also satisfies the principles of general and specific deterrence, rehabilitation, and maintenance of the public’s confidence in the profession and appropriately weighs the aggravating and mitigating factors of this case. Accordingly, the panel orders:

a. Pursuant to s. 28(4)(f) of the Act, Mr. Feng and FEL shall both be reprimanded, and the fact of the reprimand shall be recorded on the Register for an unlimited period of time;

b. Pursuant to section 28(4)(b) of the Act, Mr. Feng’s licence shall be suspended for a period of one (1) month, commencing ninety (90) days after the day the penalty decision is pronounced by the Discipline Committee;

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

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