Winter PEG 2019



Case No.: 19-006-RDO continued

9. It is the Panel's opinion that the matter would best be resolved through a Recommended Discipline Order rather than a formal hearing. The Panel considered the following: there is no risk of harm to the public, the admission by the Member, the timely cooperation of the Member in this investigation, the acknowledgement expressed by the Member, and the Panel's finding that although the Member's conduct demonstrated an error in judgment, it was not malicious. The same considerations apply to the Panel's recommendation that this matter and its outcome should be published without naming the Member.

Date: June 12, 2019

Case No.: 19-004-RDO


declare conflicts of interest. Moreover, a partnership agreement cannot negate or alter fiduciary duties. Officers and directors owe a fiduciary duty to the corporation. For example, officers and directors cannot operate separate competing businesses or take profits of the business solely for themselves. A fiduciary duty is a heightened duty to care for the interest of another party in priority to one's own interest and a duty not to act against the interest of the other party. Committee, and by agreement of the Member with that recommendation, and following a discussion and review with the Discipline Committee Case Manager, the Discipline Committee hereby orders that: 1. The Member will receive a Letter of Reprimand, a copy of which will be maintained permanently 2. The Member will be assessed, and will pay, a fine in the amount of $1,000 pursuant to Section 64(1)(b) of the Act; 3. In the event the fine is not paid within 60 days of this order's approval by a Discipline Committee Case Manager, the Member shall be suspended from the practice of engineering until such payment has been received in full; and 4. The Member shall provide evidence to the Director, Enforcement, within one year of being served with a copy of the Discipline Committee's decision, that he has successfully completed the National Professional Practice Examination. The course will be undertaken at his own cost. If the examination is not successfully completed by the above noted date, the Member shall be suspended from the practice of engineering until the examination is successfully completed. in the Member's registration file and be considered at any future date by APEGA;

The Investigative Committee of the Association of Professional Engineers and Geoscientists of Alberta (APEGA) has conducted an investigation into the conduct of [Professional Member A], P.Eng., ("the Member”). The investigation was conducted with respect to allegations of unprofessional conduct and/or unskilled practice pursuant to Section 44(1) of the Engineering and Geoscience Professions Act ("the Act"). A. THE COMPLAINT The APEGA Director, Examinations forwarded the matter to APEGA's Investigative Committee, alleging that the Member may have engaged in unprofessional conduct and/or unskilled practice, contrary to Section 44(1) of the Act, by offering copyrighted Pearson Education Canada practice National Professional Practice Exam (NPPE) questions to the purchaser of his textbook Practical Law of Architecture, Engineering, and Geoscience , published by Pearson Education Canada. B. AGREED STATEMENT OF FACTS 1. At all relevant times, the Member was a professional member of APEGA and was thus bound by the Act and the APEGA Code of Ethics . 2. On October 21, 2018, the Member purchased the NPPE practice test bundle from APEGA, which included Practical Law of Architecture, Engineering, and Geoscience (“the textbook”), published by Pearson Education Canada. 3. The textbook included a sealed Student Access Card for online materials, including copyrighted NPPE practice exam questions (“the exam questions”). The Member registered to access the online materials with the Student Access Code provided, and thereby agreed to the terms of use. 4. While reviewing the exam questions, the Member made a personal electronic backup copy of the exam

questions on his Macintosh computer (in HTML format using the Save Page As command). This was consistent with the terms of use which stated, "you are authorized to download one copy of the material on this website on one computer for your personal, non-commercial use only." 5. On January 28, 2019, the Member challenged and passed the NPPE. 6. On February 9, 2019, the APEGA Director, Examinations received an automated alert from Kijiji pointing him to an advertisement posted by the Member containing the key word "NPPE." The heading of the advertisement read, "APEGA NPPE exam books latest edition with test internet access." 7. The APEGA Director, Examinations subsequently determined (through a review of the ad, purchase records, subsequent communication with the seller, and the APEGA member database) that the seller was the Member. 8. On February 9, 2019, shortly after posting the Kijiji advertisement, the Member modified the ad to remove "test internet access" from the listing. This was consistent with the instructions on the Student Access Card which stated, "The Student Access Code in the kit is redeemable one time only! If this code has already been used, you may be able to purchase access online with a credit card." 9. The Member did not advertise the inclusion of electronic copies of exam questions with the sale of the textbooks in either the original or modified listings. 10. On February 11, 2019, the Member received his P.Eng. designation and became a professional member of APEGA. 11. On February 11, 2019, posing as a potential buyer, the APEGA Director, Examinations contacted the Member through Kijiji for additional information


D. RECOMMENDED ORDERS 8. On the recommendation of the Investigative

[PROFESSIONAL MEMBER A], P.ENG. WILLIAM SATTLEGGER, P.GEO. Panel Chair, APEGA Investigative Committee NASER RABBANI, P.ENG. Case Manager, APEGA Discipline Committee

Date: May 27, 2019

54 | PEG WINTER 2019

WINTER 2019 PEG | 55

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