Proposed Amendments to the Engineers and Geoscientists Act
Over the past several years, Engineers and Geoscientists British Columbia has been undertaking a process to modernize its governing legislation, the Engineers and Geoscientists Act which was enacted in 1920. Eleven priority amendments were brought into law in 2012, and a further eight were submitted to government in July 2015. These proposed amendments would allow Engineers and Geoscientists BC to perform its regulatory duties more effectively and better support its mandate to protect public safety.
Although these amendments will assist in bringing the Act up to date, some significant issues remain that impact how Engineers and Geoscientists BC is able to deliver on its mandate. Perhaps the most fundamental issue relates to the means by which bylaws are approved.
Successive councils have worked to gradually bring this document up to date with the functions of a modern regulatory organization. Only government has the power to amend the Act, and any proposed changes must be made through a request to the Ministry of Advanced Education and approved by the BC Legislature.
Engineers and Geoscientists BC has been consulting with key stakeholders on the proposed changes to the Act since October 2014. Engineers and Geoscientists BC submitted a formal request to the Ministry of Advanced Education for changes to the Act in July and December 2015. If approved, draft legislation would be brought forward for the approval of the BC Legislature. The amended legislation would be brought into effect once royal assent was received from BC Lieutenant Governor.
The Engineers and Geoscientists Act is in need of modernization. Since the Act has never been completely rewritten since its inception in 1920, a number of outdated components of the legislation are in need of revisions to bring them up to date. Additionally, new provisions are needed to address conditions or challenges that didn’t previously exist, or hadn’t been considered. These proposed amendments would allow Engineers and Geoscientists BC to perform its regulatory duties more effectively and support its mandate to protect public safety.
Through changes to the Act, Engineers and Geoscientists BC is hoping to address a number of issues related to the work it does as a public safety regulator for engineering and geoscience. Broadly speaking, the proposed amendments can be divided into the following categories:
Change to Bylaw Ratification Process
Currently, under the Act, all bylaws must be ratified by two-thirds of voting members in order to pass. This can potentially lead to situations in which Council’s ability to deliver on the association’s core mandate is at risk, and leaves Engineers and Geoscientists BC with limited ability to enact change or respond to issues that significantly impact public safety.
Engineers and Geoscientists BC has a responsibility to deliver on its mandate of public protection. After serious consideration, Engineers and Geoscientists BC Council has decided to request a legislative amendment from government that would enable Council to pass bylaws, without member ratification, on matters related to professional practice and public safety.
Under the proposed model, which is in place for most other professional regulators and many other engineering and geoscientist regulators across the country, members would vote on bylaws related to the governance of the organization (e.g., conduct of meetings, nomination process for Council), and Council would pass bylaws for all matters relating to upholding the public interest (e.g., registration, quality management, and code of ethics requirements).
All bylaws would still require the approval of government prior to becoming law. Council has also committed to seeking and considering member feedback during the process of bylaw development, should Council be granted this bylaw-making authority.
Interim Suspension or Conditions by the Investigation Committee
In cases where it is believed that a member’s conduct poses an immediate danger to the public, Engineers and Geoscientists BC's Discipline Committee has the ability to issue a temporary suspension. However, this option does not become available until after the issue has first been considered by the Investigation Committee, legal counsel has been engaged to prepare a Notice of Inquiry, and a referral is made to the Discipline Committee. This limits Engineers and Geoscientists BC’s ability to act swiftly in order to protect the public.
However, it is in the public interest for Engineers and Geoscientists BC to take action as soon as possible when, for example, a professional’s judgment is in serious question and that person is involved in determining the safety of structures, terrain, products or systems for immediate use by the public. To address this concern, Engineers and Geoscientists BC is seeking an amendment to also allow the Investigation Committee to impose conditions or issue an interim suspension, given sufficient cause, without the additional delay of convening a second committee to perform this function. This change would not preclude due process as even with the temporary suspension in place, the matter would still progress to the Discipline Committee according to the usual procedure and the member or licensee would, as they do now, have recourse to the courts for an appeal of the temporary suspension.
Fitness to Practice
“Fitness to Practice” refers to matters such as substance abuse, depression, and mental health issues which may affect one’s professional judgment. Presently, the Act doesn’t provide for consideration of a person’s state of mental health in determining competence for professional registration or practice. The rationale for the introduction of “fitness to practice” provisions is to protect the public and to help, not punish, the member or licensee suffering from a health condition that impairs his or her ability to function.
When evaluating candidates for registration, no mechanism exists whereby medical assessments may be requested when Engineers and Geoscientists BC has reason to suspect that an applicant’s mental health may interfere detrimentally with their ability to practice. For members and licensees, Engineers and Geoscientists BC can only start to intervene, for example, with individuals suffering from addiction or mental health issues when the person’s behaviour results in a disciplinary issue. However, at the disciplinary stage, Engineers and Geoscientists BC’s intervention is essentially too late and solutions are confined to limiting or taking away a member’s right to practice.
Engineers and Geoscientists BC is proposing an amendment that would create a fitness to practice requirement. This would equip Engineers and Geoscientists BC to deal with the current and foreseeable challenges to public safety without discriminating against applicants and members. Any assessment of fitness to practice would be conducted by expert medical professionals, be limited to an applicant’s existing condition, and be related to Engineers and Geoscientists BC’s regulatory role.
Early Alternate Dispute Resolution
Disciplinary hearings are costly and time consuming for both Engineers and Geoscientists BC and the member or licensee involved. Alternate Dispute Resolution (ADR) is one of the tools that Engineers and Geoscientists BC currently uses to resolve discipline matters in lieu of resorting to a disciplinary hearing. ADR takes the form of a Consent Order, which typically imposes restrictions on an individual’s practice. ADR is effective and cost-efficient.
However, the Act currently limits the use of Consent Orders to the discipline stage of the complaint process, after a Notice of Inquiry is issued by the Discipline Committee. This means that even if all parties are amenable to ADR, it cannot be introduced until later, delaying an earlier resolution and limiting the time and cost savings that could be achieved for both parties.
Through an amendment to the Act, Engineers and Geoscientists BC would seek the ability to utilize ADR earlier in the process as a means of putting restrictions or remedial measures in place for unsafe practitioners sooner rather than later. This would also mean that a resolution could be reached with the member involved before a Notice of Inquiry is issued and legal costs are incurred.
Recognition of Licensees as Members Under the Act
Through the Engineering Licensee (Eng.L.) designation, Engineers and Geoscientists BC recognizes the ability of engineering licensees to practice within their area of expertise and scope of practice as the equivalent of professional engineer or geoscientist members. Licensees have the same voting privileges and opportunities to participate in the association’s governance.
However, the wording of the Engineers and Geoscientists Act currently draws a distinction between a “member” and “licensee.” The distinction is problematic because some third-party legislation has been interpreted to refer only to members therefore limiting the full participation of licensees within their scope. For example, certain jurisdictions in BC will not accept Letters of Assurance from an Eng.L. that a building is in compliance with the BC Building Code as the wording of the Local Government Act refers to “a professional engineer or architect registered as such” and does not specifically provide for a “licensee.”
It is a goal of Engineers and Geoscientists BC to support the role of licensees and recognize their practice rights, within their scope of practice and area of expertise. This also has the wider benefit of improving access to qualified engineering or geoscience expertise in regions of the province where there may be skill shortages. To this end, Engineers and Geoscientists BC is seeking to amend the wording in the Engineers and Geoscientist Act to inclusively define licensees as “members” along with professional engineers and professional geoscientists.
Removal of Council Members for Misconduct
Engineers and Geoscientists BC has no legal provision in the Act to remove council members, either elected or appointed, from office for misconduct. In plain terms, Engineers and Geoscientists BC faces the same problem as did Toronto city councillors in 2014 who had no method to remove the mayor, even though they felt this was warranted by his behaviour.
To support accountable and responsible governance, Engineers and Geoscientists BC is proposing an amendment to the Act that would require all council members to take an oath of office, whereby, if a council member were found to have breached the oath, they could be removed by two-thirds majority vote of the remaining members of council. This is a common provision in the Acts of other professional regulatory bodies in the province.
Provision for a Standard Administrative Process to Deal with Failure to Report or Comply with the Requirements of the CPD Bylaw
Although a CPD program is not currently required by bylaw, the Act already has provisions which facilitate the existence of a reporting CPD program. However, the wording of the Act currently states that a failure to comply with a CPD bylaw is to be routed through the investigation and discipline process. To improve the effectiveness of how such cases could be handled, Engineers and Geoscientists BC is seeking a provision within the Act that will enable a more efficient process for handling non-compliance with a CPD bylaw, such as reminder notices, followed by eventual cancellation of membership for non-compliance. This would be similar to the existing provision in the Act that prescribes how non-payment of membership fees is dealt with.
Removal of References to Board of Examiners
Prior to the creation of the Registration Committee, the Board of Examiners figured more prominently in the registration process. Now, references to the Board of Examiners in the Act no longer align with current practice for registration in BC, and we are seeking an amendment to remove or rewrite these outdated references. Additionally, to reflect the significance of its role to the registration process, the Registration Committee may become a statutory committee.
Removal of Requirement for Providing Meeting Notice by Prepaid Post
Currently there is a requirement for notice of meeting to be sent by prepaid post to all members and license holders, even though most members now interact with Engineers and Geoscientists BC only through electronic means. We propose to remove this requirement if the member is able to be directly reached through other methods of communication (e.g., email, digital journal).
Since October 2014, Engineers and Geoscientists BC has been presenting information to members and stakeholders on the Act and rationale for modernization, as well as an overview of the amendments and the reasons they are being proposed. Members have been informed of opportunities for dialogue and invited to participate.
Consultation has been undertaken through:
- Meetings and other engagement with members and key external stakeholders (regional consultation events, AIBC, ASTTBC, ACEC-BC).
- Meetings with Engineers and Geoscientists BC volunteer groups (e.g., Branch representatives, committees, past presidents).
- One-on-one interactions, in person and via phone and e-mail
- A member survey.