r v. SIMON BENSOUSSAN, 2015 QCCQ 7531

Not Verified by SOQUIJ Ordre des ingénieurs du Québec c. Bensoussan JW 0192 2015 QCCQ 7531 JW 0192 - USE OF ABBREVIATIONS "B.sc., B.Eng. " ON BUSINESS CARDS OR ADVERTISING COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No. 500-61-290002-105 DATE: September 8th, 2015 ______________________________________________________________________ PRESENT: JOHANNE WHITE, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ ORDRE DES INGÉNIEURS DU QUÉBEC Prosecutor v.

SIMON BENSOUSSAN Defendant ______________________________________________________________________ RECTIFIED JUDGMENT ______________________________________________________________________ [ 1 ] Does the use of the abbreviations "B.sc., B.

Eng." on business cards or in advertising lead one to believe that a building inspector is an engineer or a member of this professional order whereas he is not? [ 2 ] This is the position taken by the Ordre des ingénieurs du Québec (the Order) since, on July 23, 2010, proceedings were instituted against Simon Bensoussan for having contravened section 22(2) of the Engineers Act [1] (hereinafter, the "Act"). [ 3 ] The statement of offence, dated July 16, 2010, contains six (6) counts. [ 4 ] According to the Order, Mr. Bensoussan took the title of engineer by adding the abbreviations "B.sc, B.

Eng" after his name on a business card given to two real estate agents (counts 1 and 6), as well as on a letter bearing the letterhead of his company InspecAir (count 2). [ 5 ] The Order also accuses him of having advertised himself as an engineer, in an ad for the company InspecAir on the Canpages.ca website (count 3) and on the Yellowpages.ca site (count 4), by having his name followed by the abbreviations "B.sc., B. Eng.".

[ 6 ] Lastly, the prosecutor claimed that without being a member in good standing of the Order, Mr. Bensoussan advertised himself as such in an ad for the company InspecAir, available on the website of the enterprise Groupe Go Immo, in having the initials "Eng." appear after his name (count 5). QUESTIONS IN DISPUTE [ 7 ] The questions in dispute are the following: 1: Does the use of the letters "B.Sc., B.Ing" on a professional card, letter or advertisement constitute an offence to section 22(2) of the Engineers Act ? 2: Did the prosecution prove beyond any reasonable doubt the offences of which Mr.

Bensoussan is charged? 3: If so, do the defences presented by the defendant exonerate him? CONTEXT [ 8 ] Mr.

Bensoussan holds a bachelor of science and a bachelor of engineering, both granted by Concordia University (D-13). [ 9 ] He was a member of the Ordre des ingénieurs du Québec from December 8, 1995 to November 1, 2004, the date on which he was stricken from the roll (P-11). [ 10 ] On April 25, 1996, he registered an enterprise, InspecAir (P-10), under which he offers building inspection services. [ 11 ] On July 21, 2009, during a professional pre-purchase inspection visit of a property, business cards were exchanged between Mr.

Bensoussan and two real estate brokers. [ 12 ] Following the visit, one of the real estate agents carried out certain verifications and learned that Mr. Bensoussan was not a member of the Ordre des ingénieurs. [ 13 ] To this day, building inspection services are not governed by a professional order. [ 14 ] From the evidence as a whole, which spans a number of years, [2] the Court noted the following. [3] Testimony of Karen Karpman, real estate broker [ 15 ] On July 21, 2009, Ms.

Karpman was a real estate broker under the Sotheby's International banner and met the defendant during a pre-purchase inspection visit of a property whose seller she was representing. [ 16 ] She explained that the parties exchanged business cards there and that during the exchange, the defendant gave his to her (P-1). [ 17 ] Ms. Karpman mentioned that she had taken it for granted that Mr.

Bensoussan was an engineer because of the abbreviations following his name on his business card. [ 18 ] She explained that, through Louise Montgrain, she received the inspection report (P-2) written by the defendant. [ 19 ] Having received a telephone call from Gilles Dupuis, inspector for the Ordre des ingénieurs, a number of months after the visit of the property, she gave him the defendant's business card when they met and sent him a copy of the inspection report. Testimony of Louise Montgrain, real estate broker [ 20 ] On July 21, 2009, during the professional pre-purchase inspection visit, Ms.

Montgrain represented the buyer, Heshmat Rajabi, and met Mr. Bensoussan for the first time. At her request, he gave his business card (P-3) to her. [ 21 ] She did not pay any special attention to the card, but mentioned having heard someone say, during the visit, that Mr.

Bensoussan was an engineer. However, she was unable to specify who made the affirmation. [ 22 ] She confirmed that Exhibit P-3 corresponds to the business card that the defendant gave her during the visit of the property. [ 23 ] Ms. Montgrain explained that Mr. Bensoussan's attitude during the inspection did not correspond to what she expected from a professional. She thus verified and learned that he was not a member of the Ordre des ingénieurs du Québec. [ 24 ] After having gone over the inspection report, her client withdrew the offer to purchase. [ 25 ] Following calls that Ms.

Montgrain made to the Order, Mr. Dupuis contacted her and fixed an appointment at her residence. During the meeting, she gave the investigator, in addition to Mr. Bensoussan's business card, a number of documents found on the Internet during the research she conducted concerning the defendant: - One web page from Canpages (P-5); - One web page from Yellowpages (P-6); - One web page from Groupe Go Immo (P-8). [ 26 ] The wrong date appeared on these documents, which Ms. Montgrain explained by the fact that her printer was temporarily disconnected because of renovations at her residence.

Testimony of Gilles Dupuis [ 27 ] As investigator mandated by the Order, Gilles Dupuis met Ms. Montgrain on July 29, 2009. She gave him the documents listed above. He confirmed that she printed the web pages at the time of their meeting. [ 28 ] Within the framework of this investigation, Mr. Dupuis did not meet Mr. Bensoussan. [ 29 ] However, Mr. Dupuis confidently affirmed that by self-identifying with the initials "B. Eng.", a person would be asserting that he or she is a member of the engineering profession. Testimony of Claude Lizotte [ 30 ] Mr.

Lizotte was the director of professional affairs at the Order up to 2008 and then became senior advisor for enforcement up until he retired. [ 31 ] Within the scope of his duties, he was the boss of a number of people, including Gilles Dupuis, Daniela Pretulian, Marc Bellerive and Jacques Bellemare, and confirmed that they could be called on to assist persons arriving at the Order to obtain information, as Mr. Bensoussan affirms to have done a number of times. [ 32 ] According to this witness, an investigation certainly would have been conducted with regard to a person using the abbreviation "B. Eng.".

Testimony of Simon Bensoussan [ 33 ] From the very beginning of his career and while still a member of the Order, Mr. Bensoussan fully understood that if he was not duly registered as a member of the Order, he could not say or indicate on his business cards that he was an engineer. [ 34 ] In June 2005, he went to the offices of the Ordre des ingénieurs and met with Gabriel Richard, who confirmed that Mr. Bensoussan was entitled to use his academic titles but reminded him that at no time could he say that he was an engineer. [ 35 ] Mr. Bensoussan showed him his business cards as well as an advertisement and Mr.

Richard confirmed that everything complied. [ 36 ] In 2006, Mr. Bensoussan again went to the Ordre des ingénieurs and met with Gilles Dupuis as well as Gabriel Richard. According to Mr. Bensoussan, the legality of his documents was again confirmed though, judging from his attitude, Mr. Dupuis seemed to be on the defensive. [ 37 ] In May 2007, Mr. Bensoussan once again met with Mr. Richard with regard to the same subject and obtained the same results. However, after having consulted the brochure entitled À Juste

Titre , the defendant wondered about the use of the abbreviations "B.sc., B. Eng.". Consequently, he met with Jacques Bellemare at the offices of the Order, who reiterated that Mr. Bensoussan was allowed to use the abbreviations following his name. [ 38 ] In July 2008, he met with Marc Bellerive at the offices of the Order and showed him a business card and advertising models (in a bundle, D-24) that he had planned to use for the year 2008-2009. Mr. Bellerive told him clearly that he could not write [TRANSLATION] "member of the order of engineers " in the advertisements. [ 39 ] Mr.

Bensoussan then explained to him that he was considering hiring engineers in his company and mentioned this to Mr.

Bellerive, who purportedly suggested that Mr. Bensoussan write [TRANSLATION] "services of members of the order of engineers". Mr. Bensoussan said that he wrote to Mr. Bellerive to confirm the content of their conversation (D-25), but did not bring any proof of receipt of the letter. [ 40 ] As regards the advertisements, Mr. Bensoussan said that on July 2, 2009, he communicated by email with a Yellow Pages consultant to have his advertisements withdrawn.

She told him that the ads would be removed from the website as of the following week and from the print directory at the time of its next publication, on September 1, 2009. [ 41 ] On the other hand, Mr. Bensoussan indicated that he never had contractual relationships with Groupe Go Immo nor did he know the company. He learned of the existence of the advertisement concerning him only upon receipt of the statement of offence. He stated that he had asked Groupe Go Immo in writing (D-37 and D-38) on August 23, 2010 to remove all advertising and any reference to his name from its site. APPLICABLE LAW [ 42 ]

Section 22 of the Engineers Act reads: [4] 22. Any person not a member in good standing of the Order who : (1) performs any of the acts contemplated in

section 3 of this Act , (2) assumes the title of engineer alone or qualified, or makes use of any abbreviation of such title, or of any name, title or designation which might lead to the belief that he is an engineer or a member of the Order, ( 3) advertises himself as such, . . . [ 43 ] Every person who contravenes section 22(2) of the Act is guilty of an offence, penalties for which are provided for in

section 188 of the Professional Code , namely: 188. Every person who contravenes a provision of this Code, of the Act or letters patent constituting an order or of an amalgamation or integration order is guilty of an offence and is liable to a fine of not less than $1,500 nor more than $20,000 or, in the case of a legal person, of not less than $3,000 nor more than $40,000. In the case of a subsequent offence, the minimum and maximum fines are doubled. (Emphasis added.) [ 44 ] Mr.

Bensoussan's alleged offences are strict liability offences, according to the categories established by the Supreme Court in Sault Ste-Marie . [5] [ 45 ] The prosecution must prove beyond a reasonable doubt the essential ingredients of the offence , and the defendant may demonstrate, on a balance of probabilities, that he took all the means necessary not to commit the alleged offence.

ANALYSIS [ 46 ] The objective of the Professional Code is to protect the public. [ 47 ] It is well established that legislative provisions granting exclusive monopolies over practice must be strictly interpreted. [6] [ 48 ] The Ordre des ingénieurs du Québec is of the opinion that use of the abbreviation "B. Eng." suggests that the person is an engineer, member of the Order. Though this position has the merit of being clear, there is no explicit support for it in the Engineers Act or in a regulation.

In the absence of a clear legislative text, it can be considered only as a pronouncement by the Ordre des ingénieurs, which does not bind the courts. [ 49 ] What is clear in the Act is that the abbreviations "Ing." or "Eng." are reserved exclusively for members of the Order, in the

same way that "Me" (or "Mtre.") is reserved for lawyers and notaries. [ 50 ] A number of decisions allow proceedings taken by the Ordre des ingénieurs against non-members for misappropriation of title following the use of the abbreviations "Ing.” or “Eng.". [7] However, the situation is not necessarily the same as regards the use of the abbreviations for a bachelor of engineering. [ 51 ] Thus, in Ordre des pharmaciens du Québec v.

Les Magasins Koffler de l’Est Inc. , [8] the Court of Appeal concluded that there must be legislation that expressly or implicitly prohibits use of a term before the Court can conclude that a third party should not use the term or the abbreviation: [TRANSLATION] In the absence of legislative or regulatory prohibition, whether expressed or implicit, I do not believe that use of the prefix Pharma, the only issue in this appeal, is in itself a gesture that leads to the belief that the respondents are pharmacists. [ 52 ] What standard must a court apply in a trial for misappropriation of title? In Lessard v.

Ordre des acupuncteurs du Québec , the Québec Court of Appeal established the standard for misappropriation of title as being that of a person of average intelligence: [9] [TRANSLATION] [8] In order to determine whether there has been contravention of

section 32, we need to place ourselves in the position of a person having an appropriate intelligence quotient and ask ourselves how we would respond to ads or to representations made to us, without having to check laws or consult dictionaries before enlisting the services of a professional. [Emphasis added.] [ 53 ] In Ordre des comptables généraux licenciés du Québec v. Douville , the judge writes: [10] [TRANSLATION] The defendant is not criticized for having used the title of certified general accountant or an abbreviation that could suggest that he is such.

The defendant is criticized for ascribing to himself initials that could lead to the belief that he is one by placing the initials "c.g.a.c." after his name. It is not a problem of upper case or lower case. The problem lies in the context and in the meaning this has for the reasonable man who needs the services of an accountant. [ 54 ] As underscored by the last two judgments, in the proceedings against Mr. Bensoussan, the Court must take into account the context of the alleged offence. Yet the context also includes the abbreviation "B.sc.", before "B. ing.".

The Court is of the opinion that a reasonable person with an "appropriate intelligence quotient" is able to recognize that the letters "B.sc., B. ing." are a listing of diplomas of studies obtained. [11] To echo the wording of Mr. Bensoussan’s alleged offence, the use of these abbreviations does not amount to taking the title of engineer or abbreviating the title, nor is it the use of a name, title or designation that could lead to the understanding that he is an engineer. [ 55 ] The prosecutor submitted to the Court's attention Ordre des ingénieurs du Québec c.

Plouffe . [12] Although that decision does not bind the Court, it is important to note what distinguishes it from this case. In that decision, Mr. Plouffe used the abbreviations "B.ing." in his emails, as well as on business cards. However, the context is different because Mr. Plouffe works in the field of construction, an environment where engineers are very present. What is more, no other abbreviation appeared on his business cards. [ 56 ] In Barreau de Montréal v. Montpetit [13] and in Barreau du Québec v.

Ruest , [14] the Court confirmed that the expression [TRANSLATION] "acting in such a way as to lead to the belief" does not require proving that a person was effectively misled. Despite everything, the Ordre des ingénieurs underscored that the evidence showed the real estate agents’ belief that Mr.

Bensoussan was an engineer because of the abbreviations appearing on his business card. [ 57 ] It is difficult for the Court to see how a person working in the real estate sector could presume that a building inspector is necessarily an engineer, whereas it is well known that specific qualifications are not required to practise that occupation.

[ 58 ] To agree with the Order's argument respecting the abbreviations of diplomas obtained amounts to forbidding a person to indicate their studies on business cards. How would that better protect the public? [ 59 ] Regarding the first question in dispute, the Court concludes that use of the letters "B.sc., B. Eng." does not constitute an offence, at least where the business cards and letterhead used by the defendant for his company are concerned. [ 60 ] As regards the advertisements (P-5 and P-6), it is a different situation.

In addition to the abbreviations, the indication [TRANSLATION] "member of the order of engineers" appeared in the ads. The addition of this phrase clearly contravened the Act . Who was a member of the Order? Certainly not the company InspecAir.

The only name that appeared in this ad was that of the defendant, followed by the abbreviations "B.sc., B. ing." which indeed led to the belief that he was a member of the Order. [ 61 ] With respect to this matter, the defendant's intent was to show that he demonstrated reasonable care by regularly consulting the Order's staff concerning the content of the ads and, for the 2008-2009 publications, in particular, by consulting Marc Bellerive.

Yet the defendant himself testified that the latter clearly explained to him that he could not indicate [TRANSLATION] "member of the order of engineers" in his ads. [ 62 ] In addition, the Court is convinced that had the content of those ads been brought to the attention of an employee of the Order, the ads would never have been approved, and does not accept the defendant's testimony in the matter. Mr. Bensoussan affirmed that Mr.

Bellerive instead suggested that he include [TRANSLATION] "services of members of the order of engineers " in the ad, after having been informed by the defendant of his plan to hire engineers. This is irrelevant since the phrase did not appear in the 2008-2009 ads. [ 63 ] Lastly, Mr. Bensoussan admitted to having placed the ads but put forward that he asked that they be withdrawn. His explanations failed to convince the Court that on a balance of probabilities he had demonstrated reasonable care to avoid committing this offence.

His explanations are unclear with respect to the closing dates and he did not produce contracts binding him to these enterprises. [ 64 ] With respect to the use of the letters "Eng." in an ad for the company Groupe Go Immo, that clearly constituted an offence under the Act . Mr. Bensoussan denied having placed this ad and denied even knowing the enterprise. He contended that he had enjoined the enterprise by registered mail to withdraw all references to his name. Is that true?

While the Court is not certain it believes the defendant's version, it certainly raises a reasonable doubt, especially since no witness came to explain who placed the ad, who decided on its contents, who paid for it, etc. Commission of this offence has not been proven beyond a reasonable doubt.

THEREFORE, THE COURT: ACQUITS the defendant of counts 1, 2, 5 and 6; FINDS the defendant guilty of counts 3 and 4; ORDERS the defendant to pay a fine of $1500.00 for counts 3 and 4, plus costs; GRANTS the defendant up to six (6) months to pay that amount. ___________________________ Johanne White Presiding Justice of the Peace Mtre. Pascal A. Pelletier Pelletier et Cie Counsel for the Ordre des ingénieurs du Québec Simon Bensoussan Without legal representation Dates of trial hearings: May 2, October 23, 24 and 25, December 2, 4 and 6, 2013 September 10 and 11, 2014