A Guide to Trade-Marks

A trade-mark identifies the foods or services marketed under its protection.

What is a Trade-Mark?
A trade-mark is a word, a symbol, a design, or a combination of these, used to distinguish the wares or
services of one person or organization from those of others in the marketplace. Trade-marks come to
represent not only actual wares and services, but the reputation of the producer.

There are three basic categories of trade-marks:

1. Ordinary marks are words or symbols that distinguish the wares or services of a specific firm or
individual.
2. Certification marks identify wares or services which meet a defined standard. They are owned by
one person but licensed to others to identify wares or services which meet a defined standard.
3. Distinguishing guise identifies the unique shape of a product or its package.

Trade Name vs. Trade-Mark

A trade name is the name under which you conduct your business, whether it is your own name, or the
name of a corporation or a partnership or a name adopted for a segment of that business. The trade name
can be registered under the Trade-marks Act only if it is also used as a trade-mark, that is, used to identify
wares or services.

Trade-mark should not be confused with a trade name, which is the business name, under which the
business is carried.

Registered Trade-Mark vs. Unregistered Trade-Mark

Like copyrights, you are not required to register your trade-mark – using a mark for a certain length of time
can establish your ownership through Common Law – but it is highly recommended.

Registration of a trade-mark gives the exclusive right to use the mark across Canada for 15 years,
renewable every 15 years thereafter.

How Do I Register My Trade-Mark?

Trade-mark must be used in Canada before it can be registered. Application can be made before use, but
registration will not occur until use occurs. Registration protects rights in Canada only. Have to apply for
foreign registration if you want protection in other countries.

Five-step Examination Process

The Trade-marks Office does the following, when it receives an application:
1. Searches the trade-marks records to find any other trade-mark that may come into conflict.
2. Examines the application for compliance with the requirements of the Trade-marks Act and
Regulations.
3. Publishes the application in the Trade-marks Journal.
4. Allows time for opposition to the application.
5. If no one files an opposition to the application, the mark is allowed. Mark is registered upon
payment of $200 registration fee.

Kinds of Marks That Can’t Be Registered as Trade-marks

• Full name or surname
• Clearly describes a feature of the wares or services e.g. “juicy” apples or “sweet” ice cream
• Deceptively misdescriptive e.g. “sugar sweet”
• Place of origin e.g. Atlantic Cod
• Words in other languages – such as “gelato,” Italian for ice cream
• Causing confusion – words, symbols, sounds or ideas that suggest someone else’s trade-mark
• Prohibited marks – official symbols e.g. RCMP
• Bad words
A disclaimer is a statement indicating the applicant claims no exclusive rights for certain words appearing
in a trade-mark.

The Trade-Mark Registration Process

1. The preliminary search
2. Application
3. Examination
4. Advertisement in the Trade-marks Journal
5. Opposition – must be made within two months of the publication date. After a final decision is
rendered, it may be appealed to the Federal Court of Canada.
6. Allowance and Registration.

Expungement of a Trade-Mark Registration

The registered owner of a trade-mark is responsible to pay a renewal fee every 15 years. Failure to pay
such a fee on time will result in the expungement of the trade-mark registration. Another responsibility of
the owner is to use the trade-mark in Canada. The owner must use the trade-mark within three years from
the date of the registration.

Assignment
Can sell, bequeath or otherwise transfer your rights to it to another party through a transaction called an
“assignment.”

Marking Requirements
Trade-mark owners often indicate their registration through certain symbols, namely, R in a circle
(registered), TM (trade-mark), SM (service mark), MD (marque déposée) or MC (marque de commerce).
The symbols TM, SM, or MC may be used regardless of whether the trade-mark is registered. The R in a
circle, or MD, should be used only if the mark is registered.

Forgery to defraud – 2 years imprisonment and a fine

Liable for damages
A Guide to Copyrights
What is a copyright?
Copyright generally means the sole right to produce or reproduce (copy) the work or any substantial part
thereof, the work in question or to permit anyone else to do so, in any material form whatever.

What is Covered by Copyright?

Copyright applies to all original literary, dramatic, musical and artistic works. Copyright in Canada is
automatically acquired upon creation of every original work. Registration is not essential.
• Literary work: books, dictionaries, encyclopedias, pamphlets, poems and other works consisting
of text and computer programs;
• Dramatic works: films, videos, plays, screenplays and scripts;
• Musical works: compositions that consist of both words and music or music only (note that lyrics
without music fall into the literary works category);
• Artistic works: paintings, drawings, maps, photographs, sculptures and architectural works.

Copyright also applies to three other kinds of subject-matter:

• Performer’s performances: performers such as actors, musicians, dancers and singers have
copyrights in their performances;
• Communication signals: broadcasters have copyrights in the communications’ signals that are
broadcast;
• Sound recordings: makers of recordings, such as records, cassettes, and compact discs, which are
called “sound recordings” in the Copyright Act, are also protected by copyright.

When Copyright Does Not Apply

Copyright is restricted to the expression in a fixed manner (test, recording, and drawing) of an idea;
it does not extend to the idea itself.

Items which are not protected by copyright include:

• names or slogans;
• short phrases and most titles;
• methods, such as a method of teaching or sculpting;
• factual information.

The copyright act does not give a monopoly to the title of a work. Many works may appear with the same
title, but the work itself is protected by copyright.

Facts, ideas and news are all considered part of the public domain, that is, they are everyone’s
(public) property.

Infringement
One specific from of infringement is plagiarism. This is copying someone else’s work and claiming it as
your own.

Making a copy of a musical tape for private use is not infringement because a royalty payment to the
owners of the song rights has been paid when the blank audio tape was purchased. Making a copy of a
videocassette movie protected by copyright is infringement, even if you only watch it in your own home.

Fair Dealing and Exceptions

“Fair dealing” with a work for purposes of private study or research, or for criticism, review or news
reporting is not infringement.

Copyright Exceptions
• Non-profit educational institutions – for educational or training purposes.
• Non-profit libraries, archives and museums – in order to maintain and mange their collections.
 • Persons with perceptual disabilities – difficulty reading (braille) or hearing (talking books).

Automatic Protection for Canadian and Foreign Works

Will automatically have copyright protection provided that, at the time of creation, you were:
A. A Canadian citizen or a person ordinarily resident in Canada; or
B. A citizen or subject of, or a person ordinarily resident in, a Berne Copyright Convention country, a
Universal Copyright Convention (UCC) country, a Rome Convention country (for sound
recordings, performer’s performances and communication signals only), or a country that is a
member of the World Trade Organization (WTO) country; or
C. A citizen or subject or a person ordinarily resident in any country to which the Minister has
extended protection by notice in the Canada Gazette.

In some cases, you would also obtain automatic copyright if your work was first published in one of the
countries included among those who have signed the Berne, UCC or Rome Conventions or the WTO
agreement, even if you were not a citizen or subject of Canada, or of one of those countries.

Authorship
The author is normally the person who creates the work.

Ownership
Generally, if you are the creator of the work, you own the copyright. However, if the work is created in the
course of employment, the copyright belongs to the employer unless there is an agreement to the contrary.

Duration
The general rule is that copyright exists for the life of the author, the remainder of the calendar year in
which the author dies, and for 50 years following the end of the calendar year (for 50 years beyond the life
of the author). The term for sound recordings and photographs is 50 years from the date of, the first
fixation of the sound recording or, making of the initial negative or plate.

Upon death, copyright is transferred to your estate, to be passed to your heirs.

Posthumous Works
These are works which have not been published during the lifetime of the author. The copyright lasts for
the remainder of the calendar year in which the work was first published, performed or delivered and for 50
years after that.

Moral Rights
Even if you sell your copyright to someone else, you still retain “moral rights.” This means no one,
including the person who owns the copyright, is allowed to distort, mutilate or otherwise modify your work
in a way that is prejudicial to your honour or reputation.

You cannot sell or transfer your moral rights to anyone else, but you can waive them when you sell or
transfer your copyright or at a later date. Moral rights exist for the same length of time as copyright.

Registration of Copyright
The Universal Copyright Convention provides for marking with the symbol ©, the name of the copyright
owner and the year of first publication.

Agreements: Assignments and Licences

An assignment occurs when you transfer part, or all, or your rights to another party. Assignment may be
for the whole term of the copyright, or for a certain part of it.

A licence gives someone else permission to use your work for certain purposes and under certain
conditions, but you still retain ownership. You have not given up your rights.

To be valid, an assignment or licence must be in writing and signed by the owner.

Royalties and Tariffs
Royalties are sums paid to copyright owners as commission for sales of their works or permission to use
them. E.g. Radio stations pay royalties to play records.

Tariffs are set fees that users must pay for using certain copyright material. E.g. Cable companies pay
tariffs for programs.

Collectives
An organization that collects royalties on behalf of its members.
A Guide to Industrial Designs

What is an Industrial Design?

An industrial design is the original visual features of shape, configuration, pattern or ornamentation applied
to a useful article that is mass-produced. The article may be made by hand, tool or machine.

When to File an Application

Must file within 12 months of publication or will lose exclusive rights to the design. If a design has been
made public, it can be registered any time up to one year from the date it went public.

Why You Should Register?

Registration enables you to prevent others from making, using, renting or selling your design in Canada for
up to 10 years. The registered owner has the sole right to the use of the design in Canada for a period of 10
years. Unlike a trade-mark or copyright, an industrial design must be registered to be valid.

How Long Registration Lasts

As of January 1, 1994, registration is for a ten-year term. Before the expiry of five years from the date of
the registration of the design, a maintenance fee must be paid.

For designs registered prior to January 1, 1994, registration is for a five-year term renewable for a further
five years.

Once the tem has expired, anyone is free to make, use, rent or sell the design in Canada. One is protected
only in Canada.

Preparing Your Application

A complete application for an industrial design has four basic elements which are required by the Industrial
Design Act:
1. A written description of the original features of the design;
2. Drawings or photographs of the design (not color);
3. A declaration; and
4. The required fee.

Application
1. Initial processing
2. Examination
3. Registration

Marking a Product
Don’t have to mark the product in order to indicate that it is registered as a design, but marking does give
extra protection. The proper mark is a capital “D” inside a circle and the name, or abbreviation thereof, of
the design’s proprietor on the article, its label or packaging.

Assignments
When you sell all or part of the rights in the design permanently to another party.

Licenses
When you license your design, you allow someone else to use it in accordance with the particular terms and
conditions set out in the licence which is negotiated between the involved parties. Retain ownership, and
can license more that one party.
A Guide to Patents
CIPO Canadian Intellectual Property Office – responsible for all industrial property rights.

CIPO is responsible not only for patents, but for all intellectual property rights including trade-marks,
copyrights, industrial designs and integrated circuit topographies.

What is a patent?
Through a patent, the government gives the inventor, the right to exclude others from making, using or
selling the invention from the day the patent is granted to a maximum of 20 years after the day on which
the patent application was filed

The patentee must provide a full description of the invention, which is published 18 months after filing.

A patent is:
1. a document protecting the rights of the inventor,
2. a repository of useful technical information for the public.

What can you patent?

There are three basic criteria for patentability.
1. The invention must be new (first in the world).
2. It must be useful (functional and operative).
3. It must show inventive ingenuity and not be obvious to someone skilled in that area.

The invention can be a product, a composition of matter (a chemical composition), an apparatus (machine),
manufacture, a process, or any new and useful improvement on any of these.

An invention is a technological development or improvement that would not have been obvious beforehand
to specialists in the technology being considered.

Patents can only be granted for the physical embodiment of an idea. Patents are not issued for scientific
principles, an abstract theorem, an idea, a method of doing business, a computer program (trademark), or a
medical treatment.

Novelty, Utility, Ingenuity

All patents have 3 characteristics – novelty, utility, and ingenuity.

When to apply for a patent

In Canada, patents are given to the first inventor to file an application. Therefore, it’s wise to file as soon
as possible after completing your invention, in case someone else is on a similar track. Even if you can
prove that you were he first to conceive of the invention, you lose the race if a competing inventor files
before you do.

It’s imperative, also, not to advertise, display or publish information on your invention too soon. Public
disclosure of your invention before filing will make it impossible to obtain a valid patent. There is an
exception in Canada if the disclosure was made by the inventor, or someone who learned of the invention
from the inventor, less than one year before filing (i.e. the applicant has a period of 1 year to file). Most
other countries require filing before use or written disclosure anywhere.

The First Steps Towards Patent Protection

The Preliminary Search

Preparing a Patent Application – a patent application consists of an abstract, a specification and often
drawings.
Filing Your Application
To receive an official filing date in Canada, you must submit no less than the following:
1. statement that a patent is sought;
2. document describing an invention;
3. name of the applicant;
4. address of the applicant or the applicant’s patent agent;
5. prescribed filing fee.

Requesting Examination – must formally request a patent examination within five years of the Canadian
filing date, otherwise the application will be considered as abandoned.

Filing Prior Art and Protests

Prior art – information that might cause the patent examiner to object to one or more of your
claims.
Anyone may also file a protest against the granting of a patent.

Special Order Examination – advanced examination by means of a “Special Order” request.

Next Steps: The Prosecution

Patent Office Letter of Objection
The examiner’s objection will be in a report or letter called a “Patent Office Action.”

Responding to Examiner’s Objections

“Amendment Letter” – response of objections to commissioner.

Reconsideration by the Examiner

“Notice of Allowance” – granting of a patent. The Canadian Patent Office grants patents.

Appealing
Appeal to the Commissioner of Patents by requesting that the Commissioner review the
examiner’s objection to a patent application. The review is conducted by the Patent Appeal Board.
If the Commissioner objects to the appeal and refuses to grant a patent, may take the case to the
Federal Court of Canada and from there to the Supreme Court of Canada.

Summary of Steps to Obtain a Patent in Canada

1. Find a patent agent.
2. Do a preliminary search.
3. Help your agent prepare a patent application.
4. File the application
5. Request examination.
6. Examiner does search for prior patents and studies claims.
7. Examiner either approves or objects to the claim.
8. Respond to examiner’s objections and requirements.
9. Examiner reconsiders and either approves or calls for further amendments.
10. If final decision is objected to, may appeal.

Applying for a Patent Outside Canada

Convention Priority – the filing date in one member country will be recognized by all the others provided
you file in those countries within a year of first filing.

Patent Cooperation Treaty (PCT) – may file for a patent in as many as 106 member countries through a
single application filed in Canada.

What Does “Protection” Mean?

Patent Infringement – sue for damages due to infringement.

Fees
There are three kinds of fees you must pay to obtain a patent: filing fees, examination fees and grant of
patent fees. Yearly maintenance fees are required to maintain an application or a patent in force.

Marketing and Licensing

Can license the invention or sell the patent.

Abuse of Patent Rights

Compulsory licences may be granted to remedy what is called “abuse of patent rights.” Such abuse can be
considered only three years after grant. Abuse situations include:
• Not meeting demand in Canada;
• Hindering trade or industry in Canada by refusing to grant a licence ( if such a licence is in the
public interest), or by attaching unreasonable conditions to such a licence;
• Using a process patent to unfairly prejudice production of a non-patented product, or allowing
the patent on such a product to unfairly prejudice its manufacture, use or sale.

In general, an employee invention does not belong to the employer.

Manual of Professional Practice Under the Code of Ethics
Section 2: The Professions
A profession is a learned calling with specialized skills, distinctive functions and recognized social
obligations and has unique characteristics.

• It renders services based upon advanced knowledge, skill and judgment.

• It is charged with a substantial degree of public obligation and performs its services largely in the
general public interest.
• It is bound by a distinctive ethical code in its relationships with clients, employees, colleagues and
the public.
• It assumes responsibility for actions related to professional services provided in a personal or
supervisory capacity.

Professionals depend on confidence of two kinds for effective pursuit of their work:
1. the personal confidence of the client/employer in the technical competence of the engineer, and
2. the confidence of the public at large in the integrity and ethical conduct of the profession as a
whole.

Section 3: Ethics
The word “Ethics” comes from the Greek word “Ethos” and is defined as the study of standards of right
and wrong: that part of science and philosophy dealing with moral conduct, duty and judgment.

The true professional will incorporate ethics into his or her daily decision-making situations.

Section 4: Interpretation and Amplification of the Code of Ethics

APEGGA states:
1. Service and Human Welfare
• Professional engineers shall recognize that professional ethics is founded upon integrity,
competence, and devotion to service and to the advancement of human welfare. This
concept shall guide their conduct at all times. In this way each professional’s actions will
enhance the dignity and status of the professions.
2. Public Involvement
• Professional engineers, through their practice, are charged with extending public
understanding of the professions and should serve in public affairs when their
professional knowledge may be of benefit to the public.
3. Reputation Through Merit
• Professional engineers will build their reputations on the basis of merit of the services
performed or offered and shall not compete unfairly with others, or compete primarily on
the basis of fees without due consideration of other factors.
4. Professional Leadership
• Professional engineers will maintain a special obligation to demonstrate understanding,
professionalism and technical expertise to members-in-training under their supervision.

Rules of Conduct
1. Public Safety and Welfare.
• Professional engineers shall have proper regard in all their work for the safety and
welfare of all persons and for the physical environment affected by their work.
• Regard the duty to public safety and welfare as paramount.
2. Competence and Knowledge
• Professional engineers shall undertake only work that they are competent to perform by
virtue of training and experience.
• Shall express opinions on engineering only on the basis of adequate knowledge and
honest conviction.

3. Signing and Sealing

 • Professional engineers shall sign and seal only reports, plans or documents that they have
prepared or that have been prepared under their direct supervision and control.
• Professionals must as a matter of practice keep their stamps and seals under immediate
and direct control.
• The absence of a seal or stamp does not relieve a member from professional or legal
responsibility if it is proved that he was involved with the work.
4. Faithful Agent or Trustee
• Shall act for their clients or employers as faithful agents or trustees, always acting
independently and with fairness and justice to all parties.
5. Conflict of Interest
• Shall not engage in activities or accept remuneration for services rendered that may create
a conflict of interest with their clients or employers, without the knowledge and consent
of their clients or employers.
6. Confidentiality of Information
• Shall not disclose confidential information without the consent of their clients or
employers, unless the withholding of the information is considered contrary to the safety
of the public.
7. Overruling of Judgment
• Shall present clearly to their employers the consequences to be expected if their
professional judgment is overruled by other authorities in matters pertaining to work for
which they are professionally responsible.
8. Securing Assignments
• Shall not offer or accept covert payment for the purpose of securing an assignment.
9. Professional Advertising
• Shall represent their qualifications and competence, or advertise professional services
offered, only through factual representation without exaggeration.
10. Conduct Towards Others
• Shall conduct themselves toward other professional members and employees with
fairness and good faith.
• Shall review work of another professional only with their knowledge.
11. Reporting Unprofessional Practice
• Shall advise the Registrar of any practice by another member which they believe to be
contrary to the Code of Ethics.
• Intentionally refraining from reporting breaches to the Code of Ethics constitutes
unprofessional conduct.

Appendix A: Historical Background – APEGGA Code of Ethics

The Association, then known as the Association of Professional Engineers of Alberta, was incorporated by
provincial statue in 1920.
Basic Learnings in Industrial Safety and Loss Management

Benefits of the Integrated Approach to Industrial Safety and Loss Management

Most major industries in Alberta today have safety and loss management programs that are designed to
promote “the reduction of risk to people, the environment, assets and production.”

Critical few: A basic management principle stating that a small percentage of specific items account for the
majority of all incidents and costs. (The 80/20 Rule).

Injury frequency rate:

Frequency rate = (Number of injuries x 200,000 hours)
(Total exposure hours)

Notes: Total exposure hours = Total number of persons x number of hours worked. 200,000
hours represents the total approximate time that 100 persons would work in one year.

Injury severity rate:

Severity rate = (Number of lost work days x 200,000 hours)
(Total exposure hours)

Legislation Pertaining to Industrial Safety and Loss Management

For infractions to worker safety and environmental laws, industries can be fined as much as $1 million, and
individuals can also be imprisoned.

Occupational Health and Safety Act states the obligations of employers and workers with regard to safety
and sets out penalties for failing to meet those obligations.

A prime contractor for a work site is the contractor, employer or other person who enters into an
agreement with the owner of the work site to be the prime contractor. If there is no agreement, the owner
of the work site is considered the prime contractor.
A prime contractor is required if two or more employers are working at the work site at the same
time.

Environmental Protection and Enhancement Act, along with the statutes of Environment Canada, set
standards and limits regarding the emission of certain substances in certain amounts.

ILCI International Loss Control Institute, now called

DNV Det Norske Veritas, Incorporated

CAER Community Awareness and Emergency Response

API American Petroleum Industries
OSHA Occupational Safety and Health Administration
ISO International Organization of Standardization

Effective industrial safety and loss management programs include a number of key elements that form the
basis for:
1. designing, constructing and operating the company’s facilities
2. controlling performance by the company, departments and individual employees.

These 11 program elements are:

1. Management leadership, commitment and accountability.
• Leadership by example.
• Visibility.
• Leadership through objective-setting and stewardship.
• Line responsibility.
• Management participation.
 2. The Assessment, Analysis and Management of Risks
• The term “risk” is defined as a function of the probability of and unwanted incident and the
potential severity of its consequences.

System (activities):
A set of steps or activities taken to ensure that stated objectives are achieved. A typical
system includes these key elements:
• agreed-upon objectives and documented procedures
• statements about who is responsible and accountable for implementation and
execution, and how resources will be allocated to make this possible
• a measurement process to determine if desired results are being achieved
• a feedback mechanism to provide a basis for further improvement.

System (physical):
A bounded, physical entity that achieves a defined objective in its environment through
interaction of its parts. This definition implies that:
• the system is identifiable
• the system is made up of interacting parts of subsystems
• all the parts are identifiable
• the boundary of the system can be defined.

3. Design, Construction and Start-Up

4. Operations and Maintenance
5. The Competency and Training of Employees
6 The Competency and Integration of Contractors
7 Change Management
8 Reporting, Investigating and Analyzing Incidents, and Taking Follow-Up Action
9 Collecting Information and Documentation on Operations and Facilities
10 Community Awareness and Emergency Preparedness
11 The Evaluation and Continuous Improvement of Programs

Immediate causes are circumstances that immediately precede an incident or develop during it.
Basic causes, which are the reasons for the existence of the immediate causes (substandard practices and
conditions), are more difficult to identify.

The Flixborough Disaster

The Flixborough Works of Nypro (UK) Ltd was a first class chemical plant located approximately 160
miles north of London, England. Although the plant had an excellent design, an explosion completely
devastated the plant and the surrounding area on June 1, 1974. Twenty eight people were killed and cost
huge $$. Was caused by a poorly designed bypass from reactor 4 to reactor 6.

Techniques for Assessing and Analyzing Risks

• Risk observation in the field.
• Checklists.
• Simplified logic tree analysis.
• Simple (semi-quantitative) risk assessment.
• Hazard Indices such as the Dow Index (Dow’s Fire and Explosion Index) – rank the relative loss
potential of plants and processing facilities that handle flammable, combustible or reactive
materials.
• Failure mode and effects analysis (FMEA) – trace the effects of the failure o individual
components on the overall failure of equipment.
• Hazard and operability study (HAZOP).
• Fault tree analysis.

MPPD Maximum probable property damage

Four Case Studies of Major Industrial Disasters
Piper Alpha: Fire on a North Sea oil platform
June 7, 1988; 167 dead

Challenger Space Shuttle Disaster

(Mission 51-L exploded soon after take-off)
January 28, 1986; 7 dead

Hyatt Regency Walkways Collapse, Kansas City

July 17, 1981; 114 dead

The Sinking of the Titanic

April 14, 1912; more than 1500 dead

Safety and Loss Management Programs for Small Companies

Small companies of 50 employees or less make up 95% of Alberta businesses, and they employ more than
one-third of Alberta’s workforce. Small companies also sustain 44% of all Alberta workplace injuries.

The Lodgepole Blowout

Two people died due to exposure to H2S; a further 14 persons were hospitalized; 28 people were
evacuated; four families temporarily relocated. Total monetary losses came close to $50 million.

The Role of Engineers, Geologists and Geophysicists

Worker’s Compensation Board costs amount to about $400 million per year, with an average of 55,000
serious injuries and 90 industrial deaths annually.
Canadian Professional Engineering Practice and Ethics by Gordon C. Andrews and
John D. Kemper

Chapter One: Introduction to the Engineering Profession

Engineers primarily concerned with the design and development.

Branches: civil, electrical, mechanical, chemical, and industrial.

Chapter Two: Regulation of the Engineering Profession

An applicant is typically admitted to the profession and awarded a P.Eng. licence is he satisfies six
conditions:
• Citizenship – citizen of Canada or have the status of a permanent resident.
• Age – minimum age of 18 years or the legal age of majority in most provinces.
• Education – must prove compliance with academic requirements.
• Examinations
• Experience – must prove compliance with experience requirements.
• Character – must be of good character, as mainly determined from references.

Non-residents – temporary licence.

CCPE Canadian Council of Professional Engineers

CEAB Canadian Engineering Accreditation Board – credit universities
CEHRB Canadian Engineering Human Resources Board
CEQB Canadian Engineering Qualifications Board
CEPAB Canadian Engineering Public Awareness Board

Chapter Three: Entering Engineering Employment

Chapter Four: Engineers in Management

Leadership requirements: vision, planning, communicating, monitoring, organizing, and role modeling.

Chapter Five: Engineers in Private Practice

ACEC Association of Consulting Engineers of Canada – membership included with APEGGA
FIDIC International Federation of Consulting Engineers
QBS Quality Based Selection – client chooses a consultant

Compensation for Consulting Engineers

• Per Diem – fixed daily rates
• Payroll times multiplier – multiplied by a factor to cover overhead and profit
• Lump Sum – determined in advance
• Fee as a percentage of estimated or actual construction costs

Chapter Six: Principles of Engineering Ethics

Ethics – the study of right or wrong, good or evil, obligations and rights, justice, and social and political
ideals
Logic – the study of rules and reason
Epistemology – the study of knowledge
Metaphysics – the study of very basic ideas such as existence, appearance, reality, and determinism.
Four Ethical Theories
1. Mill’s Utilitarianism
• The best choice in a moral dilemma is that which produces the maximum benefit for the
greatest number of people.
• Mill proposed that the intensity and duration of a benefit or pleasure (or pain to be avoided),
and the number of people affected should be the three key factors.
• Consistent with concept of democracy.
2. Kant’s Formalism, or Duty Ethics
• Each person has a fundamental duty to act in a correct ethical manner.
• The most basic good was “good will.”
• It was the intention to do one’s duty that was significant, not the actual results or
consequences.
• One has a duty to follow rules that are generated from the conscience.
• Stresses the importance of following universal rules, the importance of humanity, and the
significance of the intention of an act or rule, rather than the actual outcome in a specific case.
3. Locke’s Rights Ethics
• Everyone has rights that arise from one’s very existence as a human being.
• The rights of the individual must be recognized by others, who have a duty not to infringe on
these rights.
4. Aristotle’s Virtue Ethics
• The goodness of an act, object, or person depended on the function or goal concerned.
• Guide to achieving virtue was to select the “golden mean” between the extremes of excess
and deficiency.

The Engineering Design Process

1. Recognizing that a problem or need exists.
2. Gathering information and defining the problem to be solved or goal to be achieved.
3. Generating alternative solution or methods.
4. Evaluating benefits and costs of alternative solutions.
5. Decision making and optimization.
6. Implementing the best solution.

Chapter Seven: Ethical Problems of Engineers in Industry

NSPE National Society of Professional Engineers

Chapter Eight: Ethical Problems of Engineers in Management

The two most common infringements of the Act concern the use of unlicenced personnel to carry out the
work of professional engineers and the misuse of engineering titles.

Terminating Employment for Just Cause

1. serious misconduct;
2. habitual neglect of duty;
3. serious incompetence;
4. conduct incompatible with duties or prejudicial to the company’s business;
5. willful disobedience to a lawful and reasonable order of a superior;
6. theft, fraud, or dishonesty;
7. continual insolence and insubordination;
8. excessive absenteeism despite corrective counseling;
9. permanent illness;
10. inadequate job performance over an extended period as a result of drug or alcohol abuse.
Wrongful Dismissal
1. forced resignation;
2. demotion;
3. downward change in reporting function;
4. a unilateral change in responsibilities;
5. forced transfer;
6. and, serious misconduct of the employer toward the employee.

Chapter Nine: Ethical Problems of Engineers in Private Practice

The Client – Consultant Relationship

• The “independent” model – consultant decides.
• The “balanced” model – consultant interacts with the client.
• The “agent” model – client decides.

Use of the Engineer’s Seal

The terms seal and stamp are interchangeable.
The seal has legal significance, since it typically indicates that the person accepts responsibility for
the accuracy of the documents.
If one engineer prepares and another reviews, then both seals should be on the design.

The engineer in private practice generally has two sources of concern that can give rise to civil liability:
breach of contract and negligence. A breach of contract is a failure to complete the obligations specified in
the contract, whereas negligence is a failure to exercise due care in the performance of engineering.

Chapter Ten: The Engineer’s Duty to Society and the Environment

Canada’s Environmental Health

• Proliferation of Machine-Made Hazards
• Degradation of the Environment

Recognizing and Reducing Environmental Hazards

• Waste Disposal
• Air Pollution
• Acid Rain – called “acid rain” when the pH falls below 5.0; “normal” rain has a pH of 5.6.
• H2O Pollution
• Global Warming and Ozone Depletion
o Greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrogen dioxide (NO2), oxide
(O3), and chlorofluorocarbons (CFCs).
• Energy Conservation and Nuclear Power
• Exponential Population Growth

Chapter Eleven: Engineering Case Histories

Case 1 The Quebec Bridge Disasters

• Was started in 1900
• In 1907, 75 people were killed when the southern cantilever span twisted and fell into the St.
Lawrence River.
• In 1916, 13 people were killed when a new centre span being hoisted into position fell into the
river.
• The bridge was completed in 1917.
• Failures were blamed on design and communication, and organizational deficiencies.

Case 2 The Vancouver Second Narrows Bridge Collapse

 • In June, 1958, two spans of the Vancouver Second Narrows Bridge collapsed while under
construction.
• The accident was caused by the collapse of a temporary tower supporting the partially completed
bridge.
• Eighteen workers were killed.

Case 3 The Westray Mine Disaster

• The mine explosion occurred in May, 1992, in the small village of Plymouth.
• Coal dust and methane explosion that killed 26 people.
• Explosion would have been prevented if the Westray mine had complied with the Coal Mines
Regulation Act. The explosion would have been prevented if coal dust had not been allowed to
accumulate by keeping working places cleared. And if the floor, road and sides of every road had
been treated with stonedust, the resulting mixture would not contain no more than 35 percent
combustible matter. The mine should have been thoroughly ventilated and furnished with an
adequate supply of pure air to dilute and render harmless inflammable and noxious gases.

Case 4 The Lodgepole Well Blowout

• In October 1982, the AMOCO oil well being drilled neat Drayton Valley encountered sour gas and
blew out of control. Two people were killed.
• AMOCO personnel were unsuccessful in controlling the hydrostatic pressure in the well.

Case 5 The Bre-X Mining Fraud

• 1997 – mining fraud. Geologists tampered with core samples.

Case 6 The Challenger Space Shuttle Explosion

• In January 1986, NASA launched the space shuttle Challenger at Cape Canaveral, Florida.
• At 73 seconds into the flight, a fuel tank exploded, and seven crew members were killed.
• Resulted from poor O-ring design – to protect the O-rings from hot gases, putty was placed over a
gap leading from the O-rings to the combustion area. Before each flight, the joints had to be
tested under pressure to make sure the O-rings were sealed properly. But to really test the O-rings
and not just the putty, the testers had to put enough pressure to blow a hole through the putty.
• The putty was essential in protecting the O-rings from the flames, but to test the rings, a hole was
put in the putty that would lead directly from the flames to the O-rings.

Case 7 The DC-10 Passenger Aircraft Disaster

• In 1972, a cargo door blew out of a DC-10 over Windsor, Ontario, and the explosive
decompression of the cargo department caused part of the cabin floor to collapse, opened a large
hole in the bottom of the fuselage. The pilot was able to steer and land the aircraft safely by
manipulating the engine throttles.
• Two years later, on 3 March 1974, nine minutes after takeoff from Paris, France, a DC-10 lost its
cargo door. The plane crashed, killing all 346 people aboard.

Case 8 Toxic Pollution: Love Canal, Minamata, Bhopal, Sudbury

• Love Canal, New York – Dioxin: Hooker Chemical donated land to the board of education but
said nothing about chemicals they’d buried there from 1942-1953.
• Minamata Bay, Japan – Mercury Poisoning: The Chisso Company, a nitrogen fertilizer company
in Minamata, had lost mercury into the Minimata Bay, with the waste water. Between 7000 and
8000 people contracted Minamata disease, a debilitating neurological syndrome.
• Bhopal, India – Methyl Isocyanate: In December, 1984, a poisonous cloud of methyl isocyanate
gas escaped from the Union Carbide plant in Bhopal, India. Likely the worst industrial accident in
human history: the number of casualties are about 3000 to 12000 dead, about 30000 with
permanent injuries, 20000 with temporary injuries and 150000 with minor injuries.
• Sudbury, Ontario – Sulphur Dioxide: Environmental effects of acid rain in the Sudbury region.

Case 9 Nuclear Safety: Three Mile Island and Chernobyl

 • Three Mile Island: In March 1979, the reactor core became partially uncooled. More than a third
of the reactor core had melted and fallen to the bottom of the reactor vessel. The core melted but
was contained. Radiation turned out to be negligible.
• Chernobyl: In April 1986, the nuclear reactor exploded, releasing huge, sinister clouds of
radioactive plutonium, cesium, and uranium dioxide into the atmosphere. Thirty-one people died
in the accident: 29 firefighters and two reactor operators. About 200 people were exposed to high
levels or radiation and developed acute radiation sickness.

Chapter Twelve: Product Safety, Quality, and Liability

Basis for Legal Liability
Liability may result is it can be proved that the defect was caused by the engineer’s negligence (including
incompetence or carelessness), or if the defect constitutes a breach of the product warranty, or (in the US) if
the manufacturer cannot mount an adequate defense against “strict liability.” Strict liability applies mainly
in the US, but most Canadian engineers and manufacturers must be aware of it (NAFTA). A manufacturer
may be strictly liable for any damage that results from the use of his product.

Product Warranties
The term warranty is usually applied to goods and services and products, while the term guarantee is
usually applied to services or agreements.

Express warranties are promises that the product has a certain quality and/or it will perform for a certain
period of time. Implied warranties are unstated promises that exist as a matter of common sense.

Tort – wrongful civil act committed by one person against another.

Advice to Design Engineers

Three design reviews are needed for a large project: conceptual design review, feasibility design review,
final design review should be held after the design has been fully analyzed and optimized.

Formal hazard analysis

1. identify the hazards that may be created
2. tries to prevent or eliminate the need for creating the hazard. If the hazard cannot be eliminated,
then
3. it should be treated as a signal that emanates from a source and follows some path to a receiver
(the user of the design), where the hazard inflicts some damage. There are three locations where
action can be taken to shield the hazard and prevent damage: at the source, along the path, or at
the receiver. Finally, if the above steps prove to be unsuccessful and the product is unsafe, then
4. some remedial action is essential: recall the unsafe product, notify people of danger, or assist the
injured as appropriate.

Instruction, Warning, and Danger Signs

CAUTION is used to warn of risks that might result from unsafe practices.
WARNING denotes a specific potential hazard.
DANGER indicates a serious hazard to personal safety, near the sign.

FMEA Failure Mode and Effects Analysis – bottom-to-top process. Start with piece of
equipment, and determine how they could conceivably fail.
FTA Fault Tree Analysis – top-to-bottom process. First envision a disastrous system failure.
SCC Standards Council of Canada
NSS National Standards System

The SCC accredits four types of organizations:

 1. Standards-developing organizations coordinate the work of committees of volunteers that write
standards;
2. Certification organizations certify that products or services comply with the requirements of
standards, and allow their mark to be used as an indication of compliance;
3. Testing and calibration laboratories perform tests and measurements indicated by standards;
4. Quality registration organizations register quality systems of companies to quality standards like
the ISO 9000 series.

ISO International Organization for Standardization

IEC International Electrotechnical Commission

ISO 9000 and ISO 14000 Standards

ISO 9000 – Quality Management and Quality Assurance Standards
• The first version was released in 1987.
• Quality audits should occur every six months, with a complete recertification audit carried out
every third year.

ISO 14000 – Environmental Management Systems

• Released in 1996.

EGAD – Ethical Issues

Generation of Alternatives
Analysis
Decision

Chapter Thirteen: Fairness and Equity in Engineering

Discrimination: the action of discerning, distinguishing things or people from others, and making a
difference. The act of distinguishing one group from others, to its detriment.

NSERC Natural Sciences and Engineering Research Council

CCWE Canadian Committee on Women in Engineering
CMA Canadian Manufacturer’s Association
ACEC Association of Consulting Engineers of Canada

Chapter Fourteen: Disciplinary Powers and Procedures

Definition of Professional Misconduct
The provincial Acts typically identify six causes for disciplinary action: professional misconduct (or
unprofessional conduct), incompetence, negligence, breach of the code of ethics, physical or mental
incapacity, and conviction of a serious offence.

The Disciplinary Process – the complaints process – 3 stage process

Stage 1 – Gathering Information
Stage 2 – Evaluation of the Complaint
Stage 3 – Formal Hearing that renders a judgment.

The three stages of the disciplinary process are usually carried out by three different groups of people. No
one who participates at an earlier stage is permitted to participate in the final hearing and judgment.

Stipulated Order
A Stipulated Order process is a simpler form of disciplinary hearing for less serious cases. May be used
instead of a formal hearing when the Complaints Committee has reason to believe, after reviewing the
complaint , supporting materials, response of the accused engineer, that the Act, regulations, or by-laws
have been breached but a formal hearing is not warranted. The written consent of the complainant and the
accused engineer are required before the process can begin. A single representative of the Discipline
Committee will meet separately with the member and the complainant to discuss the evidence. If the
matter cannot be resolved by way of a Stipulated Order, it proceeds to a discipline hearing.

Disciplinary Powers
Penalties meted out by the Discipline Committee are disciplinary, not imprisonment.

Chapter Fifteen: Maintaining Professional Competence

Avoid Technical Obsolescence
Legal Requirements for Maintaining Competence – only a few Associations have quality assurance (QA)
programs in place.

EIC Engineering Institute of Canada

CEU Continuing Education Unit

Chapter Sixteen: Engineering Societies

The EIC is now an executive or “umbrella” organization with five federated societies:

CGS Canadian Geotechnical Society

CSME Canadian Society of Mechanical Engineers
CSCE Canadian Society of Civil Engineers
CSEM Canadian Society of Engineering Management
IEEE Institute of Electrical and Electronic Engineering

And arrangements were made with others:

CSChE Canadian Society of Chemical Engineers

Law for Professional Engineers by D.L. Marston

Chapter One: The Canadian Legal System

The Theory of Precedent
The courts apply legal principles established in previous court decisions that involved similar or analogous
fact situations. Once decisions are made in previous courts, the principles established are used again and
again.

Historical Basis

There are two main sources of law:

Common Law – judge made law
Legislation – statutes made by legislatures, parliament

Common Law
Certain specific remedies were available in only certain circumstances. This system of specific remedies
was called the “common law.”

Common Law - a major source of law is “judge-made law” – court decisions establishing legal principles.

Legislation
A statute is a codification of the law as the legislature determines at the time of enactment; it may be
codification of existing common law or the enactment of new law.

Federal and Provincial Powers

Under the Canadian Constitution, the British North America Act, 1867 (renamed the Constitution Act,
1867 by the Constitution Act, 1982), the federal government and the provinces have authority to enact
legislation.

If a provincial or federal statute would be challenged on the grounds that they dealt with a matter beyond
the opposite’s (provincial or federal) authority, or “ultra vires,” that statute would be effectively rendered
void.

The Constitution Act, 1982, contains Canadian Charter of Rights and Freedoms. Everyone has the
following fundamental freedoms:
• freedom of conscience and religion;
• freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;
• freedom of association.

The Federal and Provincial Court Systems

England and the US provide common law precedents; Canadian courts have more often preferred to follow
English case precedents than US common law.

Public and Private Law

Public Law – deals with the rights and obligations of government, on the one hand, and individuals and
private organizations, on the other. ie. criminal law and constitutional law.
Private Law – deals with rights and obligations of individuals or private organizations. Ie. contracts and
torts.

Basic Terminology
Plaintiff – the party bringing the action or making the claim in the lawsuit. In criminal matters, this is
usually the Crown.
Defendant – the party defending the action.
Privity of Contract – describes the legal relationship between parties to a contract.
Indemnification – a promise to directly compensate or reimburse another party for a loss or cost incurred.

Chapter Two: Business Organizations

Basic Forms
Three basic forms of business organizations:
1. Sole proprietorship – an individual carries on business by and for himself. The proprietor
personally enjoys the profits and personally incurs any business losses. The owners can lose their
personal belongings (houses, etc).
2. Partnership – an association of persons who conduct a business in common with a view to profit.
They share in profits and losses personally.
3. Corporation – an entity unto itself, distinct from its shareholder owners. The corporation itself
owns its assets and incurs its own liabilities. The liabilities are those of the corporation, and not
those of the shareholders.

The Independence of the Corporate Entity

Note: in a corporation, the banks can sometimes ask for personal collateral, to cover loans. So in some
senses, a corporation is only somewhat ‘limited-liability.’

Where it can be established that the limited-liability characteristic of a corporation is being used for the
protection of an individual in perpetrating a fraud, the courts will refuse to recognize the separate identities.

Engineers may incorporate (this may provide limited-liability and tax advantages).

Duration of Partnerships and Corporations

A partnership is dissolved by the death or bankruptcy or insolvency of one if its partners. A corporation is
of course unaffected by the death of a shareholder.

Basic Tax Considerations

CCPC Canadian-Controlled Private Corporation

A corporation pays a combined federal/provincial tax rate of approximately 45%. So when a shareholder
receives a dividend, tax is already paid on the funds. This is why he receives a dividend tax credit.

Limiting Partnership Liability

Limited partnership - statutes that allow a limited partner to limit his liability to the amount contributed to
the partnership. But they do not participate in the operation of the business, like the ‘general partners.’
A limited partner should ensure that his name is not used in the name of the partnership. Only general
partners are authorized to transact business on behalf of the limited partnership.

“Private” and “Public” Corporations

A “private” company is generally defined as a company in which:
1. The right to transfer shares is restricted.
2. the number of its shareholders, exclusive of present and former employees, is not more than fifty;
and
3. the public buying its securities is prohibited.

The Director’s Standard of Care

A Director of a corporation in Ontario has legal obligations. He can be sued for up to 6 months wages by
employees of the corporation (in Ontario, anyway). He can be sued for up to 6 months after he resigns
from being a director. If a corporation violates a law, he is party to the violation; including prosecution by
the law.

The Joint Venture

A joint venture is essentially a partnership limited to one project.
Chapter Three: International Considerations

Chapter Four: Tort Liability

Tort liability refers to a private or civil wrong or injury, one that involves negligence and that may arise
independently of contract. No privity of contract is required for tort liability to exist.

Concurrent liability in tort and contract – it is possible that tort liability and liability for breach of contract
can both occur.

Fundamental Purpose
The fundamental purpose of tort law is to compensate victims of torts, not the punishment of negligent
wrongdoers. To compensate a party that has suffered damages as a result of a neglectful act or omission.

Professional liability insurance should provide protection if an engineer’s negligence results in damages
arising in tort.

Principles of Tort Law

The plaintiff in a tort action must substantiate that:
a. the defendant owed the plaintiff a duty of care,
b. the defendant breached that duty by his conduct; and
c. the defendant’s conduct caused the injury to the plaintiff.

The Engineer’s Standard of Care

Engineers have a duty to use the reasonable care and skill of engineers of ordinary competence.

Development of Tort Law

Hedley Byrne case extended the scope of damages to include financial loss that resulted from bad advice
negligently given.

Tort law says that if one party relies on the special skill and judgment of the other party, and both parties
are aware of the reliance, then the party giving advice is liable to the party receiving the advice. This has
implications for engineers.

Strict Liability
Worker’s compensation recognizes that fault is not necessary if compensation is to be provided.

In products liability cases in the US, a manufacturer may be strictly liable for any damage that results from
the use of the product even though the manufacturer was not negligent in producing it. Canadian products-
liability law has not yet adopted this “strict liability” concept, but the law appears to be developing in that
direction.

Vicarious Liability
Employer is liable for the negligent performance (errors) of an employee (although this doesn’t absolve the
employee of blame in the courts). A company can be sued for faulty engineering done by their engineers.

Employees are also potentially liable in tort (at the same time).

A corporation should ensure that its professional liability insurance covers both the corporation and the
engineers.

Concurrent Tortfeasors
At times, torts concur to produce the same damage. It is possible for more than one party to be liable in
such a tort action.

Products Liability
Wherever it can be established that injury ought reasonably to have been foreseen in any particular
circumstances, a potential for products liability arises.

Standard of Care and Duty to Warn

Risk of injury is inherent in some products. A manufacturer must warn the consumer of any dangerous
potential of the product by appropriate labeling.

George Ho Lem v. Barotto Sports Ltd. And Ponsness-Warren, Inc. A man was injured by use of a shot-
reloading device. He sued the manufacturer, but lost the case, because he was given simple, clear
instructions, and didn’t follow them. The manufacturer is not guilty for all injury resulting from use of
their product, if the product is not used in a responsible manner.

Economic Loss
In products-liability matters there was a reluctance to extend liability for negligence to economic losses in
the absence of actual physical injury.

One can sue for economic loss, but only in the case where injury or physical damage of assets occurs. One
can sometimes successfully sue for economic loss due to lost time.

Other Relevant Torts

1. the tort of defamation, which is further divided into two classifications: libel and slander. The
reputation of the plaintiff is damaged by untrue statements publicly made by the defendant. If the
untrue statements are made in writing, the tort is referred to as “libel”; if the untrue statements are
verbal, the tort is referred to as “slander.” If the statements that damage a reputation are true, no
liability arises.
2. occupier’s liability. The occupier of property must exercise the required standard o fcare to ensure
the safety of individuals coming onto that property. A duty of care extends to trespassers,
although trespassers are not accorded a standard of care as are those coming onto the property for
business reasons or as guests.
3. the tort of nuisance, designed to alleviate undue interference with the comfortable and convenient
enjoyment of the plaintiff’s land.

Chapter Five: Limitation Periods

For tort actions, there is a time limit in which one can sue. The prescribed period generally is six years
from the “time the cause of action arose” (when the damages were first detected).

In contract, unless the contract expressly limits the time period, the prescribed limitation period is generally
six years (after the breach of duty) but is extended to twenty years where the contract is signed under seal.
An action commencing after the prescribed period is said to be “statute barred.”

Chapter Six: Proof

The Burden of Proof
Two degrees of proof exist; for non-criminal (civil) proceedings (the most common type for engineers to be
involved in), such as actions in tort or contract, the plaintiff must generally prove the case against the
defendant by persuading the court on a “balance of probabilities” that the facts are as the plaintiff alleges
them, and that the defendant should be held liable.

In certain criminal proceedings, the plaintiff must prove to the court that the accused person is guilty
“beyond a reasonable doubt.” Thus, the degree of proof required is higher in the case of a criminal case.

Engineers as Expert Witnesses

The expert is permitted to express opinions with respect to his area of expertise.
Chapter Seven: Contracts
For a contract to be binding and enforceable, five elements must be present:
1. an offer made and accepted;
 2. mutual intent to enter into the contract;
3. consideration;
4. capacity to contract;
5. lawful purpose.

Assignment of Rights
Contractual benefits (for example, the right to receive payment for services rendered) can be assigned to a
third party by one of the contracting parties without the consent of the other party to the contract.

Chapter Eight: Offer and Acceptance

An offer is a promise made by one person – the offeror – to another – the offeree.

Until it is accepted, the offer may be withdrawn by the offeror unless it is made expressly and effectively
irrevocable by its terms. Normally offers can be withdrawn up until the time that the offer is accepted, at
which point it is binding.

Irrevocable Offers
In a process such as the tendering process, once an offer has been made, it can not be withdrawn, during the
preset time period. An offeree might want to ensure that an offer will not be revoked by the offeror before
the offeree can accept it.

The Option Contract

The option contract is another means of keeping an offer open for a certain period of time. The right to
accept the offer is preserved until the offeree chooses to exercise the option. The offeror is thus precluded
from revoking the offer. Something of value must be made at the time of entering into the option
agreement in order to make the option contract enforceable.

A party (one only) purchases the right to accept the offer, or forfeit their deposit. A deposit must be placed
under this system of Offer & Acceptance. This prevents the person who is selling land, for example, from
selling to another party, until the time limit on the option contract expires. This ‘holds’ the purchase for the
person making the offer, who may then buy it, or may decide not to buy it, and therefore lose their deposit.

Manner of Communication
a. Timing
Accepting an Offer
Mail - the acceptance is effected when the offeree posts the acceptance letter.
Telegram – a communication is effected at the time the message is delivered to the
telegram operator.
Unless the two parties agree to communicate by post or telegram, the communication of
the acceptance of an offer is effected only when it is actually received by the
offeror.

Revoking an Offer – the general rule is that revocation of an offer is not effective until the offeree
actually receives notice of the revocation.
- an offeror who intends to revoke an offer should do so as expeditiously as
possible.

b. Governing Law – the general rule is that the law of the place where the acceptance of the offer
becomes effective is the law that shall prevail (unless otherwise agreed upon).

Chapter Nine: Intent

Mutual Intent
The engineer should make sure that any contract document specifies the agreement between the parties on
all essential terms.
Letters of Intent
Businesses use the letter to express interest in proceeding with a particular transaction, usually on the basis
of further negotiation and subsequent agreement. Sometimes letters of intent are agreements to agree,
rather than well-defined agreements. The agreements to agree do not constitute enforceable contracts: the
courts will not enforce “letters of intent,” especially if there is an intention to create a more detailed
‘official’ agreement later. It is, in fact, no agreement at all.

It is a good idea to have a letter of intent to clear up misunderstandings.

Chapter Ten: Consideration

Consideration
Consideration is an essential part of an enforceable contract. It is the cause, motive, price, or impelling
influence that induces a contracting party to enter into a contract. Consideration can be described as
something of value (promises, money) that is exchanged by contracting parties.

When consideration is not present in the form of promises or other mutual exchange of something of value,
no contract is formed unless the document is “sealed.” There are two kinds of seals. A mechanical device
is used to imprint corporate seals on documents executed by corporations; the personal seal of the
individual is a small red adhesive wafer. These are legally binding.

An “irrevocable” offer is not legally binding unless there is a seal attached.

Equitable Estoppel
When a party opts out of a contract without consideration (which was not sealed).

Inequitable if the optionor were permitted to enforce the original contract in the circumstances and that the
optionor should therefore be “estopped” from reverting to his strict contractual rights.

Pursuant to contract law, consideration (or a seal) must be present in order to make an amendment to a
contract enforceable – otherwise the amending promise is gratuitous. Where the terms of a contract are
amended without the consideration that would make the amending promise enforceable, there may be relief
for the party that relies upon the gratuitous promise. The concept whereby such relief may be provided is
called “promissory” or “equitable estoppel.”

Eg. Allowed to make late payments - you can’t suddenly declare breach of contract on a late
payment.
Eg. After verbally extending the option period, a party tried to revert back to the original period.
Equitable estoppel was applied.

Chapter Eleven: Capacity

Minors
A contract with a minor is enforceable by the minor but unenforceable by the other party, unless it can be
established that the contract concerned something that was necessary to the minor (for example, food,
clothing, shelter).

Drunks and Lunatics

Contracts for non-necessities entered into by lunatics or intoxicated persons are enforceable by the lunatic
or drunkard but unenforceable by the other party – on two conditions. Drunks or lunatics can repudiate a
contract if they can prove the other party to the contract was aware of the state of insobriety or lunacy. And
the incapacitated party must repudiate the contract within a reasonable period of time.
Chapter Twelve: Legality
Contrary to Statute Law
A contract will not be enforced if the purpose of the contract is unlawful, that is, if it is illegal or void
because it is contrary to any statute. They include:
1. a contract contrary to the provisions of the Bankruptcy Act;
 2. a contract that is contrary to provincial workers’ compensation legislation;
3. a contract that is contrary to the provisions of the Competition Act (Canada);
4. a contract that provides for a waiver of lien rights contrary to the Construction Lien Act of
Ontario;
5. a contract for services where the party to perform is required to be licensed pursuant to a statute or
by-law. Failure to license may expressly preclude the right to contract for such services.

Eg. An electrician trying to collect money owed him, when he did work which he was unqualified to
do, will not collect the money.

Contrary to Common Law

A contract that contravenes statutory law may be illegal and/or void; a contract that is against public policy
may be illegal and/or void according to common law.

Chapter Thirteen: The Statute of Frauds

Contracts may be verbal, written, or a combination or both.

The statute of frauds stipulates that certain types of contracts must be in writing to be enforceable.
1. contracts relating to interests in land (property ownership);
2. those agreements that are not to be performed within one year from the making thereof; and
3. guarantees of indebtedness.

A contract between an engineer and client is not usually a contract that must be in writing under the Statute
of Frauds. A verbal contract is binding, for one year.

A contract of guarantee must also be in writing in order to enforceable. An indemnification need not be in
writing to be enforceable. In some circumstances, however, it may be difficult to distinguish between a
contract of guarantee and one of indemnification (a promise to directly compensate or reimburse another
party for a loss or cost incurred). It is advisable to put both kinds of agreement in writing.

Chapter Fourteen: Misrepresentation, Duress, and Undue Influence

Misrepresentation
A misrepresentation is a false statement or assertion of fact. If a misrepresentation is made to induce a
party to enter into a contract, the misled party may apply to the court to have the contract rescinded. The
court will treat the contract as voidable at the option of the party misled. When a contract is rescinded, it is
cancelled or set aside.

There are two type of misrepresentation;

• An innocent misrepresentation is a false assertion made by a party who does not know that the
statement is false. The contract will be rescinded.
• A fraudulent misrepresentation as a statement made “(1) knowingly, or (2) without belief in its
truth, or (3) recklessly, careless whether it be true or false.” (knowingly misleading) The contract
will be rescinded and compensation for reasonable costs incurred may be claimed.

Duress
If a contract is induced by means of intimidation (duress), it is voidable. Duress can be defined as
threatened or actual violence or imprisonment used as a means of persuading a party to enter into a
contract.

Undue Influence
Undue influence is similar to duress, but arises in less drastic circumstances. Undue influence occurs
where one party dominates the free will of the other party to such an extent as to be able to coerce the
dominated party into an unfair agreement. In such circumstances the dominated party is entitled to be
relieved of contractual obligations.
Chapter Fifteen: Mistake
Rectification
If contracting parties have clearly reached agreement but have recorded the provisions of the agreement
inaccurately in a written contract, a “common mistake” has occurred. One of the parties to the agreement
can apply to the court for an order of rectification. The order is used to correct an obvious common
mistake.

Unilateral Mistake
A unilateral mistake is a mistake made by only one party to a contract.

Unilateral mistakes by contractors in tendering. In the past, if a mistake was made by a contractor in a
sealed bid, they could not withdraw the bid (to avoid financial loss). But in recent decisions, an offeree
(receiving the offer) could not knowingly accept a bid which had been made in error (even if it was
unusually low). But the Supreme Court held the original decision, saying that the contractor must lose his
deposit if he withdrew his bid either before or after it was accepted.

Chapter Sixteen: Tendering Issues – Contract A

There are two separate contracts arising in the tendering process.
• The first is “Contract A” (the contract of irrevocability), that deals with the tendering phase.
Contract A is formed when the owner’s offer is accepted upon the submission of each bid.
Contract A provides the basis for contractors to make claims should another bidder be treated
better.
• The second is “Contract B” (the construction contract itself) that is formed on the award and that
applies to the construction phase. The second contract, the construction contract, arises on the
selection of the winning bid.

Chapter Seventeen: Contract Interpretation

In approaching the interpretation of contracts there are different approaches that can be taken – the “liberal”
approach or the “strict” construction approach. The “liberal” approach takes into account the intent of the
parties and, in the extreme, may lead to too much speculation on that intent. The “strict” approach focuses
on the precise words in the agreement, in the extreme relying on dictionary meanings.

Rule of Contra Proferentem

Where a contract is ambiguous, it will be construed or interpreted against the party that drafted the
provision.

Parol Evidence Rule

If a condition is agreed upon verbally but is not included in the contract, the condition is not part of the
contract (ie. not enforceable). The contract law rule that precludes evidence of the omitted condition is
called the “parol evidence rule.”

Implied Terms
The parties to a contract overlook the inclusion of an obvious term – the “implication of terms.”

Chapter Eighteen: Discharge of Contracts

There are several ways to accomplish the discharge of a contract.
1. Performance as a Means of Discharge – all parties have completed their respective obligations.
2. Agreement to Discharge – both parties agree to cancel the contract.
3. Discharge Pursuant to Express Terms – may terminate upon occurrence of certain events (agreed
upon in contract).
 4. Discharge by Frustration – changing circumstances may radically change the obligation of the
parties. The “force majeure” clause usually provides that time for completion will be extended (or
the contract discharged) in the event of war, riot, insurrection, flood, labour dispute, or other
events that arise beyond the control of either party.

Discharge (the end) of a contract must be mutual between both parties.

Chapter Nineteen: Breach of Contract

If a party to a contract fails to perform obligations specified in the contract, then the defaulting party has
breached the contract.

An obligation essential or vital to the contract is called a “condition”; an obligation that is not essential to
the contract is called a “warranty.” Breach of a condition or of a warranty may entitle the non-defaulting
party to compensation (damages). But only breach of a condition that is of fundamental importance to the
contract will entitle the non-defaulting party to consider the contract terminated. Breaching of warranties
will not discharge the contract.

Repudiation
When one party in a contract expressly tells the other party that they are not going to fulfill the contract.
The non-defaulting party can either ignore the breach , or discharge the contract. If he considers the
contract discharged, he may claim damages.

Remedies
The injured party is entitled to damages for losses incurred as a result of breach of contract. The injured
party may also be entitled to a quantum meruit (“as much as reasonably deserved”) remedy; he may also be
eligible for equitable remedies called “specific performance” and “injunction.” Suppose services have been
performed, but no agreement was signed. The judge will rule that reasonable payment must be made to the
person who received the work.

Direct and Indirect Damages

Direct damages are equal to the extra cost beyond the original contract price.
Indirect damages are “consequential” to the breach and might include damages for “lost profits.”

Duty to Mitigate
A party that suffers a loss through a breach of contract must take reasonable steps to mitigate or reduce the
amount of damages suffered.

Penalty Clauses
Contracts often contain provisions whereby a party is required to pay prescribed damages if a certain event
occurs – for example, if the contract is not completed by a specified date.

The use of the term “penalty” should be avoided in contracts. Use the term “liquidated damages.”

Substantial Compliance
A contractor might substantially comply with the terms of a contract, yet fail to comply with some minor
aspect of the contract’s provisions. The contractor will be entitled to be paid the contract price less the cost
of damages caused by any such failure.

Specific Performance and Injunction

The remedies of specific performance and injunction are equitable remedies; they supplement the remedy
of damages. The courts will not grant the remedies of specific performance or injunction where damages
provide sufficient relief.

Specific Performance
To remedy a contract dispute, the courts may require a party to a contract to perform a contractual
obligation. Eg. an antique car.
Injunction
An injunction is a court order that prohibits or restrains a party from the performance of some act, such as a
breach of contract. A court will not grant the remedy of injunction unless the contract contains a “negative
covenant”; a negative covenant is a promise not to do something. Eg. a promise not to compete for a
specific period of time within a defined geographical area.

Chapter Twenty: Fundamental Breach

A fundamental breach is a breach of such a nature as to go to the very root of the contract.

The doctrine of fundamental breach may be applied to a contract that contains an exemption clause; it
renders the exemption clause ineffective in the event of a fundamental breach of the contract. An
“exemption clause” is a provision whereby contracting parties may limit the extent, in whole or in part, of
liability that arises as a result of breach of contract.

An exemption clause will be scrutinized by a strict construction of its working. If the clause is clear and
direct it will be enforced unless it is unconscionable. Clearly drafted exculpatory clauses should be
effective in contracts involving engineering projects and services.

Suppose many disclaimers are written into a contract (such as limiting the dollar amount of damages). If
the contract is fundamentally breached, damages may go beyond the limit of the disclaimers.

Chapter Twenty-One: The Agreement Between Client and Engineer

A contract between a client and a professional engineer must include all the essential contract elements.

The Agency Relationship

The client is the principal, and the engineer is the agent. As an agent, the engineer must be careful to stay
within the scope of his authority, as agreed upon with the principal.

Estimated Fee
Engineering Fees – the estimate for engineering services performed should be done carefully; the court will
not always allow extra fees to be charged should overruns occur.

Limiting Liability by Contract

Despite the ‘fundamental breach doctrine,’ it is worthwhile for engineers to limit the amount of damages to
the amount of their professional liability insurance coverage.

Chapter Twenty-Two: Concurrent Liability in Tort and Contract

Unless otherwise stated in a contract, the standard of care expected of an engineer in performing services
pursuant to a contract is the same standard of care by which and engineer’s performance is measured in
tort.

An engineer can be found to be concurrently liable for both breach of contract and tort (the limitation
period is different; for contracts, 6 years, for tort, it starts when the damage is discovered). The Supreme
court has been reluctant to uphold this.

Chapter Twenty-Three: The Duty of Honesty

Fraud is punishable for terms of up to 10 years.
Chapter Twenty-Four: Construction Contracts
The engineer has two duties:
1. To the owner of the project they are working on.
2. As a quasi-judicial member; in which he must not act only in the interests of the owner, but make
decisions which don’t compromise work being done. The engineer is empowered to make
decisions that are binding on both the owner and contractor, so he must be fair. In court, the
decision of the engineer has been upheld, when challenged by the contractor.
The Engineer’s Advice to the Contractor
Engineers can be held liable for advice they give to the contractor; this advice should be taken seriously.

Drawings and Specifications

Drawings and specifications should be meticulously done, to avoid disputes later about materials used, or
design. If a design is left ambiguous, the contractor may use low quality materials which fulfill the design,
but leave gaps in quality. When specifications have been vague, the courts have tended to side with the
contractors.

Types and Forms of Construction Contracts

1. Stipulated-Price or Lump-Sum Contract – this type of contract involves risk for the contractor.
2. Unit-Price Contract – a price is paid per unit of work done, for example, in excavating, a price per
cubic meter of soil removed is paid.
3. Cost-Plus Contracts
i. Cost Plus Percentage – provides compensation to the contractor for its costs incurred,
plus a reasonable percentage to cover the contractor’s overhead and profit. This provides
no incentive to reduce costs for the contractor.
ii. Cost Plus Lump-Sum Fee – instead of receiving a percentage of the project cost, the
contractor is paid a fixed amount (lump sum). Still no incentive to reduce costs.
iii. Cost Plus Lump-Sum Fee plus Bonus – the contractor is provided with an incentive to
reduce costs: for every dollar saved on an agreed estimated total cost, the contractor may
receive an additional compensation in the form of an agreed-upon percentage of the
saving.
4. Guaranteed Maximum Price plus Bonus – like the cost-plus-bonus contract. The contractor
receives a fixed fee as well as a bonus of an agreed-upon percentage of savings.
5. Design-Build Contracts

Prime Contract and Subcontracts

When the owner enters into a construction contract with a general contractor who in turn enters into
subcontracts with various trade contractors, a contractual relationship, called “privity of contract,” exists
between the owner and the general contractor; privity of contract exists between the general contractor and
each subcontractor.

Delay and Interference Claims

Claims by contractors against owners for damages resulting from delay and interference caused by the
owner’s representatives.

Departures From Traditional Contracting Approaches

“Fast-track” or phased-construction approach - where construction proceeds on the designed portions of a
project while other portions are still being designed. Such special projects require specially drafted
contracts.

“Multi-prime” contracts – parcel out the work of the various trades on individual prime-contract
arrangements.

“Build, operate, transfer (BOT)” – the contractor not only designs and constructs the project but is also
responsible for its financing, in whole or in part.

Chapter Twenty-Five: Risks in Construction

Contract Forms
CCDC Canadian Construction Documents Committee

Risks
Project Financing Risk
Risk of Concealed or Unknown Conditions
 Risk of Delays
The Risk of Toxic and Hazardous Substances and Materials
The Risk of Changes in Governing Regulations
Construction Safety Risks
Dispute Resolution Risks
Risk of Proceeding with Changes without Final Agreement on Price and Time Adjustments

Chapter Twenty-Six: Bonds and International Performance Guarantees

The most common forms of bonds are the bid bond, the performance bond, and the labour and material-
payment bond.

Bonds are often used in construction contracts to guarantee the performance of the bid, the work
performance, and the material payment. The bond is not insurance. If the bonding company has to pay out
money, they will seek to recover it.

Bonds are contracts, the bonding company (the “surety”) agreeing to guarantee the performance of a
specified contractual obligation. The “principal” is the party whose performance of the contractual
obligation is guaranteed by the bonding company, or surety. The side seeking the bond is usually the
contractor. The term “obligee” is used to describe the party for whose benefit the bond is provided. The
obligee is usually the owner.

The surety indemnifies the obligee against loss arising from the principal’s failure to pay. The bond
protects the owner from failure of the contractor to honor the contract. It is surety that they will be paid.
The owner could use the money to hire another contractor to complete the job.

Bid Bond
The bid bond is used in tendering.
If the principal fails to enter into a formal contract, he must pay to the oblige the difference in money
between the amount of the bid and the amount the obligee must pay another party for the work, up to the
face amount of the bid bond.

Performance Bond
A performance bond indemnifies the obligee if the principal doesn’t perform his contractual obligations.

Labour and Material-Payment Bond

The purpose of a labour and material-payment bond is to guarantee that all claimants will be paid for labour
and materials provided to the principal for the project described in the bond.

International Performance Guarantees

In many foreign jurisdictions, letters of credit are in fact referred to as “performance bonds” or
“performance guarantees” and are typically required on engineering projects. Given the alleged and
potential abuse of demand letters of credit required by owners on international construction projects, it is
extremely important to exercise caution prior to agreeing to provide such security.

IBA International Bar Association

ICC International Chamber of Commerce in Paris

Chapter Twenty-Seven: Subsurface Issues

The failure of an owner to disclose important information to bidders is recognized as a basis for a
contractor to claim additional compensation, subject of course to agreed contract terms.

Methods Dictated by Contract Documents

Construction contracts provide that the contractor controls the selection of construction methods.

Chapter Twenty-Eight: Arbitration and ADR

 ADR Alternate Dispute Resolution

The Arbitration Act

The Arbitration Act limits the circumstances in which the courts may interfere in the arbitration process or
review the arbitration award.

In setting up the arbitration, one cannot state that the arbitration cannot be appealed to the courts. If this
clause is included, then the court will not enforce the decision. The arbitration has to be appealable.

New Approaches to Respond to Dispute Resolution Difficulties on Construction Projects

• Partnering on Infrastructure and Construction Projects – Partnering is a concept that is aimed at
promoting cooperation among all project participants. Partnering is an effort to educate all
participants on a project on the mutual benefits that can be obtained by working cooperatively as a
team toward common goals through the establishment of a healthy, cooperative attitude at the
outset.
• Project Neutral – This approach involves the appointment of a project neutral, typically an
independent professional experienced in the construction industry, to stay abreast of developments
on the project with a view to offering advice and decisions on an unbiased basis.
• Mediation – An impartial mediator who does not act as arbitrator or judge but is there to provide
guidance to the parties and to facilitate the settlement process by acting as a “go-between” in
communicating proposed settlement positions.

Advantages – it is faster than the courts.

Disadvantages – if legal questions are in dispute, then one should perhaps go to a court.

Chapter Twenty-Nine: ADR on International Projects

Resolution approach
Claims relating to work performance.
Written dispute within is d___ or was deemed to be accepted.

Chapter Thirty: Lien Legislation

Differences in Provincial Lien Acts
In Alberta, the lien holdback can be 15% of the price of the job, and the time before holdback can be
released is 45 days (after completion or abandonment).

Persons Entitled to Lien Rights

Anyone who supplies services or materials to an “improvement” for an owner, contractor, or subcontractor
is entitled to a lien.

Rights Against Owner Where No Contract Exists

Lien rights provide subcontractors with a cause of action against the owner, since they don’t have a contract
with the owner, and can’t sue the owner directly under the Lien Act.

A lien is a holdback to the contractor, filed by subcontractors who have not been paid.

Effect of Lien
When an owner receives notice of a lien, the owner is obligated to retain both the holdback amount and the
amount mentioned in the lien claim.

The Ontario Construction Lien Act

Who May Lien - Architects can’t file lien claims.
Prohibition Against Waiver of Lien Rights – The Act provides that an agreement to waive lien rights is
void.
Limits on Amount of Lien Claim – A lien may be claimed only for the price of services and materials
supplied prior to the time of the claim.

The Trust Fund

A contract states that the owner must pay the contractor a certain sum when an authorized person – an
engineer – certifies. That sum constitutes a trust fund in the hands of the owner for the benefit of the
contractor, and no part of the trust fund can be appropriated or converted for use by the owner except in
accordance with the trust-fund provisions of the Construction Lien Act. Such amounts are subject to a trust
for the benefit of those who have supplied services or materials. The funds cannot be used otherwise until
the specified beneficiaries have been paid in full.

Chapter Thirty-One: The Competition Act

The Competition Act (Combines Investigation Act) is a federal stature designed to protect and encourage
business competition in Canada (eg. the formation of monopolies, price fixing, misleading advertising).

Misleading Advertising
Conviction can result in a fine “in the discretion of the Court” – that is, there is no maximum limit – or to
imprisonment for five years, or both.

Bid-Rigging
Every one who is a party to bid-rigging is guilty of an indictable offence and liable on conviction to a fine
in the discretion of the court or to imprisonment for a term not exceeding five years or to both.

Conspiracy
Every one who is guilty of conspiracy and liable to imprisonment for a term not exceeding five years or to a
fine not exceeding ten million dollars or to both.

Trade Associations
Certain activities of trade associations – associations of manufacturers and contractors within particular
industries – are permitted under the Act.

Competitors should strictly avoid any discussion of prices.

Chapter Thirty-Two: Regulatory Aspects and Ethics

Purpose of Legislation
The general purpose of the governing legislation is to regulate the practice of professional engineering, to
protect the public interest.

Disciplinary Hearings
Damages are not a prerequisite in a disciplinary hearing.

Chapter Thirty-Three: Industrial Property

Patents of Invention
An invention is “any new and useful art, process, machine, manufacture or composition of matter, or any
new and useful improvement in any art, process, machine, manufacture or composition of matter.”

An idea alone is not patentable: the idea or principle must be reduced to something physical.
Patentable inventions must have two characteristics – utility and novelty – that result from the application
of ingenuity and skill. To be awarded a patent, one must show that ingenuity was applied, plus, the device
or process must have utility (it must be useful).

The term of patent is twenty years from the date of application for the patent.

In general, in the absence of a special contract, the invention of an employee – made in the employer’s
time, with the employer’s materials, and at the expense of the employer – does not become the property of
the employer. But there is an exception to this general rule if the employee is, by the nature of the
employment, expected to apply his or her ingenuity and inventive faculties.

Trade-Marks
A trade-mark is a mark that is used by a person for the purpose of distinguishing products or services
manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or
performed by others.

Trade-marks are effective for a period of 15 years; registrations may be renewed for unlimited subsequent
periods of 15 years each.

A person who infringes a valid registered trade-mark by using the same or a confusing mark may be
restrained from continuing to use the mark; that person may also be liable for damages that resulted from
the infringing of the trade-mark. Forgery of a trade-mark with the intent to deceive or defraud the public or
any person is an offence under the criminal code. The offence is punishable by fine and imprisonment for
up to two years.

Copyright
Copyright generally means the sole right to produce or reproduce the work, or any substantial part thereof
in any material form whatever.

Copyrights cover artistic expression and computer software.

Copyright subsists for a term that equals the life of the author and a period of fifty years after the author’s
death.

Industrial Designs
Refers to any features of sculpture, shape, configuration, pattern, or ornament that are applied to finished
articles and appeal to and are judged solely by the eye where the articles are multiplied by an industrial
process.

The proprietor who registers an industrial design is granted an exclusive right to the use of the design for a
term of 5 years. The term is subject to renewal for an additional 5 years.

The rights to any designs made by an employee in the course of employment belong to the employer.

Trade Secrets
Sometimes companies will not patent (with the associated disclosure), but will keep the ‘industrial know-
how’ – such as organizational methods and customer lists (unpatentable) – a secret. A former employee
cannot disclose trade secrets.

Only confidential information – not general knowledge – will qualify for trade-secret protection.

Chapter Thirty-Four: The Law of Quebec

Introduction
Many provisions of law that govern the performance of engineering services in the Province of Quebec,
including such matters as the liability of engineers to their clients and to third parties, are contained in the
Civil Code of Quebec.

Contractual and Extracontractual Liability

An obligation that arises from a contract is a contractual obligation, whereas an obligation that arises from
the law is referred to as an extracontractual obligation.
Interpretation of Contracts
A contract of adhesion is one where the terms are drafted by one party without the other party having the
opportunity of negotiating or changing them.

Solidarity
Where several persons have jointly taken part in a wrongful act that has resulted in an injury, or if they
committed separate faults each of which may have caused the injury, and where it is impossible to
determine which of them actually caused it, they are solidarily (jointly and severally) liable for total costs
(and then may claim from the others).

Penal Clauses
The parties assess the anticipated damages by stipulating that the debtor will pay a penalty if the debtor
fails to perform the debtor’s obligation.

The Contract of Enterprise of for Services

The contract of enterprise or for services is a contract by which a contractor or the provider of services
(such as an engineer), undertakes to carry out physical or intellectual work for a client, or undertakes to
provide a service for a price that the client agrees to pay.

Presumption of Liability
The owner of a building that perishes in whole or in part within 5 years after completion can rely on this
presumption of liability of the architect, engineer, contractor, and subcontractors without having to prove
the precise cause of the loss. In order to rebut the presumption of liability, the architect, engineer,
contractor, and subcontractor have the burden of proving that they committed no fault, or that the defects
result from a decision imposed by the client.

Legal Hypothecs
A hypothec is a real right affecting movable or immovable property. It gives the creditor the right to
exercise his or her rights against the property even if it changed hands.

The legal hypothec in favor of persons taking part in the construction or renovation of an immovable
subsists for a period of 30 days after the work has been completed. It continues to subsist if, before the 30-
day period expires, a notice describing the affected immovable and indicating the amount of the claim is
registered in accordance with the relevant formalities. The notice must be served on the owner of the
immovable. The legal hypothec will become extinguished six months after the work is completed unless
the creditor publishes an action against the owner of the immovable or registers a prior notice of exercise of
the creditor’s hypothecary right.

Chapter Thirty-Five: The North American Free Trade Agreement

The Canada-United States Free Trade Agreement (FTA)
The Canada-United States FTA became effective January 1, 1989.

The FTA also provides that the parties are not to impose on investors from the other country requirements
relating to any minimum volume of exports of goods or services, the achievement of minimum amounts of
domestic content, local sourcing, or import substitution.
The FTA provides that neither country will adopt policies requiring minimum levels of ownership holdings
by their nationals in domestic firms controlled by investors from the other country or requiring forced
divestiture.

FTA tariff elimination between the US and Canada remains active.

North American Free Trade Agreement (NAFTA)

On January 1, 1994, Mexico was added.

The national treatment, most-favoured-nation treatment, and senior management principles are, however,
not applicable to government procurement of goods or services or subsidies and grants provided to a
NAFTA country, including government-support loans, guarantees, and insurance.

Exempted – shipbuilding and transportation.

Offsets – conditions imposed to encourage locals.

Procurement Under NAFTA

Bids are either open, selective, or closed.

Temporary Entry of Individuals into Canada Under NAFTA

The provisions of NAFTA dealing with the temporary entry of certain types of businesspersons are
designed to facilitate entry and travel between NAFTA countries as a necessary complement to the
objectives of free trade. Temporary entry is generally considered to be a period of up to five years.

The four categories of businesspersons recognized under NAFTA are:

A. Business visitors;
B. Traders and Investors;
C. Intra-Company Transferees; and
D. Professionals.

Chapter Thirty-Six: Laws Relating to Employment

Federal Laws
The Canada Labour Code covers three general areas of employment law.
1. minimum employment standards
2. safety of employees
3. trade unions and employers

Canada Pension Plan

Unemployment Insurance
Employment Equity Act (1986)

Provincial Laws
Provincial laws deal with relations between trade unions and employers; labour standards; worker’s
compensation, occupational health and safety, and so on.

The workers’ compensation has a very broad jurisdiction. Its decisions are protected from review by any
court except on very limited grounds.

The Occupational Health and Safety Act - a committee is required at most workplaces where twenty or
more workers are employed.

The Human Rights Code – It establishes that every person has a right to equal treatment with respect to
employment, without discrimination because of race, ancestry, place of origin, colour, ethnic, origin,
citizenship, creed sex, sexual orientation, age, marital status, family status, record of offences, or handicap.
It establishes that every employee has the right to be free from sexual harassment in the workplace.
Worker’s Health, Safety and Compensation for Injured Workers in Alberta
• One cabinet minister is responsible for the legislature for maintaining safety and health in the work
place and for paying compensation to injured workers.
• Minister is responsible for worker’s health, safety and compensation
• Occupational Health and Safety Division is responsible for establishing and monitoring safety
standards for all occupations except federal employees and agricultural workers.

Worker’s Compensations Act

• Through this Act the Legislative Assembly has established a Workers’ Compensation Board having
final authority in all matters dealing with compensation and assessments for industrial accidents and
illnesses.
• The employer is protected by the Act against legal action by a worker who is injured or contracts an
industrial disease during the course of employment.

Occupational Health and Safety Act

• The legislative basis for government programs in the field of occupation, health and safety in Alberta.
• This Division operates through directors of Inspection, Medical Services, Occupational Health and
Hygiene, and Occupational Health and Safety Officers.
• These officers have broad powers to stop work or order changes to be made where “in their opinion” a
hazard to workers exists.
• These orders may be appealed to the OH&S Council.
• This Council is comprised of representatives from labour, management, and the general public,
appointed by the Minister.

General Safety Regulation

• Has broad applicability to all disciplines of engineering.
• It requires the participation of professional engineers in the development, design and certification of
“safe” equipment and procedures.
Occupational Health and Safety Act
2. Obligations of Employers, Workers, Etc.
Every employer shall ensure:
a. the health and safety of
i. their workers, and
ii. those workers not engaged in the work of that employer but present at the work site at
which that work is being carried out, and
b. that their workers are aware of their responsibilities and duties under this Act and the regulations
(safety rules).

Every supplier shall ensure that any tool, appliance, equipment, or hazardous material that he supplies is in
safe operating condition and complies with this Act or the regulations.

5. Staff
In accordance with the Public Service Act, there may be appointed one or more:
Directors of Inspection
Directors of Medical Services
Directors of Occupational Hygiene
Occupational Health and Safety Officers and any other employees necessary for the administration
of this act.

6. Occupational Health and Safety Council

There is to be an “Occupational Health and Safety Council” that shall consist of up to 12 persons appointed
by the Lieutenant Governor in Council.

The Minister responsible for OHSA shall designate one of the members of the Council as chairman and one
or more of the members as vice-chairman.

The members of the Council shall be appointed for terms of 3 years, and are paid.

7. Duties of Council
The Council advises the Minister, hears appeals, and performs the duties and functions assigned to it by the
Act.

8. Inspection
An officer has the power to
a. enter any work site and inspect that work site at any reasonable hour;
b. require the production of any records, books, plans or documents that relate to the health or safety
of workers and may examine them;
c. inspect, seize or take samples of any material, product, tool, appliance or equipment being
produced, used or found in or on the work site that is being inspected;
d. make tests and take photographs or recordings in respect of any work site;
e. interview and obtain statements from any persons at the work site.

9. Order to Remedy Unhealthy or Unsafe Conditions

An officer that is of the opinion that work is being carried out that is unhealthy or unsafe may order in
writing;
a. to stop the work that is specified in the order, and
b. order any measure be taken to rectify the situation
c. reinstate a worker who has been fired due to compliance with the Act, order the employer to pay
the equivalent wages the worker would have earned if he had not been dismissed, etc.

10. Danger to Persons on Work Site

Officers can verbally;
a. order the work or any part f it that is taking place to be stopped;
b. order any worker or other persons present to leave the work site;
 c. in writing order the prime contractor, the contractor or the employer to take measures specified by
the officer that the officer considers necessary for the purpose of removing the source of the
danger or to protect any person from the danger.

Peace officer can assist the officer in carrying out his duties.

11. Order Stopping the Use of Unsafe Tools, Appliances, Etc.

When an officer is of the opinion that a tool, appliance or equipment being used is unsafe, he may in
writing order the worker to stop using that tool, appliance or equipment.

When an officer is of the opinion that a tool, appliance or equipment being supplied is unsafe, he may in
writing order the supplier to stop supplying that tool, appliance or equipment.

He can later rescind the order; once he is satisfied the tool is safe.

13. Licence
A licence may be issued in accordance with the regulations.

A director may cancel or suspend the licence which has been issued.

14. Protection of Workers on a Project

Directors can stop a project before it begins, if they feel it is unsafe. They can also request plans, drawings,
specifications that are reasonably necessary for determining whether the health and safety of the workers
concerned is being or will be protected (from a project).

15. New Project

A person who intends to begin a new project may be required to file notice in accordance with the
regulations.

16. Appeal
A person, whose licence has been cancelled or suspended, may appeal the order, cancellation or suspension
to the Council. He must appeal within 30 days of this action.

17. Hearing of Appeal

The Council may split up into ‘divisions,’ to handle cases simultaneously. Each division must have a
minimum of 3 persons on it to be valid.

18. Serious Injuries and Accidents

If an injury or accident occurs at a work site, the employer must:
a. notify the Director of Inspection of the time, place and nature of the injury or accident;
b. do their own inspection;
c. submit a report to OSHA (and keep it on file for at least 2 years).

Note that this report is not admissible as evidence should the case go to court, or in any investigation.

20. Medical Examination

A Director of Medical Services may insist on a medical examination of a worker, paid for by the employer.

21. Notice of Findings

When a doctor, in the course of his practice, diagnosis a notifiable disease in a patient, he must notify a
Director of Medical Services within 7 days.

22. Hazards
If a worker is involved in a hazardous occupation, the employer must provide the worker with regular
medical examinations, and register the worker’s name, and nature of the job, with the Director of Medical
Inspection (within 30 days of starting employment).
28. Exchange of Information
The OHSA Minister can exchange any relevant information with the Workers Compensation Board.

30. Controlled Product

If a controlled product is used, stored, handled or manufactured, the controlled product must be labeled, a
material safety data sheet must readily be available to workers, and those using the controlled product must
be trained with respect to the controlled product.

31. Joint Work Site Health and Safety Committees

The Minister may require the formation of a health and safety committee, with representatives from the
employer, contractors, and employees. The committee will look at safety issues (accident prevention and
safety education).

33. Code of Practice

An employer may be required to state their safety policy, in writing. This is called a code of practice.

34. Acceptance
A Director may issue in writing an acceptance to an employer. This is a requirement to use an alternative
tool, appliance, equipment, work process, first aid service or first aid supplies or equipment at a work site.

35. Existence of Imminent Danger (not normal for the occupation)

If a worker refuses to carry out work due to dangerous conditions, he shall notify his employer of the
dangerous condition. The employer shall correct the situation, and prepare a written record of the worker’s
notification. The worker should get a copy of this notification.

37. Disciplinary Action Complaint

If a worker feels he has been fired because of compliance with the Act, they should file a complaint with an
officer.

38. Board of Inquiry

The Minister may appoint a board of inquiry.

39. Administration Costs

The Minister has the power to assess employers for costs.

40. Regulations
The Lieutenant Governor in Council may make regulations.

41. Offences
First offences are liable to:
a fine of up to $150,000, plus $10,000 per day or 6 months in jail.
Further offences are liable to:
a fine of up to $300,000, plus $20,000 per day, or 12 months in jail.

42. Enforcement of Compliance With Order

If an employer is ignoring the order of a Director of Inspection, made under the Act, they shall initiate a
request for compliance to the Court of Queen’s Bench.

43. Awarding of Costs

The Court may make any award as to costs that it considers proper.
The Concepts of Professionalism An APEGGA Statement

Section 1: Summary
Professionalism and professional conduct are defined in terms of a profession and a professional.

A profession is an occupation characterized by high levels of technical competence and the degree the
responsibility inherent in its practice. It requires the application of mature seasoned judgment to situations
where many alternative actions are possible and where many persons can be significantly affected by the
ultimate decisions taken.

A professional is a person recognized to have high levels of technical competence which are beneficially
applied to those requiring his services.

Professional conduct means:

• Evident competence, responsibility and trustworthiness.
• The acquiring and maintenance of technical expertise.
• The beneficial application of this special expertise in the service of others.
• The responsibility to act with mature and seasoned judgment so that the maximum benefit will
accrue to society generally.
• The self-regulation of our fraternity, association and peers so that we are always seen to merit
societal trust.

Section 2: Introduction
Professionalism as a Quality Control System
It is APEGGA’s view that professionalism can best be defined as a “quality control” system.

The quality control system resulting from professionalism elicits the peak of responsibility and discipline
from the individual. The essence of a profession is self-regulation.

Quality Control Systems

Control systems can be classified as formal or informal.

Formal Government
Professional Association

Informal Employers
Unions
Voluntary Associations or Societies

Formal Administration
In formal control, the government regulates the occupational group; in a few cases the administration of
control is passed to a professional association.

Informal Administration
There are many occupations which can be practiced by anyone.

Those who practice these occupations frequently join together to form a voluntary society or association of
members. Such associations cannot exercise the same control over members as a Professional Association
does due to the fact that membership is not mandatory in order to “practice the profession.”

Section 3: Professionalism in Occupations

Some occupations have been given the right and the responsibility to govern themselves because of:
1. The level of responsibility of the occupation, and
2. The level of the sense of responsibility of the practitioners of the occupation both on the individual
level and on the group level.
Criteria for Ranking Occupations by Level of Responsibility
1. Importance of the Service (Impact)
• The importance of the outcomes of services provided by the occupation will be high and the
effect, particularly of errors in judgment, will be significant (impact of occupation) before an
occupation will be classed as a profession.
• This aspect is sometimes called the cruciality of an occupation.
2. The Nature of the Professed Knowledge (i.e. the breadth and depth of knowledge required)
3. Frequency of Need for Reasoned Judgments
4. Supervision required (the less required, the higher the responsibility)

Section 4: Professionalism in the Individual

Characteristics of a Professional
1. Competent; has depth of knowledge
• The practice of a profession requires the exercise of reasoned judgment to solve the problems
which a professional must address.
2. A Desire for Autonomy; can take charge, show leadership
3. Committed to, and Identifies with the Profession
4. Ethical
5. Commitment to Collegial Standards; is committed to mastering the profession

The Many Faces of the Word Professional

1. Honest, Trustworthy, and Principled
2. Skillful
3. Paid
4. A Loyal Employee
5. High Quality, High Rank – high standards and excellence

Section 5: Dilemmas and Problems of the Professional

1. Being Classed as an Elitist
2. Monopolies and Professions
3. Public Expectations

Providing Professional Service to the Public Through an Employer

There are two basic models of labor exchange.
a. The Professional / Client Model
i. Type 1 – The “Ideal” Type of the Model (many clients)
• Firstly, the professional is relatively autonomous.
• Secondly, the professional association is the major quality control factor in the
professional’s work life.
ii. Type 2 – The Professional / Single Client Model – become an employee
b. The Employee / Employer Model
i. Type 1 – The Visible Customer – the employee provides services to the customers of the
employer.
ii. Type 2 – The Invisible Customer – report directly to employer.

Professional Responsibility and Corporate Responsibility

APEGGA believes that the professional’s primary responsibility is to protect the health, safety and welfare
of the public and that this responsibility is not mitigated when the professional is providing service to the
public through an employer.

Corporate responsibility to the public is also a fact of life. Companies are held responsible by society for
the quality of the products and services which they supply to their shareholders.
The Engineering, Geological Professions Act, Regulations and By-Laws April 2000
Act
Definitions
“Certificate Holder” means (i) a joint firm, and (ii) a restricted practitioner.

“Member of the Public” means, a person who is

i. a Canadian citizen who is lawfully admitted to Canada for permanent residence,
ii. a resident of Alberta, and
iii. not a professional member of the Association.

“Minister” means the Minister of Public Works, Supply and Services.

Part I: Scope of Practice

Exclusive Scope of the Practice of Engineering
2(2) No individual, corporation, partnership or other entity is entitled to engage in both the practice of
engineering and the practice of architecture unless it holds a certificate of authorization under this Act or
the Architects Act permitting it to do so.

(3) A professional engineer, licensee, permit holder or joint firm may engage in the practice of surveying
other than land surveying as defined in the Land Surveyors Act.

(4) All engineering must be performed by or under the supervision of a professional engineer, with the
exception of the following:
a. an engineer-in-training supervised and controlled by a professional engineer, licensee, permit
holder or certificate holder;
b. an engineering technologist as defined in the regulations;
c. a person on his own property and for his sole domestic use;
d. a member of the Canadian Forces while actually employed on duty with the Forces;
e. a person employed by a university whose teaches engineering.

(7) Do not need to be a P.Eng. to build the following buildings:

a. a building 3 stories or less in height, for assembly occupancy or institutional occupancy that
i. for a single storey building, has a gross area of 300 square metres or less,
ii. for a 2 storey building, has a gross area of 150 square metres or less on each floor, or
iii. for a 3 storey building, has a gross area of 100 square metres or less on each floor;

b. a building for residential occupancy that

i. is a single family dwelling, or
ii. is a multiple family dwelling, containing 4 dwelling units or less;

c. a building, 3 storeys or less in height, for residential occupancy as a hotel, motel or similar use,
i. for a single storey building, has a gross area of 400 square metres or less,
ii. for a 2 storey building, has a gross area of 200 square metres or less on each floor, or
iii. for a 3 storey building, has a gross area of 130 square metres or less on each floor;

d. a building, 3 storeys or less in height, for warehouse, business and personal services occupancy,
for mercantile occupancy or for industrial occupancy that
i. for a single storey building has a gross area of 500 square metres or less,
ii. for a 2 storey building has a gross area of 250 square metres of less on each floor,
iii. for a 3 storey building has a gross area of 165 square metres or less on each floor;

e. a farm building not for public use;

f. a relocatable industrial camp building.

 Exclusive Use of Name Engineer
3(1) No individual, corporation, or partnership, except a professional engineer, licensee or permit holder
entitled to practice engineering, shall use the title “professional engineer,” the abbreviation “P.Eng.” or any
other abbreviation of that title.

4 A joint firm may hold itself out as “engineers and architects” or “architects or engineers” only if is has
both professional engineers and registered architects as partners or shareholders. Cannot if they are
employees only and not partners or shareholders.

Injunction
9 The Court (Court of Queens Bench), upon application of the Council (the governing body of APEGGA),
can prevent any person from doing any act or thing that contravenes this Act (The Engineering, Geological
and Geophysical Professions Act).

Part 2 Association
Powers of Association
11 The Association has the power to
a. acquire and hold real property and sell, lease or otherwise dispose of it, and
b. borrow money for the purposes of the Association and mortgage or charge real or personal
property of the Association or its sources of funds as security.

Council
12(1) There is a governing body of the Association called the Council.

Registrar
13 The Council shall appoint a Registrar for the purposes of this Act.

Minister
The Minister responsible for this act is the Minister of Public Works, Supply and Services. Each year the
Minister will receive the annual report of the Association, and lay it before the Legislative Assembly.

Council Members
14(1) The Council shall include:
a. the president,
b. 2 vice-presidents,
c. the immediate part president
d. and at least 12 other professional members.

(2) The Council shall consist of

a. at least 16 professional members among whom there shall be not less than
i. 2 professional engineers,
ii. 2 professional geologists, and
iii. 1 professional geophysicist, and
b. when the total number of elected professional members does not exceed 20, three members of the
public, who shall be appointed by the Minister, for a 3-year term of office.

(2.1) For each additional 10 elected professional members that the membership of the Council exceeds 20,
an additional member of the public shall be appointed by the Minister, for a 3-year term of office.

(6) The powers, duties and operations of the Council are not affected by:
a. the fact that no member of the public is appointed as a member of the Council,
b. the revocation of the appointment of a member of the public, or
c. the resignation from the Council of a member of the public.

Practice Review Board

15(1) The Practice Review Board consisting of not less than 5 members as follows:
 a. contain not less than 4 professional members, one of whom must be a member of the Council, who
have a combination of knowledge and experience to determine the academic qualifications and
experience necessary for a person to continue to engage in the practice of the profession of
engineering, geology or geophysics;
b. the Minister shall appoint 1 member of the public nominated by Council.

(2) If the Council does not nominate a member of the public within reasonable time, the Minister may
appoint a member of the public without Council’s nomination.

(6) The powers of the Board are not affected if there is no member of the public at meetings or on the
Board.

Powers of the Practice Review Board

16(1) The Practice Review Board will review the practice of professional members.

Appeal to Appeal Board

17 A professional member who is a subject of a hearing by the Practice Review Board may appeal any
decision or order of the Board to the Appeal Board.

Appeal Board
17.1(1) The Appeal Board shall consist of
a. the professional members appointed by the Council, and
b. one member of the public appointed by the Minister, for a 3-year term of office.

Part 3 Regulations and By-Laws

Regulations
18(1) The Council may make regulations regarding:
a. the academic qualifications of and experience requirements for MITs;
b. the powers, duties and functions of the Practice Review Board;
c. the use of stamps, seals and permit numbers, etc.

18(1.2) A regulation does not come into force unless it is approved by

a. a majority of the professional members
i. present and voting at a general meeting, or
ii. voting in a mail vote,
b. the Lieutenant Governor in Council.

By-laws
19(3) A by-law does not come into force unless it is approved by a majority of the professional members
a. present and voting at a general meeting, or
b. voting by a mail vote.

(4) The Regulations Act does not apply to by-laws of the Association.

Part 4 Registration
Registers and Membership Records
20(1) The Registrar shall maintain a register for each of the following:
a. professional engineers;
b. professional geologists;
c. professional geophysicists;
d. licensees to engage in the practice of
i. professional engineering,
ii. professional geology, or
iii. professional geophysics;
e. permit holders to engage in the practice of
i. professional engineering,
ii. professional geology, or
 iii. professional geophysics;
f. joint firms
g. restricted practitioners.

Registration as a Professional Member

21 Registration to be a professional engineer or licensee is approved by the Board of Examiners.

Registration of Permit Holders

23 Permits to practice, Joint Firms and Restricted Practitioners are approved by Council. A partnership, or
corporation incorporated or registered under the Companies Act requires a Permit to Practice engineering.

Cancellation on Request
28(4) A person whose registration is cancelled for more than 7, and seeking reinstatement must be referred
to the Board of Examiners.

Board of Examiners
29(1) The Council shall establish the Board of Examiners.

(1.1) The Minister shall appoint as members of the Board of Examiners 3 persons from a list of members
of the public nominated by the Council.

Rules for a member of the public are the same as those for a member of the Practice Review Board.

Approval by the Board of Examiners

30(1) The Board of Examiners shall approve the registration as a professional member if he proves to the
satisfaction of the Board that he is,
a. of good character and reputation,
b. resident of Alberta,
c. a Canadian citizen or lawfully admitted to Canada for permanent residence, and
d. meets the requirements of the regulations.

(2) If an applicant for registration as a licensee is not a Canadian citizen or lawfully admitted to Canada for
permanent residence (a resident outside of Alberta) but otherwise complies, the Board shall approve
the registration.

Consider applications for registration of applicants.

Review of the Appeal Board

31(4) Can appeal a decision of the Board of Examiners by writing to the Appeal Board requesting the
Council to review your reasons why you feel you should be admitted, within 30 days after receiving a
notice of refusal.

(5) On receiving a notice of appeal, the Registrar shall set a date, time and place for the hearing of the
appeal, and inform you, in writing, of the date, time and place of the review.

(6) You may appear with counsel.

(7) A member of the Board of Examiners who is also on Council may be at the review but cannot vote in
the final decision of the Council.

Joint Firms
32(1b) An “architects firm” means a partnership or corporation confines its practice to provide
architectural consulting services in which registered architects
a. hold a majority interest, and
b. control the partnership or corporation.
32(1c) An “engineers firm” means a partnership or corporation confines its practice to provide engineering
consulting services in which professional engineers
a. hold a majority interest, and
b. control the partnership or corporation.

32(1d) A “proposed engineers and architects firm” means a partnership or corporation confines its practice
to provide engineering and architectural consulting services in which registered architects and
professional engineers
a. hold a majority interest, and
b. control the partnership or corporation.

The application to create such a firm must be approved by the Joint Board.

32(3) An applicant shall

a. if its prime activity is engineering consulting services, apply to the Council, and
b. if its prime activity is architectural consulting services, apply to the council of the Architects
Association.

Approval by Joint Board

33(2) The Joint Board will approve if:
a. the applicant has at least 1 professional engineer who shall take responsibility for the engineering
work and at least 1 registered architect,
b. no presence of ownership interest that will give rise to conflicts with the professional
responsibilities of the firm.

Restricted Practitioner
36(1) A certificate of authorization may be issued to a registered architect who:
a. has historically competently provided a service of professional engineering in Alberta, and
b. applied for the certificate before October 1, 1982.

Exemption From Stamp or Seal Requirement

37 On recommendation of the Joint Board, the Council may authorize a registered architect a permit to
issue final design drawings and specifications of the building without the stamp or seal of a
professional engineer.

Cancellation
38(1) The Council may direct the Registrar to cancel the registration of
a. a professional member, licensee or permit holder who has not paid fees, or
b. a permit holder who no longer has employees in compliance with this Act
after 30 days of notice to the person.

(6) If a person applies to the Council to be reinstated more than 7 years after the date which the
registration was cancelled, the application for reinstatement must be referred to the Board of
Examiners.

Part 5 Discipline
Complaints
42(1) Complaints are given to the Registrar.

(1.1) All complaints must be in writing.

(2) A complaint respecting the conduct of a professional member whose registration was cancelled, if a
complaint is received regarding the member within 2 years following the date of cancellation of
registration, the case is dealt with as if the cancellation had not occurred (once cancellation is over 2
years, the cancellation will be taken into account in dealing with the complaint).
(3) If a complaint is received regarding a member, the Registrar may designate a mediator between the two
conflicting parties. A mediator may assist in settling a complaint if the complainant and the person
about whose conduct the complaint was made agrees. If resolution of the conflict doesn’t occur within
30 days or a specified longer period, or the mediator feels it is unlikely to occur, then the complaint
shall be referred by the Registrar to the Investigative Committee.

(4) If a complaint is settled with the assistance of a mediator, any agreement must be reviewed by the
Investigative Committee.

Complaint à Investigative Committee à Discipline Committeeà Appeal Committee à Appeal Court

Panel Recommendation Case Manager

Determination of Unprofessional Conduct and Unskilled Practice

43(1) Any conduct of a professional member or member-in-training that:
a. is detrimental to the best interests of the public,
b. contravenes the code of ethics,
c. harms or tends to harm the standing of the profession,
d. or displays a lack of knowledge of or a lack of skill or judgment.
Whether or not that conduct is disgraceful or dishonorable, is either unskilled practice of the profession or
unprofessional conduct.

Discipline Committee
44(1) The Council shall establish a Discipline Committee.

(3) A regulation does not come into force unless it has been approved by the Lieutenant Governor in
Council.

Investigation Panel
45 When a complaint is referred to the Investigative Committee, the Investigative Committee shall appoint
an investigation panel from among its members to conduct a preliminary investigation (i.e. review
matters).

A preliminary investigation is conducted with respect to the matter.

Notice of Preliminary Investigation

46 The Registrar will notify in writing to the investigated person that a preliminary investigation is being
conducted.

Report to Investigative Committee

48 On concluding the preliminary investigation, the investigation panel shall report its findings to the
Investigative Committee.

Termination of Investigation
49(1) The Investigative Committee may terminate an investigation at any time if it is of the opinion that
a. the complaint is frivolous or vexatious, or
b. there is insufficient evidence of unskilled practice or unprofessional conduct.

(2) On terminating an investigation, the Registrar will notify the person being investigated of this.

Power of Investigative Committee to Recommend an Order

49.1(1) If an investigation is not terminated, the Investigative Committee may hold a hearing into the
complaint. If, however, the case is bought into Court (Provincial or Federal), the Discipline
Committee may adjourn the hearing until the court case is over, pending its outcome. The Discipline
Committee can suspend the registration of any professional member, even during the preliminary
investigation stage.
(2) An order recommended by the Investigative Committee must be provided to a member of the
Discipline Committee who has been designated by that Committee to act as a case manager.

Suspension Pending Investigation and Hearing

52(1) The Investigative Committee may suspend the registration of a professional member pending a
preliminary investigation or a decision of the Discipline Committee.

Right to Counsel and to Appearance

53 The Investigative Committee and the investigated person may appear and be represented by counsel (a
lawyer) at a hearing before the Discipline Committee.

Public Hearings
54 All hearings before the Discipline Committee and the Appeal Board are open to the public unless
ordered otherwise.

Evidence
55(1) The Committee is not bound by the rules of law respecting evidence applicable to judicial
proceedings.

Failure to Give Evidence

58(1) Proceedings for civil contempt of court may be brought against a witness.

(3) The Discipline Committee may proceed with the investigation in the absence of either or both the
investigated person and the complainant.

Order to Pay Costs or a Fine

61(1) The Discipline Committee may make the investigated person pay
a. all or part of the costs of the hearing,
b. a fine not exceeding $10,000 to the Association, or
c. both the costs and a fine.

Appeal to Appeal Board

64(2) The member may appeal the decision of the Discipline Committee to the Council within 30 days
after receiving it.

Appeal to the Court of Appeal

68(1) Once the Council makes its decision, the member can still appeal higher, to the Provincial Court of
Appeal.

Order for Stay Pending Appeal

69 Can apply to the Court of Appeal for an order staying (suspended licence pending) all or any part of the
order or decision of the Appeal Board appealed (10 days).

Fraudulent Registration
72(1) Any one registered by false or fraudulent representation, either oral or written, the Council shall
order that his registration be cancelled and cannot be reinstated unless said so by
committee/Board/Appeal Court. Has 1 year to do so.

Part 6 General
Exemption from Municipal Licence
76.1 No municipality has the power to require a professional member or member-in-training to obtain a
municipality licence to engage in the practice of engineering.

Protection from Liability

79(1) No defamation action an be brought against
 a. any person conducting a preliminary investigation, a member of the Discipline Committee, the
Practice Review Board, the Investigative Committee, the Appeal Board, the Council or the Board
of Examiners, the Registrar, the Association or any person acting on the instructions of any of
them, or
b. any member, officer or employee of the Association
for anything done by him in good faith and in purporting to act under this Act, the regulations or the
by-laws.

Part 6.1 Registered Professional Technologists (Engineering)

Board of Examiners
79.9(1) The Minister shall appoint as members of the Board of Examiners at least 2 registered professional
technologists (engineering).

Investigative Committee
79.93(1) The Council shall appoint as members of the Investigative Committee at least 2 registered
professional technologists (engineering).

Fees cannot be greater than those of professional members.

Part 7 Prohibitions and Penalties

Penalties
81(1) Can’t work with or employ someone without a valid certificate (cancelled or suspended). If you do,
a. for the 1st offence, to a fine of not more than $2,000,
b. For the 2nd offence, to a fine of not more than $4,000, and
c. For the 3rd and each subsequent offence, to a fine of not more than $6,000 or to imprisonment for a
term of not more than 6 months or to both.

(2) A prosecution under this section may be commenced within 2 years after the commission of the alleged
offence, but not afterwards.

Regulations
Part 1 Membership in the Association
Division 1 General
Application
2(1) An application for registration must be submitted to the Registrar.

(2) The Registrar shall forward an application to the Board of Examiners (3 member quorum)
if the application meets requirements and the applicant meets eligibility requirements.

Division 2 Students
Eligibility
6 A person who applies to the Registrar for registration is entitled to be enrolled as a student if he has:
a. At least 2 years of post-secondary education together with
i. One year of experience in engineering work and where the post-secondary education consists
of an engineering tech program, or
ii. 3 years of such work experience, where the post-secondary education consists of education
other than such a program.

Division 4 Members-in-Training
Time Limits
11(1) No person may remain in the record of members-in-training for more than 6 years.

(2) The Council may in particular cases extend the period to not more than 8 years.

Division 5 Professional Members

Eligibility
13 If someone does not have a university degree, but elects to pass examinations prescribed by the Board
of Examiners, a total of 8 years of experience must be obtained, plus 1 year experience following the
writing of the exams.

Division 7 Board of Examiners

Board of Examiners – Constitution
15(1) The Board of Examiners consists of
a. an executive committee
b. other members, who must be professional members, and who are appointed by the Council, and
c. any other persons appointed by the Minister under the Act.

(2) The Board of Examiners shall meet at least twice each year to consider policy matters, significant
changes in procedure, examination results and other matters. Usually meets once per month to rule on
applications.

(3) The executive committee shall meet as is necessary to rule on applications for registration (once a
month?).

(4) The Council shall designate a person as chair of the Board of Examiners and that person shall also
serve as chair of the executive committee as well.

(5) The executive committee of the Board of Examiners consists of

a. the deans of engineering at universities in Alberta(U of A, U of C),
b. one senior professor (who must be professional engineers or geologists) from each of the
engineering, geology, and geophysics departments or disciplines at universities in Alberta,
c. other professional members equal to the number of members of (a) and (b), who are not directly
associated with any of the universities and are not representative of the disciplines of engineering,
geology and geophysics,
d. the Registrar or the Registrar’s designate,
e. one member of the public appointed by the Minister,
f. 2 registered professional technologists (engineering) or engineering technologists appointed by the
Minister.

(8) The tem of appointment for the chair and members of the Board of Examiners who are appointed by
the Council is 3 years, and they may be reappointed.

(10) A quorum for a meeting of the Board of Examiners is 3 of the members of the Board.

(11) A quorum for a meeting of the executive committee of the Board of Examiners is 3 of the members of
the executive committee.

Part 2 Continuing Professional Development Program

Education Program Established
16(1) The Council established the Continuing Professional Development Program as the compulsory
continuing education program for professional members and licensees.

(2) The Practice Review Board shall administer the Continuing Professional Development Program.

Exemption
18(1) A professional member or licensee can file in writing for exemption stating that that person is not
actively engaged in the practice of a profession.

(2) An exemption under this section is only effective for one year from the date the declaration is received
by the Association but may be renewed for additional yearly periods.
 Written Records
19 A professional member or licensee must
a. maintain a written record of activities undertaken in accordance with the Continuing Professional
Development Program, and
b. produce the record on the request of the Practice Review Board.

Part 3 Practice Review Board

Constitution
21(1) The Council shall appoint not fewer than 2 professional engineers, one professional geologist and
one professional geophysicist as members of the Practice Review Board.

(2) The Council shall designate one of the professional members as the chairman.

(3) The Registrar or the Registrar’s designate shall serve as Secretary to the Practice Review Board.

(4) The chair and professional members must be appointed for a 3-year term, and may be reappointed.

(5) A quorum of the Practice Review board is 4 of its members.

(7) In appointing professional members to the Practice Review Board, the Council shall not appoint a
professional member unless the professional member has at least 10 years of experience in the practice
of the profession.

22(1) The Practice Review Board shall meet at least twice each year.

Investigation by Practice Review Board

23(2) The Board shall appoint one person to conduct an initial review and report to the Board wrt the
substance of the conclusions on which the Board based its decision to begin the investigation.

(3) If the Board decides further investigation is not warranted, the Board will discontinue the review and
report its decision to the Council, along with any recommendations.

(4) If the Board decides an investigation of a specific practice is necessary, it shall

a. proceed in the same manner as a discipline investigation, or
b. lodge a complaint with the Investigative Committee if it is of the opinion that further investigation
may lead to a finding of unskilled practice of the profession or unprofessional conduct.

Part 4 Council
President and Vice-Presidents – Election and Powers
25(1) The President and 2 Vice-presidents must be elected annually by the professional members of the
Association. The Vice-presidents are designated as First Vice-president and Second Vice-president
on the basis of the number of votes cast for each of them.

(4) The President may vote at meeting of the Council or the Association only in the event of a tied vote.

Election of Council
26(2) 1/3 of the members are elected annually for terms of 3 years.

Quorum
28 A quorum for meetings of the Council is
a. At least one of the President, the Vice-presidents or the immediate Past President, and
b. 6 other professional members of the Council.

Executive Committee
29(1) The Executive Committee of the Council consists of the President, who is the chair, the immediate
Past President, the 2 Vice-presidents, and the Executive Director of the Association (5 members).
(2) The Executive Committee has the power of Council with respect to any decisions or actions necessary
between Council meetings.

Other Boards, Committees and Task Forces

30(1) In addition to the Discipline Committee, Investigative Committee, Board of Examiners, Practice
Review Board, Appeal Board and Executive Committee, the Council may appoint any other standing
or special committees, task forces or boards that it considers necessary.

Part 6 Discipline
Investigative Committee
32(1) The Investigative Committee shall consist of professional members and registered professional
technologists (engineering) or engineering technologists appointed by the Council and a public
member.

(2) The Council shall designate one professional member as the chairman.

Term of Office
34(1) The term of office of each member of the Investigative Committee is 3 years, and members may be
reappointed.

Quorum
35 A quorum of the Investigative Committee consists of the chair or the acting chair and the number of
professional members and registered professional technologists (engineering) or engineering
technologists determined by the Council.

Discipline Committee
36(1) A Discipline Committee consists of professional members (not less than 6?) appointed by the
Council and one public member.

(2) The Council shall designate one professional member as the chair of the Discipline Committee.

Term of Office
38(1) The term of office of each member of the Discipline Committee is 3 years, and members may be
reappointed (twice?).

Quorum
36 A quorum of the Discipline Committee consists of the chairman or the acting chairman and the number
of professional members determined by the Council.

Appeal Board
The Appeal Board hears appeals from decisions of the Practice Review Board, the Discipline Committee,
and the Board of Examiners.

40(1) The Council shall appoint professional members, including one Past President of the Association
(who shall be chairman?), 2 professional members who served on the Discipline Committee, 1
professional member who served at least 2 terms on the Board of Examiners, 2 professional members
with no experience on either but at least 10 years experience, as members of the Appeal Board (6
members).

(2) The Council shall designate one professional member as the chair of the Appeal Board.

Term of Office
41(1) The term of office of each member of the Appeal Board is 3 years, and members may be
reappointed.
 Quorum
42 A quorum of the Appeal Board consists of the chairman or the acting chairman and the number of
professional members (1 member public) determined by the Council.

Reinstatement of Disciplined Individuals

47(1) A professional member whose registration has been cancelled as a result of the disciplinary
proceedings may apply to the Council to be reinstated.

(2) May not be reinstated at least one year after the date on which the registration was cancelled.

Panel of the Discipline Committee

45(1) A panel of the Discipline Committee must consist of at least 3 members of the Discipline Committee
who are professional members.

(7) The case manager must not sit as part of the panel of the Discipline Committee.

Reinstatement of Disciplined Individuals

47(2) A professional member whose registration has been cancelled may not reapply until at least one year
after the date on which the registration was cancelled.

(5) If reinstatement is not approved by the Council, the applicant must wait until at least one year after the
date the Council ruled on the previous application.

Part 7 Registration of Permit Holders

Requirements of Permit Holders
48(2) A permit expires one year after the date on which it is issued.

(8) When the Council issues a permit, it shall provide the permit holder with a permit number.

Name of Firm
52 No partnership or corporation can be incorporated or registered under a name including the words
“Engineering,” “Geology,” or “Geophysics,” unless it holds a valid permit.

Part 8 General
Use of Stamps and Seals Issued to Members
54(1) A stamp or seal issued to a professional member or licensee must at all times remain under that
person’s direct control.

(9) When a stamp or seal is applied, the professional member to whom it was issued shall ensure that the
stamp or seal is accompanied with that person’s signature and the date on which the stamp or seal is
applied.

Service of Notices
61(1) If notice is required to be given, the notice is sufficiently given if it is served personally or sent by
mail at the latest address provided by the person.

(2) If notice is served by mail the service is presumed to be effected

a. 7 days from the date of mailing if the document is mailed to an address in Alberta, or
b. 14 days from the date of mailing if the document is mailed to an address outside Alberta.

Enforcement Review Committee

62(1) The Enforcement Review Committee shall consist of no fewer than 9 professional members
appointed by the Council, one of whom must be a member of the Council.

(2) The Council shall designate one member of the Committee as the chair.
(3) A member of the Committee may be appointed for a term of not more than 3 years, and may be
reappointed.

(4) A quorum of the Committee is the chair and 3 of its members.

Part 9 Technologists
Joint Registration Board
65(1) There is hereby established a Joint Registration Board consisting of 5 members appointed by the
Council and 5 members appointed by the Society f Engineering Technologists (5 eng/5 techs; term:
1 year).

Note: Registered Engineering Technologists (RET) are issued a technologist’s stamp for drawings.

(2) Shall select a chair from among themselves, who shall serve as chairman for not more than one year.

(3) In selecting a chair the members of the Board shall alternate between Council appointees and Society
appointees.

(5) A quorum consists of the chair or the vice-chair, 2 appointees of the Council and 2 appointees of the
Society.

(6) The Board shall meet at least once every 6 months.

Registering of Engineering Technologists

66(1) An individual may apply to the Joint Registration Board to be registered as a registered engineering
technologist.

(3) In order to be registered as a RET, the applicant must be

a. registered with the Society as a certified engineering technologist,
b. has at least 4 years of experience in the practice of engineering technology.

Joint Appeal Board

68(1) A Joint Appeal Board consists of the following members:
a. 2 members appointed by Council (engineers);
b. 2 members appointed by the Society (technologists);
c. one member, who shall be chairman, who is not a member of the Association or of the Society and
who is appointed jointly by the Council and the Society.

(2) The Members of the Board shall select from among themselves a vice-chairman, and the vice-chair
may exercise the powers of the chairman in the absence of the chairman.

(3) A quorum of the Board consists of the chairman or the vice-chairman, one member of the Board
appointed by the Council and one member of the Board appointed by the Society.

Part 10 Registered Professional Technologists

Eligibility
77 A person who meets the following requirements and applies to the Registrar for registration is entitled
to be registered as a registered professional technologist (engineering):
a. the applicant is of good character and reputation;
b. the applicant is a registered engineering technologist and has been nominated for registration as a
registered professional technologist (engineering);
c. the applicant has obtained at least 6 years of experience in work of an engineering nature that is
acceptable to the Board of Examiners, at least 2 of which are in the applicant’s specific area of
professional practice and were completed under the supervision and control of a professional
member.

Code of Ethics
Schedule Code of Ethics
Preamble

Professional engineers, geologists and geophysicists will build their reputations on the basis of the merit of
the services performed or offered and shall not compete unfairly with others or compete primarily on the
basis of fees without due consideration for other factors.

Rules of Conduct

5 Professional engineers shall not engage in activities or accept remuneration for services rendered that
may create a conflict of interest with their clients or employers, without the knowledge and consent of
their clients or employers.

6 Professional engineers shall not disclose confidential information without the consent of their clients or
employers, unless the withholding of the information is considered to be contrary to the safety of the
public.

8 Professional engineers, geologists, and geophysicists shall not offer or accept covert payment for the
purpose of securing an engineering, geological or geophysical assignment.

Bylaws
Part 2 Election of Council
Nominating Committee
2 The nominating committee will nominate candidates at the annual meeting for the council of the
following year. The nominating committee will consist of a minimum of 11 members of APEGGA, 1
who will be the retiring president, who shall be the chairman. Council shall fill any vacancies which
may occur in this nominating committee.

3(1) Not less than 150 days prior to the annual meeting the nominating committee shall submit to the
Executive Director a list of nominees for Council, which shall include at least 1 nominee for president,
3 nominees for vice-president, and at least 3 more nominees for councilors than there are vacancies to
be filled on Council.

(2) Council nominees for president or vice-president shall have served at least 1 year on the Council.

Nominees Selection
4(3) Not less than 120 days prior to the annual meeting the Executive Director shall distribute to each
professional member, either directly by mail or via the Association publication known as the PEGG, a
list of the nominations made by the nominating committee.

Additional Nominations
5 Additional nominations for any office or any offices may be made in writing by any 10 professional
members (i.e. any 10 members can nominate a member). Such nominations shall reach the Executive
Director properly endorsed not later than 90 days prior to the annual meeting and shall be accompanied
by the written consent of the nominee or nominees to act if elected.

Conduct of Elections
6(1) Elections shall be conducted by letter ballot.
(2) The names of all persons nominated for office shall be placed on the ballot form in groups relating to
each office. The number, professional classification and term of councilors to be elected shall be made
clear on the ballot form. Ballot forms shall be mailed to the professional members by the Executive
Director not later than 50 days prior to the annual meeting.

(4) The poll shall close at noon on the 20th day prior to the annual meeting and no ballots received after
that time shall be considered.

Ballot Counting Committee

7(1) At least 20 days before the annual meeting the president shall appoint 6 professional members
including a chairman to act as a ballot counting committee.

(2) This committee shall meet at a time and place designated by the president, but at least 15 days prior to
the annual meeting, and shall receive then the package containing the ballots from the Executive
Director.

Results of Election
9(3) In case of a tie, the president or, in the absence of the president, the chairman of the nominating
committee shall cast the deciding vote.

Objection and Recount

10(1) Any objection to the poll as announced will be valid only if made immediately after the
announcement and a proper motion for a recount will then be in order. If such a motion is made and
carried the chairman shall appoint a ballot counting committee of not less than 12 professional
members who shall forthwith recount all ballots. Candidates may be present or represented at such
recount.

Part 3 Meetings of the Council

Council Meetings
12(1) Council shall meet at the call of the president or written request to the Executive Director signed by
not less than 4 councilors.

12(5) If any member of the Council misses 3 consecutive meetings of Council without the approval of
Council, Council may declare his seat to be vacant.

Part 5 Meetings of the Association

Annual Meetings
16(1) An annual meeting of the Association shall be held in every calendar year with the period between
such meetings not to exceed 18 months.

(2) Notice of the annual meeting shall be distributed, either directly by mail or via the PEGG, to all
members at least 90 days in advance of the meeting.

(3) At the annual meeting of the Association a quorum shall consist of 60 professional member.

Special Meetings
18(1) Special meeting may be held when considered necessary by the Council or upon written request to
the Executive Director signed by not less than 30 professional members. A special meeting shall be
held not more than 45 days after the request is received by the Executive Director.

(2) Written notice calling a special meeting shall be distributed to all members, directly either by mail or
via the PEGG, at least 14 days in advance of the meeting and shall clearly state the object of the
meeting, and no other business shall be transacted at the meeting.

(3) At any special meetings a quorum shall consist of 60 professional members.

District Meetings
19(2) Notice of a district meeting shall be distributed to all members resident in district, either directly by
mail or via the PEGG, at least 14 days in advance of the meeting.

(3) Council shall approve the holding of a district meeting on a request to the Executive Director signed by
not less than 30 professional members of the Association.

(4) A quorum at a district meeting shall be 10 professional members.

Part 6 Executive Director, Acting Registrar

 Responsibilities
21(2) The Executive Director shall be responsible for all property owned by APEGGA, and all employees
working for APEGGA.

Part 8 Life and Honorary Members

Life Member
25(1) Council, may confer life membership upon any professional member who
a. has been a professional member for 25 or more years;
b. has retired from the practice of the profession.

(3) Life members retain all of the obligations, duties and privileges of professional membership and pay
annual fees as may be specified by Council.

Honorary Life Member

26(1) Council may confer Honorary Life Membership upon members who have given outstanding service
to the Association. There shall at no time be more than 30 honorary members.

(2) Honorary Life Members retain all of the obligations, duties and privileges of professional membership
but are exempted from paying annual fees.

Honorary Member
27(3) Honorary members can’t vote.

Part 12 Seals, Stamps and Certificates

Surrender of Seals and Stamps
35 Professional members shall surrender any seals, stamps and certificates that have been issued to them:
a. temporary withdrawal of the member from practice of the profession for a period estimated to
exceed 1 year;
b. resignation of the member from the Association;
c. the suspension or cancellation of the professional membership.

Part 14 General
Voting by Mail
37(1) The Council may direct that a mail vote be conducted on any matter related to the Association.

(2) Announcement of a mail vote giving full details of the matter to be voted upon must be made to all
professional members at least 21 days in advance of the vote being taken and if objections to a mail
vote are received by the Registrar in writing at least 3 days before the announced date of the vote from
at least 30 professional members the matter shall be held over to a meeting of the Association.

(3) A vote by mail shall be declared valid if at least 10 percent of the professional members respond and
the matter shall be declared carried or defeated on the basis of a simple majority of the votes returned.

Amendments to By-laws
38(2) Proposed amendments are to be voted on at a meeting of the Association, full details of the proposed
amendments shall be disclosed to all professional members at least 14 days in advance of the meeting.