Date of Hearing: March 5, 2004
Date of Decision: May 27, 2004

IN THE MATTER OF the Engineering, Geological and Geophysical Professions Act

- and -

IN THE MATTER OF the conduct of J. Fred Apon, P.Geol., regarding reports concerning a proposed RV campground near Hinton, Alberta.

Marty Klaassen, P.Eng.
Diana Purdy, P.Geol.

Panel Counsel Dwayne Chomyn, Neuman Thompson


APEGGA Investigative Committee represented by Barry Massing, Hendrickson Gower Massing Olivieri

Member J. Fred Apon, P.Geol.

Member’s Counsel Brian J. Curial
Miller Thomson LLP


On July 25, 2003, the Discipline Committee received, from the Investigative Committee, the referral for a discipline hearing concerning Mr. J. Fred Apon, P.Geol. (the "Member"). After obtaining the availability of all necessary parties, a hearing date of March 5, 2004 was set.

On September 26, 2003, the Discipline Committee issued a formal notice of hearing and served copies on the Member’s counsel 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. All submissions were provided to the Panel on February 27, 2004.


The hearing was held and concluded before the Panel at the Association’s offices in Edmonton on March 5, 2004. The Investigative Committee was represented by Mr. Massing. The Member was represented by Mr. Curial.


The matters to be decided, as brought forward by the Investigative Committee, were:

1. "That J.F. Apon, P.Geol., authored a report of a professional nature, dated July 23, 2001, which report was not supported by adequate site testing and which report did not state the limitations of the testing that had been undertaken, which conduct constitutes unskilled practice of the profession, or unprofessional conduct, or both, and which contravenes the APEGGA Code of Ethics Rule of Conduct #1."

2. "That J.F. Apon, P.Geol., authored a report of a professional nature, dated July 23, 2001, which report contained conclusions based on inadequate testing performed by unskilled and unsupervised personnel, which conduct constitutes unskilled practice of the profession and contravenes APEGGA Code of Ethics Rule of Conduct #2."

3. "That J.F. Apon, P.Geol., did not avail himself the opportunity to review additional information prior to presenting his opinions to the public in the report dated July 23, 2001 and otherwise, which conduct constitutes unskilled practice of the profession and contravenes APEGGA Code of Ethics Rule of Conduct #2."

4. "That J.F. Apon, P.Geol., reviewed and commented upon the engineering report prepared and submitted by Blaine Newton, P.Eng., on behalf of EXH Engineering Services Ltd., but had not advised Blaine Newton, P.Eng., nor EXH Engineering Services Ltd. of his intent to do so, which conduct constitutes unprofessional conduct and contravenes APEGGA Code of Ethics Rule of Conduct #10."

5. "That J.F. Apon, P.Geol., in his report of July 23, 2001, commented upon the report of Monica Caine, P.Eng., of Hydroconsult EN3 Services Ltd., dated June 13, 2001, but did not advise Monica Caine, P.Eng., nor Hydroconsult EN3 Services Ltd., of his intent to do so, which conduct constitutes unprofessional conduct and contravenes APEGGA Code of Ethics Rule of Conduct #10."

6. "That J.F. Apon, P.Geol., did not apply his professional seal to either the report dated July 26, 2000, nor the report dated July 23, 2001, which conduct constitutes a breach of Section 76(1)(b) of the Engineering, Geological and Geophysical Professions Act, together with Regulation 54(1) of the Act, and which thereby constitutes unprofessional conduct pursuant to the Engineering, Geological and Geophysical Professions Act."


From a macro perspective, this case is about the role played by APEGGA members in informing and assisting public bodies to make decisions regarding the competing rights of individuals within society.

In a semi-rural area near Hinton, developers proposed to construct a sizeable RV campground in what had been a ranch field. The neighbours in nearby acreages opposed the proposal. The Panel notes the strong feelings which marked the opposition, and would not be surprised if the fundamental source of their reluctance was the fear that the development would alter the appearance, character and appeal of their neighbourhood. In addition to these qualitative reasons, several tangible objections were raised, such as traffic considerations and the possible effects of sewage on groundwater plus the surface water of an adjoining creek. The developers retained professional engineers to design the RV campground and associated facilities such as roadways and a sewage system. The neighbours formed a society, raised funds, and retained a professional geologist to assist them with identifying and presenting technical objections relating to the groundwater.

As an aside, this illustrates the development process on a human scale. The developers are not a mega corporation, rather a family with a plan to realize value out of an investment property which they had owned for a number of years. The neighbours are not a large and sophisticated lobby group, rather a handful of families concerned with their immediate quality of life. The individuals sitting on the Yellowhead Subdivision and Development Appeal Board (the “Appeal Board“) are charged with sorting out the competing interests of landowners and neighbours.

Involving experts in this public dialogue is an important part of the process. Arguments on both sides of the debate must be supported with facts and reasoned judgments. Professional engineers, geologists and geophysicists owe a duty to their individual clients to present the most compelling arguments in the most convincing way. At the same time, they owe an even higher duty to the public interest, i.e. to facilitating an informed and fair decision by the public body. Because boards such as the one in Yellowhead County are often made up of non-technical people, professionals face the additional challenge of presenting complex or judgmental information in a way which can be understood as useful input for a decision.

With this background, we turn to the case at hand and the particular issues that arise from a professional perspective.


Because of the timing of the matters being considered, the “1990” Code of Ethics is applicable, rather than the current Code which was adopted in 2002.

At the outset of the hearing, counsel for the Investigative Committee advised that, after consultation with the Hydroconsult witness, he was not calling evidence with respect to charge #5 and he asked the Panel to dismiss the charge. In this light, the Panel hereby dismisses charge #5.

Charge 1

From the testimony of all parties, including the free admission of Mr. Apon, it is clear that Mr. Apon authored the two letter reports dated July, 2000 and July, 2001. Both reports contained opinions based on Mr. Apon's professional knowledge. For instance, his overall conclusion “It is my professional opinion that this site is not suitable for development. This is an environmentally sensitive area.” While the reports list the limited number of tasks undertaken, they do not plainly state the limited nature of the professional engagement to put the reports in context for a lay reader. In particular, the second report referred to information from water table monitoring wells that confirmed water table studies done by others, without mentioning the technical limitations of the water monitoring wells that could affect the confidence in interpretation of the information provided.

Mr. Apon knew his report would be used in a public forum, i.e. the Appeal Board and other hearings, to present views opposing the developer’s engineering consultants. In the hearings, Mr. Apon was consistently referred to as his client’s “expert”, and his testimony was that he was comfortable with that role. It is the view of the Panel that he did not properly qualify the scope of his assignment and the limitations on at least some of the data supporting his conclusions. This has particular importance in public dialogue, so that the Appeal Board and others can put appropriate weight on his reports, as they try to balance them with opinions from other engineering consultants.

The Panel finds that the lack of appropriate qualification on scope and data did unnecessarily obfuscate the public process, and thus constitutes unprofessional conduct, in contravention of Rule #1.

Charge 2

As noted above, the information from the water table monitoring wells should have been appropriately qualified to assist the understanding of readers of the report. However, Mr. Apon's testimony illustrated that he understood the limitations of the information, placed appropriate weight on the data, and used it in the context of several other personal observations plus information from previous reports.

The Panel believes, from the testimony of Mr. Apon, that he formed professional opinions on the basis of a number of factors, of which the water table monitoring wells was one. The panel finds that this does not constitute unskilled practice or unprofessional conduct.

Charge 3

The panel heard evidence regarding the telephone call on the day before the July 2001 hearing of the Appeal Board. Beyond noting the mutual inability of two professionals to establish meaningful communication, the Panel did not place high significance on either one of the very different perspectives on this conversation.

It is clear that, as he prepared his second report, Mr. Apon did not seek any updated information on the engineering designs or other studies that might have been done during the intervening year since his July 2000 report and presentation. The Panel understood from his testimony that the client contacted Mr. Apon in late June 2001, allowing approximately one month to complete the (very limited!) scope of his second assignment. There was also adequate time to contact the developer’s engineers to seek updates or clarification of points that Mr. Apon intended to address in his second report or in his presentation to the Appeal Board.

Certainly Mr. Apon did not have to reconcile his opinions with those of the developer’s engineers, nor justify his position to them. However, in a public forum, such as a hearing, it is incumbent upon professional engineers, geologists and geophysicists to present their opposing opinions in a respectful and informed way. Public bodies, such as the Appeal Board, are frequently faced with adjudicating between differing or even opposing opinions in order to make decisions for the public good. It is important to present professional opinions in a way that facilitates this sometimes difficult process.

In the view of the Panel, Mr. Apon's approach to this project was detached, even for a limited scope assignment. He failed to seek a basic understanding of the facts and assumptions behind the engineering design of the development upon which he was commenting. This omission detracted from his ability to present to the Appeal Board in a balanced and informed way.

The Panel finds that this constitutes unprofessional conduct, in contravention of Rule #2.

Charge 4

Mr. Apon made brief comments upon the report of EXH Engineering Services, which had been publicly disclosed as part of the development permit process. In the Panel’s view, the comments in Mr. Apon's reports are cursory and aimed primarily at identifying information gaps rather than a substantive critique of the data, methodology or findings of the EXH report. The intent of Rule #10, in terms of notifying other professionals when reviewing their work, is to ensure that critiques are based on facts rather than inferences, so that the public is informed by enlightened debate.

The Panel finds that the brief comments made by Mr. Apon on the publicly available reports did not strictly necessitate notification of EXH Engineering Services, and thus did not constitute unprofessional conduct.

Charge 6

Mr. Apon freely admitted that he authored the two reports, although at the time he did not consider them “reports”. It is clear that they did contain opinions based on his professional knowledge. His authorship, P.Geol. credentials and professional responsibility for the reports were clearly identified at the signature line.

The Panel finds that the omission of Mr. Apon's seal does breach Section 76(1) of the Act and Section 54(1) of the General Regulation under the Act. The Panel notes that the breach is mitigated by the clear acknowledgement of professional authorship of the report.

The Panel was satisfied that Mr. Apon had adequate technical expertise, and that he was trying to do the “best” possible job for a low-budget client. His site visit was piggybacked onto another project to keep costs down, and useful data was contributed from previous reports in the company archives. However, service to the client must be balanced with serving the public good. Particularly in the case of reports and testimony for public bodies, professional opinions must be objective, balanced and clear to lay members of the public body. This is as true of limited scope assignments as it is of normal assignments.

Professionals, and particularly those acting as expert witnesses before a public board on behalf of one of the parties, must take the lead to outline an appropriate work scope. The next step is to secure adequate compensation for the work to be done, or to decide to provide some essential work without charge either for personal reasons or pro bono publico. A general lesson from this case is that a limited fee arrangement must not be allowed to constrain the work scope below the essential professional minimum to act as an expert witness before a public body.

The Panel also noted Mr. Apon's casual approach to documenting administrative details, discussions and decisions. The same standard of record keeping applies for small projects as for normal projects.


On April 1, 2004, the Discipline Committee Panel’s written findings and reasons were issued to Mr. Apon through his legal counsel and to the Investigative Committee. In its letter, the Panel requested that the parties provide their submissions in writing on the matter of the orders to be made.

Both parties provided submissions in accordance with the procedure outlined by the Panel in its letter. Mr. Massing, on behalf of the Investigative Committee, forwarded a submission dated April 7, 2004. On April 16, 2004, Mr. Curial submitted his response on behalf of Mr. Apon. Mr. Massing submitted a reply on April 22, 2004.

On May 3, 2004 the Panel requested that the Director of Professional Practice (the Director) provide information on the costs associated with the hearing. The Director wrote to the parties on May 4, 2004, indicating the costs that his office had determined and noting that he would provide a copy of that letter to the Panel on May 11, 2004 along with any comments either party wished to make. Neither party submitted a response.

The Panel made findings of unprofessional conduct on three of the six charges originally presented by the Investigative Committee. Upon the recommendation of the Investigative Committee, the Panel dismissed one of the original charges without hearing any evidence. The other two charges, in the view of the Panel after hearing the evidence, may have been in the gray zone of professional performance but did not fall below the threshold of unprofessional conduct or unskilled practice.

In formulating appropriate sanctions in these circumstances, the Panel considered several factors. While public safety per se was never at risk, the public interest (in the form of a public decision-making process) was not well served by Mr. Apon’s actions. However, it is clear that the omissions which did lead to the findings of unprofessional conduct were naive mistakes as Mr. Apon endeavored to serve a low budget client. Once this matter entered the Investigative and Discipline processes, Mr. Apon responded in a professional, forthright and co-operative manner. Mr. Apon has never before been involved in the disciplinary process, and, in the opinion of the Panel, it is very unlikely that he will be involved again.

This case serves as a reminder to the general membership to keep in mind their duty to serve the public interest even (or perhaps especially) when striving to serve clients within limited scope assignments. Because it is the general policy of APEGGA to publish, with names, all discipline cases where there are findings against the Member, the Panel need make no publication orders for the general educational facet of this case to be achieved.

In some discipline cases, the Member under investigation refuses a Stipulated Order and triggers a formal Hearing which then arrives at essentially the same findings as the Stipulated Order. In these circumstances, Panels often assess a large proportion of the incremental cost of the hearing on the premise that the general APEGGA membership should not have to bear costs incurred by the unjustified reticence of the Member. In the case of Mr. Apon, some of the charges did not constitute unprofessional conduct or unskilled practice, although the broad findings and sanctions following the formal hearing did not materially change from those of the Stipulated Order.

Considering all of the above, the Panel makes the following orders:

1. Mr. Apon shall be reprimanded for unprofessional conduct.

2. Mr. Apon shall pay to APEGGA, within six months of this decision being served on him, $2,300.00, being approximately one quarter of the costs of the formal hearing.

3. Mr. Apon's registration as a professional geologist shall be suspended if the amount in Order 2 is not paid within six months of this decision being served on him, and the suspension shall remain in effect until the amount is paid.

DATED this 27th day of May, 2004 at Edmonton, Alberta.

Larry Staples, P.Eng.
Chair, Discipline Hearing Panel



Although no publication order appears this decision,
Council requires that The PEGG publish all discipline committee decisions.


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