Executive Summary: Key Legal and Evidentiary Issues

• Petitioner Peter Kovacik, a professional engineer, was found guilty of unprofessional conduct for signing and sealing an inspection report recommending anchor stools for service when they were not serviceable and when weld repairs had not been completed.

• Adequacy of notice in the Citation was challenged but rejected, as the Citation clearly identified the particulars of the alleged unprofessional conduct with reasonable certainty.

• Admissibility of hearsay evidence and photographs without metadata was contested; the Court confirmed that hearsay is not per se objectionable in administrative proceedings and the Panel was entitled to determine what evidence it would accept.

• An alleged reversal of the onus of proof was raised based on the Panel's reference to the petitioner's failure to call a key witness, but the Court found this reflected a proper appreciation of tactical burdens rather than a shift in the legal burden.

• The petitioner argued the Panel applied the wrong standard of proof, but the Court confirmed that the single civil standard — balance of probabilities — was correctly applied.

• Credibility of a key witness (Ryan Stewart) was disputed on grounds of alleged bias as a disgruntled ex-employee, yet the Panel's thorough credibility analysis and factual findings were upheld as reasonable.

Background and facts of the case
Peter Gordon Kovacik, a professional engineer and co-founder of Kova Engineering, was involved in the inspection of two sets of newly manufactured anchor stools — critical components used to connect cranes to foundations on construction sites for stability and safe operation. Anchor stools are single-use items fabricated for each crane at each job site, and the scope of practice of professional engineers includes inspecting the manufacture of, and welding performed on, anchor stools to ensure they meet the requirements of the design engineer's specifications and the required applicable regulatory standards and are fit for service.
Another professional engineer, Ryan Stewart, had been asked by Darrell Fornwald, the owner of PC Crane Services, to inspect the same anchor stools. Mr. Stewart personally inspected them, determined that there were a number of deficiencies with the welds, identified for the owner the required repairs to render them serviceable, and declined to certify them as serviceable. On August 22, 2017, which was about a week after Mr. Kovacik had signed and sealed the anchor stools as being serviceable, Mr. Stewart attended at PC Crane Services again for an unrelated inspection and was "flabbergasted" to see the same anchor stools there and apparently ready for use. Mr. Stewart testified that the owner told him Kova Engineering had approved the anchor stools after Mr. Stewart had declined to do so.
Mr. Kovacik had certified the anchor stools for service relying on information provided by Ryan Tinkley and Paul Walchuk — neither of whom are professional engineers — who had provided him with a description of the weld quality and the assurance of their suitability for service over a FaceTime call on August 14, 2017 and via a subsequent report.

The discipline proceedings
Following Mr. Stewart's complaint to the Association of Engineers and Geoscientists of British Columbia (the "Association") — which he made only after the Association advised him he had a duty to report — a citation was issued against Mr. Kovacik. After an 11-day viva voce hearing and receipt of written submissions, a Discipline Committee Panel issued its decision on June 12, 2024, concluding that Mr. Kovacik had demonstrated unprofessional conduct by signing and sealing an inspection report recommending the anchor stools for service when they were not serviceable and when weld repairs had not been completed. The Panel found that this conduct was contrary to Principle One of the Engineers and Geoscientists BC Code of Ethics — which required that members and licensees hold paramount the safety, health and welfare of the public, the protection of the environment and promote health and safety within the workplace — and contrary to Principle Three, which required that members and licensees provide an opinion on a professional subject only when it is founded upon adequate knowledge and honest conviction.

The judicial review application
Mr. Kovacik applied for judicial review of the Decision before the Supreme Court of British Columbia, alleging the Panel made various errors both in relation to procedural fairness and in the Decision itself. The judicial review of the Panel's November 7, 2024 decision on penalty was abandoned by the petitioner at the hearing. The Court, presided over by Madam Justice V. Jackson, addressed each ground raised by the petitioner.

Procedural fairness issues considered by the Court
On the question of notice, the petitioner argued he did not have adequate notice of the case he had to meet because there was a lack of detail in the Citation. The Court rejected this, finding that the Citation provided notice, with reasonable certainty, of what conduct was alleged to constitute unprofessional conduct. The Citation expressly and clearly identified the particulars of the conduct — namely signing and sealing an inspection report and recommending the anchor stools for service when they were not serviceable and when weld repairs had not been completed.
On the admissibility of evidence, the petitioner challenged the Panel's reliance on Mr. Stewart's testimony as containing inadmissible hearsay, and argued that photographs taken by Mr. Stewart should not have been admitted because there was a question about when they were taken and no metadata was provided. The Court held that hearsay is not per se objectionable in administrative proceedings, and that even in the criminal law context, photographs have been admitted based on testimony alone without their associated metadata. The petitioner himself acknowledged at the hearing that the anchor stools in those photos were not serviceable.
Regarding the alleged reversal of the burden of proof, the petitioner argued the Panel reversed the burden by noting it was open to the petitioner to call the owner of PC Crane Services as a witness and that he did not do so. The Court found this did not reflect a reversal of the burden of proof, but rather reflected the Panel's appreciation of the distinction between the legal burden of proof and evidential and tactical burdens.
The petitioner also argued the Panel considered facts and allegations not alleged in the Citation. The Court disagreed, finding that a review of the Decision demonstrated the Panel did not expand the scope of their inquiry, and the Panel's reasons aligned with the allegations set out in the Citation. The petitioner further argued he was denied procedural fairness because the Panel made a determination contrary to facts he submitted had been conceded by the Association's counsel in an opening statement. The Court concluded the concession the petitioner alleged was not made, noting that an admission or concession of a fact must be deliberately made and unambiguous, and the question of the anchor stools' serviceability was at all times a live issue before the Panel.

Substantive reasonableness of the decision
The petitioner challenged the merits of the Decision, arguing that the Panel applied the wrong standard of proof and that in professional discipline matters a tribunal is obliged to apply a standard that is more than a bare balance of probabilities. The Court disagreed, confirming that in civil cases there is only one standard of proof — proof on a balance of probabilities — which requires the trier of fact to scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. The Decision reflected that the Panel was aware of and applied the correct standard.
The petitioner further argued that the Panel should not have relied on Mr. Stewart's evidence because he was a disgruntled ex-employee of Kova Engineering. The Court found the Panel had undertaken a thorough analysis of Mr. Stewart's credibility and rejected the petitioner's allegations that Mr. Stewart had seized an opportunity to humiliate or destroy the petitioner by being untruthful. In doing so, the Panel referred to its factual findings that Mr. Stewart had initially been reluctant to even name Kova Engineering and that he only made his complaint to the Association after being advised he had a duty to report. The Panel also noted the petitioner had not suggested to Mr. Stewart during cross-examination that he was being untruthful because of his past association with Kova Engineering.
The petitioner also argued the Panel's finding placed a high and new standard of conduct on professional engineers not based on industry practice. The Court noted that industry practice does not determine the standards of a profession, and that both the former and current legislative regulatory regimes governing professional engineers confirm it is the regulatory body that is responsible for establishing, monitoring and enforcing standards of practice.

Ruling and outcome
The Court found the Panel's chain of analysis to be clear and rational, and the outcome justified in law and fact. The Panel was entitled to rely on its expertise in assessing the evidence and determining whether the conduct constituted a marked departure from the standard to be expected of a competent professional engineer and breached the Engineers and Geoscientists BC Code of Ethics. The Court held the Decision was eminently reasonable. Accordingly, the petition for judicial review was dismissed in favour of the Association. The Association did not seek its costs, and no costs were ordered. No specific monetary amount was awarded or at issue in the proceeding.