Beyond the blue pages

As all regulators face increasing scrutiny over the treatment of errant practitioners through their complaints and discipline processes, PEO looks to position its own justice system beyond reproach.

The regulator’s complaints investigation and discipline arms are facing new challenges due to transparency and accountability expectations, especially as regulators fall under increased scrutiny to act unfailingly in the public interest. Most recently, the Toronto Star’s May 2018 series of articles detailing the College of Physicians and Surgeons of Ontario’s mishandling of some discipline and accreditation cases has added new pressure for all regulators to pay heed to their complaints and discipline processes.

For PEO, discipline is a hot topic among members, and the Gazette section of Engineering Dimensions—otherwise known as the blue pages—remains one of the most highly anticipated sections of the publication.

PEO’s Discipline Committee (DIC) was created by statute to act as an independent decision maker and to convene discipline hearings of cases referred by the Complaints Committee (COC), where a PEO licensee or certificate of authorization (C of A) holder is the subject of a complaint alleging incompetence or professional misconduct. PEO staff investigate complaints that are reviewed by the COC—which decides how to handle the complaint—and PEO counsel prosecutes discipline matters that are heard and determined by the Discipline Committee. This work is subject to continuous improvement and more effective operation.

The Professional Engineers Act (PEA) sets out the membership requirements for the DIC. Subsection 27(1) of the PEA calls for members to include a lieutenant-governor-appointed (LGA) Council member, a lay (non-engineer) member and at least three P.Engs with at least 10 years of professional engineering practice experience. According to the committee’s 2018 human resources plan, the DIC currently consists of five elected Council members, two LGA P.Engs and three LGA lay Council members, three P.Engs and five lawyers approved by the attorney general, and 20 general (non-Council) P.Eng. members.

In recently updated terms of reference, the DIC lists two central objectives: to hear and determine matters fairly and expeditiously, and to develop the adjudication skills of its 38 members. The terms of reference describe ways to measure the committee’s success in meeting its key objectives. They include that DIC decisions and reasons are fair (and “manifestly so”), that decisions are rendered within applicable time guidelines (90 per cent target), that decisions, if appealed, are confirmed by the courts (100 per cent target), and that committee members receive training to competently execute their responsibilities. This last measure includes a 100 per cent training success rate for first-year DIC members and a 75 per cent target for all members in subsequent years. The overriding aim is to have all members complete the training prescribed for their roles within two years.

The extensive training for members and the strenuous effort to achieve and demonstrate fairness in its deliberations underscore the significance of the DIC’s adjudication system. “It is a critical committee. Unlike many of the other committees in the association, the role and responsibilities of the Discipline Committee are set out in the Professional Engineers Act,” says current DIC Chair John Vieth, P.Eng. “The role of the committee chair is quite demanding. I thought I could do a good job and that it was time for me to step up and do it.”

A member of PEO Council from 2004 to 2008 and a one-time presidential candidate, Vieth recently retired from full-time engineering practice, offering the opportunity to devote more time to DIC work. He accepted the nomination for vice chair in November 2015, served in that role for two years and was elected chair of the DIC in 2017, succeeding Ravi Gupta, PhD, P.Eng.

The essential role of the chair is to select a panel from among the members of the DIC—within 90 days after a matter is referred to the DIC for hearing and determination—that includes at least one of each of the persons appointed under paragraphs 2, 3 and 4 of section 27(1) and that may include one or more of the persons appointed under paragraph 1 of that subsection; designate one of the members of the panel to chair it; refer the matter to the panel for hearing and determination; and set a date, time and place for the hearing.

It is always a challenge for the chair to get PEO and the licensee or C of A holder, as opposing parties, to agree, within 90 days, to dates when they and their witnesses and a panel of five members of the DIC are available to hear the matter. “A recent change to the PEA that came into effect at the beginning of my term has made this a little easier,” Vieth says. “The number of elected councillors on the committee was small and their availability limited. Now it is not necessary to appoint an elected councillor to each panel.”

Another challenge for the DIC has stemmed from a few matters that took a seemingly long time to be decided. When Vieth was vice chair, he headed a task force to measure and determine how the committee might reduce these situations. The data was analyzed, root causes identified and the DIC decided on two new initiatives for improvements. Out of this, the committee task groups are currently implementing new training and evaluation programs.

FORMALIZED TRAINING
One of these task groups is to formalize the training provided to members. This involves going beyond the resources of the committee itself and engaging resources like the Society of Ontario Adjudicators and Regulators (SOAR) to provide additional training modules. Created in 1993, SOAR is a provincial organization offering training programs for newly appointed adjudicators and administrative staff.

“That’s not to say the training we had been doing is inadequate or substandard,” Vieth says. “But we think we can do better because we can leverage the combined experience of other self-regulated professions through SOAR providing some specific training.” Indeed, some committee members have already taken SOAR training.

As the broad brush of public accountability and transparency falls on all self-regulated professions, so too are these associations combining forces to meet the challenge. The DIC, for example, routinely looks to other regulators for best-practice sharing and to learn from others.

The committee has also updated its success indicators to emphasize the objectives of fairness and due diligence of adjudication and expediting hearings.

“The first and foremost item we have in our terms of reference now is that the decision is fair and manifestly so,” Vieth says. “How does one quantify fairness? We look to other professions and what they do, and I think you would find similar success criteria to our own and by nature this aspect is always going to be subjective.”

The DIC also stepped up its timeframe expectations for issuing notices of hearings and preparation of Decision and Reasons, all aimed at timely administration of professional discipline. “We have taken steps to set the hearing date and issue the notice of hearing within 90 days of receiving the referral. We found that panels were able to issue their written decisions within 60 to 90 days of receiving submissions from the parties but were at times waiting on those submissions. We now focus on better reporting of the deliverables of the panel and the parties. When the matter seems to be taking a long time to conclude, it will be very apparent who was tardy.”

SEVERITY OF PENALTIES
Despite the DIC’s efforts to streamline its processes, some members still wonder about the deterrent value of perceived lenient penalties. David Baigent, P.Eng., a semi-retired consulting engineer from Burlington, Ontario, has written to the association on a number of occasions with these very concerns.

“I have read every Discipline Committee Decision and Reasons published in Engineering Dimensions since 1986 to provide insight into how to avoid professional misconduct in my practice,” Baigent says. “For many years, I have been concerned at what I perceive to be frequent lax penalties given out to members who have appeared before the PEO Discipline Committee.”

He believes the negative media surrounding other self-regulated professions in Ontario in response to perceived leniency and coddling of errant practitioners does not bode well for PEO.

“If PEO is widely seen by the public as a transparent organization that is vigorously penalizing its members who have exhibited professional misconduct, then there will be an increased likelihood that we will be allowed to remain a self-regulated profession,” Baigent says. “Stiffer Discipline Committee penalties will also act as a deterrent for PEO members who might not be sufficiently diligent or otherwise be inclined to cut corners, ignore statutes, regulations, standards and guidelines during the course of their work, thereby increasing the chance of human or environmental harm.”   

However, Vieth and other members of the DIC believe the committee is achieving its objective of fairness in decisions on the merits as well as on penalty. The suggestion that overly mild sentences are being meted out to engineering wrongdoers seems unjustified. If there is a finding of guilt, the panel receives submissions on penalty from both parties, and these submissions often cite decisions by the courts and other professions as the basis of argument. The panel considers both, and, in most cases, the severity of penalty decided will be between the two.

“One can sit back and read the written decision in the blue pages and wonder, based on what they read, how a panel could have decided that such and such decision is way too lenient 
or way too harsh,” Vieth says. “But I think that [attitude] is undervaluing the effort the parties and the members of the panel apply to making a fair decision based on real precedents.”

Vieth adds that with many of the complaints forwarded to the DIC for possible action, the parties sit down prior to the actual hearing to ascertain all the facts. In many cases, the member agrees to certain facts and, if he or she agrees to enough of these facts, it essentially substantiates the allegation. The Agreed Statement of Facts often precipitates a plea of guilty by the member.

There is always a plea inquiry, where the panel must be satisfied the member is making the plea without being coerced; is of sound mind; and that they are competent to accept the fact they are pleading guilty and will be subject to whatever penalty is applied. The panel then considers the Joint Statement of Penalty that was negotiated and agreed to by the association and the member.

“At that point, the panel has a very limited scope of influence, and so a panel will only reject an agreed joint penalty if the panel believes such penalty would bring the administration of justice into disrepute—meaning the penalty is either way too strict or way too lenient for the circumstances,” Vieth says. Outside of this realm, the severity of the penalty is effectively established by what the association and the member have agreed, which is consistent with Canada’s highest court as expressed in its decisions on appeals of such matters.

APPEALING DECISIONS
DIC volunteers were flustered recently when PEO’s registrar chose to appeal a DIC decision and send it to a higher court. Vieth recalls the situation: “The DIC, as independent adjudicators, does not express any comment on the association appealing the validity of a decision made by the panel. It is not an affront to the integrity of the tribunal. Decisions in the courts are often appealed if one party believes an error was made. If the association believes the panel has made an error, the association is acting within its rights to ask the divisional court to decide whether there was an error or not.”

DIC volunteers must also contend with the thorny issue of publishing the names of PEO members guilty of misconduct or meriting official reprimand. The PEA and regulations allow the DIC discretion in the use of names in the blue pages. However, Vieth says it remains up to PEO Council to change the existing regulations governing use of names if there is overwhelming consensus from Council to do so.

“I have to believe the decision—at the discretion of the discipline panel—is in the act for a reason,” Vieth says. “A panel will have to decide whether there is a reason to withhold the names when doing the publication, and they would have to deliberate on that to make the decision. It is not taken lightly.”

While the DIC seldom publishes its results without use of names, there are some cases where a member’s name is withheld for reasons of compassion and ultimate fairness. Vieth cites one example: “The panel considered the facts, the submissions of the parties and the case law provided by the parties and determined to exercise its discretion to order that the summary of the decision be published but without names. In the view of the panel, having regard to the facts and submissions, publication of the member’s name would have caused unnecessary and disproportionate anxiety and stress to the member given all of the circumstances, his advanced age and the fact that member had clearly undertaken not to practice professional engineering. It would be have been an unwarranted and disproportionate penalty when considered cumulatively with the balance of the penalties. It was the panel’s view that the publication of the summary without names would, in the very specific fact situation herein, be sufficient to meet the requirements of the sentencing regime under the act. The member, the profession and the public may have confidence in the conduct of professional regulation by the publication of the summary. The panel found the particular constellation of facts before it sufficiently compelling to order publication without the name of the member. Do you think this was a fair and compassionate decision?”

LOOKING TO THE FUTURE
Vieth believes the ongoing initiatives of DIC volunteers should yield ever better results in the future and will continually improve their adjudication and leadership abilities. “No chair should have the authority to unilaterally decide what the committee should or should not do,” Vieth says. “However, whether it’s the committee or PEO Council, the chair is called on to lead. I think for a committee to work well, you need a chair who will take the initiative to get things on the agenda and get the committee to consider the items and make decisions. A committee must also support succession planning. When you choose the leader of your committee, you have to pick someone who has the capacity to lead.” In 2017, the DIC implemented a nomination subcommittee to help bring future leaders forward.

Thoughts of leadership development and empowering committee members to make tough decisions is especially significant to the DIC. Just last fall, the DIC Nominating Committee invited lawyer Stella Ball to stand for election as vice chair. If tradition holds, Ball will likely be elected to the chair position in November 2019 at the end of Vieth’s term. If so, it will mark the first time a non-engineer heads up the DIC.

An adjudicator with the Information and Privacy Commissioner of Ontario, Ball has been involved with the DIC since 2013, when she was among a group of lawyers whose appointments were approved by the attorney general to assist the DIC with its adjudication work. In addition to ongoing training sessions at DIC meetings, Ball has received special advanced adjudication training from the Society of Ontario Adjudicators and Regulators and from Osgoode Hall Law School.

“My legal career includes years of adjudication experience as well as years of experience working in the area of professional regulation,” Ball told Engineering Dimensions. “I am proud to be the first lawyer and first female vice chair of the DIC.”

While the prosecutor—PEO—might look to impose harsher penalties for the guilty, members facing discipline would naturally hope for more leniency. The DIC is the independent decision maker that decides what penalty is appropriate considering the evidence presented to it during the hearing and its findings on the allegations made against the member.

Says John Vieth: “Remember, the DIC is the neutral adjudicator in matters. We decide based on what is presented to us by the parties. That is the extent of our powers. In all fairness, if the association wants to get tougher, they need to make their case.”

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