Professional Engineers Ontario

Professional Engineers Ontario

March 21, 2006 15:03 ET

PEO turns to court to clarify application of OBC amendments

Attention: City Editor, News Editor, Government/Political Affairs Editor TORONTO, ONTARIO--(CCNMatthews - March 21, 2006) - On Monday, March 20, Professional Engineers Ontario (PEO) filed a Notice of Application for Judicial Review with Divisional Court. As the regulator of professional engineering in the province, PEO felt it had no other option than to take this action to maintain the integrity of its exclusive jurisdiction over regulation of engineering under the Professional Engineers Act (PEA).

"Amendments to the Ontario Building Code (OBC) became effective on January 1, 2006," said Richard Steinecke, counsel for PEO. "These amendments appear to prohibit anyone who has not met qualification and registration requirements in the OBC from engaging in certain building design activities or preparing reports on general review of construction. Our argument will be that these amendments duplicate, contradict and otherwise interfere with the important statutory role of PEO to license, discipline and regulate its members."

PEO Council, including its 12 government appointees, unanimously agreed on March 3 to ask the court to interpret the application of the OBC amendments.

"This action is simply about good regulatory practice," says Catherine Redden, a government appointee to PEO Council. "To properly exercise the exclusive delegated authority devolved to it in the public interest by the legislature over 80 years ago, PEO must do whatever is necessary to protect the integrity of its licensing and authorization instruments under the PEA."

"This course of action follows two years of discussions with the Ministry of Municipal Affairs and Housing," says Kim Allen, P.Eng., CEO & Registrar, PEO. "Unfortunately, all of our proposals were rebuffed in favour of those that would create a system paralleling the new legislative requirements. As a regulator, PEO cannot support overlapping legislative responsibility for, and requirements imposed upon, the same licence holders."

Professional Engineers Ontario (www.peo.on.ca) administers the Professional Engineers Act by licensing professional engineers, and setting standards for and regulating engineering in Ontario so that the public interest is served and protected. Rigorously educated, experienced, and committed to a Code of Ethics that puts the public interest first, licensed professional engineers can be identified by the "P.Eng." after their names.

Background Information

Position Statement - ISSUE: Building Code Statute Law Amendment Act (Bill 124/02)

PEO POSITION - March 21, 2006

1. The comprehensive licensing and regulatory scheme under the Professional Engineers Act (PEA) protects the public well.

2. PEO has never ceded to the Ministry of Municipal Affairs and Housing (MMAH) any of its exclusive jurisdiction under the PEA over the practice of professional engineering, which includes design and general review activities that are now purportedly also regulated by the Ontario Building Code (OBC).

3. Under the Ontario Building Code Act (OBCA), anyone who has not qualified and registered as specified in section 2.17 of the OBC appears to be prohibited from engaging in building-related design and general review activities. PEO maintains this prohibition was never meant to apply to its licence holders.

4. There has been no evidence produced to indicate that PEO's licences have been inadequate in protecting the public for matters related to the OBC. If a problem were identified, PEO would address it with its regulation-making powers

5. PEO licence holders must always make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under their responsibility.

6. The OBC designer and qualification requirements came into effect on January 1, 2006. Prior to January 1, PEO had worked diligently and cooperatively with the MMAH and the Ministry of the Attorney General to try to resolve the regulatory conflicts.

7. As a regulator, PEO cannot support overlapping and even inconsistent legislative responsibility for, and requirements imposed upon, the same licence holders, and must seek judicial clarity.

8. PEO will not implement a parallel system to test OBC knowledge, as this would only duplicate bureaucracy and costs.

9. By law, anyone responsible for engineering work covered by the PEA, including building officials, must be holders of a licence to practise professional engineering, regardless of whether they have qualified and registered as specified in the OBC.

10. PEO supports the government's objectives of streamlining the building permitting process, including the testing of unlicensed designers.

THE ISSUE OF THE BUILDING CODE STATUTE LAW AMENDMENT ACT

In July 2003, Ontario Regulation 305/03 under the Building Code Statute Law Amendment Act, 2002 was filed. The regulation established new, mandatory qualification requirements in the Ontario Building Code (OBC) for building officials, certain classes of designers (architects and professional engineers) and registered code agencies. These qualifications include successful completion of an examination program authorized by the Ontario Ministry of Municipal Affairs and Housing (MMAH) in order to submit drawings to obtain building permits. Initially, PEO agreed to administer the examinations for its licence holders and maintain the registry of qualified engineers.

At its June 2004 meeting, however, PEO Council voted to withdraw from the OBC certification plan. In a September 16 letter to the housing minister, PEO President George Comrie, P.Eng., said applying the requirements to PEO licence holders sets a policy precedent that ignores existing public statutes that govern and regulate the practice of licensed professionals.

The government created the Professional Engineers Act (PEA) in 1922 to ensure regulation of professional engineering practice to serve and protect the public interest

Under the PEA and Regulation 941/90, PEO is solely responsible for regulating the practice of professional engineering and is obligated to investigate, conduct hearings and, where necessary, discipline licensees who are found to have committed professional misconduct.

One of the grounds for professional misconduct under Reg. 941/90 is "failure to make responsible provision for complying with applicable statutes, regulations, standards, codes, by-laws and rules in connection with work being undertaken by or under the responsibility of the practitioner". [s. 72(2)(d)].

PEO has an obligation to ensure that professional engineers direct engineering work. This requirement is legislated in section 12 of the PEA.

Nevertheless, Municipal Affairs and Housing Minister John Gerretsen announced on September 16, 2004 and restated in a letter in February 2005 that the ministry "has decided to retain the qualification requirements in their current form."

On May 19, 2005, PEO met with Minister Gerretsen and presented options MMAH might pursue to exempt professional engineers from the OBC qualification and registration requirements. On the same day, MMAH filed Regulation 236/05 to extend the qualification and registration deadline to January 1, 2006. Discussions and correspondence with both MMAH and the Ministry of the Attorney General continued until almost year end.

A key part of the July 2000 report of the Building Regulatory Reform Advisory Group, and its message to stakeholders, was that all practitioners have to be included for it to work. By exempting the development and construction sectors, Bill 124/02 undermined the efficacy of the intended policy objectives from the beginning.

PEO has obtained "official marks" of Building Design Specialist and BDS under the Federal Trademarks Act. PEO is signing licensing agreements with its licence holders to grant permission for them to use the marks and has created a directory of those who have licensed the marks from PEO. Application forms to license the Building Design Specialist (BDS) official marks and access to the directory of BDS licensees are available at www.peo.on.ca.

Impact on Public Interest
As of January 1, 2006, the OBC qualification and registration provisions were in effect and all engineers practising in this area have been asked by the government to comply with these requirements. Requiring licensed professionals to qualify by passing code knowledge exams will add costs while doing nothing to reflect public interest and welfare issues that fall within the practice of professional engineering.

PEO is also concerned that MMAH has assigned to its officials the right to determine whether professional engineers are generally complying with the law. This is an area that goes to the heart of PEO's disciplinary jurisdiction and for which it, rather than government officials, is best equipped.

PEO is troubled that MMAH officials appear to have been given the ability to obtain access to confidential client files of professional engineers. This purported access to privileged information is contrary to the confidentiality obligations of professional engineers.

MMAH has produced no evidence or policy analysis suggesting there are problems with professional engineers' knowledge of the OBC, or limitations in the PEA and Reg. 941/90, or in PEO's administration of the Act or Regulation, that would compromise public safety.

PEO Council is willing to use its regulation-making powers under the PEA to ensure the protection of the public, if there are identified problems.

In late 2005, PEO began preparing amendments to Reg. 941/90 to support a Building Design Specialist designation as a flexible alternative to the OBC qualification and registration requirements. However, in the public interest, PEO has ceased further development of these regulations, since establishing the designation would do nothing to clarify jurisdiction over regulation of building design and general review activities.

PEO Actions to Date
* PEO files Application to Divisional Court for Judicial Review on March 20, 2006.

* PEO ceases development of amendments to its Regulation 941/90 to support a Building Design Specialist designation under the PEA.

* On March 3, 2006, PEO Council unanimously agrees PEO must turn to the court to clarify the jurisdictional boundaries of the Ontario Building Code Act (OBCA) and the Professional Engineers Act (PEA) over regulation of building-related design and general review of construction activities.

* PEO began preparing amendments under Reg. 941/90 to support a Building Design Specialist designation, in late December 2005.

* PEO obtains official marks on the terms "Building Design Specialist" and "BDS" in December 2005, and developed a licensing agreement to allow professional engineers and temporary licence holders who have met the OBC qualification and registration requirements to use the marks. PEO also implements a public directory of those licensed to use the marks.

* Consultation with government - over two dozen letters exchanged with the Minister of Municipal Affairs and Housing and with the Attorney General over the past five years stating PEO's position and trying to find a negotiated solution.

* PEO meeting with political and policy staff of ministries of Municipal Affairs and Housing and the Attorney General on October 14, 2005 to achieve a consensus on the essentials of a framework to exempt professional engineers from the OBC qualification requirements.

* Engineering for Ontarians Day at Queen's Park on June 6, 2005 to raise awareness among legislators of self-regulation in engineering under the Professional Engineers Act and PEO's role and purpose.

* PEO meeting with Minister of Municipal Affairs and Housing on May 19, 2005 to present alternatives MMAH could pursue to exempt professional engineers.

* PEO Government Communications Program - over 70 volunteer P.Eng. spokespeople recruited to date; scheduled meetings with stakeholders and MPPs are continuing.

* Numerous articles in Engineering Dimensions - over two dozen articles to date.

Complete details at www.peo.on.ca/registration/Building_Regulation_Registration_Program.htm

Fact Sheet - What is PEO?

* Professional Engineers Ontario (PEO) is the licensing and regulating body for engineering in the province. It fulfills the same role for engineers as the College of Physicians and Surgeons for doctors or the Law Society of Upper Canada for lawyers.

* Under the Professional Engineers Act, a provincial statute, PEO is responsible for the licensing and discipline of engineers and companies providing engineering services. PEO protects the public by ensuring all professional engineers have met the rigorous qualifications for licensing.

* Individuals may not call themselves a professional engineer, an engineer, a P.Eng., or use any similar title that may lead to the belief that they are qualified to practise professional engineering, unless they are licensed by PEO. PEO licenses almost 68,000 professional engineers, and holders of temporary, limited and provisional licences.

* To become a professional engineer, applicants must meet the following criteria:
- be at least 18 years of age;
- be a Canadian citizen or permanent resident of Canada;
- graduate with at least a bachelor's degree from an accredited Canadian engineering program, or meet PEO's education standards;
- successfully complete PEO's Professional Practice Examination on ethics, practice, engineering law and professional liability; and
- obtain four years of verifiable, acceptable work experience, with at least one year in a Canadian jurisdiction under a licensed professional engineer.

* Companies and individuals may not offer or provide engineering services to the public unless they obtain a PEO Certificate of Authorization. There are approximately 4100 Certificate of Authorization holders in Ontario.

PEO's Legislated Mandate
Professional Engineers Ontario regulates the practice of professional engineering and governs those individuals and organizations that PEO licenses in order "that the public interest may be served and protected". PEO is also mandated to carry out the following additional objects under the Act:

1. establish, maintain and develop standards of knowledge and skill;
2. establish, maintain and develop standards of qualification and standards of practice for the practice of professional engineering;
3. establish, maintain and develop standards of professional ethics; and
4. promote public awareness of the role of PEO.

The Act gives PEO the power to make regulations for administration of PEO (such as fixing the number of professional engineers elected to Council), admission to PEO (such as academic training), and standards of professional engineering practice and ethics (such as setting a code of ethics). The Act permits PEO to make by-laws relating to its administrative and domestic affairs, such as defining the duties of the Registrar.

PEO is governed by a Council, the composition and operation of which is dictated by the Regulation under the Act. Most Councillors are elected by PEO's licensed membership. Some Councillors are appointed by the Lieutenant Governor of the Province of Ontario. These appointed Councillors may or may not be professional engineers. The PEO Registrar and CEO is responsible for staff implementation of PEO Council decisions and policies.

Regulation 941 of the Act
Regulation 941 of the Professional Engineers Act, amended to O. Reg. 286/99, is a regulation made to provide additional details and guidance for implementation of the Act. For example, the Regulation prescribes the process to be followed when electing professional engineers to Council. With respect to professional practice, the Regulation prescribes a Code of Ethics, defines negligence and professional misconduct, addresses the requirement for professional engineers to report unsafe situations and unethical practices, and states that all professional engineers shall have a seal and describes its use. Section 78 of the regulation prescribes a performance standard for general review of construction as provided for in the building code.

Code of Ethics
The Code of Ethics is a basic guide to professional conduct and imposes duties on the practising professional engineer, with respect to society, employers, clients, colleagues, (including employees and subordinates), the engineering profession, and himself/herself.

Section 77 of Regulation 941 states that it is the duty of the practitioner to act at all times with:

* fairness and loyalty to the practitioner's associates, employers, clients, subordinates and employees;
* fidelity to public needs;
* devotion to high ideals of personal honour and professional integrity;
* knowledge of developments in the area of professional engineering relevant to any services that are undertaken; and
* competence in the performance of any professional engineering services that are undertaken.

Through the Code of Ethics, professional engineers have a clearly defined duty to society, which is to regard the duty to public welfare as paramount, above their duties to clients or employers. Their duty to employers involves acting as faithful agents or trustees, regarding client information as confidential and avoiding or disclosing conflicts of interest. Their duty to clients means that professional engineers have to disclose immediately any direct or indirect interest that might prejudice (or appear to prejudice) their professional judgment.

/For further information: David Smith, Media Specialist, (416) 840-1068, dsmith@peo.on.ca./ IN: JUSTICE, POLITICS

Contact Information

  • David Smith, Media Specialist, Professional Engineers Ontario
    Primary Phone: 416-840-1068
    Toll-Free: 800-339-3716
    E-mail: dsmith@peo.on.ca