DISCIPLINE

Discipline Committee Decision

JOHN RICHARD PAINE, P.ENG.
J.R. PAINE & ASSOCIATES LTD.
ROMAN STEFANIW, P.ENG.

Editor's Note: APEGGA Council requires that The PEGG publish Discipline Committee decisions. Following are the details of a committee decision of May 23, 2003, involving the above.

BACKGROUND

On Aug. 7, 2001, the Discipline Committee received, from the Investigative Committee, referrals and charges for a discipline hearing concerning Mr. Paine, J.R. Paine & Associates Ltd. and Mr. Stefaniw (the "members"). After obtaining the availability of all necessary parties, a hearing date of April 22, 23 and 24, 2002, was set.

On Jan. 25, 2002, the Discipline Committee issued formal notices of hearing and served copies on the Members 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.

On April 19, 2002, the members, through their counsel, applied for an adjournment. After hearing representations from the parties by way of a teleconference call, the panel granted the adjournment for the personal reasons advanced by the members' counsel. Subsequently, the hearing was rescheduled for July 2 and 3, 2002.

On June 28, 2002, the Investigative Committee advised that, further to its discussions with the members and their counsel, the committee did not intend to present its case at the hearing, and consequently the hearing was adjourned.

On Aug. 12, 2002, the Investigative Committee proposed that the matter be resolved by way of a stipulated order. Given that the panel had already been struck and had issued procedural rulings, both parties agreed that the matter would proceed by way of a joint submission to be put before the panel. On Jan. 8, 2003, the joint submission was received and put before the panel on Jan. 15, 2003. The panel requested the parties' positions on whether further oral representations were required. Counsel Barry Massing, for the Investigative Committee, and James Scott, for the members, indicated that they did not wish to make any further representations.

AGREED STATEMENT OF FACTS

In their joint submission dated, Jan. 7, 2003, the parties agreed as follows:

1. At all material times, Roman Stefaniw, P.Eng., and J. Richard Paine, P.Eng., were professional engineers duly registered in good standing with the Association of Professional Engineers, Geologists and Geophysicists of Alberta (APEGGA). J.R. Paine & Associates Ltd. was duly registered in good standing as a permit holder.

2. From time to time employees of J.R. Paine were required to conduct soil compaction tests for projects requiring trench backfill compliance.

3. The procedures required and included the recording of test results on site by field technicians and submitting them for review and transcription into final report form.

4. There were changes and additions to the field test results which were done without basis of fact and could not be supported by field test findings.

5. Mr. Paine and Mr. Stefaniw signed, as professional engineers, the compliance reports, relying upon data, some of which included the data subsequently found to have been inaccurate.

6. Upon being notified that some compliance reports may have been issued upon data subsequently found to have been inaccurate, Mr. Paine, Mr. Stefaniw, and J.R. Paine commissioned an independent audit of the procedures followed by J.R. Paine in order to:

• Determine the procedures followed by J.R. Paine in the preparation of the reports required.
  
• Highlight procedure improvements, if any, that should be implemented by J.R. Paine in the preparation of the above noted reports.

The audit was completed and certain recommendations were made. J.R. Paine, Mr. Stefaniw and Mr. Paine have advised that the recommendations have been adopted and implemented.

7. Mr. Paine and Mr. Stefaniw accept professional responsibility for signing and causing to be issued compliance reports, some of which have been based in part on data not based on fact and not supported by field test findings.

FINDINGS

In their submission, the members and the Investigative Committee also agreed that the conduct of Mr. Paine, Mr. Stefaniw and J.R. Paine constitutes a violation of Rules of Conduct 1, 2 and 3 in that the compliance certificates were signed and issued to the clients, some of which have subsequently been based on data subsequently found to have been inaccurate, thereby constituting unprofessional conduct and a violation of the APEGGGA Code of Ethics.

ORDERS

Having considered the parties' submission, the panel orders as follows:

1. Mr. Paine, Mr. Stefaniw, and J.R. Paine & Associates Ltd. shall be reprimanded.

2. Mr. Paine, Mr. Stefaniw, and J.R. Paine & Associates Ltd. shall pay, to the Association, costs in the collective amount of $5,000, and shall donate $5,000 to the APEGGA Education Foundation.

3. Mr. Paine, Mr. Stefaniw, and J.R. Paine & Associates Ltd. shall be the subject of not more than two random audits within the next five years of their procedures and record keeping, including data collection and preparation of their reports. The Investigative Committee has sole discretion to appoint the auditor. In its discretion, the Investigative Committee may dispense with the second audit.

The audits shall be with respect to work done from 2002 or subsequent thereto; shall consist of a minimum of five randomly selected projects; and shall be paid for by the individual members or permit holder as the case may be.

4. Should the auditor make any recommendations as a result of the audits, the individual members and permit holder shall implement those recommendations.

5. This decision shall be published in The PEGG.

The panel also suggests that in future cases coming before the Discipline Committee, the parties also address the matter of when certain payments are due. Typically, the panel would like to see a payment due date and consequences that would result if payment is not made. So, for instance, Order 2 might have said that the various costs and payments referred to would be "paid within 90 days of service of this decision, failing which the permit and registrations of the members will be suspended until the order is fulfilled" or some similar language.