APEGGA DISCIPLINE COMMITTEE
DECISION

Date of Hearing: March 24, 2004
Date of Decision: May 6, 2004

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

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IN THE MATTER OF the conduct of Engineer B, P.Eng., regarding review and commentary on an engineering report.

Tel: (780) 426-3990 Fax: (780) 426-1877 Toll Free: 1-800-661-7020DISCIPLINE COMMITTEE PANEL Bruce Alexander, P.Eng., Chair
Rick Imai, P.Eng.
Diana Purdy, P.Geol.

Panel Counsel Dwayne Chomyn, Neuman Thompson

PARTIES

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

Member [Engineer B], P.Eng.

BACKGROUND

On January 16, 2003, the Discipline Committee received, from the Investigative Committee, the referral for a discipline hearing concerning [Engineer B], P.Eng., (the "Member"). The Discipline Committee responded and requested that the Investigative Committee provide particulars of the matters to be heard. The charges were received May 15, 2003. After obtaining the availability of all necessary parties, a hearing date of August 27, 2003 was set.

On July 3, 2003, the Member requested an adjournment. The Investigative Committee did not oppose the request, and the adjournment was granted. A new hearing date of March 24, 2004 was subsequently set.

On October 20, 2003, 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 submitted documents, and all submissions were provided to the Panel on March 17, 2004.

THE HEARING

The hearing was held and concluded before the Panel at the Association’s offices in Edmonton on March 24, 2004. The Investigative Committee was represented by Mr. Massing. The Member appeared on his own behalf.

CHARGES (ALLEGATIONS)

The Member faced three charges. As stated in the notice of hearing, the matters to be decided, as brought by the Investigative Committee before the Panel, are:

1. "That you prepared and issued a report, date April 17, 2001, and revised and reissued that report in June or July, 2001, which was of an engineering nature containing engineering opinions, which report reviewed and commented on the engineering report of Agra Earth and Environmental Ltd., date October 12, 1999, without first notifying Agra Earth and Environmental Ltd., or its personnel, that it was your intention to review and comment on the report, thereby committing a breach of Rules 4 and 10 of the APEGGA Code of Ethics and constituting unprofessional conduct."

2. "That you prepared and issued a report, date April 17, 2001, and revised and reissued that report in June or July, 2001, which was of an engineering nature containing engineering opinions and thereby engaged in the practice of engineering as defined in the Engineering, Geological and Geophysical Professions Act, notwithstanding that your membership status was that of a life member, contrary to the requirements of life membership contained in APEGGA Bylaw Section 25 and thereby constituting unprofessional conduct."

3. "That your aforesaid original report contained statements injurious to the profession in that you inferred that engineering consultants will report what their client’s wished to hear, thereby committing a breach of Rule 10 of the Code of Ethics and constituting unprofessional conduct."

FINDINGS AND REASONS

The facts can be stated simply. A development was proposed for the [an area in an Alberta county]. The Member lives in a community adjoining the proposed development. The Member did not believe that the development should proceed because, in his view, the Area Structure Plan did not adequately address storm water runoff and potential flooding concerns.

The Member had prepared [a study]. It purports to be submitted by “[Engineer B], Professional Engineer, Province of Alberta”. The “study” was submitted to each of the six county councillors on April 17th, 2001. On May 28th, 2001, the Member forwarded a copy to Agra Earth and Environmental Ltd., presumably as a courtesy. On June 5th, 2001, an amended report was presented at a public hearing. The title page was amended to indicate that the Member was “retired”. As well, section 2.0 of the report was changed slightly.

Charge 1

In order to succeed in this matter, the Investigative Committee must prove on a balance of probabilities, with clear and convincing evidence, the following:

- that the Member prepared and issued a report, revised and reissued that report;

- that the report was of an engineering nature containing engineering opinions;

- that the report reviewed and commented on the engineering report of Agra Earth and Environmental Ltd.;

- that the Member did not notify Agra Earth and Environmental Ltd. or its personnel that it was his intention to review and comment on the report; and

- that he thereby committed a breach of Rules 4 and 10 of the APEGGA Code of Ethics and that this constituted unprofessional conduct.

We are satisfied that the Member prepared, revised and issued a report.

To succeed, of course, the Investigative Committee must also satisfy us that the report was “of an engineering nature containing engineering opinions”. There is no doubt that the report’s content does address a matter that an engineer, or a geologist for that matter, is interested in. It is also true that it has the “look and feel” of something that an engineer might prepare. Indeed, the front cover page prominently notes that it was prepared by a professional engineer. In one of the reports it indicates that the professional engineer is “retired”, but we think that that is of little consequence.

But the fact is that we were not directed to any paragraph, sentence or phrase to specifically review, nor were we directed to anything in the report that was alleged to express an “engineering opinion”. We have carefully reviewed the report and we were not able to identify any “engineering opinions” in it.

The report references and quotes the Stormwater Management Guideline. The Stormwater Management Guideline is a document that is issued by the Department of the Environment and is available to the public. The Member accessed the document and quoted extensively from it. He did not make any independent judgments in this regard nor perform anything other than what might be described as very basic analysis and research. While an engineer might well access this reference material, we think that anyone, whether an engineer or not, could have done so and they would not be engaged in the “practice of engineering” merely by having accessed and quoted from it in the reference material. Beyond that, the Member did nothing more than apply the rather obvious and simple principle that water runs downhill and collects at low points unless it has an outlet. He did not suggest that the culverts did not have the capacity for water flow or anything of that nature. While engineers and geologists obviously might apply the Stormwater Management Guide and might utilize the principle that water runs downhill and collects at low points, we are of the view that utilization of this reference material and applying this principle is so obvious and simple that anyone, professional or layman, could properly engage in these activities without being engaged in the practice of engineering. When reviewed in that context, it is not really a report of “an engineering nature expressing an engineering opinion”.

Anyone acting on behalf of residents in the community could easily have accessed the material, may have reviewed the contour maps and made the same observations as the Member without engaging in the practice of engineering.

To summarize, the bottom line is that any concerned citizen, with or without the background in engineering sciences, could have assessed the Stormwater Management Guide, recognized that water runs downhill and can collect and could have written this report. It represents effort and the application of common sense, nothing more.

We can dispose of this charge without saying more. Recognizing the possibility that the Investigative Committee may appeal, however, we think there is value in completing the analysis on the balance of the charge.

If we are wrong about any of this so far, then we have to consider whether the report reviews and comments on Agra’s report. We think the report does review and comment on Agra’s report but not in an engineering sense containing engineering opinions. Any intelligent and highly motivated person could have prepared a report similar to this one. But it was a review and commentary on Agra’s report.

The Member notified Agra that he was reviewing their report, but he did not do so until May 28th, 2001. Unfortunately, the report had already been “published” on April 17th, albeit in its original form. If called upon to do so, we would have found that the Member did not fulfill his professional obligation by notifying Agra in a timely and appropriate manner that he was commenting on Agra’s report.

The Member said that he did not know of his obligation to notify Agra of his concerns. Ignorance, of course, is no excuse. In any event, he knew enough to bring his concerns to Agra’s attention on May 28th, 2001. We do not know why he took that step but we assume because he recognized that it was the reasonable and professional thing to do. It is interesting to note that APEGGA has published a guideline with respect to this very issue. The guideline was not tendered into evidence and was not discussed in the hearing. As a result, we put no weight on it and will not consider it in our decision.

Although we have found that the Member did not engage in unprofessional conduct because his opinions were not of an engineering nature, we do not countenance his conduct. Engineer B ought to have notified Agra that he was concerned about their report and that he was going to analyze the issue himself and he should have done so prior to April 17th, 2001. But given the nature of his paper, we do not think he had a legal obligation to do so under the Engineering, Geological and Geophysical Professions Act and under our Code of Ethics in the particular circumstances here.

Charge 1 is dismissed.

Charge 2

Needless to say, the chain of reasoning that we have outlined above applies here. We do not believe that the report was of an engineering nature containing engineering opinions and, therefore, we do not believe that he engaged in the practice of engineering as defined in the Act. As a result, Charge 2 is dismissed, as well, for the reasons set out above.

Charge 3

A Professional Member is subject to sanction if he makes statements or engages in conduct that tends to harm the profession. These cases must be assessed in the context of the specific matter before the Panel. A finding in one case is not necessarily easily applied to another.

We have reviewed the Member’s comments with care. They were provocative, ill considered and intemperate. The Member was seeking to have local politicians “think for themselves” and exercise, as they should, good independent judgment based on common sense. His remarks, frankly, should have focused on that goal.

But, given that he was well known in the community, he embarrassed himself by the remarks, not the profession. We did not find, on the whole, that the remarks, in fact, injured the profession and, therefore, dismiss this charge as well.

Finally, the matter of whether or not the Association has jurisdiction over the Member, in view of his being an APEGGA Life Member, was raised during the hearing. It is not necessary for us to address the issue of jurisdiction in light of the foregoing, and we decline to do so.

DATED this 6th day of May, 2004 at Edmonton, Alberta.

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Bruce Alexander, P.Eng.
Chair, Discipline Hearing Panel

Note:
Although there were no findings against the member in this decision, Council policy requires the The PEGG publish all discipline committee decisions. The member’s name and some other identifying words have been removed. Changed material appears inside large brackets.