September , 1999
Mr. Agbi was found to have withheld money from his former employees for remittance to the Canada Pension Plan, Unemployment Insurance Commission and Revenue Canada, but that he failed to make those remittances. Additionally, he was not open and forthright when the matter was raised by an employee and fellow engineer. The panel found that, as of the hearing date, Mr. Agbi still had not paid all salaries and wages due to the employees of the companies he controlled. He was also found to have filed false reports and to have used the National Research Council's Industrial Research Assistance Program (IRAP) funds for purposes other than intended.
The discipline hearing had been held on Sept. 21 and 22, 1998 and adjourned to Oct. 30, 1998. Both parties, Mr. Agbi and APEGGA's Investigative Committee, were represented by legal counsel. The case is of particular interest from two aspects: APEGGA's jurisdiction over former members and the Association's authority to deal with so-called "business practices".
Mr. Agbi's actions which were the subject of the hearing took place as far back as 1985. He had been registered as a professional engineer in 1974, but was subsequently suspended in 1990 and cancelled on March 31, 1995, for reasons not related to the matters of the hearing. Referring to Section 42 of the Engineering, Geological and Geophysical Professions Act, the panel found that because the complaint was filed and because Mr. Agbi was notified of the complaint and the investigation within two years of the March 31, 1995 cancellation date, the panel did have jurisdiction in the matter. Section 42 states: "A complaint respecting the conduct of a professional member, licensee, permit holder or certificate holder whose registration was cancelled pursuant to this Act may, notwithstanding the cancellation, be dealt with within 2 years following the date of cancellation of the registration as if the cancellation had not occurred."
With respect to business practices, Mr. Agbi's counsel took the position that such matters were not within APEGGA's jurisdiction and should not be subject to the discipline process. The Investigative Committee argued that the use of the term "unprofessional conduct" by the legislators, rather than the term "professional misconduct", reflected an intent to go beyond the strict practice of the professions. The members panel noted that the Code of Ethics of the day, in dealing with duties to the profession, used terms such as "shall not compete unfairly", "not attempt to supplant" and "that constitutes price competition", all of which have a business connotation, in their opinion. They also noted that during the period in question, the Practice Review Board had jurisdiction to review "poor business practice". The panel concluded that the term "unprofessional conduct" goes beyond the technical details of the practice of the profession and does include business practices. The panel noted that certain actions of Mr. Agbi's, if viewed in isolation, might not lead to a finding of unprofessional conduct. It concluded however, that all of the actions, when assessed on a combined basis, contravened the Code of Ethics, were detrimental to the best interests of the public and were harmful to the standing of the profession. (See full text of the decision.)
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