1. Behind the Blue Pages… PEO’s Disciplinary Powers and Procedures Bruce G. Matthews, P.Eng. Manager, Complaints & Discipline Regulatory Compliance

2. OVERVIEW Legislative / Regulatory Context Enforcement versus Discipline The Complaints & Discipline Process –Complaints and the Complaints Committee –Discipline Hearings Professional Misconduct Incompetence Penalties Questions

3. Context Engineering is a Regulated Profession –Professional Engineers Act, R.S.O. 1990, c. P-28 –Regulation 941, R.R.O. 1990 PEO’s Mandate (Section 2(3) of the Act) –To regulate the practice of professional engineering and to govern our licence holders and Certificate of Authorization holders in order that the public interest may be served and protected.

4. Defined Scope of Practice Practice of Professional Engineering (Section 1 of the Act) –Any act of designing, composing, evaluating, advising, reporting, directing or supervising wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles, but does not include practising as a natural scientist.

5. Exclusive Right to Practice Section 12 of the Act –(1) No person shall engage in the practice of professional engineering or hold himself, herself or itself out as engaging in the practice of professional engineering unless the person is the holder of a licence, a temporary licence, a provisional licence or a limited licence. –(2) No person shall offer to the public or engage in the business of providing to the public services that are within the practice of professional engineering except under and in accordance with a certificate of authorization. –(3) – (7) Various exceptions…

6. Exclusive Right to Title Section 40(2) of the Act If you are unlicensed and you… –use the title “professional engineer” or an abbreviation or variation thereof as an occupational or business designation… –use the title “engineer” or an abbreviation of that title in a manner that will lead to the belief… or… –use any term, title or description that will lead to the belief… …you are guilty of an offence punishable by fine.

7. Enforcement versus Discipline Enforcement –Action taken against unlicensed individuals or firms for illegal practice or misuse of title –PEO first seeks voluntary compliance –Can be prosecuted in the courts Discipline –Action taken against licence or C of A holders due to professional misconduct or incompetence –Prosecuted within PEO (Discipline Hearing)

8. The Complaints & Discipline Process Complaints –Initiated by members of the public, other P.Eng.’s or media reports –Investigated by staff in an objective manner –Expert opinions obtained if required Complaints Committee (see Section 24 of the Act) –Send to the Discipline Committee (in whole or in part) –Send to discipline via the Stipulated Order process –Dismiss the complaint –Issue letter of advice and / or request an interview

9. The Discipline Hearing Very Similar to a Trial in the Courts –Adversarial relationship between PEO (the prosecutor) and the member (the defendant) –Panel of five Discipline Committee members are the judges –Court reporter / witness box –Rules of evidence and rules of civil procedure apply (e.g., hearsay evidence) –Testimony under oath / examination and cross-examination –Documents filed as exhibits –Generally open to the public (a schedule is published)

10. The Discipline Hearing – con’t Order of Events –Introduction / disclaimer by Chair of Discipline Panel –Filing of Notice of Hearing –Opening statements (PEO & defence) –PEO presents its case (i.e., witnesses & exhibits) –Defence presents its case –Argument and submissions –Discipline Panel deliberates and renders decision –PEO & defence submissions with respect to penalty –Discipline Panel deliberates and issues penalty order

11. The Discipline Hearing – con’t Burden of Proof is on PEO –standard of proof is “balance of probabilities” (civil standard) not “beyond reasonable doubt” (criminal standard) –where allegations / implications are serious, proof must be clear and convincing, based on cogent evidence –Discipline Panel can only consider the evidence that has been presented –finding is guilty / not guilty of professional misconduct and/or incompetence

12. The Discipline Hearing – con’t Plea Bargains –PEO seeks to minimize the length and cost of a discipline hearing by seeking: Agreement on facts Admission of guilt Agreement on penalty terms –PEO looks favourably at cooperative, contrite defendants and will agree to lesser penalty terms than would otherwise be sought at the end of a contested hearing –Public interest is always the paramount consideration –Vast majority of PEO’s discipline cases involve plea bargains

13. Professional Misconduct Section 28(2) of the Act A practitioner is guilty of professional misconduct if: –(a) the practitioner has been found guilty of an offence that is relevant to their suitability to practice –(b) the practitioner is guilty of professional misconduct as defined in the Regulations

14. Professional Misconduct – con’t Section 72 of Regulation 941 Clearly defines actions and conduct that constitute professional misconduct and includes: –Negligence –Failure to act to correct or report a dangerous situation –Failure to comply with applicable codes, standards, etc. –Sealing a final document without having actually prepared or checked it –Undertaking work outside your experience and training –Failure to disclose a conflict of interest –Permitting or assisting illegal practice –Harassment

15. Professional Misconduct – con’t Section 72 of Regulation 941 – con’t –excludes acts that are solely a breach of the Code of Ethics (see Section 72(2)(g)) –nonetheless, there is some overlap with the Code of Ethics –Section 72(2)(j) is a “catch-all” relating to relevant conduct that would be regarded by the profession as disgraceful, dishonourable or unprofessional

16. Incompetence Section 28(3) of the Act –Serious lack of knowledge, skill or judgment, or disregard for the public welfare to an extent that demonstrates the person is unfit to carry out the responsibilities of a professional engineer –Physical or mental condition or disorder

17. Penalties Section 28(4) of the Act gives the Discipline Panel certain powers if a guilty finding has been made –revoke or suspend a licence or C of A –impose terms, conditions or limitations on a licence or C of A –assign exams or a course of study –reprimand, admonish or counsel the licence holder –impose fines / award costs –order publication in summary or in detail, with or without names (appears in the Gazette, aka the Blue Pages)

18. Statistics # of Complaint Files Opened Each Year –between 80 and 100 # of Complaints Considered by the Complaints Committee –between 30 and 35 # of Complaints Referred to the Discipline Committee –approx. 15

19. Questions? For more information contact Professional Engineers Ontario at: –416-224-1100 or 1-800-339-3716 –www.peo.on.ca