Joint Engineering and Natural Science Task Force mandate of PEO’s Joint Engineering and Natural Science Task Force was “to establish a means to achieve the intent of Engineers

PROFESSIONAL ENGINEERS ONTARIO

Joint Engineering and Natural Science Task Force

Final Report

Henry van Driel, P.Phys, PhD and Roydon Fraser, PhD, P.Eng. FEC – Co-Chairs

1/31/2011

AElliot

Text Box

C-468-5.3 Appendix A

Joint Engineering and Natural Science Task Force - Final Report

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Task Force Members: Natural Scientists

Paul Vincett, Ph.D (Can. Assoc. of Physicists and Can. Cons. for Research); Terry Obal, Ph.D (Association of Chemical Professionals of Ontario); Doug Welch, Ph.D (Canadian Astronomical Society); Peter A. Taylor, Ph.D (Canadian Meteorological and Oceanographic Society); Fernando Camacho, Ph.D (Statistical Society of Canada); Doug Bisset, Hons BSc (ECO Canada); Joseph E. Hayward, Ph.D (Canadian Organization of Medical Physicists);

Engineers Canada

Ken McMartin, P.Eng. FEC - Director, Professional and International Affairs Ontario Centre for Engineering and Public Policy

Jana Levison, Ph.D., EIT – Acting Executive Director Professional Engineers Ontario

Corneliu Chisu, P.Eng. FEC (PEO Vice President, Legislation Committee member) Bill Jackson, P.Eng. FEC (PEO Enforcement Committee chair) Peter DeVita, P.Eng. FEC (PEO Emerging Discipline Task Force chair)

Staff Advisors:

Kim Allen, P.Eng. FEC - CEO/Registrar Johnny Zuccon, P.Eng. FEC - Deputy Registrar Regulatory Affairs


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1 Executive Summary The mandate of PEO’s Joint Engineering and Natural Science Task Force was “to establish a means to achieve the intent of Engineers Canada 1996 companion clause and report recommendations to PEO Council at its February 2011 meeting.” Natural scientists initially sought to achieve the intent through a natural science exemption within a PEO regulation. This has proven difficult to date, and is on hold at this time. The natural science members of the Task Force still feel strongly that developing a regulation that creates a class of persons recognized as natural scientists that are exempt from the definition of professional engineering in the Professional Engineers Act is the appropriate solution. Broadly speaking the intent of the Engineers Canada 1996 companion (exemption) clause is to obtain some form of legislative protection that exempts properly qualified natural scientists from being prevented from competently practicing natural science. The intent was not to permit natural scientists to practise professional engineering without being licenced.

“. . . engineering Acts in Canada should not unintentionally restrict the practice of natural science while at the same time ensuring that engineering it practiced by qualified individuals.” 1

The complete background and history is found in Appendix A. There are three tools that may achieve the intent: a separate Act, legislative amendment to the Professional Engineers Act or amendment to the regulations under the Professional Engineers Act. Each of these tools has varying degrees of effectiveness, amount of government intervention and implementation time. In order that PEO can carry out its mandate under the Professional Engineers Act and support the government’s policy intent to not restrict the practice of natural science, the Task Force concluded that at this juncture it recommends:

1. That Council establish2

Where the Registrar believes that a recognized

an Overlapping Practices Committee, with members appointed by Council and four members appointed the natural science community, with the following mandate:

3

1 Excerpt from May 31, 1996 Joint Communiqué (NSSC and CCPE)

natural scientist may be practising professional engineering without a license, limited license or temporary and/or without a certificate of authorization, the Committee will consider the matter and make recommendations to assist the Registrar and the

2 Professional Engineers Act - Section 10 (1) 3 For the purpose of this Committee, a recognized natural scientist means a member in good standing with an association recognized by Council which includes, but is not limited to, CAP, CMS, CIC, CMOS, COMP, ACPO, CMC, CSC, CSEB, SSC, CAMS, CIPS, and CLRA.


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natural scientist to resolve the matter prior to the Registrar proceeding with any enforcement action to the courts.

2. That Council work with the natural science community and Engineers Canada to

establish a national Task Force with a mandate to consider when it is in the public interest to require a person practising natural science to hold a licence, the licensing requirements and/or exemption clauses for natural scientists. PEO will provide a representative to serve on the Task Force.

2 Professional Engineering and Natural Science– Three Views The natural science community views the amended definition of the practice of professional engineering (with the removal of the words “but does not including practising as a natural scientist” from the definition of the practice of professional engineering that existed in the 1984 version of the Professional Engineers Act) as being so broad that it includes the practice of natural science, and thus every natural scientist would require a licence from PEO to continue to do his or her work and/or to enjoy the opportunity for career progression to management positions. The government’s policy, via Bill 68, adopted the national definition of professional engineering, with minor modifications, to facilitate compliance with the Agreement on Internal Trade and to ensure the Professional Engineers Act effectively regulates the practice of professional engineering exclusively. This Task Force recognized that some persons practicing natural sciences contribute to the safeguarding of life, health, property, economic interests, the public welfare and the environment of the people in Ontario. The Task Force worked in a spirit of mutual trust recognizing that the driving imperative was to protect and serve the public interest in Ontario and that the work of the Task Force could have national implications. The following three diagrams help to illustrate the views regarding the new definition from the perspectives of:

• The natural science Community • The Government through the Professional Engineers Act • The Task Force

The natural science Community views the definition of professional engineering as being so broad that it captures the entire practice of natural science.


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The Government through the Professional Engineers Act defined the practice of professional engineering. PEO views that practicing natural science is distinct from practicing professional engineering. This view is consistent with the concept that legislation regulating the practice of a profession should not unnecessarily restrict the activities of persons not practicing the regulated profession.

The Task Force views that some overlapping of practices may occur, where a person practicing natural science, may also be practising professional engineering. Furthermore a dynamic model is required to deal with the evolving practices.

3 Means to Achieve the Intent of Engineers Canada Recommended

Companion Clause The means to achieve the intent of Engineers Canada recommended Companion Clause, as outlined in Appendix A, are listed in order of effectiveness:

3.1 Create a Separate Act

3.1.1 A legislative prohibition for Natural Scientists through a separate Act If a separate Act were to be created which regulated natural scientists, PEO would still have the same obligations to seek compliance regarding the requirement for individuals to have a license


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under the Professional Engineers Act to practice professional engineering. If this Act only provided a prohibition regarding the enforcement the Professional Engineers Act for natural scientists, the government would be assuming a public accountability role for natural scientists.

3.1.2 Public Acts requiring Natural Scientists to be Licenced The Provincial Government could consider creating additional Regulatory Acts to require a person practising natural science to hold a license when it is in the public interest.

3.2 Amendments to the Professional Engineers Act

A legislative prohibition could be provided for natural scientists within the Professional Engineers Act c. 1980 and set out in the Yukon or Manitoba Engineering Profession Act; or create an exception for natural scientists in section 12 of the Professional Engineers Act; or within the definition of the practice of professional engineering c. 1984. Should the government introduce an exemption within the Professional Engineers Act, the government would have to take into account whether or not the public interest is served and protected in the areas exempted.

3.3 Regulatory amendments to the Professional Engineers Act

• Regulatory exemption for natural scientists under the Professional Engineers Act • Create classes of Limited Licenses under the Professional Engineers Act recognizing

the qualifications of natural scientists

Note: should a natural scientist practicing engineering acquire a limited license, there is no need for a “companion clause”.

If PEO Council were to make regulations specifying acts within the practice of professional engineering that are exempt from the application of this Act when performed or provided by a recognized “Natural Science” class of persons, the PEO Council would need to justify to the Attorney General why it is in the public interest to exempt such as class of persons and PEO would be accountable to the public should an exempted practitioner do something that harms the public interest. It should be noted that prohibitions and exemptions create two standards - one individual is required to have a license to carry out any act in the public interest and another individual is not required to have a license to protect and service the public interest to carry out the same act.

3.3.1 Regulatory Amendments


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Relief from the application of the Professional Engineers Act in the form of regulations under the Professional Engineers Act would be statutorily constrained to either exempting an act within the practice of professional engineering or exempting a prescribed class of persons from performing specified acts within the practice of professional engineering.

3.3.1.1 Regulatory Exemption Excerpt from the Professional Engineers Act 7. (1) Subject to the approval of the Lieutenant Governor in Council and with prior review by

the Minister, the Council may make regulations,

31. exempting any act within the practice of professional engineering

from the application of this Act;

32. specifying acts within the practice of professional engineering

3.3.1.2 Create a Class of Limited Licenses for Natural Scientists

that are exempt from the application of this Act when performed or provided by a member of a prescribed class of persons, and prescribing classes of persons for the purpose of the exemption;

A class(es) of limited license(s) could be developed within Regulation, under section 7.(1) 9. vi, see Appendix B.

4 Overlapping Practices Committee Pursuant to section 10 (1) of the Professional Engineers Act, Council would establish and appoint a Committee to deal with overlapping practices. Mandate:

Where the Registrar believes that a recognized4

natural scientist may be practising professional engineering without a license, limited license or temporary and/or without a certificate of authorization, the Committee will consider the matter and make recommendations to assist the Registrar and the natural scientist to resolve the matter prior to the Registrar proceeding with any enforcement action to the courts.

Committee membership The Committee will be composed of not less than eight members with the following composition:

o Four persons appointed by the natural science community

4 For the purpose of this Committee, a recognized natural scientist means a member in good standing with an association recognized by Council which includes, but is not limited to, CAP, CMS, CIC, CMOS, COMP, ACPO, CMC, CSC, CSEB, SSC, CAMS, CIPS, and CLRA.

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90p28_f.htm#s7s1�


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o Four persons appointed by Council

Consideration of the matter: A Panel consisting of:

o Independent chair appointed by the Committee – voting member o Two natural science representative from the Committee o Two PEO representatives from the Committee

“The Parties”:

o The Registrar of Professional Engineers Ontario o The impacted natural science practitioner

Panel Response:

o The committee normally provides its advice to the parties within 30 days. o Copies of the recommendations for the matter considered will be provided to

Council, PEO’s Enforcement committees and the respective natural science organization.

Costs o Each party shall be responsible for their own expenses o PEO and the natural science community would each be responsible for their own

expenses o All other costs would be shared equally between PEO and the natural scientists o Committee meeting costs would be absorbed by PEO

5 Proposed National Task Force

The Task Force recommends that a national Task Force be created, with a mandate to consider models for regulating, or in special circumstances, providing an exemption, for the practice of natural science.

Recommended Mandate To consider when it is in the public interest to require a person practising natural science to hold a license, the licensing requirements and/or exemption clauses for natural scientists. Concepts may include:

• Establishing one or more self-regulating bodies to regulate the practice of engineering and natural science and govern its license holders

o A Joint Practice Board may be an effective means to deal with the overlap between existing regulatory bodies.

• Provide “limited licenses” from existing regulatory bodies where the act within the practice of natural scientist falls within the practices of the regulated profession.


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• Create a Regulated Engineering and Science Professions Act, with a similar structure to the Regulated Health Professions Act.

• Development of appropriate exemption clauses for the practice of natural science.

In addition to representation from the natural science community and bodies that regulate professional engineering, the Task Force should consider representation from other established regulated professions, including geoscience, professional forestry, profession land surveyors, architects and government. The proposed Task Force should recognize the distinction between a “qualified person” and a license holder.


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6 Appendix A – Intent of Engineers Canada’s Companion Clause

6.1 The Intent when Developed in 1996 Intent of the CCPE/NSSC ‘Exemption clause’5

The clause reads as follows: Nothing in this Act shall prevent an individual who either holds a recognized honours or higher degree in one or more of the physical, chemical, life, computer, or mathematical sciences, or who possesses an equivalent combination of education, training and experience, or is acting under the direct supervision and control of an individual described in the preceding paragraph from practising natural science which, for the purposes of this Act, means any act (including management) requiring the application of scientific principles, competently performed. The intent of the CCPE-NSSC recommended clause, negotiated in the mid-1990s, was to exempt (“Nothing in this Act shall prevent...”) the defined group of natural scientists from the provisions of Engineering Acts under certain defined circumstances. (Note: we all perceive a problem with the last sentence in the box since many engineering acts also require the application of scientific principles.) The above intent was based on a common understanding by the parties (acquired during negotiations lasting many months) of the following:

1. Modern (‘expansive’) definitions of the practice of professional engineering proscribe (with limited exceptions) the undertaking by an individual, including a natural scientist, of any of a wide range of acts (planning, designing, reporting, etc.) which both:

i. utilize engineering principles, and ii. involve the safeguarding of (for example) property or economic interests.

2. The principles of engineering include (but are not limited to) the principles of natural

science. It follows that (in the absence of some kind of exemption clause) an individual competently practising natural science, and fully qualified to do so, would technically be infringing such Acts if, for example the work involved economic interests, even though such an individual would typically not be practising those principles of engineering that go beyond the principles of natural science.

5 P.S. Vincett/Henry van Driel January 7, 2011.


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3. It is not in the interests of the public or of the engineering and scientific professions (nor, as far as was known, was it the intention of the drafters of Provincial Engineering Acts) to prevent natural scientists (appropriately defined) from practising natural science. Indeed in many cases, the most (and often the only) qualified people to practise various natural sciences are natural scientists.

4. To be exempted, the act performed by a person practising natural science should require the application of scientific principles, competently performed.

5. At the time of the negotiations, clauses exempting natural scientists were contained

in the Engineering Acts of several Provinces, including Ontario and Quebec. 6.2 CCPE Board Decision At its Board meeting November 11-12, 1994, CCPE approved the recommendations of the CCPE Negotiating Committee with various natural science societies of Canada regarding a mutually acceptable solution to the concerns raised that CCPE’s 1992 definition infringes on the right of a natural scientist to practice natural science.

The motion carried: 5 for, 1 against with 6 abstentions. The Board felt that ratification by the provincial associations was not required. The minutes reflect that the majority of constituent associations felt the matter required resolution; however there were too many uncertainties to support the proposal at that time.

See Appendix 10. – Notes from CCPE Board meeting – November 1994

6.3 Status of “exemption clauses” covering some or all Natural Scientists As of late 2010, some form of exemption for (or including) some or all natural scientists are in place in six Provinces and one Territory: Manitoba, Saskatchewan, Quebec, PEI, New Brunswick, Newfoundland and Labrador, and the Yukon. Agreements to include an exemption clause were reached some time ago with the Provincial engineering associations in BC and NS, but both have been greatly delayed in passing new Acts by disputes with other professions. Thus, the only jurisdictions where there is neither an exemption nor an agreement to include one are Alberta, Ontario, NWT, and Nunavut. Further details are provided below. BC

. No exemption in the (old) Act, but agreement was reached with APEGBC to include one if/when a new Act is passed.

Alberta

. No exemption.

Saskatchewan: 28 (1). Subject to subsection (2), nothing in this Act prevents: .. (j) a person from practising his or her profession, trade or calling;”


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(2). subsection (1) applies only if a person mentioned in that subsection does not practise as a professional engineer or professional geoscientist”

Legal advice obtained by the natural scientists suggested that since ‘professional engineer’ is defined narrowly, as an individual who is registered with the association as a professional engineer, is that this clause exempts natural scientists. APEGS told the natural scientists at the time that they were already covered by section 28 and that the natural scientists’ legal opinion verifies that APEGS statement. This doesn’t mean that natural scientists can misuse title nor perform any activities without attracting enforcement action. Manitoba

Definition of "practice of natural science"

: The Manitoba Act specifically exempts the "practice of natural science" using the following clause/definition:

66(2) In clause (1)(l), "practice of natural science" means any act or activity, including management, requiring the application of scientific principles, competently performed, whether alone, in partnership, in an association of persons or in a body corporate, other than the practice of professional geoscience. QuebecNothing in this Act shall:

: Exemption for many natural scientists:

(e) prevent urbanists, agronomists and professional chemists from practising their profession in the field assigned to them by any law; (f) prevent any person from practising the profession of chemist, bacteriologist, geologist or physicist or from doing anything related to prospecting for minerals;

New BrunswickNothing contained in this Act shall be taken or construed to prohibit or preclude:

: Exemption for all natural scientists:

(c) any person who is a chemist, forester, physicist or other natural scientist, from practicing as such.

Nova Scotia

: No current exemption, but APENS agreed in 1996 to include one in their new Act. There have been several Act revisions in the interim, primarily to meet mobility requirements as set out in the Agreement on Internal Trade.

PEINothing in this Act shall be taken or construed to prohibit or preclude:

. Wide exemption:

(c) any person practising his profession, trade or calling, provided that the person shall not style or hold himself out as a professional engineer unless he is registered or licensed under this Act.

Newfoundland. Exemption for all natural scientists. (h) ‘practice of engineering’ means ......., but excludes practising as a natural scientist. However the same exclusion clause does not exist in the definition of geosciences. PEGNL raised the following concerns:


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• What would the physicists, chemists et al. say if they took a closer look at the definition of geosciences in the PEGNL Act?

• What is the rationale to have the exclusion in the engineering definition, but not the geoscience definition?

Yukon.

(2) Nothing in this Act shall prevent an individual Uses the CCPE-NSSC clause with minor re-wording:

(a) holds a recognized honours or higher degree in one or more of the physical, life, computer, or mathematical sciences, or

from practising natural science if the individual

(b) possesses an equivalent combination of education, training and experience, or is acting under the direct supervision and control of an individual described in paragraphs (a) or (b)

(3) For the purposes of subsection (2) “natural science” means any act (including management) which requires the application of scientific principles and is competently performed.

NWT.

No exemption.

Nunavut

. No exemption.


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7 Appendix B - Changes to the Professional Engineers Act On October 25, 2010 the Professional Engineers Act received Royal Assent. One of the 66 amendments adopted the national definition of the practice of professional engineering. The government’s amending Bill did not include the recommended exemption clause as a companion clause per Engineers Canada guideline. The natural scientist community raised the issue with government officials after third reading of the amending Bill had commenced. These officials asked PEO to work with the natural scientists to see if a regulatory solution to address the concerns of the natural scientists could be developed. 7.1 Background Excerpts from May 31, 1996 Joint Communiqué (NSSC and CCPE)

“…engineering Acts in Canada should not unintentionally restrict the practice of natural science while at the same time ensuring that engineering is practiced by qualified individuals.” “In recognition of the overlap of the legitimate practices of professional engineering and natural science, and to clarify that CCPE’s definition does not cover the practice of natural science, NSSC and CCPE now recommend that an exclusion clause be included in any legislation that uses CCPE Definition of the practice of professional engineering.”

The Engineers Canada Guideline of the definition of the practice of professional engineering provides:

“There is an overlap of the legitimate practices of professional engineering and natural science and there is a need to have a distinction between the practice of engineering and the practice of natural science.” and “Each Provincial and Territorial Engineering Act defines the practice of engineering for the purpose of restricting practice to those individuals who meet qualifications standards appropriate to ensure the protection of the public. Interpretation of the definition with respect to its application in individual circumstances is carried out by each provincial/territorial licensing body and its local judiciary. The following exemption clause is recommended as a companion clause to the definition when it is used to define engineering practice in legislation. Nothing in this Act shall prevent an individual, who either:

holds a recognized honours or higher degree in one or more of the physical, chemical, life, computer or mathematical science, or who possesses an equivalent combination of education, training, and experience, or is acting under the direct supervision and control of an individual described in the preceding paragraph from practising natural science which, for the purposes of this


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Act, means any act (including management) requiring the application of scientific principles, completely performed.”

7.2 Limited License

7.2.1 Regulation Making Powers – Classes of Licenses Excerpt from the Professional Engineers Act

7. (1) Subject to the approval of the Lieutenant Governor in Council and with prior review by the Minister, the Council may make regulations,

9. respecting any matter ancillary to the provisions of this Act with regard to the issuing, suspension and revocation of licences, certificates of authorization, temporary licences, provisional licences and limited licences, including but not limited to regulations respecting, i. the scope, standards and conduct of any examination set or approved by the

Council as a licensing requirement, ii. the curricula and standards of professional training programs offered by the

Council, iii. the academic, experience and other requirements for admission into

professional training programs, iv. classes of licences, v. the academic, experience and other requirements for the issuance of a

licence or any class of licence; v.1 the circumstances in which the Registrar shall refer an application for a

licence to a committee for the purposes of clause 14(4)(b), v.2 the establishment of an engineering technologist class of limited licence,

including prescribing requirements and qualifications for the issuance of an engineering technologist class of limited licence and terms and conditions that shall apply to the engineering technologist class of limited licence, and

vi. other classes of certificates of authorization, temporary licences, provisional licences and limited licences, including prescribing requirements and qualifications for the issuance of specified classes of certificates of authorization, temporary licences, provisional licences and limited licences, and terms and conditions that shall apply to specified classes of certificates of authorization, temporary licences, provisional licences and limited licences;

7.2.2 The requirements and qualifications for the issuance of a limited licence 1. One or more of the following:

i. A three-year diploma in engineering technology or a Bachelor of Technology degree in engineering technology from an institution approved by the Council.

ii. A four-year honours science degree in a discipline and from a university approved by the Council.

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90p28_f.htm#s7s1�


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iii. Academic qualifications accepted by the Council as equivalent to a diploma or degree mentioned in subparagraph i or ii.

2. Thirteen years of experience in engineering work acceptable to the Council, including the years spent in obtaining the post-secondary academic training referred to in paragraph 1 with at least one year of such experience under the supervision and direction of a Member or Members or under the supervision of a person authorized to practice professional engineering in the province or territory in Canada in which the experience was acquired and at least the last two years of the experience in the services within the practice of professional engineering with respect to which the limited licence is to apply.

3. Payment of the fee prescribed by this Regulation for a limited licence. 4. Successful completion of the Professional Practice Examination. 5. Good character. 6. A holder of a limited licence who returns the limited licence and related seal to the

Registrar and afterwards proposes to resume providing the services specified in the limited licence is entitled to be issued a new limited licence and related seal limited to the services specified in the previous limited licence.


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8 Appendix C – Overlapping Practices Committee

8.1 Guiding Statements for the Panel’s Consideration • Legislation must ensure that professional engineering is practiced by licensed

practitioners, unless the work is covered by some kind of exemption. • Natural scientists who practice those principles of engineering that go beyond the

principles of natural science will require a license to practice. • Natural scientists wish to continue to competently practice their professions without

having to hold a license from PEO, unless their work involves the application engineering principles that are not also the principles of natural science.

• The application of natural science as it relates to the delivery of services/products to the public may fall within the definition of professional engineering if the work applies those principles of engineering that are not also the principles of natural science.

8.2 PEO Enforcement Policy

PEO will take action against individuals or entities who are not licensed, who practice professional engineering or offer professional engineering services to the public. In addition, PEO enforces against those who may misrepresent themselves as professional engineers or use the reserved titles defined under Section 40 of the Act. PEO’s policy with respect to matters of concern is to contact the offenders, educate them as to the enforcement provisions of the Act, give them “a reasonable chance to comply” with the legislation and negotiate a satisfactory settlement. Legal proceedings are only utilized as a last resort where there is no cooperation from the offenders and where there is compelling evidence of an offence.

In cases which are clear violations of the Act, and evidence is available (i.e. good documentary evidence and/or convincing witnesses), PEO policy is to commence legal proceedings without delay.

8.2.1 Enforcement Policy Amendment PEO would amend its Enforcement Policy for matters involving recognized natural scientists, where the Registrar would:

1. Contact the alleged offending natural scientist, educate them as to the enforcement provisions of the Act, give them “a reasonable chance to comply” with the legislation and negotiate a satisfactory settlement.

2. Convene a panel of the Overlapping Practices Committee to assist in resolving the matter.

3. Legal proceedings would be used as a last resort where there is no cooperation from the alleged offending natural scientist, no acceptable resolution of the panel and where there is compelling evidence of an offence.

KAllen

Text Box

Appendix 9

Documents

Joint Engineering and Natural Science Task Force mandate of PEO’s Joint Engineering and Natural Science Task Force was “to establish a means to achieve the intent of Engineers