The PEGG

January 2002

A Tale of Three Compliance Cases

Sometimes APEGGA Goes to Court in its Mission of Public Protection

Editor's Note: The following is one in a series of columns on APEGGA Compliance.

BY DAVE TODD, P.ENG.
Director, Compliance

This is a continuation of my October column, which explained what happens when a compliance violation is identified. Then my November article listed two examples of voluntary compliance obtained through persuasion.

Sometimes, however, gentle persuasion doesn't work. The following three cases are examples of compliance obtained as the result of legal action. In November 2001, three cases also went before the courts. See next month's PEGG for the results of those actions.

The PEGG, July 1999
Court Finds Sherwood Park Resident
Guilty of 11 Violations of EGGP Act

A prosecution under the Engineering, Geological and Geophysical Professions Act (EGGP) has resulted in Sherwood Park man, Dennis Edward Huculak, 36, being found guilty by a provincial court judge on 11 charges of unlawful representation, resulting in a fine of $5,500 or six months in jail.

Mr. Huculak's offences, which took place early in 1998, occurred under section 3(b)(ii) of the EGGP Act, APEGGA's governing legislation. Section 3 of the act deals with exclusive use of the title engineer and with prohibitions on individuals, corporations, partnerships or any other entity, except a professional engineer, licensee or Permit holder, engaging in the practice of engineering.

The case was heard in the Provincial Court of Alberta in Edmonton on June 7 and 8, and Provincial Court Judge J.P. Jorgensen delivered his decision June 23.

Mr. Huculak was the chief operating officer of two companies which were issued APEGGA Permits to Practice -- namely Edward-Nelson Corporation, which received a Permit to Practice in March 1991, and Edward-Douglas Engineering, which had an APEGGA Permit to Practice issued in May 1997. Mr. Huculak, who holds a diploma in water resources technology from NAIT, was listed as a principal of the companies but not as the responsible professional member listed on the Permit.

The court was told APEGGA received a report of Mr. Huculak's use of a "P.Eng." stamp. The reporting party knew Mr. Huculak was not a registered APEGGA member.

Mr. Huculak had been able to obtain a stamp with his name by misrepresenting himself at APEGGA's Edmonton office. Based on database searches and as a result of another member practicing engineer in Calgary having identical names to those of Mr. Huculak, the Sherwood Park resident erroneously was assigned a P.Eng. designation when the permits were granted.

In his defence, Mr. Huculak claimed that an error had been committed by APEGGA because of confusion relating to the professional member with the same name.

Further in his defence, Mr. Huculak claimed he believed himself to have been "grandfathered" into APEGGA as a P.Eng. Although he claimed to have applied for registration with APEGGA several years ago, APEGGA has no record of his application. If he had applied for registration, as a graduate of a technical institute, he would have been assessed examinations.

Mr. Huculak used the stamp obtained from APEGGA on drawings submitted to Alberta Environment and Natural Resources in Calgary. The drawing were submitted on behalf a client seeking permission to build pipeline crossings over several creeks.

Crown Prosecutor Gary Cornfield noted that provincial officials, in granting approvals, take into account whether the drawings are stamped by a properly qualified professional engineer. When it appeared Mr. Huculak did not meet that qualification, the matter was turned over to the Calgary Police Service Commercial Crime Unit for investigation. It led Crown prosecutors in Calgary to lay charges under the EGGP Act.

In finding the accused guilty on all counts, Judge Jorgensen said Mr. Huculak took advantage of a mistake on APEGGA's part to hold himself out as a professional engineer. The judge also rejected the defence argument that the misrepresentation resulted from an "officially induced error."

In arguing in favour of a fine of $1,000 per offence (the maximum is $2,000) having a deterrent value, Crown Prosecutor Cornfield noted: "Engineers do important work in society and their work is relied upon in terms of safety to the public."

Judge Jorgensen accepted the defence argument that there was no evidence that there had been any direct damage to the physical environment as a result of the improperly stamped drawings. He imposed a fine of $500 per offence.

The PEGG, July 1998
Unlawful Use Of 'P.Eng.'
Leads to Alberta Conviction

Monier Mahmoud Rahall of Edmonton has been fined $500 for unlawful use of the P.Eng. designation on documents, thereby misrepresenting himself as a professional engineer, following legal action initiated by APEGGA.

Mr. Rahall was convicted June 2 of violating Section 3(a)(i) of the Engineering, Geological and Geophysical Professions (EGGP) Act. Mr. Rahall, the author of Banksters and Prairie Boys, used the professional designation on correspondence to individuals and organizations involved in his bankruptcy proceedings in 1995 and 1996.

The P.Eng. designation identifies professional engineers to individuals and organisations who retain or employ these professionals to design projects or provide advice. Only those licensed by APEGGA are entitled to use the designation. This prevents unlicensed individuals from exercising authority over projects, which could place the public's safety at risk.

APEGGA's Enforcement Review Committee investigated the case and verified the Association did not license Mr. Rahall. The case was then turned over to Alberta's Chief Crown Prosecutor for action. A subsequent investigation by the RCMP led to three counts under the EGGP Act.

Mr. Rahall was acquitted on the second count and the third count was dismissed. He did not appear in court. In his decision, Judge David Tilley indicated that while Mr. Rahall did not purport to offer engineering services, his use of the professional designation to raise his stature or credibility within the community was indeed misrepresentation.

The Act authorizes APEGGA to take action against individuals and firms who misrepresent themselves as professional engineers or geoscientists, or illegally provide these services to the public.

The PEGG, June 1998
Former Calgary Man Charged With Fraud
For Using Illegally Obtained Engineering Stamp

There is a Canadawide warrant issued for the arrest of John Henry O'Connor on three counts of uttering a forged document. The action against him was taken by the Association of Professional Engineers, Geologists and Geophysicists of Alberta, which is responsible for regulating the engineering and geoscience professions in Alberta.

Mr. O'Connor is charged for misrepresentation and fraudulent use of an illegally obtained stamp under Section 368(1)(b) of the Criminal Code. During his employment with an Alberta engineering firm, Mr. O'Connor was not registered with APEGGA, provided false academic credentials, and illegally signed documents with a professional engineer's stamp.

The stamp and seal identify professional engineers, geologists and geophysicists to individuals and organizations who retain or employ these professionals to design projects or provide advice. Only those licensed by APEGGA are entitled to use the stamp or seal and affix their name to documents. This prevents unskilled or unlicensed practitioners from exercising authority over projects, which could place the public's safety at risk.

APEGGA's Enforcement Review Committee investigated the case and verified the Association did not license Mr. O'Connor. The case was then turned over to Alberta's Chief Crown Prosecutor for action. A subsequent investigation by the Calgary Police Service led to charges and a warrant for Mr. O'Connor's arrest.

Under the Engineering, Geological and Geophysical Professions Act, APEGGA can take action against individuals and firms who misrepresent themselves as professional engineers or geoscientists, or illegally provide these services to the public.

Frequently Asked Question:

Q. What are the legal options available to APEGGA to obtain compliance under the Engineering, Geological and Geophysical Professions (EGGP) Act?

A. Lay a compliant with Alberta Justice and seek prosecution in provincial court under Section 81 of the EGGP Act.

Initiate civil court proceedings in the Court of Queen's Bench of Alberta under Section 9 of the EGGP Act to seek an injunction.

In the case of individuals violating reserved title provisions of the EGGP Act, lay a complaint with Corporate Registry under Section 12 of the Business Corporations Act.