Public safety, transparency and governance improvements under the Professional Engineers Act

For the past three years, PEO has worked with the Ministry of the Attorney General to identify changes to the Professional Engineers Act necessary to improve public safety protection and transparency with respect to the practice of professional engineering in Ontario, stemming from the 2012 Algo Centre Mall collapse in Elliot Lake, Ontario. These act changes were made in Schedule 34 of Bill 177, the Stronger, Fairer Ontario (Budget Measures) Act, 2017, which was passed by the Ontario Legislative Assembly on December 14, 2017 and came into effect the same day. The policy intents for these changes were approved by Council on February 5, 2016, June 24, 2016, and September 23, 2016, and the final wording for the changes was accepted by PEO’s Legislation Committee on September 8, 2017.

What are these changes and what do they mean for PEO’s licence holders?

1. Continuing jurisdiction over members or holders of licences or certificates of authorization (Cs of A) that have been revoked [sections 5(2), 22(1), 22.1(new)]

This public safety protection measure ensures PEO has jurisdiction over conduct during licensure, even if the licence or C of A is revoked before the complaint is received by PEO. This is in line with other professional regulatory legislation, such as the Regulated Health Professions Act and the Chartered Accountants Act, 2010. Robert Wood had inspected the Algo Centre Mall a few weeks before it collapsed. A Registrar’s Investigation led to a complaint being made to PEO. However, his licence was revoked for unrelated reasons before the complaint was made. PEO’s Discipline Committee decided it did not have jurisdiction to deal with the professional misconduct charges against Wood arising from the Algo Centre Mall roof collapse, since his licence had been revoked before the complaint was filed. PEO always had jurisdiction over conduct during licensure despite resignation or cancellation. The amendments add jurisdiction over revoked members and holders, and clarifies continuing jurisdiction over suspended members and holders.

2. The power to make regulations for continuing education [section 7(1) paragraph 27]

One of Commissioner Paul Bélanger’s recommendations on the Elliot Lake Commission of Inquiry was for PEO to institute a mandatory continuing professional education program for all professional engineers. The Professional Engineers Act did not provide authority for PEO to create regulations to deal with enforcement of mandatory requirements—the act only referred to “providing for continuing education of members” (P.Eng. licence holders only). 

This change provides Council with the authority to make regulations under the act governing the continuing education of holders of temporary licences, provisional licences and limited licences as well as of members, including sanctions for non-compliance.

It is important to note that there are no operational or policy changes or impacts on licence holders at this time from this change, and no regulation changes are forthcoming. Participation in PEO’s Practice Evaluation and Knowledge (PEAK) program is still voluntary, and Council will be reviewing the program in June 2018 to determine its direction.

3. A reduced threshold for members’ confirmation of a bylaw passed by Council [section 8(3)]

Subsection 8(3) of the act was amended to change how bylaws pertaining to PEO’s administrative and domestic affairs passed by Council may be confirmed. In 2010, under the Open for Business Act changes, the bylaw confirmation threshold was raised to a majority of the members (PEO has over 85,000 members), which has proven to be unworkable.

Council continues to be able to decide if any bylaw change it passes needs to be confirmed by a vote of the members. Currently, section 59 of By-Law No. 1 requires that changes to the annual fees for licence holders must be confirmed by the members. The only difference is the threshold level, which returns to the pre-2010 level of the majority of the members voting on the bylaw change. 

4. Giving the registrar power to issue a Notice of Proposal to suspend or revoke [sections 14(2), 15(8)(c), 18(2)(c), 19(1),(7),(7.1)(new),(16)]

Before the recent amendments, the registrar had power to issue a Notice of Proposal to suspend or revoke a C of A or a temporary, provisional or limited licence, but not a membership. This gap has now been filled, and the registrar’s power now extends to all types of licences and authorization under the act. This public safety protection measure allows the registrar to issue a Notice of Proposal to suspend or revoke the licence of all types of licence holders and C of A holders where:

“the registrar is of the opinion, on reasonable and probable grounds,

  1. that the past conduct of the applicant for or the holder of the licence affords grounds for the belief that the applicant or holder will not engage in the practice of professional engineering in accordance with the law and with honesty and integrity;
  2. that the holder of the licence does not meet the requirements or the qualifications for the issuance of the licence set out in the regulations; or
  3. that there has been a breach of a term, condition or limitation of the licence.”

If you are given a Notice of Proposal to suspend or revoke under this section, you have the right to challenge it by requesting a hearing by the Registration Committee within 30 days. The Registration Committee has the power to uphold or to reject the registrar’s proposal to suspend or revoke, or to impose conditions, terms or limitations on the licence or C of A. If you do not make a request to the Registration Committee for a hearing within 30 days of receiving the notice, the licence or C of A will be suspended or revoked as proposed.

5. Allowing Discipline Committee decisions to be added to the register (online licence holder directory) [sections 21(1)(para.3.1)(new), (4)(new)]

This transparency measure will provide a history of any discipline information concerning a licence holder, regardless of whether the licence holder was found guilty or not guilty, to the public via PEO’s website. Prospective clients may use the information on the register to validate the information provided by those offering professional engineering services to the public, or to avoid hiring someone without a licence or whose licence has been suspended. It will also allow licence holders who were found not guilty to demonstrate those findings to their current and prospective clients.

6. Removing the requirement for elected councillors to serve on Discipline Committee hearing panels [section 27(5)(a)]

Under the act, disciplinary hearing panels are composed of different types of members of the Discipline Committee, including an elected member of Council. Since the demands of an elected councillor from other committees make it difficult for them to commit to participating on hearing panels, the requirement to have them on a panel is being removed to expedite the formation of discipline hearing panels. Elected councillors (if available) can still participate on disciplinary hearing panels. This change was originally recommended by PEO’s Complaints and Discipline Task Force in 2011.  

7. Allowing public access to Discipline Committee hearing evidence and transcripts [sections 30(5),(5.1,5.2)(new)]

This transparency measure will expand the scope of available documentary evidence and transcripts for discipline hearings to persons or organizations other than the involved parties, such as the media, members of the public or other professional associations. Non-parties will be able to request (and pay for) copies of documents filed as exhibits and hearings transcripts, which are currently usually only produced upon request by one of the parties. Documentary evidence that is excluded by the discipline hearing panel due to public safety or financial or personal matters under section 30 (4.1) of the Professional Engineers Act will continue to be excluded from public disclosure.

8. Giving authority to the registrar to release information to other authorities [section 38 (1.1)(new)]

This safety measure will enable the registrar to forward information that comes to his or her attention—where there is a public safety concern—to the appropriate regulatory organization for further investigation or actions under that organization’s jurisdiction. These organizations could include federal, provincial or municipal governments (or their departments, ministries, special purpose bodies, agencies, boards or commissions) or the Ontario Provincial Police or local police services. The net effect would be greater public safety, since PEO does not have the power to take immediate steps to rectify or avert an imminent public safety issue, while other regulatory authorities do have such powers. This provision would also protect the registrar from prosecution under section 38(3) of the Professional Engineers Act, where he or she has disclosed such information for this purpose.

Jordan Max is manager of policy and Leah Price is counsel for regulatory compliance at PEO.