Lieutenant governor-in-council appointees on council

As the last issue of Engineering Dimensions illustrated, under section 3(2) of the Professional Engineers Act, up to 12 of PEO’s 29 councillors are appointed by the lieutenant governor of Ontario and are known as lieutenant governor-in-council appointees, or LGAs.

Some LGAs are professional engineers appointed (historically) to bring the perspectives of the engineering profession’s diverse disciplines, an outcome that can’t be guaranteed through the election process, while others are members of the public (lay LGAs) who can provide the perspective of non-engineers to balance council deliberations.

All PEO councillors, whether elected or appointed, carry the same responsibilities.

ENGINEER LGAs

How did PEO come to have LGAs on council? The answer is that government appointments representing disciplines of engineering on PEO council have been there almost from the regulator’s inception.

Five months after PEO council’s first meeting in August 1922, council comprised 18 members: a president, a vice president, an immediate past president and three councillors from each branch of engineering identified in the Professional Engineers Act.

Internal conflicts had arisen among the engineering disciplines, in particular mining engineers, who were apprehensive about losing control of their profession to the southern Ontario engineers, who were mainly in other disciplines. The idea of various disciplines, or “branches,” of engineering arose during the debates on revising the Canadian Society for Civil Engineering into the Engineering Institute of Canada (EIC). The word “civil” had now become more focused in its meaning, referring to fixed structures of all types, and had lost its connotation of “civilian engineer” (in contrast to military engineers). The EIC revision ensured these branches of engineering now had their own journals and conferences so their practitioners could focus on the technology and issues important to their practices. The 1922 act continued in this vein and was structured to have five branches represented on council–civil, mechanical, electrical, chemical and mining. Each branch elected its own two council members. Additionally, the government appointed one more engineer member to each of the branches.

The 1922 act reads:

“(4) Two councillors shall be elected annually from each branch of the Association by the vote of the registered members in such branch, and one councillor from each branch shall be appointed by the Lieutenant-Governor in Council.”

With the hand of government involved with appointments representing the branches, some measure of conflict avoidance was created, as well as protection for branches that might not get a representative elected should the act change–which it did.

In the 1969-1972 act revisions, the two elected councillors now came from regions rather than branches. Two councillors-at-large were also added, each with a two-year term, and elected in alternating years. However, the appointed councillors continued to represent the five branches with mechanical now including aeronautical and industrial, chemical now including metallurgical, and mining now including geology.

My appointment to council in 1990 still had these traditions floating around but showing signs of falling into disuse. I was an electrical engineer filling a civil slot. There was still some sense that branches of engineering needed representing. However, in time, since the 1984 act no longer contained any reference to appointments by branches, the tradition vanished.

LAY LGAs

Where do lay LGAs on council come in? Some history concerning Ontario lawyers sheds light on this issue.

The Law Society of Upper Canada (LSUC) website chronology contains an entry from 1974: “the first lay (non-lawyer) benchers are appointed by the Ontario government to represent the public interest at convocation” (https://www.lsuc.on.ca/with.aspx?id=1052).

Lay benchers (similar to PEO councillors) were appointed in 1974 to represent “the public interest at convocation,” (convocation being the term used to refer to a council meeting). However, since a licensing body is supposed to always act in the public interest, whether the councillors are elected or not, one wonders why this was needed.

Additional insight is suggested by a letter written to PEO by then Attorney General Howard Hampton in the early 1990s. In the letter, he asked PEO’s lay LGAs (which had been installed on council by that time) to tell him if PEO should have more appointed lay councillors. The apparent concern stemmed from the large number of complaints about the medical profession. Too often, it seemed, the public had the impression that doctors looked after their own with very light penalties given to those brought to discipline. The Ontario government had increased the number of lay appointees on the College of Physicians and Surgeons of Ontario’s (CPSO) council to 44 per cent. Should PEO do the same? Clearly, it was seen as important to give the public and government confidence that the system worked as expected to serve and protect the public interest.

Politically, it makes sense for the government to point to the fact that our self-regulating bodies have non-members on their councils as an additional public eye. This is strengthened further by the requirement that at least one of these people sit on discipline hearings.

Indeed, the Royal Commission Inquiry into Civil Rights, also known commonly as the McRuer Reports, supported this perspective, as seen in this snippet from a recent LSUC paper:

“Between 1968 and 1971, the Commission submitted three reports to the Lieutenant-Governor of the Province of Ontario. The first report was submitted on February 7, 1968, the second on September 15, 1969, and the third was submitted on February 22, 1971 (collectively, the ‘McRuer Reports’). With respect to the professions, the McRuer Reports urged that organizations governing lawyers, doctors, engineers, and other professionals had to be made more observant of due process in the exercise of their authority, more responsible to their membership, and more effectively subject to scrutiny by the legislature which empowered them. The reports proposed greater accountability in all the professions, and became the authoritative works used to advocate for lay representation in the legal profession.”

WERE WE THE FIRST?

In his paper, The History of Lay Benchers at The Law Society of Upper Canada: Marking 40 years of Public Representation, Ross Gower writes in reference to the new LSUC act:

“The third reading of Bill 104 took place on June 22, 1973, and it received royal assent that same day. As a result, the Law Society of Upper Canada became the first professional body in Ontario to officially include public representation in its governing body.

“…On Friday, January 17, 1975, Treasurer Stuart Thom welcomed the four Benchers appointed by the Lieutenant Governor on 20th November, 1974: Mr. Joseph D. Carrier, Toronto, Mr. Noel Ogilvie, Grimsby, Mrs. Roseanne Sutherland, Sudbury, and Mrs. Reginae M. Tait, Toronto. Roseanne Sutherland and Reginae Tait ‘were the first women ever to participate in governing the Law Society.’” (www.lsuc.on.ca/PDC/Archives/Resources/ArchivesResources/#laybenchers).

The 1969-1972 engineering act sees the addition of lay appointees as an option. The clause says:

“Lay Councillor, Legal Councillor

(6)    In addition to the councillors mentioned in subsection 1, the Lieutenant Governor in Council may appoint as councillors,

(a) a person who is not a member, and

(b) a person who is a barrister and solicitor of at least ten years standing at the bar of Ontario, both of whom are residents of Ontario.”

Their terms of office were three years and renewable. In reviewing PEO’s records it was found that: “The March 1975 issue of Ontario Digest lists lay members of APEO council. The names are Stanley Friesen (lay member) and James F. Kelleher, QC (legal member).”

This seems to suggest the first PEO lay appointees were appointed within months, if not at the same time, as those of the LSUC.

Oddly enough, APEO’s new act was dated October 1972, about eight months before LSUC’s act that created lay LGAs. Perhaps PEO was the first professional body in Ontario to officially include representatives of the public in its governing body.

What is undeniably true is the Ontario engineering profession was on the leading edge of new legislation coming forth on the heels of the McRuer Reports.

LAY VERSUS ENGINEER LGAs

We have a tendency today to lump all LGAs into the same category, but they are significantly different. Lay appointees, of course, stem from the work of McRuer on civil liberties.

Given that the McRuer Commission deliberated from 1968 to 1971 and that the revised engineering act was introduced virtually at this same time, it’s not surprising to see the introduction of new ideas on ensuring licensing bodies acted in the public interest. In The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997, Christopher Moore says the McRuer Reports set the tone for licensing bodies to be “more effectively subject to the scrutiny by the legislature which empowers them” (www.amazon.ca/Society-Canada-Ontarios-Lawyers-1797-1997/dp/0802041272).

The LSUC act was also under revision at this time and Attorney General Arthur Wishart played an active role in its revision. Since engineers also report through the attorney general, it is understandable that lay appointments were also introduced into the engineering act as well. Hence, this time period evidenced a desire to add lay appointees to self-regulating bodies, with a strong body of law to support the idea, and an attorney general highly involved in these affairs.

The engineer LGA, as previously discussed, is fundamentally different in its origin to the lay LGA. The engineer appointee comes from a historical quirk in the Ontario engineering profession’s formation. Not many other professions have “branches” or disciplines that are considerably different in their body of knowledge and works.

With over 30 disciplines of practice and adding a new one about every five years, PEO would do well to consider the need for such external government appointments. Given that the original concept of representation by branches has long since disappeared, the elimination of the engineer LGA would reduce the size of council to a more manageable size. However, before impulsively carrying this out, the profession needs to determine how it will govern an ever-expanding profession.

CONCLUSION

It was not until the McRuer Reports in 1968-1971 that a documented body of law was set down concerning how licensing bodies were to behave. That is: in the interest of the public and not in the interests of the specific profession. Since they are extensions of government exercising delegated authority, the self-regulating bodies are expected to be open and transparent in all they do so the public can be assured they are indeed acting to serve and protect the public interest. Given that the act of 1969-1970 was revised in this same time period, we can see the inclusion of lay appointees as an outgrowth of government’s desire to keep a closer eye on how professions operate. It appears PEO was on the leading edge of the new wave of thinking.

It’s clear from the body of law supporting the lay appointee that they are here to stay for all the self-regulating professions. It seems 20 to 33 per cent of the council is the going percentage of such appointees in other professions, with the CPSO a notable exception at 44 per cent. LSUC, for example, has had 16.7 per cent lay appointees since 1998, up from 9 per cent in 1974.

In the meantime, it’s clear PEO is one of Ontario’s and Canada’s leading self-regulating professions. Looking forward, the onus is on PEO to be innovative and creative in its mandate to govern the profession.


Peter DeVita, P.Eng., FEC, is president of DeVita Associates and is a former PEO president.

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