Date of Commencement of Hearing: February 18, 2003
Date of Decision: December 16, 2004
IN THE MATTER OF the Engineering, Geological and Geophysical Professions Act
- and -
IN THE MATTER OF the conduct of Terry Mulvey, P.Eng. regarding client billing
practices and employee treatment.
DISCIPLINE COMMITTEE PANEL
Bill Hibbard, P.Eng., Chair
Allan Doell, P.Eng.
Diana Purdy, P.Geol.
Dwayne Chomyn, Neuman Thompson
Ray Chopiuk, P.Eng., Director Professional Practice
Investigative Committee represented by Barry Massing, Hendrickson Gower Massing Olivieri
Terry Dale Mulvey, P.Eng.
Represented by Kara L. Gillespie, Field Atkinson Perraton LLP
On May 28, 2002, the Discipline Committee received, from the Investigative Committee, the referral for a discipline hearing concerning Mr. Terry Mulvey, P.Eng. (the "Member"). The Discipline Committee responded and requested that the Investigative Committee provide particulars of the matters to be heard. On September 20, 2002, the Investigative Committee provided its charges.
After obtaining the availability of all necessary parties, hearing dates of
April 18 and 19, 2003 were set. On October 18, 2002, the Discipline Committee
issued a formal notice of hearing and served copies on the Member and on the
Investigative Committee (the "parties"). At the same time, the Discipline
Committee, according to its standard process for disclosure of documents, requested
that the parties provide, to the Panel and to each other, copies of documents
on which they intended to rely at the hearing. Both parties' submissions were
provided to the Panel on February 11, 2003.
The hearing was held before the Panel at the Association’s offices in
Edmonton on April 18 and 19, 2003 and adjourned. The hearing was reconvened on
May 22 and 23, 2003 and adjourned. Both parties' final submissions and closing
arguments were made in writing and provided to the Panel on July 28, 2003.
The Members faced charges arising from five separate complaints. The matters to be decided, as brought forward by the Investigative Committee, were:
1. That you failed or otherwise neglected to respond to a Notice to Produce
served upon you on January 21, 2002 in accordance with Section 49 of the Engineering,
Geological and Geophysical Professions Act.
As to the complaint of Norma and Ernie Milot
2. That you quoted an estimated fee of approximately $728.00 on September 30, 2000, and then subsequently issued an invoice on November 10, 2000 in the amount of $2,915.75 on the same project, which invoice:
a. Was inflated and inconsistent with the original fee estimate quoted to
b. Was unsupported by services performed.
3. That you did not adequately explain to your clients that additional charges to those quoted aforesaid may be added to your fee for services rendered.
4. That on December 20, 2000, you verbally indicated by telephone to your clients that you would discount your invoice of November 10, 2000 by the amount of $500.00, provided that payment of $1,070.00 was issued to you by your clients on or before December 22, 2000. Notwithstanding that your clients made payment as requested, you refused to discount your fee as agreed.
5. That on May 24, 2001 and thereafter, you wrongfully signed and filed a Builders’ Lien against your clients’ property in the amount of $1,930.00, which Lien was wrongful and improper and was not supported by services, nor improvements provided to the clients or the clients’ property.
6. That on May 24, 2001, you knowingly or recklessly swore a false Affidavit in support of the aforesaid Builders’ Lien.
7. That you wrongfully withheld the issuance of a compliance certificate to your clients, or for their benefit, with respect to the project pending your receipt of payment of your wrongful and inflated invoice.
8. That you interfered in the business affairs of your clients by making unwarranted and unsolicited phone calls to their bank and building inspectors.
9. That on or about March 23, 2001, you represented to your clients that you would provide a compliance certificate upon receipt of payment in the amount of $845.75. Notwithstanding your receipt of such payment in early April, 2001, you refused to issue a certificate of compliance unless the further and additional amount of $643.19 was paid by the clients to you.
10. That on July 12, 2001 and thereafter, you wrongfully signed and filed a Builders’ Lien against your clients’ property in the amount of $1,652.00, which Lien was wrongful and improper and was not supported by services, nor improvements provided to the clients or the clients’ property.
11. That on July 12, 2001 you knowingly or recklessly swore a false Affidavit in support of the aforesaid Builders’ Lien.
12. That you refused, failed, or neglected to respond to a Notice to Produce served upon you on or about September 21, 2001, pursuant to Section 47 (now Section 49) of the Engineering, Geological and Geophysical Professions Act.
13. That your conduct in the foregoing respects constitutes unprofessional
conduct and a violation of APEGGA Code of Ethics Rules of Conduct 1, 4, 9, and
As to the complaint of Ingrid Rinsma
14. That between April, 2000 and November 14, 2001, you treated an employee, Ingrid Rinsma, in an abusive, demeaning, and threatening manner.
15. That your conduct in the foregoing respects constitutes unprofessional
conduct and a violation of APEGGA Code of Ethics Rules of Conduct 1 and 10.
As to the complaint of Donna Artindale
16. That on July 12, 2001 and thereafter, you wrongfully filed Builders’ Liens
on properties municipally described as:
a. 1009 - 21 Street, Wainwright, Alberta, and
b. 1021 - 25 Street, Wainwright, Alberta,
which Liens were wrongful and improper in that:
a. no lienable services were provided on either of the subject properties,
b. if any lienable services were provided, such services were provided in 1994 and were paid for in full,
c. the amount claimed in the Lien greatly exceeded the amount invoiced to your client,
d. neither Lien related to improvements on either property.
17. That on July 21, 2001, you knowingly or recklessly swore false Affidavits in support of the aforesaid Builders’ Liens.
18. That your conduct in the foregoing respects constitutes unprofessional
conduct and a violation of APEGGA Code of Ethics Rules of Conduct 1 and 4.
As to the complaint of Darren Langford
19. That you quoted an estimated fee of $1,914.25 to your client on April
24, 2001 and then subsequently issued an invoice on October 10, 2001 in the amount
of $4,665.00, plus GST, and revised invoice on October 15, 2001 in the amount
of $3,009.05, plus GST, which invoices:
a. Were inflated and inconsistent with the original fee estimate quoted, and
b. Were not supported by services provided to your client.
20. That you did not adequately explain to your client that additional charges to those quoted aforesaid may be added to your fee for services rendered.
21. That on or about October or November, 2001, you wrongly withheld a compliance certificate respecting the client’s property, pending payment of your aforesaid invoice.
22. That on April 24, 2001, you issued a Confirmation of Assignment that was inaccurate or misleading in that it did not contain a reasonable, nor accurate, description of services, nor of anticipated fees.
23. That between October 15, 2001 and December 10, 2001, you failed to respond reasonably and professionally to the client’s inquiries regarding your invoice and made uninformed and disparaging comments to third parties regarding your client’s financial affairs.
24. That on or about November 4, 2001, you represented to APEGGA by fax that you had a meeting arranged with the client for November 28, 2001 to review your client’s concerns and your services provided, which meeting had neither been contemplated, nor arranged, with the client.
25. That your conduct in the foregoing respects constitutes unprofessional
conduct and a violation of APEGGA Code of Ethics Rules of Conduct 1, 4, and 9.
As to the complaint of Barry and Kathryn Strandlund
26. That you failed or neglected to respond to a Notice to Produce Documents served on you March 5, 2002, in compliance with Section 49 of the Engineering, Geological and Geophysical Professions Act.
27. That on March 14, 2001 and thereafter, you wrongfully signed and filed a Builders’ Lien against your clients’ property in the amount of $2,097.37, which Lien was wrongful and improper and was not supported by services, nor improvements provided to the clients or the clients’ property.
28. That on March 15, 2001, you knowingly or recklessly swore a false Affidavit in support of the aforesaid Builders’ Lien.
29. That on April 23, 2001 and thereafter, you wrongfully signed and filed a Builders’ Lien against your clients’ property in the amount of $4,173.00, which Lien was wrongful and improper and was not supported by services, nor improvements provided to the clients or the clients’ property.
30. That on April 23, 2001, you knowingly or recklessly swore a false Affidavit in support of the aforesaid Builders’ Lien.
31. That in the course of providing services to your clients, you:
a. Invoiced for unwarranted additional and unsubstantiated extra charges contrary to the Confirmation of Assignment signed by your clients;
b. Purported to revoke your certificate of compliance and professional responsibilities;
c. Initiated a frivolous law suit for inflated and unfounded damages;
d. Purported to delay and frustrate your clients’ mortgage arrangements and construction schedule, thereby resulting in additional costs to your clients;
e. Represented to the Manager of the Commonwealth Credit Union that your clients had agreed to hire you for permit issues, which was not the case;
f. Initiated unnecessary and unwarranted communications with your clients’ banks and the building inspector, which constitute interfering in your clients’ business affairs.
32. That your conduct in the foregoing respects constitutes unprofessional conduct and a breach of APEGGA Code of Ethics Rules of Conduct 1, 4 and 10."
FINDINGS AND REASONS
The Engineering, Geological and Geophysical Professions Act provides that any conduct of a professional member that is detrimental to the best interests of the public, contravenes the Code of Ethics or harms or tends to harm the profession generally is "unprofessional conduct". The Act also defines and prohibits professional members from engaging in unskilled practice.
This case concerns allegations that the Member engaged in unprofessional conduct. It does not seem to raise any questions about his overall skill in the engineering sciences. The Notice of Formal Hearing references 32 charges. At the commencement of the proceedings, charge 8 was dropped. As a result, this Panel must deal with 31 outstanding charges. Rather than setting out the charges, they are attached to these Findings and Reasons. We will refer to the charges by number.
In reaching our decision, we have each reviewed the hundreds of documents entered into evidence (with the exception of those withdrawn during the hearing) in these proceedings, the 1,082 pages of transcripted testimony and we have read the extensive Written Briefs submitted by the parties. As an aside, we all want to thank counsel for their very thorough and professional presentation of the evidence and their Written Briefs. (It was helpful to work with such skilled, courteous practitioners.)
Given the volume of material, the number of charges before us and the nature of the allegations, we have proceeded cautiously, always ensuring that no point was overlooked in our deliberations. At the same time, we have tried to be as concise as possible in framing our reasons for a decision.
With respect to each charge, we followed a two-step process:
1. We decided whether the Investigative Committee proved the facts alleged on a balance of probabilities. In this respect, the charges are serious ones that affect the professional's reputation. As a result, we required that the proof offered be clear and cogent, though the evidence did not have to substantiate the allegations beyond a reasonable doubt.
It was a common feature of this hearing that conflicting accounts of events were offered. In order to resolve these conflicts, we assessed and considered the ability of the various witnesses to observe, to accurately recall the observations and communicate these observations to us. This involved an assessment of the witnesses’ intellectual ability to offer accurate evidence and their emotional or moral capacity to tell the truth. In other words, we considered the organic capacity of the witness to recall and communicate the evidence and we reflected upon the interests of the various witnesses taking care to consider whether or not these interests impacted on the truthfulness of the testimony offered.
Obviously, we looked for and considered inconsistencies in evidence, contradictions, plain errors and other factors that raised caution in the weighing of certain evidence. We also resolved contrary accounts by asking what a reasonable person would think more likely to have occurred given the objective surrounding circumstances (Faryna v. Chorney  2 D.L.R. 353 at 356-357).
2. Having settled upon the facts (or what happened) we proceeded to ask whether the Member had done something that "would be reasonably regarded as improper by his professional colleagues, of good repute and competency". We took care not to brand as "unprofessional conduct" that which was doubtfully so.
On the matter of the charges themselves, we do not treat or read them like counts in an indictment. In our view, the charges must allege conduct that, if proved, could amount to unprofessional conduct. They must provide enough particulars so as to advise the Member of the substance of the complaint and allow a full and fair defence. We will not find the Member guilty of one thing, if another has been alleged.
It is with these general principles and approaches in mind that we proceeded
to consider the case.
General Complaint (Charge #1)
It is alleged that the Member failed or otherwise neglected to respond to a Notice to Produce served on January 21st, 2002 in accordance with the Engineering, Geological and Geophysical Professions Act. The evidence is not seriously in dispute. On or about January 21st, 2002, the Investigative Committee sent a package to Mulvey Agency. The Member testified that he received the package, but it had been ripped open to such an extent that documents could have fallen out. A letter dated February 8th, 2002 corroborated this. The Member wrote APEGGA notifying them that the package had been torn and that he was concerned that documents could be missing. The Member requested confirmation that he had received the full contents of the package. He outlined the documents that were included in the package, which did not include the Notice to Produce. He was told by APEGGA that he had, in fact, received everything. It is apparent from the letter of February 8th, 2002 and the Member's testimony, that he never received an actual "Notice to Produce" that was supposed to be included in the package.
The letter of January 21st, 2002 from APEGGA itself refers to the production of all documents by February 11th, 2002. Specifically, the letter states as follows:
"In accordance with Section 47 of the Act, the Investigative Panel hereby demands production of all documentation that you have relating to the matter of each and all of the complaints by February 11th, 2002."
Mr. Mulvey formally replied to APEGGA's requests by letter dated February 15th, 2002. However, he did not disclose any documents. Mr. Mulvey met with the Investigative Committee on April 10th, 2002. When the Investigative Committee met with Mr. Mulvey, it was pointed out to him that he had not provided any files or documents in response to the notice of investigation and a follow-up fax that had been sent to him on March 5th, 2002. Apparently, Mr. Mulvey did not provide an explanation as to why the documents or files had not been provided. There was a second investigative meeting on May 2002. However, there was no evidence that the topic regarding disclosure was raised with Mr. Mulvey. Mr. Mulvey's evidence was that he did not understand the nature of the Investigative Committee's request and that he complied with the disclosure requirement as soon as he had retained legal counsel.
Section 47 of the Engineering, Geological and Geophysical Professions Act deals with the issue of production and it provides as follows:
47(1) An investigation panel may
(a) require the investigated person or any other member of the Association to produce any plans, drawings, detailed drawings, specifications, reports, books, papers or other documents or records in that person=s possession or control, and
(b) copy and keep copies for the purposes of this Part of any thing that is produced under clause (a).
(2) An investigation panel may investigate any other matter regarding the conduct of the investigated person that arises in the course of the investigation.
The legislation does not provide for a specific form in which the demand for production is to be made.
There can be no doubt about the importance of a request by a professional association to produce documents. One of the hallmarks of being a self-governing profession is self-regulation. If members do not respond to their professional association promptly and diligently, then the very authority and premise for self-regulation is seriously compromised and even undermined. It is absolutely imperative that members of the profession respond to the requests of their professional association completely, accurately, and quickly. The failure to do so is unquestionably unprofessional conduct.
The Discipline Committee has considered the issue of the failure to respond to a Notice to Produce documents in Harper, Glen, No. 03-002-FH re: Golden Rule Resources. There, the Discipline Committee panel for that case stated at page 3 as follows:
"APEGGA is an association of professionals. One of the important hallmarks of a profession is self-governance. APEGGA is empowered by legislation to discipline its members. It does so through a process that was developed and is conducted by the membership. This "self-governance" is both a privilege and an important responsibility that the Association and the members of the Discipline Committee take seriously. The discipline process developed and used by the APEGGA members assumes that the broad membership, including those being investigated, also take seriously the responsibilities of a self-disciplining professional organization. To do otherwise, could place at risk the privilege of self-governance given to the Association."
The question in this case is whether the Investigative Committee has proven that this member ignored its lawful requests and turned a blind eye to his ethical obligations. The Investigative Committee argues that he did; the Member, through his counsel, argues that the Member, perhaps mistakenly, did what he thought he was required to do. The Member, through his counsel, argues that he did not intentionally withhold information or act in any manner to obstruct the disciplinary process, but he merely did not comprehend what was required of him and that he complied by fully disclosing all of the materials as soon as he became aware of the request and his obligations.
The Discipline Committee finds that the member did, in fact, violate the Act
and engaged in unprofessional conduct. The Discipline Committee notes that the
Act does not stipulate any specific form in which the requirement to produce
must be made to the member. The letter of January 21st, 2002 is absolutely clear
on its face and is written in plain language as to what was required of Mr. Mulvey.
The matter of production had been raised again with Mr. Mulvey on at least one
occasion. We believe that Mr. Mulvey’s February 15, 2002 letter to APEGGA
was an attempt to deflect the matter. If Mr. Mulvey had any confusion as to the
nature of the requirement, there was an obligation on him to raise it with the
Investigative Committee instead of simply ignoring the request. Therefore, the
Committee finds that the Member is guilty of charge 1.
The Complaint of Norma and Ernie Milot
In the fall of 2000, Mrs. Norma Milot contacted the Mulvey Agency and spoke
to Terry Mulvey regarding engineering services they understood were required
in the construction of their home. On or about September 29th, 2000, Mr. Mulvey
faxed his 2000 rate schedule for drafting/engineering design/inspection services
setting out a list of services he provides and the cost for each of the services.
He also provided an information package listing what is normally required for
building permit applications for the building of houses, cottages, additions,
garages and shops.
Mr. Mulvey testified that he spoke to Mrs. Milot on September 29th, 2000, to confirm that he was being retained on this job, although the notes of his conversation with Mrs. Milot only reflect a legal description of their property, a rough map of the location, and a basic description of the proposed construction (an 1800 square foot bungalow slab-on-grade). Mr. Mulvey says that he also advised her that he would be out to visit her the following day, although there is no record of an appointment time in his conversation note.
Ms. Milot recalls events differently. She says that Mr. Mulvey showed up at
the property on September 30th, 2000 unannounced and it was during these discussions
that Mr. Mulvey quoted a fee of approximately $728.00. She says that it was at
this time that Mr. Mulvey was provided with a sketch plan that the Milots had
drawn up themselves.
The threshold question that we must answer is: what was the initial agreement? Mrs. Milot says that the parties settled upon a fixed fee of $728.00. The Member denies any such agreement and notes that the sum bears no relationship to the rate schedule. We also note that the fee of $728.00 is an unusual one to quote. Why not $725.00, or $730.00? The cost, based on Mr. Mulvey’s fee schedule, for a set of working drawings for an 1800 square foot bungalow at $0.50/sq. ft. would be $900. Based on his 1999 schedule, however, the cost would have been $720. There is a slight possibility that Mr. Mulvey, when discussing costs for a set of working drawings, inadvertently slipped and based a price on his 1999 fees schedule.
We think Mrs. Milot truly believed she was quoted a fee of $728. When her husband, Ernie, testified, he said Norma told him the fee was to be $728. What incentive would she have had to lie or make up a number to tell her husband? It is possible that they misunderstood the fee quoted; however, there is no evidence that Mr. Mulvey provided them with a written quote or a detailed cost breakdown at any time during the settling of the job requirements. The actual fee may have been different from $728 but Mr. Mulvey only testified that he did not quote a fee of $728 and that he couldn’t do the plans for $728, although his 1999 schedule of fees suggests that working drawings could be produced for $720 in the previous year. He did not testify that he had originally quoted any other dollar figure; in fact, he said he did not quote a number (cost) at all. He only said that he provided a rate schedule when he made the first site visit and he faxed out a copy of the Confirmation Of Assignment (COA) to the Milots on December 15th, long after the drawings were completed. A review of the rate sheet indicates that a fee estimate of the following would likely have resulted, had an estimate been provided:
Slab-on-grade Foundation Design (>1200 sq. ft., 50 to 300 km radius) $500
Working Drawings – (1800 s.f. @ $0.50) $900
In resolving this question, we must refer to all of the surrounding circumstances in addition to the capability of the witnesses to tell the truth. As correctly argued by the Member's counsel, Mrs. Milot's memory was at times weak. It is completely understandable in light of the passage of time. At the same time, Mr. Mulvey's credibility can correctly be called into question as well. He was an evasive witness, he only reluctantly made reasonable and fair admissions and upon reviewing his conduct throughout the course of this complaint, some of his actions could only be described as calculated to mislead APEGGA and this Panel. We also believe that as the “expert” and the professional in this relationship, Mr. Mulvey had the responsibility of ensuring that an estimate of his fees was presented and understood by his client.
The onus in this case is a high one. The Investigative Committee must prove its case on the balance of probabilities having regard to the seriousness of the allegations based on clear and cogent evidence. As a result, we have concluded that it is unlikely that Mr. Mulvey would have quoted a fee of $728, and that Mrs. Milot erred in her strongly held belief that she was in fact quoted a fixed price of $728.00 for the drawings.
On or about November 1st, 2000, the Milots received blueprints from the Mulvey
Agency. Mr. Mulvey again stopped by the property on November 8th, 2000. On November
10th, 2000, the Milots received an invoice for $2,915.75. Efforts were made to
discuss the bill, but they did not speak until December 20th, 2000 when Mr. Mulvey
visited them at their property.
The contents of this conversation are in dispute as well. Mrs. Milot's evidence was that, notwithstanding the September 30th, 2000 agreement, she agreed to pay a further $1,070.00 to clear the entire account, in addition to the $500.00 deposit initially made. Mrs. Milot testified that Mr. Mulvey accepted this provided payment was made by a certain deadline. A brief marginal note on the invoice and a transmittal letter supported her evidence on this point. .
Mr. Mulvey testified that he agreed to waive the $500.00 consultation fee so long as the Milots paid him the remaining balance by December 22nd because he wanted to get this account off his books for his financial year-end. In his conversation, he says he calculated from the $500.00 deposit already paid and the $500.00 deducted for waiving his consultant's fee thereby reducing the bill by $1,070.00 if you include the GST. Mr. Mulvey says that he used the number $1,070.00, but he stated that he had not meant that to be what the Milots would pay, but rather he was calculating how much he would have considered already to have been paid.
The conversation was undoubtedly a confusing one as several different numbers were being tossed around. Nevertheless, Mrs. Milot is quite clear as to her understanding of the agreement and her actions are consistent with them. Mrs. Milot wrote down the amount of $1070 and sent Mulvey Agency a cheque for $1,070.00 on December 21, 2000, received by Mulvey Agency on January 2nd, 2001. A memo from Mrs. Milot stating that the $1070 was “for agreed amount of Dec. 20/00 meeting” accompanied the cheque.
The Investigative Committee describes these events as a deliberate attempt
to mislead the Milots into paying more for the service than agreed to by the
parties. Mr. Mulvey, through his counsel, describes it as a "second misunderstanding".
Having regard to the capacity of the witnesses to recall the evidence, their moral desire to tell the truth and other proper factors, it is our conclusion that Mrs. Milot's evidence is to be preferred and we find that an agreement was reached on a payment for the sum of $1,070.00.
In March of 2001, Mr. Mulvey had discussions with Mr. Milot. That was the first time Mr. Milot had met Mr. Mulvey. Following these discussions, the Milots issued a third payment of $845.75. Now, the clients had paid $2,415.75. The Panel agrees that Mr. Milot informed Mr. Mulvey that the Milots’ ability to pay depended on their ability to get advances from the bank.
Based on the invoice of November 10th, 2001, and giving Mr. Mulvey his best position, the only dispute outstanding at that point was the issue of whether or not the Milots were entitled to a $500.00 credit. In May of 2001, however, Mr. Mulvey registered a builders’ lien against the Milots’ property on behalf of the Mulvey Agency in the amount of $1,930.00. At approximately the same time, he was telling his clients that the amount owing was $718.47 and the only tasks left to complete were a final inspection and issuance of a Compliance Certificate. On July 16th, 2001, the Milots received a further invoice dated June 27th, 2001 for an additional $1,596.75, even after credits for payments had been made.
Furthermore, on July 12th, 2001, another builders' lien in the sum of $1,652.69 was filed. By this point in time the Milots had paid $2,415.75 towards services rendered but had liens filed against their property for more than $3,500.00. All of this was done at a time when the Milots needed a clear title to secure funding through their bank.
We have listened carefully to Mr. Mulvey's explanation for all of this. He would have us believe that there was confusion over the terms of the engagement and, what is more, simple mistakes by everyone involved in preparing and in the filing of the lien. Mr. Mulvey also said that the liens were based on an hourly rate that had changed because the project had been suspended. The clients did not suspend the work and Mulvey testified that he did not advise the clients that he was suspending the project nor changing the rates for his work. Nor could he explain why he charged for his work based on an hourly rate when the fee schedule states that drawings are prepared on a square-footage basis.
With respect to Charge 2(a), then, we believe that, based on Mr. Mulvey’s schedule of fees, the cost for a set of working drawings for an 1800 square foot bungalow at $0.50 per square foot would be $900, and the cost for the design of a slab-on-grade foundation of greater than 1200 sq. ft. and located between 50 and 300 km from Lloydminster would be $500, for a total of $1400. The Investigative Committee did not prove that Mr. Mulvey quoted an estimated fee of approximately $728.00 to draw up plans for an 1,800 sq. ft. bungalow with slab-on-grade foundation, based on the Milots’ scale drawing. We find that there is sufficient doubt that Mr. Mulvey quoted a $728 fee estimate that we must give him the benefit of the doubt and consider him not guilty of issuing an invoice that was inflated and inconsistent with the fee estimate quoted.
We do find with respect to charge 2(b) that Mr. Mulvey was guilty of issuing an invoice in the amount of $2915.75 that was unsupported by the services provided. The invoice should not have exceeded the approximately $1400 that could have been inferred from the rate sheet provided to the Milots.
With respect to Charge 3, we find that this charge was proven. Although Mr.
Mulvey provided the Milots with a form letter describing services and fees at
the time of the first meeting when the job was being discussed, a COA was not
sent to the clients until six weeks after the drawings were completed. Mr. Mulvey
did not discuss any change in billing terms with the clients before sending them
With respect to Charge 4, we believe that on December 20th, 2000, Mr. Mulvey indicated by telephone to his client that he would accept $1,070.00 in full payment of the invoice provided that the Milots issued the payment of $1,070.00 by December 22nd, 2000. Although the clients mailed the payment on December 21st, the invoice was not discounted as agreed. We also note that the Milot’s cheque was accompanied by a covering note indicating “…payment for amount agreed on Dec. 20/00”. By accepting the cheque and depositing it to his account, we believe that Mr. Mulvey was tacitly agreeing that the account was settled. We find that this charge was proven.
With respect to charge 5, we find that Mr. Mulvey filed a lien wrongfully and improperly. It is obvious that he reviewed the builders' lien, made notations on it but had no regard for the amount on the lien at all. It was wrongful, improper and it was an inappropriate way to file a builders' lien. We find that this charge was proven.
With respect to charge 6, we find that this charge was proven. Mr. Mulvey admitted that he did not prepare the lien nor did he check the amounts in the builders' lien and it was in error. Mr. Mulvey was paid $2,415.00 yet he filed a lien for another $1,930.00 when he had advised the Milots on May 9, 2001 that they may owe $643.19 and the only work left to perform was the final inspection and issuance of a compliance certificate. He attempted to explain the lien on the basis of the terms of his standard COA, but acknowledged that his clients had never signed the COA documents. The filing of the lien in May, 2001 also suggested that the work for which Mr. Mulvey was owed, occurred within the previous 45 days when in fact, the work had been substantially completed five months beforehand. We are satisfied that he knowingly swore a false Affidavit, but even if we were to give Mr. Mulvey the benefit of every doubt, something that we are not prepared to do, it is apparent that he was reckless in swearing that Affidavit.
With respect to charge 7, we find that the charge was proven. The work had
been completed and several invoices were issued and paid, but Mr. Mulvey did
not provide a Compliance Certificate. Furthermore, Mr. Mulvey improperly added
a further condition for release of the Compliance Certificate, which was to require
a signed COA even though the COA had only been provided after the services had
been substantially completed.
With respect to charge 8, we confirm that the Investigative Committee withdrew that charge prior to commencement of the hearing.
With respect to charge 9, we find that this charge was proven. On March 21st, 2001, Mr. Mulvey called the Milots to confirm a final inspection date for March 23rd, 2001. On or about March 23rd, 2001, Mr. Milot met with Mr. Mulvey at his home. We find that Mr. Mulvey agreed to accept $845.75 in full and final settlement of the outstanding account. The Milots sent Mr. Mulvey a cheque in the sum of $846.00 on April 17th, 2001. On March 27th, 2001, Mr. Mulvey wrote to the Treasury Branch indicating that he had only to issue a Compliance Certificate upon release of the mortgage funds by ATB. However, on May 9th, 2001, Mr. Mulvey called the Milots, as well as sent them a fax, to advise them that he would only issue a Compliance Certificate if and when the final account had been paid, an account that had a sum of $643.19 added to it. On June 18th, 2001, Mr. Mulvey called Steve Nett regarding building inspections and suggested to Mr. Nett that he should not be doing an inspection. Mr. Mulvey had no business discussing or determining which person should conduct the Province's building inspections. On June 18th, 2001, Mr. Mulvey called the Milots' solicitor and indicated that he would complete his final inspection and provide a Compliance Certificate if the Milots paid him $714.03. On June 18th, 2001, Ms. Lillian Feskew of the Alberta Treasury Branch called Mr. Mulvey to tell him that the liens had to be removed before any funds for a mortgage could be released to the Milots. The fact of the matter is that although the Milots made payments totalling $2,415.75 for a job allegedly quoted for $728.00 (or about $1400, based upon Mr. Mulvey’s rate sheet), Mr. Mulvey did not provide a final inspection nor did he provide a Compliance Certificate to the Milots or their mortgaging institution.
We find that Charges 10 and 11 were also proven. Mr. Mulvey admitted the lien was in error. No further services had been provided to the Milots after Mr. Mulvey filed the first lien. Many of the hourly charges were not supported by actual work. Even if one were to give Mr. Mulvey the benefit of the doubt and allow him to rely on the unsigned COA, there are only 10 hours posted (although not spent) between the first and second lien. The second lien, however, reflected well in excess of 10 hours. Mr. Mulvey simply could not explain nor provide any basis for the lien. The second lien was filed for $1,652.69 after the Milots, through their solicitor, offered to pay Mr. Mulvey $500.00 to consider the invoices paid and to terminate the matter. The lien was filed many months after the work on the Milots drawings was substantially completed and the amount on the lien bears no resemblance to the amount owing by the Milots. Mr. Mulvey admitted that he only checked to see if the worksheet was attached supporting the numbers in the lien. He did not even check the numbers. Mr. Mulvey admitted that the lien amount exceeded his hourly rate after he deducted the amount of money that the Milots had already paid him. The Affidavit sworn was clearly false.
We find that charge 12 was proven. Mr. Mulvey agreed that he did not produce the documentation related to the charges as had been required by APEGGA. Mr. Mulvey responded to the complaints on October 12th, 2001 with a letter but provided no supporting documents until some time after July 12th, 2002 and then only upon advice of his lawyer.
With respect to charge 13, we find that this charge was proven with respect to Rules 1, 4 and 10.
With respect to Rule 1, Mr. Mulvey failed to provide a final inspection on
a job for which he had prepared engineering drawings and had indicated that he
would provide a final inspection. Mr. Mulvey revoked his engineering services
when he considered the project cancelled, a cancellation initiated by himself
without consultation with his client. As a professional engineer, Mr. Mulvey
had an obligation to maintain a professional interest in both the immediate and
long-term effects of his obligations to his clients. Mr. Mulvey showed a disregard
for the welfare of the public by withdrawing his professional services for engineering
drawings he had prepared, stamped and sealed and submitted to regulatory bodies.
With respect to Rule 4, Mr. Mulvey failed to act on behalf of the Milots as a faithful agent or trustee. Mr. Mulvey did not treat his clients with fairness or justice. He charged for services that were either not performed or were already charged for under another heading. He unilaterally changed his hourly rate for services without consultation with his clients. He charged for work that was not requested; this was completely inappropriate and contrary to his professional obligation. His actions in regard to charges for his services as described above as well as the filing of liens also demonstrates a failure to act with fairness and good faith.
With respect to Rule 10, Mr. Mulvey did not act in fairness and good faith to his clients. Instead he acted as an adversary of his clients and disrupted their business dealings with the permitting agents and their lenders. There was no justification for Mr. Mulvey's calls to individuals involved in business with the Milots' home.
With respect to Rule 9, the Investigative Committee did not present evidence
convincing the Panel that Mr. Mulvey represented his qualifications, competence
or services offered in an exaggerated or untruthful way. Thus, we find Mr. Mulvey
not guilty of this portion of the charge.
The Complaint of Ingrid Rinsma
The Investigative Committee alleges, in charges 14 and 15, that the Member treated his employee, Ms. Rinsma, in an abusive, demeaning and threatening manner and that, taken as a whole, his conduct violated Rules 1 and 10 of the Code of Ethics.
Without detailing every allegation, it is alleged that the Member yelled at
Ms. Rinsma, criticized the fact that she was living in a common law relationship,
forced her out of the office at lunch, wouldn't let her talk to her family on
the telephone while at work, threatened or perhaps even tried to hit her, that
he sexually harassed her and that he engaged in similar improper and inappropriate
The Member denies having acted unprofessionally, but he does admit having raised his voice in frustration. He suggests that Ms. Rinsma would be a difficult co-worker and that they did not interact well.
The threshold question joined by the parties is whether rudeness or discourtesy can form the basis of unprofessional conduct. The Investigative Committee argues that it can, while the Member says that such conduct is not sanctionable.
We are satisfied that conduct that is sufficiently extreme so as to reflect badly on the Member and the profession can constitute unprofessional conduct. If it is established that the Member engaged in a course of conduct that is sufficiently extreme so as to bring the integrity of the profession and/or the professional into disrepute or otherwise exposes a member of the public to unnecessary psychological or physical trauma, he will be subject to sanction. We need to add two points to this general statement. We are not saying that one serious outburst or act will never constitute a violation of the statute or our Code of Ethics. One serious act or one sufficient remark could suffice to invoke the powers of the statute. But as a general rule, more will be required. What is more, the statute is not to be invoked to resolve what might loosely be described as "school yard fights". These disputes will involve serious and extreme conduct that demands the intervention of this body to protect the integrity of the profession and the professional. In arriving at this conclusion, we do so on the authorities and largely on the argument advanced by the Investigative Committee in their Brief. We are satisfied that they have correctly referenced the appropriate authorities and stated the principles that emerge from the reported decisions.
Having addressed the threshold question of whether rudeness or discourtesy can form the basis of a complaint under the Act, it is now incumbent upon us to address the matter before the Panel. Ms. Rinsma raised a number of allegations that have been briefly summarized above. Regretfully, however, the Panel has come to the conclusion that Ms. Rinsma's evidence must be viewed with some caution. There is no doubt that Ms. Rinsma struggled to accurately recall evidence. To provide one illustration that gives rise to our concern, Ms. Rinsma testified that on or about May 25th, 2001, the Member threatened her. Try as she might, she couldn't recall the specific threat. Ms. Rinsma failed to recall other events as well. At one point she fairly acknowledged that she did not remember much of what happened at Mulvey Agency. What is clear is that Ms. Rinsma's organic capacity to recall and communicate evidence has been lost with the passage of time.
Ms. Rinsma also provided different accounts of events on different occasions. For instance, Ms. Rinsma alleged that the Member attempted to punch her on November 13th, 2001. However, it is apparent that she has described different accounts of the event on different occasions. Ms. Rinsma's resignation letter (Exhibit 2, Tab 12) alleges that he "came at her with clenched fists, and I believe you would have punched me". In her complaint letter to APEGGA (Exhibit 1, Tab 40) she states:
"I heard him come up behind me, I turned around and he came at me swinging a clenched fist and tried to strike me. I know, that if I had not stepped back, he would have struck me in the face. I took a step backwards and told him 'go ahead and try it just one time and you will find out what is going to happen'. He, by that time, had collected himself and told me 'I would not give you the satisfaction.'"
Finally, in her examination in chief, Ms. Rinsma testified that she and the Member were standing together in front of her desk, that he clenched his fists, and actually swung but that she ducked. When asked if she said anything at the time, she stated, "No, I grabbed my purse and ran out". She also stated that she refused to talk to him later on.
While one would be surprised if a witness recounted an event using identical words on different occasions, the general substance of what occurred should be very similar. Unfortunately, there are marked differences between these versions of events, which are substantial and material. They illustrate that either this witness' ability to recall and recount events is impaired or that she is willing to exaggerate and fill in details when it suits her purpose. In light of this, it would be dangerous to find the Member guilty on this evidence and it is certainly not the "clear and cogent" evidence required by law.
We must also look at some of the allegations raised by the complainant as improbable. Ms. Rinsma alleges that the Member "sexually harassed" her. Having listened to the evidence with some care, and having considered what was likely to have occurred in the circumstances, it is apparent to us that Mr. Mulvey was almost certainly looking over Ms. Rinsma's shoulder while she worked, checking the quality and quantity of work being performed. It is highly improbable that Mr. Mulvey would be engaging in a form of sexual harassment in an open office in plain view or that he would engage in improper conduct from that position. It simply is not credible and it simply does not accord with our common sense about "how the world works".
This is not to say that we dismiss Ms. Rinsma's evidence in its entirety. Having regard to all of the evidence, and in particular the evidence of Ms. Robinson, we are of the view that the Member did engage in the type of conduct that is sufficiently extreme so as to reflect badly on the Member and on the profession so as to constitute unprofessional conduct. While Mr. Mulvey may not have acted as inappropriately and improperly as Ms. Rinsma would have us believe, Mr. Mulvey did more than "raise his voice in frustration". We are all of the view that Ms. Rinsma and Mr. Mulvey did not get along. They quarrelled, they had verbal fights and they even yelled at each other.
What concerns the Panel and referring specifically to Ms. Robinson's evidence, is the frequency with which the "hollering" occurred.
Ms. Robinson's evidence suggested that on the three days a week that she worked, the hollering would occur at least once a day and would be provoked in response to, for example, Ms. Rinsma not performing a requested task or being asked to repeat a task. Ms. Robinson also gave evidence about one occasion where Ms. Rinsma was left "vibrating" after a particularly upsetting incident with Mr. Mulvey. Mr. Mulvey’s alleged treatment of Ms. Rinsma was carried out openly and in a public part of the office. Ms. Robinson clearly thought less of Mr. Mulvey as a person and as a professional.
The frequency of the hollering in conjunction with Mr. Mulvey's knowledge
of Ms. Rinsma's health concerns elevates the conduct, in the view of the Panel,
to abusive behaviour, which the Committee believes was calculated to cause Ms.
Rinsma to quit. Mr. Mulvey's conduct is that more egregious in light of Ms. Rinsma
having told Mr. Mulvey and left notes for him saying the conduct upset her and
to stop yelling at her. Ms. Rinsma's health condition in conjunction with her
specific requests to stop his behaviour should have caused Mr. Mulvey to change
his behaviour, yet it continued probably to the detriment of Ms. Rinsma's health.
The Committee finds that the conduct of Mr. Mulvey in all the circumstances constituted
unprofessional conduct within the meaning of the Statute and therefore find that
Member to be guilty of Charges 14 and 15.
The Complaint of Donna Artindale
In 1994, Mrs. Donna Artindale and her husband, Zenas Artindale, built a house located at 1009 - 21 Street, in Wainwright, Alberta. The Mulvey Agency provided engineering services with regard to the preserved wood foundation. The Complainants understood that a copy of the Compliance Certificate for the preserved wood foundation had been sent to the Town of Wainwright. The Member indicated that it was his practice to send copies of the Compliance Certificate to the Town. Mr. Mulvey hypothesized that if the Compliance Certificate was not sent to the Town of Wainwright, it was likely because he was instructed not to do so.
In the spring of 2001, the Artindales listed the same property for sale. Not unexpectedly, the buyers required a Compliance Certificate. The Artindales would come to learn that the Town did not have a copy of the Compliance Certificate. The parties spent some time attempting to address the mystery of the "missing Compliance Certificate". Mr. Mulvey may have sent the Compliance Certificate to the Town as he suggested or he may have sent it to Mr. Artindale or he may have overlooked it completely. The year 1994 was a long time ago and no one would expect the Member to remember precisely what happened on one little house deal that long ago. No one can credibly suggest that he did not fulfill his part of the bargain and it is not surprising that he does not have a specific recollection of the event.
When the Artindales learned that the Town did not have a copy of the Compliance Certificate, they requested that Mr. Mulvey provide a further copy. Mr. Mulvey, acting on behalf of Mulvey Agency, quoted a fee of $150.00 for retrieving the Compliance Certificate and sending it to the Town. Whether the fee was fit and proper really is not a central question in this case. Our view, however, is that it is a perfectly acceptable fee for obtaining a Compliance Certificate and sending it to the Town. We accept that it takes some time and resources to obtain a Compliance Certificate from off-site and to forward it to the appropriate agency. In any event, the clients agreed to the fee and signed a confirmation of assignment for the task. Nothing that has occurred so far is unfair, unreasonable or incongruous.
The Artindales received the Compliance Certificate on March 5th, 2001 and sold the property on March 31st, 2001. However, they did not pay the $150.00 agreed-upon fee. The Member says, and we accept, that the Artindales were in breach of their contract. Mr. Mulvey had agreed to obtain the Certificate and provide it to the Artindales in exchange for a $150.00 fee. The Artindales, wrongfully in our view, reneged on that agreement and refused to pay the settled fee. In our view, a debt was due and owing to Mr. Mulvey.
In July of 2001 Mr. Mulvey filed a builders' lien in the amount of $467.03 against the Artindales old property. As well, Mr. Mulvey filed another lien against property located at 1021 - 25 Street, in Wainwright, Alberta for the same amount. Mr. Mulvey filed the builders' liens because he believed that by proceeding by way of Small Claims or mediation would take several years and a significant amount of money to realize the debt that he was owed. He thought it was a fast and cheap way to get the money from the Artindales.
But it is equally true that the liens had absolutely no validity at all. The only service requested regarding the property at 1009 - 21 Street was to fax a 1994 Compliance Certificate. No further service was requested, nor provided, and the service was provided by March 5th, 2001. No services were ever requested, nor provided, with respect to the property at 1021- 25 Street.
The Artindales chose to ignore the liens and Mr. Mulvey says that he made efforts to collect on the accounts. In May of 2002 the Artindales received an invoice from Mr. Mulvey in the amount of $1,605.00. It is clear that Mr. Mulvey was attempting to claim services rendered in collection of an account as part of his lienable service.
With respect, this is completely untenable. One is able to file a builders' lien for the improvement in the land, not the efforts of collecting on accounts. Indeed, the builders' lien even reflects the cost for preparing the lien. What is also clear is the following:
1. Providing a copy of a seven-year old Compliance Certificate on property is not an improvement to that property as defined by the Builders' Lien Act and it ought to have been obvious to anyone.
2. There was nothing done and no justification for filing a lien on newly purchased property owned by the Artindales. The only reason that such property was liened was because the Artindales owned it and if a lien were filed against it, it would put pressure on them to pay the outstanding debt.
3. The Certificate was provided in March. The liens were being filed in July, long after the 45 days required for filing a lien as contemplated in the Builders' Lien Act.
4. Mr. Mulvey's assertion that the failure to pay meant that the work was not yet completed is absolutely ridiculous. It extends far beyond ignorance and in our view Mr. Mulvey was simply not being truthful with this Panel.
5. The lien amounts were inflated to get above the $300.00 statutory minimum that would facilitate the Land Titles Office accepting the lien. No other credible explanation can really be offered.
Mr. Mulvey claims to be ignorant about the builders' lien process, but frankly we do not believe him. The Builders' Lien Act is relatively straightforward and is administered by tradesmen and small businesses every day. These people are less sophisticated than Mr. Mulvey and are able to work their way through the process. Indeed, the forms themselves are self-evident and ought to have alerted Mr. Mulvey to the fact that his liens were improper. Frankly, his explanations were incredible and we can only conclude that the liens were filed for an improper purpose and were unlawful on their face. We do not have to resolve whether Mr. Mulvey told Mr. Preville that he knew the liens were not lawful and that he was simply filing them to put leverage on the Artindales because, whether or not he made the admission, it is obvious that is what he was doing. No other explanation reasonably explains all of these events including liening property for which no services were provided whatsoever.
We have reviewed charges 16, 17 and 18 with care and we find as follows:
1. On July 12th, 2001, the Member wrongfully filed a builders' lien on property described as 1009 21 Street, Wainwright, Alberta. No lienable services were provided on the subject property and the amount claimed in the lien greatly exceeded the value invoiced to the client. It goes without saying, since we have found that no lienable service was provided with respect to the property, the lien did not relate to improvements on the property. While we have found that the lien did not relate to improvements on the property and that no lienable service was provided, even if a lienable service was arguably provided, there is no doubt it was provided in 1994 and that the Member was paid for those services. Whether Mr. and Mrs. Artindale or the builder paid for it is not of any relevance.
2. On July 12th, 2001, Mr. Mulvey wrongfully filed a builders' lien on property municipally described as 1021 25 Street, Wainwright, Alberta. The liens were improper in that no lienable service was provided on the property and the lien did not relate to improvements on the property. Even if a lien could be filed, which we find it could not, it greatly exceeded the amount invoiced.
3. We are satisfied that the Member knowingly swore a false Affidavit in support of the builders' lien. We do not believe that he could have credibly believed that he could file liens on either of these properties, in particular the latter. While we find that he knowingly swore a false Affidavit in this respect, even if our decision was not upheld in this respect, we have absolutely no doubt that he was reckless in swearing these Affidavits in these circumstances. As the Member's counsel's brief indicates "reckless" is when one is "heedless of danger or consequences". Mr. Mulvey's actions, particularly in face of the book Law for Professional Engineers, which stated that the Law in Alberta is "uncertain", would certainly be characterized as reckless. Any reasonable person, in the face of that statement, would have taken steps to verify exactly what the law was in Alberta.
4. Mr. Mulvey was playing a shell game with builders' liens, filing them against any property that would provide leverage against the Artindales even though there was no legal right to do so. He utilized the provisions of the Builders' Lien Act, although he clearly and knowingly had no right to do so. Needless to say, all of this is a violation of APEGGA's Code of Ethics. The Member's suggestion, through his counsel, that APEGGA had not offered the Member services with regard to business or billing practices, shows not only a failure to take responsibility for his actions but suggests a responsibility on APEGGA that is clearly outside its mandate. Similarly, the Member's attack of the conduct by the Artindales in not paying their account as unscrupulous shows a complete failure or refusal to recognize the impropriety of his conduct. The Artindales did act improperly, but Mr. Mulvey's response was outrageous.
In summary, we find the Member guilty of charges 16, 17 and 18.
The Complaint of Darren Langford
Mr. Langford retained Mulvey Agency to provide services as set out in the confirmation of assignment (COA), which he signed on April 24th, 2001 (Exhibit 1, Tab 53(a)). It was Mr. Langford's understanding was that additional charges would only be incurred if an excessive amount of time was spent preparing the drawings. Mr. Langford indicated that some changes were made while the drawings were in progress, but he felt they were quite minor and he was never advised that those changes would result in extra charges. Mr. Langford indicated that he received an invoice on October 11th, 2001 in the amount of $3,009.05 plus $300.00 for the PWF design. The initial estimated fee was $1,614.25 plus $300.00 for the PWF design. Prior to receiving the invoice, he had no indication that the charges would result in amounts above and beyond the initial quote. He contacted Mr. Mulvey immediately who indicated the invoice may have gone out in error and that he would review and revise if necessary. Mr. Langford then received a revised invoice dated October 15th, 2001. He confirmed further that in the time period between invoice 1 and invoice 2, he had no discussions with Mr. Mulvey that there would be extra charges above and beyond the COA that he had signed in the amount of $1,914.25. The revised invoice was in the amount of $3,219.68 plus a separate invoice was issued for the PWF in the amount of $321.00.
Mr. Langford described how upon receipt of the revised invoice he attempted to contact Mr. Mulvey on several occasions without success. He further indicated that he showed up at Mr. Mulvey's office on October 30th, 2001 and paid the amount that he felt was the proper amount.
Notwithstanding that the inspection had been done in mid-July and that Mr. Langford had paid the invoice on October 30th, 2001, he did not receive a Compliance Certificate. He had requested the certificate around the time that he had received the invoice. After a number of attempts by Mr. Langford to obtain the certificate, Mr. Mulvey contacted Mr. Langford in the spring of 2002. Mr. Langford obtained the Certificate without paying any further amounts to Mr. Mulvey or his company. By that time, Mr. Langford's complaint was under investigation by APEGGA. Mr. Mulvey acknowledged that the Compliance Certificate for Mr. Langford's property had been completed on October 25th, 2001 but not sent out. He further acknowledged that Mr. Langford had attended and paid what he thought was owing, in full, on October 30th, 2001, but the Compliance Certificate was still not sent out. Mr. Mulvey attempted to justify withholding the Compliance Certificate because Mr. Langford had not signed the revised COA; however, Mr. Mulvey ultimately acknowledged that the revised COA had not even been sent out to Mr. Langford until a couple of weeks later. Mr. Mulvey further acknowledged that he had not attempted to return some of Mr. Langford's calls including those of November 5th, 6th and 13th. The evidence is quite clear that Mr. Mulvey first returned Mr. Langford's call on November 20th which is several weeks after Mr. Langford had first tried to contact Mr. Mulvey, but very shortly after Mr. McIntosh of APEGGA had left a message for Mr. Mulvey.
Mr. Mulvey acknowledged that the time records, which were the basis for his billing, for Mr. Langford included as much as 23.5 hours that should have been allocated to other files or for training and that the timesheet reflected time that was posted, but not actually spent on the file. Mr. Mulvey also acknowledged that the errors in his invoicing were not rectified until April of 2002, some six months after invoices had been initially sent out and after Mr. Langford had initially attempted to question Mr. Mulvey about the invoices.
With respect then to charge 19(a), we find that the charge was proven. Mr. Mulvey was experienced in the design of residential buildings in the Lloydminster area and should have been expected to provide relatively accurate estimates of the services that would be required for the Langford project. When even the corrected invoice, dated October 15th, 2001 in the amount of $3,009.05 was more than 58% above the estimated fee, there was an obligation on Mr. Mulvey’s part to discuss the matter of more changes in additional scope with his client and it is clear that this did not happen.
In regard to charge 19(b), we find that the charge was not proven. There is evidence showing that Mr. Mulvey did provide the services necessary for the Langford's home to be approved and built. There was also evidence that a number of design changes were requested, as the design progressed and that a number of sets of drawings were provided at different times. In the Panel's opinion, the approximately $3,300.00 fee invoice was reasonable for the value of the services rendered.
In regard to charge 20, we find that the charge was proven. The COA dated April 24, 2001 (Exhibit 4, Tab 16) clearly indicated that the costs quoted are estimates. However, Mr. Langford was retaining a knowledgeable professional engineer to design his house and would have expected that Mr. Mulvey had sufficient experience in the housing design business to provide a reasonably accurate estimate. The unclear items in the scope of work were the site plan and the extent of the consultative services. We are of the opinion that preparation of a site plan specific to the building being designed was a necessary part of the approval process, and it was reasonable for Mr. Langford to expect it to be provided. The evidence shows that there was a difference between Langford and Mulvey in the understanding of how the extent of changes would affect the invoiced amount. Mulvey, being the experienced professional in this case, had a duty to ensure that his client clearly understood the extent of changes that would trigger additional charges, and Mulvey had a duty to inform Langford when that extent had been reached. The matter of the basement development in this case is not at issue as Mr. Langford agreed to the added charges for that part of the work.
In regard to charge 21, we find that the charge was proven. On October 10, 2001, Mulvey Agency issued an invoice 31076E1 in the amount of $300.00 plus GST to Mr. Langford. On October 22, 2001, a Stacey Fedechko of the City of Lloydminster telephoned Mulvey Agency and requested a Compliance Certificate for the Langford property. Mr. Mulvey received a call on October 24, 2001 from Mr. Langford advising Mr. Mulvey that the PWF foundation would be ready for a final inspection at noon that day. Mr. Mulvey prepared and sealed a Compliance Certificate for the Langford PWF foundation. The Certificate notes that it was faxed to the City of Lloydminster, but there is no evidence that it actually was.
On October 30, 2001, Mr. Langford provided a cheque in the amount of $300.00 plus GST to Mr. Mulvey as payment in full for the PWF design work.
On November 4th, 2001, Mr. Mulvey faxed a memo to Mr. Langford thanking him for the payment, and advising him that the Compliance Certificate would be withheld until payment for other work not part of the PWF design was made. There is no indication in the evidence that Mr. Mulvey released the Compliance Certificate until May 1, 2002.
We are of the opinion that the PWF design work had been fully paid for, and that Mr. Mulvey wrongly withheld the Compliance Certificate in order to exert pressure on Mr. Langford to settle an invoice for other work.
In regard to charge 22, we find that the charge was proven. Mr. Mulvey sent Mr. Langford a 2001 Rate Schedule on April 20, 2001. The package included a page 1 of 2, which listed Plan and Specification Requirements for Houses and Cottages. The page included 7 items each headed by what appears to be a check box. None of the boxes were checked, giving the impression that, since some of the items were clearly required but not checked off, then all of them were included.
On April 24, 2001, Mr. Mulvey sent Mr. Langford a COA covering CADD and Consultative services and PWF Design for a single family dwelling, with an estimated fee of $1,914.25 plus GST. The COA was returned to Mulvey Agency on April 24, 2001. The design of the Langford house was well underway by April 24, 2001. This would imply that Mulvey Agency would have developed a good understanding of the work that would be involved in the Langford house at the time that this first COA was prepared.
On May 6, 2001, Mulvey Agency sent a set of drawings to the Langfords that included a site plan and a basement development plan.
The first indication that Mr. Langford received that the Mulvey Agency charges were significantly higher than the estimate was an invoice dated October 10, 2001 in the amount of $4,665.00 plus GST, and excluding the PWF design, which was covered by a separate invoice. In response to Mr. Langford's objection, the high invoice was cancelled and replaced on October 15, 2001 with a revised invoice in the amount of $3,009.05 plus GST.
The first time that Mulvey Agency provided any indication to Mr. Langford that the site plan and the basement development plan were considered by Mr. Mulvey to be additional work to the original estimate came in a faxed memo dated November 4, 2001. This is several months after doing the "added" work. In the end, Mr. Langford did agree to pay an additional amount for the basement development design work.
We believe that Mr. Mulvey was sufficiently experienced in house design work in the Lloydminster area, and that he had progressed sufficiently far with the Langford design work that he should have provided a more realistic estimate of his fees. If his staff's time on the project exceeded the amount of time that he had estimated in April, 2001, then he had a duty to the Langfords to inform them of the potential overrun and to either get their agreement for the added time, or to work out some other arrangement acceptable to both parties. The fact that Mr. Mulvey waited until November 4, 2001 to advise Mr. Langford that added work had been done would certainly lead Mr. Langford to believe that he had been misled by the original estimate.
In regard to charge 23, we find that the charge was proven. On October 15, 2001, Mulvey Agency issued invoice #1076C3 by fax to Mr. and Mrs. Langford in the amount of $3,009.05 plus GST. This invoice was a replacement for a previous invoice for a higher amount that had been sent in error according to Mr. Mulvey's testimony. This $3,009.05 amount was significantly higher than Mr. Mulvey's estimate dated April 24, 2001 of some $1,614.00 (not including the PWF design).
In response to a call from the City of Lloydminster, Mr. Mulvey called Mr. Langford and was told that the final inspection of the PW Foundation could be done at noon on October 24, 2001. This inspection was evidently carried out as Mr. Mulvey prepared a Compliance Certificate for the PWF on October 25, 2001. On October 25, 2001, Mr. Mulvey sent Mr. Langford by fax a revised COA with an estimated price of $3,309.05 plus GST. This COA included $300.00 for the PWF design.
On October 30, 2001, Mr. Langford gave Mulvey Agency two cheques. One cheque was in the amount of $300.00 plus GST was payment in full for the PWF design. The other in the amount of $2,149.68 including GST was equal to the originally estimated amount plus an additional $395.80 plus GST for the basement development plan.
On November 4, 2001, Mr. Mulvey wrote to Mr. Langford thanking him for the cheques, and noting that the Compliance Certificate would be withheld until the balance of the amount allegedly owed was paid. Note that at this time the invoice for the PWF design to which the Compliance Certificate related had been paid in full.
Subsequent to this date, Mr. Langford left a series of phone messages for Mr. Mulvey that were not returned. Finally, after a call to Mr. Mulvey's office from Mr. McIntosh of APEGGA on November 20th, 2001, Mr. Mulvey contacted Mr. Langford to find a time to meet some time the following week. There is no evidence of a meeting during that week, and on December 4, 2001, there was another apparently unanswered phone message from Mr. Langford to Mr. Mulvey requesting a return call.
A telephone message to Mulvey's office on April 8th, 2002 from the Better Business Bureau advising him of a complaint by Mr. Langford is a good indication that there still had not been any resolution. It was not until April 30, 2002 that the differences between Mr. Mulvey and Mr. Langford were finally resolved, the invoice reduced and the Certificate of Compliance issued.
In regard to charge 24, we find that this charge was not proven. In his message to APEGGA at 9:15 p.m. on November 20th, 2001, Mr. Mulvey stated that he and Mr. Langford were to meet on about November 28th. Mr. Mulvey's record of telephone call to Mr. Langford (noon, November 20th, 2001) indicates that the earliest that one or both of the parties could meet was "mid next week" (November 28th). We believe that there was the intent to meet on or about November 28th but subsequent correspondence indicates that this was not followed up on. Mr. Langford denied that a meeting had been set for the November 28th date. We give Mr. Mulvey the benefit of the doubt on this charge and do not consider that it was proven.
In regard to charge 25, we find as follows:
We find that violation of Rule #1 has not been proven. The services that Mr. Mulvey provided in respect of the house design that he carried out were not alleged, nor proven, to have had disregard for the safety and welfare of all persons and for the physical environment.
We find that violation of Rule #4 was proven. Mr. Mulvey did not act with fairness and justice to the Langfords in that he did not properly explain his invoicing procedures, that he wrongfully withheld the Certificate of Compliance for the PWF and that he failed to make adequate effort to discuss and try to resolve the dispute over invoicing in a timely manner.
We find that violation of Rule #9 was not proven. We are not convinced that
Mr. Mulvey misrepresented his qualifications and competence, nor that he advertised
his professional services with exaggeration.
The Complaint of Barry and Kathryn Strandlund
The Strandlunds contacted Mr. Mulvey in January of 1999 to inquire about retaining his engineering services on a new home construction project that was being contemplated. The Strandlunds had a need for engineering services on a preserved wood basement. The lender required an engineering certificate and the parties had some brief discussions about the matter and an exchange of information took place. A confirmation of assignment (COA), with a quote for services, was sent to the Strandlunds along with a rate schedule. Nothing further happened until August of 2000 when Mr. Mulvey was contacted again after the construction had started.
On August 6th, 2000, Mr. Mulvey travelled from Lloydminster to Athabasca and the Strandlunds received a confirmation of assignment consistent with those discussions and signed it on October 3rd, 2000. By this point in time, the construction project was already underway and much of the foundation work had been done and in fact, there had already been some backfilling in some spots. It is also true that the work completed so far was not at a stage where Mr. Mulvey could provide a Compliance Certificate.
As one reviews the COA, it quotes a price of $1,100.00 with additional site inspections at $250.00 each plus GST. On August 26th, 2000, Mr. Mulvey visited the site to perform an inspection. Mr. Mulvey said he was expecting to see the property at a point where he could issue a letter of compliance. He also testified that he provided a package of documents, which he described as specifications related to the Strandlund property and the house foundation. At this point, Mr. Mulvey was able to issue a letter of compliance to the Strandlund's bank and did so.
An invoice for $1,712.00 from the Mulvey Agency was received on November 9th, 2000. The Strandlunds questioned the sum of $250.00 on that invoice. The Strandlunds refused to pay that amount, plus GST, even though they had contracted to do so. It was also around this time that the Strandlunds began to sort out the issue of their building permit. A third party, who made inquiries about it, contacted Mr. Mulvey. Mr. Mulvey says that there was an issue between the Strandlunds and the permit departments and he did not involve himself in the matter until December 5th, 2000 when Mr. Strandlund contacted Mulvey Agency stating that he now needed a letter of compliance for the building permit along with the full foundation drawings. Mr. Strandlund says that he spoke to Mr. Mulvey and indicated that he would advance payment of $600.00 plus further payment upon receipt of the drawings. On December 21st, 2000, the Strandlunds advanced $600.00. It is also clear that Mr. Mulvey wanted the balance of the account paid prior to Christmas.
At this point we have a disagreement with respect to the facts. The Investigative Committee says that it is around this time that a dispute arose and Mr. Mulvey demanded an extra payment of $600.00 to $700.00 for drawings, which the Strandlunds insisted were included in the initial quote. Mr. Mulvey, through his counsel, argues that Mr. Mulvey did not demand an extra payment of $600.00 for drawings that were included in the initial quote, but rather for the drawings requested by the Strandlunds on December 5th, 2000 which were beyond the initial quote. By March 14th, 2001, a further $844.50 had been advanced. From the Strandlunds point of view, they had issued payments totalling $1,444.50 against an invoice of $1,712.00. A few days later they received notice that a builders' lien had been filed by the Mulvey Agency in the sum of $2,097.37. Mr. Mulvey also swore an affidavit verifying the lien claim.
There is obviously a dispute as to the calculation of the accounts. From the Strandlunds' point of view, they believe they were overcharged and do not believe that they contracted for some of the services provided. Mr. Mulvey takes quite a different view. What is clear, however, is that as a consequence of the registration of the lien, the Strandlunds retained a lawyer who initiated steps to try and negotiate a settlement with Mr. Mulvey. The parties were not able to compromise and the Strandlund's lawyer appeared in Court and obtained an Order discharging the builders' liens on payment of security into Court or in trust. There is absolutely no question that almost immediately after the Court Order was made, Mr. Mulvey issued a second builders' lien in the amount of $4,173.00. Mr. Mulvey literally went from the Court House to the registration department and filed the lien. The liens were also filed in the Spring of 2001 even though the last time Mr. Mulvey had done any work on the project was August 26th, 2000, save and except for the delivery of the drawings. Two builders' liens had now been filed against the property in the sum of $6,200.00, an amount that well exceeds the value of any work done on the project.
On April 23rd, 2001, Mr. Mulvey purported to revoke his services by way of a letter.
In addition, Mr. Strandlund also testified that Mr. Mulvey initiated contact
with inspectors and banks in regard to the construction of the Strandlunds' home.
Mr. Mulvey gave evidence that his only commission with Mr. and Mrs. Strandlund was to provide services related to the preserved wood foundation. Although Mr. Mulvey initially testified in direct examination that the invoice of April 23rd, 2001 was based on time actually spent working on the project for the Strandlunds, he later acknowledged that the timesheet was a reflection of time posted, not time spent and that staff are required to post a minimum of 0.25 hours at $50.00 an hour regardless of their hourly rate of pay, nature of activities performed or time actually spent on the activity. Several examples were brought out in cross-examination where tasks took only one or two minutes and yet a minimum of 0.25 hours (or 15 minutes) was posted to the client's file. Mr. Mulvey also acknowledged that he does not inform his clients of his time posting policies. Mr. Mulvey also expressly indicated in letters to third parties, including the County of Athabasca and the Strandlunds' lenders, that his involvement was limited to the preserved wood foundation part of the project and that as of October 3rd, 2000, the only task left to perform on that project was a final inspection. Mr. Mulvey acknowledged, however, that an unsolicited fax was sent to Mr. Strandlund on February 27th, that the time to do so was posted to the file even though the client had never requested the service and the same information had been previously sent in August 2000. Mr. Mulvey also posted and made four calls that had nothing to do with the preserved wood foundation assignment. Mr. Mulvey also sent a second invoice and attempted to charge the client an additional amount for issuance of a Compliance Certificate, including the Compliance Certificate sent on October 3rd, 2000, which was the subject of the invoice of November 9th, 2000. Mr. Mulvey tried to explain that even though it was included in the initial quote, the further charge was justified because "it normally falls outside the contract".
With respect then to charges 27 and 28, we find that the charges are proven. The amount of the lien well exceeded the amount owed by Mr. and Mrs. Strandlund for the services for which Mr. Mulvey had been contracted and included services for which Mr. Mulvey had not been retained. Also, the amount charged was not supported by the actual work performed. Mr. Mulvey admitted that he had no work left to complete except for the final inspection after November 9th, 2000. Yet, he thereafter sent the Strandlunds a second invoice. At the time the lien was filed, the Strandlunds had paid $1,444.50 against an invoice of $1,712.00. Also, the lien was filed on March 14th, 2001, more than 45 days after the last services had been supplied. Mr. Mulvey swore an affidavit that he knew was for an amount well above what he had contracted for with the Strandlunds. The Panel is satisfied that he knowingly swore a false affidavit, but even if we were to give Mr. Mulvey the benefit of every doubt, something that we are not prepared to do, it is apparent that he was reckless in swearing the affidavit.
In regard to charges 29 and 30, we find that the charges are proven. After the Court had ordered that the first lien be discharged once the Strandlunds paid the money into Court or in trust, Mr. Mulvey filed the second lien and supporting affidavit knowing that it was redundant as the Strandlunds had provided the Court with security to cover the amount Mr. Mulvey had claimed he was owed. Mr. Mulvey himself acknowledged that there was no justification for the amount liened. He further acknowledged that he had a lien prepared prior to the Court appearance and the lien included amounts previously liened. Mr. Mulvey acknowledged that the lien was redundant and that it duplicated amounts that the Court had already ordered discharged. He could not explain why this was done. The only conclusion that the Panel can draw from his conduct is that he abused the right to file a lien to inconvenience the Strandlunds by encumbering their property further, and that he fully intended, in advance, to defy the direction of the Court. He clearly knew that he had no money owed to him when he filed the second lien and supporting affidavit yet he was prepared to file a second and unjustifiable lien. The Panel is satisfied that his filing of the lien was wrongful and improper and that he also knowingly swore a false affidavit in support of the lien.
With respect to charge 31(a), we find that the charge was proven. As reviewed above, Mr. Mulvey admitted he charged the Strandlunds for services that Mr. Mulvey was not asked to perform. He invoiced the client twice for the same service. Specifically Mr. Mulvey submitted a counter invoice to the Strandlunds for compliance letters for the bank, which was the service Mr. Mulvey was initially hired for and was paid to do.
With respect to charge 31(b), we find that the charge was proven. As of April 23rd, 2001, Mr. Mulvey notified Mr. and Mrs. Strandlund that the project was cancelled. At that time, he already had received payments totalling $1,444.50 from the Strandlunds and only had one final site inspection remaining. He indicated that the Certificate he had already signed and sealed was "null and void" meaning that the Strandlunds received virtually nothing for the $1,444.00 that they had already paid to date. Mr. Mulvey was unable to provide a rational explanation as to how he could unilaterally revoke his own professional responsibility for documents issued to third parties under his professional seal. The letter of April 23rd, 2001 was carbon copied to the County of Athabasca, EPCOR Technologies Inc., Commonwealth Credit Union Ltd., Alberta Treasury Branch and R. Blane Logan. The letter clearly suggests that the Strandlunds would have to retain an alternate professional to provide new, engineer-approved drawings for the PWF design and a new Compliance Certificate. In the letter, Mr. Mulvey also indicates that although he had signed and sealed a Compliance Certificate, he was taking no responsibility for it because he had claimed that he had not been paid.
With respect to charge 31(c), we find that the charge was proven. Mr. Mulvey filed an action when he had already been paid for his services. The Judge dismissed the claim and stated that Mr. Mulvey had already been paid for the services.
With respect to charges 30(d), (e) and (f), we find that the charges were proven. By filing the liens, Mr. Mulvey frustrated the Strandlunds financial arrangements and caused the Strandlunds additional costs to defend against the unfounded liens. Mr. Mulvey had also initiated contact with lenders and inspectors dealing with the Strandlunds, including Mr. Sennekers, a Bank Manager at the Commonwealth Credit Union. We find that there was no purpose for these contacts other than to interfere in the Strandlunds' business affairs and to frustrate their mortgage arrangements. The same is true with respect to Mr. Mulvey's actions of sending the Credit Union copies of the builders' lien he had filed as well as the other documentation supplied to the Commonwealth Credit Union under cover letter dated March 26th, 2001 (Exhibit 7, Tab 134). Also, Mr. Mulvey wrote to the Commonwealth Credit Union on March 29th, 2001 stating that he was to resolve the Strandlunds' permit issues when in fact his only responsibility was to complete the PWF design and certification (Exhibit 7, Tab 138). His purpose throughout appears to be to frustrate the financial transactions of the Strandlunds.
With respect to charge 32, we find that the charge was proven. Throughout this matter, Mr. Mulvey did not have the proper regard for the welfare of his clients, the Strandlunds. He did not act with fairness and justice towards the Strandlunds nor could his conduct towards the Strandlunds be construed as being in good faith.
With respect to charge 26, we find that the charge was proven. Mr. Mulvey agreed that he did not produce the documentation related to the charges by March 19th, 2002 as had been required by Section 49 of the Engineering, Geological and Geophysical Professions Act and APEGGA's notice to produce. Mr. Mulvey admitted that he did not send any documents until July, 2002 and then only upon advice of his lawyer. As indicated earlier, there can be no doubt of the importance of a request by a professional association to produce documents. One of the hallmarks of being a self-governing profession is self-regulation. If members do not respond to their professional association promptly and diligently, then the very authority and premise for self-regulation is seriously compromised and even undermined. It is absolutely imperative that members of the profession respond to the requests of their professional association completely, accurately, and quickly. The failure to do so is unquestionably unprofessional conduct.
The Panel acknowledges that arriving at these findings has taken a great deal
of time. We have considered the charges to be very serious and have given them
due attention. We have found Mr. Mulvey to be guilty of a number of the charges,
and recognizing this, have taken our role very seriously. The time we have taken
reflects the seriousness with which we view our duties and these allegations
and should not be construed as a lack of concern for the welfare of the public.
On July 12, 2004, the Discipline Committee Panel’s written findings and reasons were issued to the Member and to the Investigative Committee. In its letter, the Panel indicated that it would receive written submissions from the parties on the matter of the orders to be made.
The Panel has reviewed the submissions from the Investigative Committee and from the Member's counsel. The matter before us does not involve unskilled practice, but rather, unprofessional conduct. The findings of this Panel make it plain that the Member's conduct raises questions about his integrity, calls for sanctions that protect the public, preserve the reputation of the profession, deter the Member and others from engaging in similar conduct and clearly and unequivocally renounce the behaviour evident here.
This Panel accepts that this Member's conduct was dishonorable and disgraceful and that the characterization of the Member's conduct in the Investigative Committee's written submissions of August 12, 2004 are, though strongly worded, essentially accurate. We also accept and so find that the consequences of this misconduct are accurately and fairly stated in the Investigative Committee's written submissions of August 12, 2004. This Member did cause financial stress to his clients; he did cause emotional stress; he did interfere with the completion of projects, and he did interfere with the proprietary rights of some of these individuals. All of this is true.
But having said this, the difficult question for this Panel is whether we should cancel the Member's registration or whether we can meet the objectives of the Act in some other way. The Member, through his counsel, correctly points out that cancellation of registration is a serious step and has a significant impact on the Member, his family and his employees. It is the most serious sanction open to us, and it seems obvious that it should be reserved for the worst "offence" and the worst "offender".
Our findings make it clear that we think that this Member has engaged in serious misconduct. He has shown a lack of integrity, and the complainants in this case have suffered real harm as a result of all of these events. Their frustration and even their anguish were plain to see throughout the course of these proceedings. As we say, these events are "serious".
We do note, however, that they do not involve physical injury, lasting damage or irreparable harm. This should not be read as an attempt to minimize the history of this matter, just to put it into perspective.
When we look at the "offender", we note that this is not the first time that this Committee has dealt with this Member. The record makes it clear that he has a history with APEGGA. What is more, we recognize that these charges involve multiple complainants over a significant period of time. We are mindful that they come before us as one set of charges but that most of the charges came to the Member's attention at one time. Nevertheless, the conduct here does not appear to be "isolated" but part of a pattern or a "way of doing business". The Member has not engaged in actual fraud, but his swearing of false Affidavits and his conduct certainly brings him to the neighbourhood of this type of disreputable conduct.
The question then is whether or not it is necessary to cancel the Member's registration in order to protect the public, preserve the integrity of the profession, deter others from engaging in similar disreputable business practices and renounce the conduct.
Reluctantly, we have come to the conclusion that we can achieve the purposes of the Act by imposing a less serious sanction than outright cancellation of the Member's registration. We have concluded that a lengthy suspension coupled with additional sanctions will serve as a specific and general deterrent. It will renounce the conduct, preserve the reputation of the profession and protect the public. It may be that such a sanction pleases neither the Investigative Committee nor the Member, but in our judgment it meets the objectives of the Act. What is more, anything more at this juncture would, in our view, be punitive. It has not been demonstrated to us with sufficient clarity that Mr. Mulvey is incorrigible or beyond redemption and rehabilitation and that he should lose the privilege of practicing his profession for the balance of his life. At this juncture, we are not satisfied that the offence and his record make it plain that his life should be completely turned upside down, his family put at risk and his business destroyed. Make no mistake about it, we were close to canceling his registration, but, in our view, this case does not support cancellation.
Having taken all of the foregoing into consideration and recognizing that the purpose of sanctions is to rehabilitate the Member, protect the integrity of the profession and the public, we believe that the objects of the Act are best served by imposing the following sanctions:
1. Mr. Mulvey is to be reprimanded for his unprofessional conduct towards his professional association, his clients and employee.
2. Mr. Mulvey's registration is to be suspended for an eight (8) month period. The sanction is to be imposed commencing February 1, 2005 because of Mr. Mulvey's particular circumstances. He practices alone and requires at least some time to ensure that his clients' engineering needs are looked after, that his projects are wound down and that arrangements can be made to ameliorate the effects of this Order on his employees.
3. Mr. Mulvey is ordered to pay a fine of $5,000.00 to APEGGA and the payment of this fine shall be a requirement for satisfying this sanction.
4. Mr. Mulvey is ordered to pay to APEGGA 50% of the costs of the discipline hearing, this amount being $24, 293.23 and the payment of these costs will be a requirement for satisfying this sanction.
5. The details of the proceedings of this case will be published with names in The PEGG and a summary will be placed in the notices sections of the Edmonton Journal and a newspaper local to Lloydminster.
6. In the event that Mr. Mulvey returns to active practice, he shall be restricted from filing Builders' Liens without doing so through legal counsel for a period of ten (10) years.
7. The suspension of Mr. Mulvey's registration as a professional engineer shall continue until all of these conditions are satisfied.
We encourage Mr. Mulvey to continue any counseling he thinks he requires, but it is not a condition of this order.