Discipline Hearing

APEGGA DISCIPLINE
COMMITTEE DECISION

Date of Hearing: September 21-22, October 30, 1998
Date of Decision: June 22, 1999

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

IN THE MATTER OF the conduct of Babatunde O. Agbi toward his employees and the use of research funds.

Cite as: Agbi Case

FORMAL HEARING PANEL
Gerry DeSorcy, P.Eng.,
Chair Elizabeth Cannon, Ph.D., P.Eng.
Linda Van Gastel, P.Eng.

Panel Counsel and Staff:
Dwayne Chomyn, Counsel to the Discipline Committee
Ray Chopiuk, P.Eng., Director Professional Practice

APPEARANCES
APEGGA:
Barry Massing, Counsel for the Investigative Committee,
Anast Demitt, P.Eng., representative of the Investigative Committee,
Stewart McIntosh, P.Eng., Director Special Projects

Member:
Babatunde Agbi
Marlin Moore, Q.C., Counsel for Mr. Agbi

Background

On December 5, 1997, the Registrar issued a Notice of Formal Hearing to Mr. Agbi and to APEGGA's Investigative Committee, advising that a hearing date had been set for February 25, 1998. On February 9, 1998 Mr. Agbi's counsel admitted service of the notice. On February 12, 1998 Mr. Moore submitted a request for adjournment. The Investigative Committee did not oppose the request, and the hearing was rescheduled to September 21 and 22, 1998 to accommodate Mr. Moore.

The Hearing

The hearing took place on September 21 and 22 at the APEGGA office, 1600, 734 - 7 Avenue S.W., Calgary, Alberta and adjourned to reconvene on October 30, 1998.

The Charges (Allegations)

The hearing notice contained the following charges as presented by the Investigative Committee:

1. That B. O. Agbi or companies controlled by him including Microsim Petroleum Software Inc. and 163488 Canada Ltd., failed to pay salaries and wages due and owing to employees of those companies, contrary to the Code of Ethics.

2. That B. O. Agbi misrepresented his qualifications by claiming to possess a Ph.D. degree in documents dated December 10, 1985 and December 12, 1985, which documents were completed for IRAP funding purposes, contrary to the Code of Ethics.

3. That B. O. Agbi or companies controlled by him including Microsim Petroleum Software Inc. and 163488 Canada Ltd., deducted and withheld monies employees of company in October 1989, and thereafter, as required for Canada Pension Plan, Unemployment Insurance Commission, and Revenue Canada, but thereafter failed to remit the amounts withheld to appropriate Government authorities as required by law, or to refund the amounts withheld to the employees, or to advise the employees that remittances were not being made, contrary to the Code of Ethics.

4. That between June 1, 1985 and March 31, 1987, B. O. Agbi did not provide the National Research Council of Canada with accurate and truthful reports as required pursuant to the IRAP Funding Program, which also gave rise to his criminal conviction for fraud in April 1992, contrary to the Code of Ethics.

5. That B. O. Agbi, or companies controlled by him, did not utilize funds received from the IRAP Funding Program between July 1, 1985 and March 31, 1987 for the purposes intended by the Program, contrary to the Code of Ethics.

6. That B. O. Agbi's conduct in this matter constitutes unprofessional conduct in that:

• it is detrimental to the best interests of the public,
• it contravenes the 1985 Code of Ethics for the Engineering Profession, and
• it harms or tends to harm the standing of the profession generally.

Preliminary Issues

Prior to dealing with the specific issues set out in the notice of hearing, there were several issues raised, primarily in closing argument, which the Panel believes it should first address. They are the degree of proof which the Panel should apply in considering the matters in the notice, the issue of hearsay evidence in transcripts, and the question of whether the business practices of a member are a proper subject for the Discipline Committee to deal with.

Degree of Proof
Mr. Moore took the position that if Mr. Agbi's description of what transpired "is capable of belief" then the Panel ought not make a finding of unprofessional conduct.The Panel, relying in part on advice given by Mr. Chomyn at the hearing, believes that the appropriate degree of proof to be applied is one whereby the Panel, if it is to make a finding against Mr. Agbi, must be satisfied, on the basis of clear and cogent evidence, that it is more likely that an allegation is true than it is not.

Hearsay Evidence In Transcripts
Mr. Agbi has been embroiled in legal proceedings for over a decade. As a result of these proceedings, transcripts of evidence have been prepared in various forums. There are a number of transcripts consisting of many pages of evidence. Some of the evidence is given by third parties. Some of the evidence consists of the transcript of Mr. Agbi's words.The Investigative Committee tendered the transcripts and invited the Panel to make liberal reference and reliance on them. The Investigative Committee pointed out that section 55 of the Engineering, Geological and Geophysical Professions Act provides:

'Evidence may be given before the Discipline Committee in any manner that the Committee considers appropriate, and the Committee is not bound by the rules of law respecting evidence applicable to judicial proceedings.'

The Investigative Committee also said that the case of Knutson v. S.R.N.A. endorses the practice of using transcripts. Mr. Moore complained that he has not been entitled to confront and cross-examine any of the witnesses in the transcripts. He argued that to rely on the transcripts and evidence contained in them is unfair and breaches the rule of natural justice. At the outset, the Panel notes that section 55 of the Act is quite broad. For instance, it provides that the Discipline Committee is not bound by 'the rules of law' respecting evidence applicable to judicial proceedings. The phrase 'the rules of law' seems to be quite broad. A typical provision, one found in the Labour Relations Code, serves as an interesting contrast. Section 141(2) of the Labour Relations Code provides:

'An arbitrator, arbitration board or other body
a) May accept any oral or written evidence it considers proper, whether admissible in a Court of law or not,
b) Is not bound by the law of evidence applicable to judicial proceedings.'

The Labour Relations Code provision is somewhat more narrow. Under the Labour Relations Code, an Arbitrator "is not bound by the law of evidence" applicable to judicial proceedings. This Committee is afforded a broader deference insofar as "the rules of law respecting evidence applicable to judicial proceedings" does not apply. In the view of the Panel, and because of the peculiar circumstances in this case, the proper approach to take with respect to transcript evidence lies somewhere between these parties' two positions. The statute allows the Panel to admit such evidence and expressly provides that the rules of law respecting evidence does not apply. As a result, the Panel thinks it is entitled to admit the evidence and to give it whatever weight is appropriate in the circumstances. One could argue that a transcript of evidence wherein the testimony has been cross-examined on is evidence worthy of some weight.The Panel is also satisfied in the context of this case that if it were to rely almost entirely on the transcript evidence to reach its decision, it would not be a functional and pragmatic approach to this case. The Panel is mindful of the fact that it could, in some extreme cases, deny a person an opportunity to make a full answer in defence. But what is more, in this case, the Panel does not believe it is necessary to rely to a large measure on the transcripts. In the end, the Panel is able to make its findings based almost entirely on the cross-examination of Mr. Agbi. It has referred to the transcript as background information and to place matters into context. It is satisfied that in the final analysis the transcripts are not necessary to reach findings. If the Panel had been required to go further, it thinks that the law probably would have allowed it to rely on the transcripts. In this case, the Panel believes the fact that such a long period of time has passed since many of these events occurred is one matter to consider. It weighs in favour of admitting and relying on the evidence. The Panel says this because it questions whether even further cross-examination on evidence would be helpful so long after the events have occurred. Another fact to consider is the availability of witnesses. It is obvious that some of these witnesses are far away and it may even be impossible to locate some of them. Again, this weighs in favour of receiving and relying on the transcripts. As indicated, however, it was not necessary for the Panel to rely on the transcripts because it is able to make its findings independent of them.

Business Practices
Mr. Moore, on behalf of Mr. Agbi, took the position that business practices were not within the jurisdiction of APEGGA and should not be subject to the Discipline process. Mr. Massing for 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 profession. The Panel has considered the views put forward at the hearing and has carefully reviewed the Act, Regulations and Code of Ethics as they existed at the time of the actions under consideration. It is noted that the Code of Ethics, 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 these have a business connotation. It is also noted that during the period in question, the Practice Review Board had jurisdiction to review "poor business practice". The Panel concludes that the term "unprofessional conduct" goes beyond the technical details of the practice of the profession, and includes business practices.

The Findings and Reasons

Mr. Massing, on behalf of the Investigative Committee, stated that Mr. Agbi's conduct contravened the 1985 Code of Ethics for the Professions with specific reference to parts 2(a) and 4(b). Part 2(a) relates to the duties of the professions to the public and states as follows:

2. A professional engineer, geologist or geophysicist shall (a) have proper regard in all his work for the safety, health and welfare of the public;

Part 4 (b) relates to the duties to the Profession:

4. A professional engineer, geologist or geophysicist shall (b) conduct himself towards other professional engineers, geologists and geophysicists with fairness and good faith;

The Panel has focused its attention on these parts of the Code of Ethics in assessing the conduct of Mr. Agbi.

1. Allegation 1
Mr. Agbi admitted that for the time period in question, he did not pay salaries and wages due and owing to employees. He offered as an explanation that his companies were experiencing serious financial difficulties and did not have the funds necessary to meet the payroll. He emphasized that at the time, he was working hard to develop additional sources of funding and that he kept the employees informed as to what was happening. He also said that he had advised people to use the legal system to recover funds owing them, and that he had subsequently, in an action before the courts, consented to being named as a person responsible for the payment of such funds. He apparently has paid very little, if any, to date.The Panel finds that, for whatever reasons, Mr. Agbi did not and has not to date paid all salaries and wages due and owing to the employees of the companies he controlled. The question of whether this finding is contrary to the Code of Ethics, and any other findings respecting allegations 2 through 5, is dealt with in the discussion of allegation 6.

2. Allegation 2
Mr. Agbi acknowledged that, on occasion, documents prepared by others had erroneously indicated that he possessed a Ph.D. degree. He indicated that he had corrected such mistakes whenever he was aware of them and offered evidence demonstrating that such a correction had been made on at least one occasion. The Panel is prepared to accept Mr. Agbi's position that he did not intentionally misrepresent his qualifications.

3. Allegation 3

It is clear from the evidence that Mr. Agbi withheld certain monies from employees for the Canada Pension Plan, Unemployment Insurance Commission and Revenue Canada and that he failed to make the necessary remittances. His reasons were that the financial difficulties of the Companies precluded him from doing so. He stated that there was no requirement that staff be informed of such actions, and he challenged evidence which purported to demonstrate that he did not reveal what was occurring when specifically asked by a professional engineer member of the staff. The Panel concludes, on the basis of the evidence before it, that Mr. Agbi did fail to remit monies withheld from employees. Based on Mr. Agbi's own evidence, it is unlikely that he informed his staff of such actions. Mr. Agbi himself stated that he believed there was no requirement that the staff be informed of the actions. The Panel is unable to conclude that Mr. Agbi would have been open and forthright with his employees and fellow engineers about the matter. Alternatively, if necessary, the Panel is also prepared to rely somewhat on the transcripts. On the basis of the transcripts, the Panel is able to conclude that Mr. Agbi was asked by a professional engineer on his staff whether he was properly remitting monies and that Mr. Agbi did not reveal what he was doing. In the latter regard, the Panel is again relying on Mr. Agbi's evidence but does not believe him when he testified that he was open and honest in this regard. That is not consistent with the totality of his evidence and the way he would conduct business.

4. Allegation 4
Mr. Agbi acknowledged filing reports with the National Research Council of Canada, which were not fully accurate and truthful in that they indicated that certain salaries and wages had been previously paid when indeed they had not. He claimed that he had a verbal waiver in a telephone conversation which allowed him to file for IRAP funds before the monies had actually been spent, contrary to IRAP policy. Mr. Agbi produced a hand written note which he suggested had been made as a result of the telephone conversation and which confirmed the waiver. The Panel does not accept the hand written note as the waiver claimed to exist by Mr. Agbi. It is clearly not specific in that respect. Indeed, the Panel is unable to conclude that such a waiver existed at all. Firstly, the Panel very much doubts that a Federal Government official would have given such an important waiver by telephone and not immediately followed it with a written confirmation. To do so would be contrary to general business practices. Additionally, and more importantly, the Panel notes that Mr. Agbi made no reference to such a waiver in a lengthy interview with the police, even though he would subsequently argue that the waiver was the basis for his actions in filing erroneous reports. In responding to a question from the police, Mr. Agbi stated that he was unaware that a condition existed whereby funding could only be claimed after the monies had been expended. The Panel finds it impossible to accept that Mr. Agbi could have obtained a waiver of a condition, carried out improper actions on the basis of that waiver, and then forgotten both the waiver and even that the condition existed, when under investigation by the police. The Panel is satisfied on this alone that allegation 4 has been made out. Alternatively, if the Panel were to go further and rely on the filed evidence of other witnesses who stated that no such waiver existed, it is further satisfied that there was no such waiver. Again, the Panel emphasizes that it does not find it necessary to go into the transcripts to reach its conclusion. Reaching into the transcript only further bolsters the conclusion.

5. Allegation 5
It is clear that at least a portion of the IRAP funds received by Mr. Agbi and his companies were not utilized for the purposes intended by the program, that is to pay salaries and wages of those involved in program work. Some such salaries and wages remain unpaid to this date.

6. Allegation 6
The Panel has concluded, as outlined above, that the actions set out in allegations 1, 3, 4 and 5 did indeed take place. What remains is the question of whether such actions constitute unprofessional conduct because they are detrimental to the best interests of the public, tend to harm the standards of the profession generally, and specifically contravene parts 2(a) and 4(b) of the Code of Ethics as it existed in 1985.

The Panel recognizes that the business difficulties experienced by Mr. Agbi could reasonably lead to some of the previously described actions, such as failure to pay salaries and wages. It further recognizes that certain of those actions, if looked at in isolation, might not lead to a finding of unprofessional conduct. The Panel believes however, that it must assess all of the actions on a somewhat combined basis as they are connected as part of an overall business arrangement.

Mr. Agbi did not simply fail to pay certain salaries and wages because of financial problems. He filed false reports claiming that certain monies had already been spent when they had not. For these claims he received public funds and even then failed to pay the salaries and wages he had claimed for. He used the IRAP funds received for other unstated purposes.

These actions are detrimental to the best interests of the public, and in the view of the Panel, are harmful to the standing of the profession. They also contravene part 2(a) of the Code by reflecting a lack of regard for the welfare of the public, through improper receipt and misuse of public funds. Mr. Agbi's actions of withholding monies and subsequently not remitting same as required, does nothing for the standing of the profession, and is at best, somewhat detrimental to the public interest. His failure to be open and forthright with an employee and fellow member of the profession is contrary to part 4(b) of the Code of Ethics. In summary, the Panel finds that the pattern of Mr. Agbi's conduct was dishonest and deceitful. The mere failures of a business would not normally attract the attention of the Association. Mr. Agbi dealt with the public, his staff and others in the profession improperly and in a manner that contravenes the Code of Ethics.

The Orders

On February 24, 1999, the findings and reasons were issued to Mr. Agbi and to the Investigative Committee along with the panel's determination that it would receive the parties' submissions on orders in writing. Submissions were received from Mr. Moore, on behalf of Mr. Agbi, and from Mr. Massing, on behalf of the Investigative Committee.

Mr. Moore has raised one preliminary matter that requires comment. He argues that the Panel has no jurisdiction to make any finding or make any order against former members of the profession. He argues that Mr. Agbi is not an "investigated person" within meaning of the Act. Put most clearly, Mr. Moore says that by virtue of section 42 of the Act, the complaint may only be sustained against current members and not against former members.

The issue before the Panel is quite a narrow one. The question concerns the meaning of the words "dealt with within two years" as set out in section 42 of the Act. It is our view that we do have jurisdiction in this matter, and that we do have jurisdiction to make orders. In this case, the complaint was filed within two years of the person being a member of the Association and he received notice of the complaint, all of which causes the Panel to conclude the matter was dealt with within two years.

In all other respects, the Panel has considered the submissions of both parties in making the following orders:

1. That Mr. Agbi's registration as a professional engineer be cancelled.

2. That Mr. Agbi be required to pay, to the Association, ninety (90) percent of the costs of the hearing, in the amount of $11,631.91, within six (6) months of the date of this decision being served on him.

3. That this decision and these orders remain on Mr. Agbi's registration file indefinitely.

4. That a summary of this case, including this decision and these orders and Mr. Agbi's name, be published in The PEGG and that copies of the summary be sent to other professional engineering associations in Canada, to the National Research Council and to the Calgary Sun and Calgary Herald newspapers.

5. That a notice be purchased in the legal notice section of the Calgary Sun and Calgary Herald newspapers stating that Mr. Agbi's registration with the Association has been cancelled.

6. That, to protect the public, publication of the case is to occur notwithstanding any appeal.

7. That, notwithstanding an appeal, this decision remain in effect until the Appeal Board or the Court of Appeal make its decision on the appeal.

Dated June 22, 1999 at Calgary, Alberta.

Gerry DeSorcy, P.Eng.
Chair, Discipline Hearing Panel