1 - ospe course 2007 - content slides only

11All rights reserved. Copyright Vantage Professional Development, 2007.

Professional EngineerProfessional Engineers of Ontarios of Ontario

Professional Practice ExaminationProfessional Practice Examination

Distance Learning Distance Learning

Preparatory CoursePreparatory CoursePresented byPresented by

Dave House and Paula PuddyDave House and Paula Puddy

Topic: Distance Learning Preparatory Course

Tab 1 of the workbook contains the ethics and law materials that highlight important areas you need to know for the exam. At the top of each page in Tab 1 are the power point slides from the workshop. Underneath each slide is the accompanyingexplanation.

Read the power point slide at the top of the page first followed by the explanation.

If you require additional reading on a topic, we have referred you to the appropriate page in the ethics or law textbook. We also refer you to other Tabs in the workbook.


Overview of the CourseOverview of the Course

Geared specifically towards passing the Geared specifically towards passing the Professional Practice ExamProfessional Practice Exam

Focus is on topics covered historically in PPE Focus is on topics covered historically in PPE examinations only.examinations only.

Based upon 2 day workshops offered through Based upon 2 day workshops offered through OSPEOSPE

Instructors:Instructors: Dave House, Dave House, P.EngP.Eng., M.B.A.., M.B.A. Paula Puddy, LL.B., M.B.A.Paula Puddy, LL.B., M.B.A.

These PowerPoint slides were originally developed for a two day PPE workshop and have been modified for this distance learning course based on demand. The explanation at the bottom of each page covers the discussions of the liveinstructors at these workshops related to each slide.


Regulation of the Profession of Regulation of the Profession of Engineering Engineering

&&Code of Ethics &Code of Ethics &

Professional MisconductProfessional Misconduct

Topic: Regulation of the Profession, Code of Ethics and Professional MisconductLength: 1 week


Characteristics of a ProfessionCharacteristics of a Profession

Intellectual rather than manualIntellectual rather than manual Relationship of trust between the practitioner Relationship of trust between the practitioner

and the client and the client Public obligation Public obligation Organizational structureOrganizational structure High standards of competence and conductHigh standards of competence and conduct

For more information read: Ethics Text pg 14 and Workbook Tab 4 pg 3,4

Those writing the Professional Practice Exam need to be aware that engineering is a profession. A profession has certain characteristics listed above and is different from non-professional work such as a cook in a restaurant. Other professions include medical doctors and lawyers.

These characteristics are fairly clear. Organizational structure refers to the regulation of the profession.


Does engineering qualify?Does engineering qualify?

YES!YES!

Engineering is a clearly a profession. It meets all the criteria discussed on the previous slide. Organizational structure is provided through Professional Engineers Ontario (PEO).


Definition of Professional Definition of Professional EngineeringEngineering

Any act of designing, composing, evaluating, Any act of designing, composing, evaluating, advising, reporting, directing or supervising advising, reporting, directing or supervising wherein the safeguarding of life, health, property wherein the safeguarding of life, health, property or the public welfare is concerned and that or the public welfare is concerned and that requires the application of engineering requires the application of engineering principles, but does not include practising as a principles, but does not include practising as a natural scientist.natural scientist.

Professional engineering has been clearly defined by PEO. Note professional engineering includes any work that involves engineering judgement and includes more than just design drawings. The works relationship to the public is also important to this definition.


The PublicThe Public

The public is anyone other than the practitioner The public is anyone other than the practitioner and the practitionerand the practitioners employer. s employer.

Industrial exemption:Industrial exemption: NonNon--licensed persons may do work related to licensed persons may do work related to

production machinery, tooling, and processes within production machinery, tooling, and processes within their employertheir employers facility.s facility.

A licensed engineer is still required for evaluation of A licensed engineer is still required for evaluation of safety approval and other areas including structures, safety approval and other areas including structures, pressure vesselspressure vessels

As professional engineering is defined as work for the public, it should be noted that technical work for your employer is NOT considered professional engineering and many technical activities can be done in industry by those who do not hold a professional engineering licence.

Note using this definition, the public may be other businesses or government agencies.

There are some circumstances in which work for an employer must be done by a licensed engineer such as safety approvals of new equipment in manufacturing.


Regulation of the ProfessionRegulation of the Profession

Engineering has been regulated in Ontario since Engineering has been regulated in Ontario since 1922.1922.

A Licence is required to practise engineering or A Licence is required to practise engineering or use the title use the title Professional EngineerProfessional Engineer or P.Eng.or P.Eng.

SelfSelf--RegulatedRegulated Professional Engineers Ontario (PEO)Professional Engineers Ontario (PEO) Professional Engineers ActProfessional Engineers Act

For more information read Ethics Text pg 29,30

You should note that professional engineers are regulated separately in each province. In Ontario, PEO regulates the profession. You cannot call yourself a professional engineer or do professional engineering work without a licence from PEO.

PEO is self-regulated meaning that the profession is regulated by licensed engineers who are elected by members of the profession. This is quite different from government-regulated where the government would create a body to regulate the profession.

The Professional Engineers Act gives PEO legal authority to regulate the profession.


Professional Engineers OntarioProfessional Engineers Ontario

PEO PEO Regulates the practice of professional Regulates the practice of professional

engineering in Ontario. It governs those engineering in Ontario. It governs those individuals and organizations that it licenses in individuals and organizations that it licenses in order order that the public interest may be served that the public interest may be served and protectedand protected..

Professional Engineers Ontarios (PEO) goal of serving the publics interest is paramount. Its function is not to serve the interests of the engineers. This makes it quite different from a labour union, for example. A unions goal is generally to serve the interests of its membership.

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Professional Engineers OntarioProfessional Engineers Ontario Governs the profession Governs the profession with the force of lawwith the force of law

under the Professional Engineers Act.under the Professional Engineers Act. PEO mandated to establish, maintain, and PEO mandated to establish, maintain, and

develop standards of:develop standards of:1.1. Knowledge and skillKnowledge and skill2.2. Qualification and standards of practice for the Qualification and standards of practice for the

practice of professional engineeringpractice of professional engineering3.3. Professional ethicsProfessional ethics4.4. Promote public awareness of the role of PEO Promote public awareness of the role of PEO

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Ontario Society of Professional Ontario Society of Professional EngineersEngineers

Created in April, 2000Created in April, 2000 MemberMember--interest, advocacy organization created interest, advocacy organization created

by PEO and CSPEby PEO and CSPE Voluntary membershipVoluntary membership No regulatory powersNo regulatory powers Focus on issues important to membersFocus on issues important to members Career services, professional developmentCareer services, professional development

The Ontario Society of Professional Engineers is not a regulating body. It developed as a result of the perceived conflict PEO had in attempting to serve both the needs of the public and the needs of professional engineers. OSPE serves the needs of the professional engineers such as training.

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The Iron RingThe Iron Ring

Worn by engineers in Canada Worn by engineers in Canada The Ritual of the Calling of the EngineerThe Ritual of the Calling of the Engineer Personal obligationPersonal obligation Not connected with academic or regulatory Not connected with academic or regulatory

institutionsinstitutions

For more information read Ethics Text pg 358

There is often confusion amongst the public regarding the iron ring. It is a Canadian tradition for engineers, at the end of their university education, to attend the Ritual and receive the iron ring. It is a personal obligation that has no connection with PEO. Wearing an iron ring in no way signifies that a person is a professional engineer.

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University University Engineering DegreeEngineering Degree

Degrees may be granted by universities.Degrees may be granted by universities. The university decides academic and curriculum The university decides academic and curriculum

requirementsrequirements A degree in engineering does not entitle a A degree in engineering does not entitle a

person to call themselves a professional engineerperson to call themselves a professional engineer

A university degree in engineering is a very important step in becoming a professional engineer. It is the regulating body PEO that issues licences that allow individuals to practise or call themselves professional engineers. A university degree, by itself, is not sufficient to carry the professional engineering designation.

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Admission to the ProfessionAdmission to the Profession Canadian citizen or permanent residentCanadian citizen or permanent resident Must be at least 18 years oldMust be at least 18 years old Be of good characterBe of good character BachelorBachelors degree from Canadian universitys degree from Canadian university

Canadian Council of Professional Engineers (CCPE)Canadian Council of Professional Engineers (CCPE) Canadian Engineering Accreditation Board (CEAB)Canadian Engineering Accreditation Board (CEAB)

Foreign graduate and confirmatory exam programForeign graduate and confirmatory exam program Four years engineering work experienceFour years engineering work experience

At least 1 year must be obtained in CanadaAt least 1 year must be obtained in Canada Credit is given for graduate degreesCredit is given for graduate degrees Under supervision of a professional engineerUnder supervision of a professional engineer

Pass the PEO Professional Practice Examination Pass the PEO Professional Practice Examination Professional Practice & Ethics, Engineering Law & Professional LProfessional Practice & Ethics, Engineering Law & Professional Liabilityiability

These are the requirements for becoming a professional engineer.

Note if the candidate has graduated from a non-Canadian university or does not have a university engineering degree, the requirements for confirmatory examinations will be dealt with on a case basis. The exams are technical in nature (calculus, thermodynamics, electrical theory) and can require a great deal of effort for people who completed their degrees many years earlier. An applicant may have to write all, some or none of these exams depending upon her specific situation.

The foreign graduate requirements are not intended to be discriminatory. The Canadian Engineering Accreditation Board only has the resources to review the programs at Canadian Universities.

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Admittance to the ProfessionAdmittance to the Profession

Upon satisfactory completion of the Upon satisfactory completion of the requirements:requirements: You are issued a licence to practise professional You are issued a licence to practise professional

engineeringengineering A seal (stamp)A seal (stamp) You may use the abbreviation You may use the abbreviation P.Eng.P.Eng.

You cannot use the P.Eng. designation on business cards or on your resume until PEO permits you to do so. The licence looks much like a university degree and indicates that you are entitled to practise as a professional engineer in Ontario. The seal is a rubber stamp.

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The EngineerThe Engineers Seals Seal

Every holder of a licence (incl. temporary & Every holder of a licence (incl. temporary & limited) who provides to the public a service limited) who provides to the public a service that is within the practice of professional that is within the practice of professional engineering shall sign, date, and affix the engineering shall sign, date, and affix the holderholders seal to every final drawing, s seal to every final drawing, specification, plan, report, or other document specification, plan, report, or other document prepared or checked as part of the service.prepared or checked as part of the service.

For more information read Ethics text pages 202-206

All individuals granted a licence in Ontario are given a seal. Professional engineering work is to be sealed signed and dated.

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EngineerEngineers Seals Seal

An engineers seal would also display the holders name.

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The EngineerThe Engineers Seals Seal Seal should be legible and clear.Seal should be legible and clear. Design engineer and approving engineer should Design engineer and approving engineer should

seal. (if only one seal. (if only one it should be the latter.)it should be the latter.) Drawings that cross disciplines should be sealed by Drawings that cross disciplines should be sealed by

responsible engineer in each discipline.responsible engineer in each discipline. Seal should be applied to copies not the master.Seal should be applied to copies not the master. Drawing changes must be sealed. Drawing changes must be sealed. Seal should not be used in advertising, business Seal should not be used in advertising, business

cardscards

For more information read - Tab 4, pgs 18,19.

PEO is very specific about how the seal is to be used. It is important to ensure that master copies of drawings and documents are not sealed. By sealing only copies, the responsible engineer will be aware of any changes made and to whom the drawings/documents are being distributed.

Frivolous use of the seal sealing anything other than engineering documents is not permitted.

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Electronic DocumentsElectronic Documents

Documents stored in electronic form have the Documents stored in electronic form have the same validity as hard documents in Ontariosame validity as hard documents in Ontario

Electronic documents may be sealedElectronic documents may be sealed There must be a well documented system in There must be a well documented system in

place to ensure that changes cannot be made to place to ensure that changes cannot be made to sealed electronic documents without the proper sealed electronic documents without the proper review. review.

Recently PEO has allowed the use of electronic seals. It is critical, however, that systems be in place that prevent unauthorized use of the engineers seal.

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Significance of the Significance of the Professional EngineerProfessional Engineers Seals Seal

A distinctive mark of a professional engineer for A distinctive mark of a professional engineer for the publicthe public

It assures the public that the work is to a high It assures the public that the work is to a high standardstandard

It indicates that a professional engineer has It indicates that a professional engineer has taken responsibility for the worktaken responsibility for the work

It does not guarantee perfection.It does not guarantee perfection.

The engineers seal is intended to indicate to the public that the work has been done by a professional engineer. It does not guarantee perfection nor does it necessarily increase liability for the individual who has sealed the work. i.e. A practitioner cannot avoid legal liability by not sealing engineering documents.

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Other LicencesOther Licences

There are 3 other special licences issued for There are 3 other special licences issued for special circumstances.special circumstances. ProvisionalProvisional TemporaryTemporary LimitedLimited

For more information read - Workbook Tab 4 pg 16,17

Only those issued a full licence are members of PEO. Holders of the above are not members of PEO.

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Provisional LicenceProvisional Licence

Provisional licenceProvisional licence Meet all qualifications for PEO licenseMeet all qualifications for PEO license Canadian 12 month work experience not metCanadian 12 month work experience not met 12 month duration12 month duration Must work under supervision of a licensed memberMust work under supervision of a licensed member

This licence is intended for the individual who has fulfilled all the requirements for a licence except for the year of Canadian work experience. This license was introduced to assist international applicants by validating their credentials. This tells potential employers that an individual meets all requirements set forth by PEO to obtain a licence except Canadian work experience. This is intended to aid these individuals in obtaining Canadian employment allowing them to gain Canadian work experience.

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Temporary LicenceTemporary Licence

Issued for individual project/disciplineIssued for individual project/discipline Applicants are members of another provinceApplicants are members of another provinces s

associationassociation NonNon--Canadians must:Canadians must: Have 10 years work experienceHave 10 years work experience Provide academic transcriptsProvide academic transcripts Equivalent professional engineering membershipEquivalent professional engineering membership Collaborate with a PEO licensed memberCollaborate with a PEO licensed member

12 month duration12 month duration

This licence is not intended for individuals planning to move to Ontario and practise engineering. It is intended to allow engineers who live and work in other jurisdictions (other provinces or countries) to work on specific engineering projects within Ontario. An example would be an Engineering firm in Alberta undertaking a building project in Toronto.

It is relatively straight-forward for professional engineers in other provinces to obtain this licence. These individuals must apply to PEO and pay the necessary fees. There are more requirements for internationally based engineers including the necessity to collaborate with a PEO licensed member.

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Limited LicenceLimited Licence

Limited to specific services and employerLimited to specific services and employer At least 13 years of specialized experienceAt least 13 years of specialized experience Applicant has 3Applicant has 3--year engineering technology year engineering technology

diploma or 4diploma or 4--year honours science degreeyear honours science degree Passes PPEPasses PPE Good characterGood character

The limited licence is an attempt to recognize that there are individuals with tremendous experience and knowledge in some fields that, by the definition, would be considered professional engineering, who do not have engineering degrees. This licence allows individuals with science degrees and engineering technology diplomas to practice professional engineering within a specific scope of work for a specific employer.

This is quite different from a full licence holder who may perform any work they are competent to perform for any employer. The engineer may use her judgement in determining what work she is competent to perform.

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Licensed MembersLicensed Members

Temporary, Limited, and Provisional Temporary, Limited, and Provisional licencelicenceholders are NOT members of PEOholders are NOT members of PEO

A temporary A temporary licencelicence holder may use the title holder may use the title P.Eng. P.Eng.

A small point, but it comes up frequently in the exams! For example: Licensed engineers from other provinces in Canada who have temporary licences in Ontario may continue to call themselves Professional engineers. Provisional and limited licence holders may not.

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Certificate of AuthorizationCertificate of Authorization Issued by PEO to allow individuals and business Issued by PEO to allow individuals and business

entities to offer and provide professional engineering entities to offer and provide professional engineering services to the services to the public.public.

Must designate one or more professional engineers to Must designate one or more professional engineers to assume responsibility for engineering servicesassume responsibility for engineering services

Designated engineer must have at least 5 years of Designated engineer must have at least 5 years of experienceexperience

Must carry professional liability insurance or disclose Must carry professional liability insurance or disclose lack of insurance to all clientslack of insurance to all clients

For more information read: Ethics text pg 44 and Workbook Tab 4, pg 15,16

The Certificate of Authorization can be thought of as a licence allowing a business to offer engineering services to the public. PEO regulates engineering businesses as well as individuals.

Note that a person, who is self-employed, providing professional engineering services to the public must have a Certificate of Authorization and a professional engineering licence.

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Consulting EngineerConsulting Engineer

Title cannot be used without authorization from PEOTitle cannot be used without authorization from PEO To apply to use designation, you must meet:To apply to use designation, you must meet:

PEO memberPEO member Certificate of AuthorizationCertificate of Authorization Five years experience above that required for membership Five years experience above that required for membership

(nine years total)(nine years total) Primarily engaged in independent practice for at least 2 yearsPrimarily engaged in independent practice for at least 2 years May be required to write examinations.May be required to write examinations.

PEO regulates the use of the term consulting engineer. Neither an individual nor a business can use this term without PEOs permission. The requirements of PEO to use the term are listed above.

It is intended that the public perceives engineers with the consulting designation as engineers with a very high degree of knowledge and experience.

Note as a licensed engineer, you may do consulting type work for the public without the designation (allowing you to fulfill the second last point above) but you cannot call yourself a consulting engineer until you have fulfilled the above requirements and have applied to PEO to do so. This includes business cards, signs, and advertising.

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EthicsEthics

Branch of philosophyBranch of philosophy The study of :The study of : Right and wrongRight and wrong Good and evilGood and evil Obligations and rightsObligations and rights

If there is a question on the PPE that asks you to describe Ethics, you can discuss some of the points outlined above.

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Code of EthicsCode of Ethics

The exam focuses almost exclusively on The The exam focuses almost exclusively on The Engineering Code of Ethics Engineering Code of Ethics

Basic guide for conduct of a Basic guide for conduct of a practisingpractisingprofessional engineerprofessional engineer

It is not enforceable under the Professional It is not enforceable under the Professional Engineers ActEngineers Act

You need to know the code well You need to know the code well You will be provided a copy at the examYou will be provided a copy at the exam

Topic: Code of EthicsFor more information read: Workbook, Tab 2

The intent of the PPE exam is not to determine if the candidate is ethical nor does it focus on the philosophy of ethics. PEO wants to ensure that candidates are familiar with the Code of Ethics (Code) and know how it applies in practice.

Note that the Code of Ethics is NOT enforceable in Ontario. It is a guideline for practice.

You should be very familiar with every section of the Code prior to the exam. The following slides copy each section of the Code. The explanations below is intended to clarify each section and subsection.

The Code is written in a manner that often seems to repeat. This is a legal method of writing to ensure no specific situation sneaks through a loophole in the wording.

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The Professional EngineersThe Professional Engineers Code of Code of EthicsEthics

Guide to professional conduct for a practising Guide to professional conduct for a practising professional engineer with respect to:professional engineer with respect to: SocietySociety EmployersEmployers ClientsClients Colleagues, employees, and subordinatesColleagues, employees, and subordinates The engineering professionThe engineering profession Herself/himselfHerself/himself

The Code is a guide to practise with respect to everybody.

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The Code of EthicsThe Code of Ethics

1.1. It is the duty of a practitioner to the public, to the It is the duty of a practitioner to the public, to the practitionerpractitioners employer, to the practitioners employer, to the practitioners clients, to other s clients, to other members of the practitionermembers of the practitioners profession, and to the s profession, and to the practitioner to act at all times with,practitioner to act at all times with,

i.i. Fairness and loyalty to the practitionerFairness and loyalty to the practitioners associates, employers, s associates, employers, clients, subordinates and employees,clients, subordinates and employees,

ii.ii. Fidelity to public needsFidelity to public needsiii.iii. Devotion to high ideals of personal honour and professional Devotion to high ideals of personal honour and professional

integrityintegrityiv.iv. Knowledge of developments in the area of professional Knowledge of developments in the area of professional

engineering relevant to any services that are undertaken, andengineering relevant to any services that are undertaken, andv.v. Competence in the performance of any professional services that Competence in the performance of any professional services that

are undertaken.are undertaken.

All 5 subsections are important here. The first 3 subsections often can be cited in violations found in exam questions. Fidelity to public needs is the requirement of an engineer to place public welfare above all other criteria.

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The Code of EthicsThe Code of Ethics2.2. A practitioner shall.A practitioner shall.

i.i. Regard the practitionerRegard the practitioners duty to public welfare as paramount,s duty to public welfare as paramount,ii.ii. Endeavour at all times to enhance the public regard for the Endeavour at all times to enhance the public regard for the

practitionerpractitioners profession by extending the public knowledge thereof s profession by extending the public knowledge thereof and discouraging untrue, unfair or exaggerated statements with rand discouraging untrue, unfair or exaggerated statements with respect espect to the profession of engineering,to the profession of engineering,

iii.iii. Not express publicly, or while the practitioner is serving as a Not express publicly, or while the practitioner is serving as a witness witness before a court, commission or other tribunal, opinions on profesbefore a court, commission or other tribunal, opinions on professional sional engineering matters that are not founded on adequate knowledge aengineering matters that are not founded on adequate knowledge and nd honest conviction,honest conviction,

iv.iv. Endeavour to keep the practitionerEndeavour to keep the practitioners licence , temporary licence, s licence , temporary licence, limited licence or certificate of authorization, as the case maylimited licence or certificate of authorization, as the case may be, be, permanently displayed in the practitionerpermanently displayed in the practitioners place of business.s place of business.

Section 2 i) often needs to be cited when answering exam questions.

Section 2 iii) An engineer should comment on engineering matters based only upon engineering knowledge. Comments should not be made for financial gain. They should not be made out of respect for an employer.

Section 2 iv) Remember that the Code is not enforceable and not all licensed engineers do this. Displaying a licence or certificate of authorization will help to enhance the publics knowledge and regard for professional engineering. The engineer should therefore endeavour to do so whenever practical.

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3.3. A practitioner shall act in professional A practitioner shall act in professional engineering matters for each employer as a engineering matters for each employer as a faithful agent or trustee and shall regard as faithful agent or trustee and shall regard as confidential information obtained by the confidential information obtained by the practitioner as to the business affairs, technical practitioner as to the business affairs, technical methods or processes of an employer and methods or processes of an employer and avoid or disclose a conflict of interest that avoid or disclose a conflict of interest that might influence the practitionermight influence the practitioners actions or s actions or judgement.judgement.

For more information read Workbook Tab 4 pgs 9-14

An engineer has a duty to her employer. It is unethical to disclose any confidential information not just engineering information.

The second part introduces the term conflict of interest. This term can be defined as a situation where an engineer could reasonably be perceived as having her decision-making influenced by factors other than her engineering judgement.

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4.4. A practitioner must disclose immediately to A practitioner must disclose immediately to the practitionerthe practitioners client any interest, direct or s client any interest, direct or indirect, that might be construed as prejudicial indirect, that might be construed as prejudicial in any way to the professional judgement of in any way to the professional judgement of the practitioner in rendering service to the the practitioner in rendering service to the client.client.

Section 4 tells the engineer what must be done is she has a conflict of interest. Note that the client may or may not wish to continue with the engineer depending upon the conflict. For example: if the engineers spouse owned a firm that was competing with the clients firm the client may wish to retain a different engineer.

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5.5. A practitioner who is an employeeA practitioner who is an employee--engineer and is engineer and is contracting in the practitionercontracting in the practitioners own name to perform s own name to perform professional engineering work for other than the professional engineering work for other than the practitionerpractitioners employer, must provide the s employer, must provide the practitionerpractitioners client with a written statement of the s client with a written statement of the nature of the practitionernature of the practitioners status as an employee and s status as an employee and the attendant limitations on the practitionerthe attendant limitations on the practitioners services s services to the client, must satisfy the practitioner that the to the client, must satisfy the practitioner that the work will not conflict with the practitionerwork will not conflict with the practitioners duty to s duty to the practitionerthe practitioners employer, and must inform the s employer, and must inform the practitionerpractitioners employer of the work.s employer of the work.

Essentially this says that you cannot provide professional engineering work on your own (at night or on weekends) without telling (in writing) both your clients and your employer. Both must agree to this. There are obviously going to be some restrictions upon the service you provide your extra clients given that you are a full time employee. Working on your own time will likely impact your primary employer as well. You might be more tired, less likely to accept overtime, perhaps use the employers computer time or supplies.

This is sometimes called moonlighting. It is unethical unless all parties are aware and approve of it.

And remember if you are doing work for clients yourself you are providing professional engineering work directly to the public. This is operating as a business (sole proprietor) and you must possess a certificate of authorization in addition to a licence.

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6.6. A practitioner must coA practitioner must co--operate in working operate in working with other professionals engaged in a project.with other professionals engaged in a project.

Obviously.

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7.7. A practitioner shall,A practitioner shall,i.i. Act towards other practitioners with courtesy and good faith,Act towards other practitioners with courtesy and good faith,ii.ii. Not accept an engagement to review the work of another practitioNot accept an engagement to review the work of another practitioner ner

for the same employer except with the knowledge of the other for the same employer except with the knowledge of the other practitioner or accept where the connection of the other practitpractitioner or accept where the connection of the other practitioner ioner with the work has been terminated,with the work has been terminated,

iii.iii. Not maliciously injure the reputation or business of another Not maliciously injure the reputation or business of another practitioner,practitioner,

iv.iv. Not attempt to gain an advantage over other practitioners by payNot attempt to gain an advantage over other practitioners by paying or ing or accepting a commission in securing professional engineering workaccepting a commission in securing professional engineering work, and, and

v.v. Give proper credit for engineering work, uphold the principle ofGive proper credit for engineering work, uphold the principle ofadequate compensation for engineering work, provide opportunity adequate compensation for engineering work, provide opportunity for for professional development and advancement of the practitionerprofessional development and advancement of the practitioners s associates and subordinates, and extend the effectiveness of theassociates and subordinates, and extend the effectiveness of theprofession through the interchange of engineering information anprofession through the interchange of engineering information and d experience.experience.

These are fairly self-explanatory.

7 ii) A supervisor may review subordinates engineering work. This review is known to the engineer. If there is nothing underhanded or unusual going on there would never be a need to secretly review an engineers work. This section is consistent with treating other engineers with courtesy and good faith.

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8.8. A practitioner shall maintain the honour and A practitioner shall maintain the honour and integrity of the practitionerintegrity of the practitioners profession and s profession and without fear or favour expose before the without fear or favour expose before the proper tribunals unprofessional, dishonest or proper tribunals unprofessional, dishonest or unethical conduct by any other practitioner.unethical conduct by any other practitioner.

An engineer should expose dishonest or unethical conduct out of duty - not for personal reward or gain. This is sometimes referred to in the media as whistle blowing.

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Section 72Section 72 This portion of the code is enforceableThis portion of the code is enforceable It overlaps in many areas with The Code of It overlaps in many areas with The Code of

EthicsEthics You must know this portion of the act wellYou must know this portion of the act well

Topic: Professional MisconductFor more information read: Workbook, Tab 3

Remember the Code of Ethics is not enforceable by PEO. You may have noted that several sections seemed fairly important and perhaps should be enforced. Youre right and they are in a second section of the regulations with which you must be familiar The Definition of Professional Misconduct found at Tab 3 of theworkbook. You will see that some sections of this are the same as sections of the Code of Ethics.

Professional Misconduct is enforceable by PEO.

Note professional misconduct exists in addition to any legal repercussions an engineer may face. Engineers disciplined by PEO may also face tort (or criminal) actions.

You will be given the Definitions of Professional Misconduct and the Code of Ethics at the PPE exam.

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Professional Misconduct Professional Misconduct --HarassmentHarassment

Engaging in a course of vexatious comment or Engaging in a course of vexatious comment or conduct that is known or ought reasonably to be conduct that is known or ought reasonably to be known as unwelcome and that might reasonably be known as unwelcome and that might reasonably be regarded as interfering in a professional engineering regarded as interfering in a professional engineering relationship.relationship.

Harassment is prohibited under the Ontario Human Harassment is prohibited under the Ontario Human Rights Code on the grounds of: race, ancestry, place of Rights Code on the grounds of: race, ancestry, place of origin, ethnic origin, citizenship, religion, record of origin, ethnic origin, citizenship, religion, record of offences, gender, sexual orientation, marital status, offences, gender, sexual orientation, marital status, family status, or handicapfamily status, or handicap

For more information read - Ethics text pgs 301,302.

The section begins with a definition of harassment. Vexatious means irritable or bothersome.

Harassment has also been defined in the Human Rights Code. Harassment is prohibited relating to any of the items on the list above. These are very specific. If an employer chose not to hire a smoker, harassment under the Human Rights Code would not apply. Smoking is not listed in the definition above.

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Professional Misconduct Professional Misconduct --NegligenceNegligence

An act or an omission in the carrying out of the An act or an omission in the carrying out of the work of a practitioner that constitutes a failure work of a practitioner that constitutes a failure to maintain the standards that a reasonable and to maintain the standards that a reasonable and prudent practitioner would maintain in the prudent practitioner would maintain in the circumstances.circumstances.

The definition of negligence is important as it is defined in the Professional Engineering Act. Perfection is not required and a mistake or an error in judgement does not necessarily make an engineer negligent. The engineers conduct would be compared to that which would be expected from an engineer of similar training in a similar situation. To be negligent, an engineers work would fall below that which would be expected of a reasonable and prudent engineer in the same situation.

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a)a) negligencenegligence

An engineer found to be negligent is guilty of professional misconduct.

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b)b) Failure to make reasonable provision for the Failure to make reasonable provision for the safeguarding of life, health or property of a safeguarding of life, health or property of a person who may be affected by the work for person who may be affected by the work for which the practitioner is responsible.which the practitioner is responsible.

This may appear to be the same as negligence. Like the Code of Ethics, there is considerable overlap among the subsections of this regulation. This is done to ensure that specific situations are not found as loop-holes and do not violate the regulations even though the situation should clearly be seen as misconduct.

Example : an engineer is responsible for contractors building a structure and the workers are found not to be wearing safety hats, steel toed shoes, and safety glasses.

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c)c) Failure to act to correct or report a situation Failure to act to correct or report a situation that the practitioner believes may endanger the that the practitioner believes may endanger the safety or the welfare of the public.safety or the welfare of the public.

This is extremely important. Professional Engineers MUST act when discovering situations that may endanger the public. An engineer cannot claim that it was not part of her job. She cannot claim that she must keep employer information confidential. Duty to public welfare supersedes all other considerations.

This concept is nearly always tested on the PPE.

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d)d) Failure to make responsible provision for Failure to make responsible provision for complying with applicable statutes, regulations, complying with applicable statutes, regulations, standards, codes, bystandards, codes, by--laws and rules in laws and rules in connection with the work being undertaken by connection with the work being undertaken by or under the responsibility of the practitioneror under the responsibility of the practitioner

Again, this may seem to repeat. This could be viewed to violate sections a) and b) as well. Note that engineers work with many different standards and regulations. Violating some may not endanger public welfare. For example, a municipality may have standards relating to the width of a pedestrian walkway. Failure to meet these standards may not endanger the public but may still be considered as professional misconduct.

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e)e) Signing or sealing a final drawing, Signing or sealing a final drawing, specification, plan, report or other document specification, plan, report or other document not actually prepared or checked by the not actually prepared or checked by the practitionerpractitioner

Remember the purpose of the seal. It indicates to the client and the public that the work has been done by a professional engineer and is expected to meet a certain standard. If you are stamping engineering drawings or documents that you did not prepare yourself, you must check them sufficiently to accept responsibility for them. Checking does not require that every calculation be redone but the practitioner must be comfortable that the work is done properly. It is the stamping engineer who faces professional misconduct for any negligent work.

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f)f) Failure of the practitioner to present clearly to Failure of the practitioner to present clearly to the practitionerthe practitioners employer the consequences s employer the consequences to be expected from a deviation of proposed to be expected from a deviation of proposed work, if the professional engineering work, if the professional engineering judgement of the practitioner is overruled by judgement of the practitioner is overruled by nonnon--technical authority in cases where the technical authority in cases where the practitioner is responsible for the technical practitioner is responsible for the technical adequacy of professional engineering workadequacy of professional engineering work

This could apply to issues that do not endanger public welfare (otherwise the engineer would have to do more than this). A non-technical authority could be an employer or client who is attempting to reduce costs. Example: an engineer has specified a certain coating on a metal structure to prevent premature rusting. The client may choose to use a more inexpensive coating. Even if there is no safety issue here, the engineer must inform the client if she believes this decision will result in premature rusting. If the client decides to use the cheaper coating anyway, the engineer has done her duty.

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g)g) Breach of the Act or regulations, other than an Breach of the Act or regulations, other than an action that is solely a breach of the code of action that is solely a breach of the code of ethicsethics

There are many sections to the regulations. Violation of any is professional misconduct. For example, the regulations state that a Certificate of Authorization is required for a business to offer engineering services to the public. An engineer offering these services without the Certificate would face professional misconduct. Using the title consulting engineer without permission from PEO could be another breach of the regulations.

Note: it is here that the Code of Ethics is specifically exempted from enforcement.

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h)h) Undertaking work the practitioner is not Undertaking work the practitioner is not competent to perform by virtue of the competent to perform by virtue of the practitionerpractitioners training and experiences training and experience

As a full licence holder, the practitioner can determine what work she is capable of doing. This does not mean that a mechanical engineer could never do any electrical work. The engineer may have developed competence in this area through experience. If your competence is investigated, PEO would consult with other practitioners who do similar work and determine if your qualifications/experience makes you competent or not.

If a practitioner with education and experience in civil engineering accepted engineering work to develop software for an aircraft company, it is likely that the practitioner would not be competent.

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Professional MisconductProfessional Misconducti)i) Failure to make prompt, voluntary and Failure to make prompt, voluntary and

complete disclosure of an interest, direct or complete disclosure of an interest, direct or indirect, that might in any way be, or indirect, that might in any way be, or construed as, prejudicial to the professional construed as, prejudicial to the professional judgement of the practitioner in rendering judgement of the practitioner in rendering service to the public, to an employer or client, service to the public, to an employer or client, And in particular, without limiting the And in particular, without limiting the generality of the foregoing, carrying out any of generality of the foregoing, carrying out any of the following acts without making such a prior the following acts without making such a prior disclosure:disclosure:

For more information read - Workbook Tab 4 pgs 9-14

This slide introduces the concept of Conflict of Interest. An engineer is expected to make decisions based upon technical judgement alone. If the engineer is in a situation that could be perceived by others to cause the engineer to act using other criteria than technical judgement then there is a conflict of interest.

For example: An engineer is asking for quotes to provide a specific material for a project. The engineers brother owns one of the vendors quoting. It would clearly be perceived by others that the engineers technical judgement may be influenced by this relationship. It does not matter if the engineer feels the relationship has no influence. (I dont even like my brother). Would a reasonable person believe thatthe practitioners judgement could be influenced? Yes. This is what is meant byconflict of interest as it pertains to professional misconduct.

An engineer must disclose any conflict of interest to clients and employers. The engineer may be removed from the decision making or it may be deemed that the conflict is not important or is acceptable. It is the client/employer that makes this decision not the engineer. In specific legal language, the next few slides will discuss specific types of conflict of interest that are considered professional misconduct without eliminating any conflicts that do not fall under those definitions but would be reasonably considered as a conflict.

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Professional MisconductProfessional Misconduct1.1. Accepting compensation in any form for a particular service Accepting compensation in any form for a particular service

from more than one partyfrom more than one party2.2. Submitting a tender or acting as a contractor in respect of Submitting a tender or acting as a contractor in respect of

work upon which the practitioner may be performing as a work upon which the practitioner may be performing as a professional engineer.professional engineer.

3.3. Participating in the supply of material or equipment to be used Participating in the supply of material or equipment to be used by the employer or client of the practitionerby the employer or client of the practitioner

4.4. Contracting in the practitionerContracting in the practitioners own right to perform s own right to perform professional engineering services for other than the professional engineering services for other than the practitionerpractitioners employers employer

5.5. Expressing opinions or making statements concerning matters Expressing opinions or making statements concerning matters within the practice of professional engineering of public within the practice of professional engineering of public interest where the opinions or statements are inspired or paid interest where the opinions or statements are inspired or paid by other interests.by other interests.

1) You can not charge two different clients for work done once. Consider an engineer who has prepared a report concerning land for a developer. A municipality contacts the engineer and asks for a report for the same area of land. The engineer cannot simply provide the same report and charge both the developer and municipality for it.

2)This is fairly obvious, you must disclose the fact that you own/manage one of the contractors bidding on a job when you are the one who will be deciding which contractor to award the job.

3)Similar to the above but refers to material and equipment vendors rather than contractors.

4)This is called moon-lighting. You cannot perform engineering services after-hours for clients other than your employer without both parties permission. If your employer says no, then you cannot do it. You will also need a Certificate of Authorization from PEO.

5)As a professional engineer you cannot accept payment for your statements regarding technical issues if the payment would reasonably be perceived as affecting your professional judgement. An engineer can accept a fee (for time, etc) to act as an expert witness in a court of law. But it would be perceived as a conflict if the lawyer promised the engineer a share of the court settlement if that lawyer wins that case.

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j)j) Conduct or an act relevant to the practice of Conduct or an act relevant to the practice of professional engineering that, having regard to professional engineering that, having regard to all the circumstances, would reasonably be all the circumstances, would reasonably be regarded by the engineering profession as regarded by the engineering profession as disgraceful, dishonourable or unprofessionaldisgraceful, dishonourable or unprofessional

This section is a catch-all. Many practitioners found guilty of professional misconduct in other sections of the regulation are also charged with unprofessional or dishonourable conduct. But it is possible to behave dishonourably or disgracefully without violating any of the other sections.

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k)k) Failure by a practitioner to abide by the terms, Failure by a practitioner to abide by the terms, conditions or limitations of the practitionerconditions or limitations of the practitioners s licence, limited licence, temporary licence or licence, limited licence, temporary licence or certificatecertificate

This is obvious. Violation of this section would also be a breach of the regulations violating section g)

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l)l) Failure to supply documents or information Failure to supply documents or information requested by an investigator acting under requested by an investigator acting under section 33 of the Actsection 33 of the Act

An engineer must co-operate if there is an investigation for professional misconduct.

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m)m) Permitting, counselling or assisting a person Permitting, counselling or assisting a person who is not a practitioner to engage in the who is not a practitioner to engage in the practice of professional engineering except as practice of professional engineering except as provided for in the Act or the regulationsprovided for in the Act or the regulations

There are always cases where individuals feel they are technically competent to perform engineering work but they are not licensed engineers. Assisting these individuals to pass themselves off as professional engineers is not permitted and will be professional misconduct.

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n)n) harassmentharassment

The definition for this was provided earlier. Note harassment is much more generally defined as it pertains to professional misconduct than the definition in the human rights code. Specific conditions (example gender, race, age) are not given.

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Ethics vs. MisconductEthics vs. Misconduct

The Code of Ethics is the high standard to The Code of Ethics is the high standard to which a professional engineer should workwhich a professional engineer should work

The Definitions of Professional Misconduct list The Definitions of Professional Misconduct list the minimum criteria at which a professional the minimum criteria at which a professional engineer should workengineer should work

On a prior exam, the question was asked, What is the relationship between the Code of Ethics and the Definition of Professional Misconduct? This slide answers that question.

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Disciplinary ProcessDisciplinary Process

In cases of suspected Professional Misconduct In cases of suspected Professional Misconduct or Incompetenceor Incompetence

Complaint made to PEOComplaint made to PEO Gathering of informationGathering of information Evaluation of complaintEvaluation of complaint Formal hearingFormal hearing Disciplinary actionDisciplinary action

These are the steps for the disciplinary process.

The complaint may be made by a member of the public, a client, or another engineer. PEO will gather appropriate information and then evaluate the complaint. It may be dismissed at this point or the accused engineer may be called to a formal hearing. This is not a court of law but is structured similarly. Depending upon the results of the hearing, the engineer may be disciplined.

The individuals involved with gathering information and evaluating the complaint will NOT be involved in the formal hearing portion of the process.

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Discipline vs. EnforcementDiscipline vs. Enforcement

Discipline is focused on PEO membersDiscipline is focused on PEO members Example Example professional misconductprofessional misconduct

Enforcement is focused on nonEnforcement is focused on non--membersmembers Example Example misuse of the title misuse of the title engineerengineer

PEO can only discipline licence holders.

PEO does work to enforce the Engineers Act with non-licence holders. A common example is an individual using the term engineer without a licence. If the individual refused to comply with the Act then PEO could pursue legal means to enforce the Act.

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Disciplinary ActionsDisciplinary Actions

Revoke, suspend, limit or impose restrictions on Revoke, suspend, limit or impose restrictions on membermembers licences licence

Reprimand or counsel Reprimand or counsel Impose finesImpose fines Publish findings with or without namesPublish findings with or without names Order directing complianceOrder directing compliance Judge of the Superior Court of JusticeJudge of the Superior Court of Justice

Above is a list of typical disciplinary actions available to PEO if a member is found guilty of professional misconduct.

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Duty to ReportDuty to Report

The professional engineer shall regard duty to The professional engineer shall regard duty to public welfare as paramountpublic welfare as paramount

Employer/client may pursue courses of action Employer/client may pursue courses of action which the engineer believes may endanger the which the engineer believes may endanger the safety or the welfare of the publicsafety or the welfare of the public

For more information read Workbook, Tab 5 and Ethics text pgs 267-269

As we have discussed, an engineer must act if situations that impact public safety are discovered. (section c) professional misconduct). An engineer must act out of duty and in a professional manner.

An engineers obligation to safeguard the publics welfare may take priority over the engineers duty to her employer and to herself. Failure to report may cause the engineer to suffer personal repercussions. (such as loss of job)

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Duty to ReportDuty to Report

1.1. Resolve situation by working with employerResolve situation by working with employer Act out of duty Act out of duty do not do not leakleak informationinformation

2.2. If resolution not possible If resolution not possible contactcontact Office of the Registrar of PEOOffice of the Registrar of PEO

Uncomfortable situation for the engineerUncomfortable situation for the engineer

The engineer must carry out this duty in a professional manner.

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Environmental GuidelinesEnvironmental Guidelines

EducationEducation Interdisciplinary ApproachInterdisciplinary Approach Professional JudgementProfessional Judgement Integration of Environment in PlanningIntegration of Environment in Planning Environmental Cost AssessmentEnvironmental Cost Assessment Pollution/Waste Management PreventionPollution/Waste Management Prevention Cooperation with Public AuthoritiesCooperation with Public Authorities ComplianceCompliance Cooperation with OthersCooperation with Others

For more information read Workbook Tab 4 pgs 24-30 and Ethics text pgs 255-257

An engineer has a duty to the public welfare and therefore has an obligation to protect the environment. A great deal of engineering work has a negative impact on the environment (from manufacturing emissions to transportation systems). A professional engineer must consider the overall benefit to society- including future generations - of any work done and work using a balanced approach. This can be challenging. Some businesses may consider increased environmental protection measures as costly and prefer not to pursue them.

How the environment should be incorporated into engineering work is discussed clearly in the PEO publication: Guidelines to Professional Practice, Section 16: Environmental Guidelines for the Practice of Professional Engineering in Ontario. (Tab 4, pgs 24-30)

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Advertising GuidelinesAdvertising Guidelines

Professional and dignified mannerProfessional and dignified manner Factual without exaggerationFactual without exaggeration Does not criticize other engineersDoes not criticize other engineers

For more information read: Workbook Tab 4, pg 20 and Ethics text pgs 200,201

Businesses providing professional engineering services may advertise. However, it must be done in a professional manner. Failure to meet this guideline is grounds for professional misconduct. (section g). Use of an engineers seal in advertising is not permitted under any circumstances.

These guidelines are in place to maintain a high level of public regard for the profession.

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Fees Fees

Fees Mediation Committee Fees Mediation Committee -- An alternate An alternate dispute mechanism to resolve fee disputes dispute mechanism to resolve fee disputes between professional engineers and their clients. between professional engineers and their clients.

Selection of services based upon engineering Selection of services based upon engineering criteria rather than price is encouraged criteria rather than price is encouraged

On a previous PPE exam there was a question that asked, What is the Fees Mediation Committee?

That is the end of the materials relating to the Regulation of the Profession, Ethics and Professional Misconduct.

You should start becoming familiar with the Code of Ethics and the Definition of Professional Misconduct found at Tabs 2 and 3 of the workbook. Also, you can start memorizing the information contained in Tab 1 at pages 4 to 27 as these are usually short answer questions on the exam.

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THE LAWTHE LAWThe Canadian Legal System The Canadian Legal System

& Contract Law& Contract Law

Topic: Introduction to the Legal System and Contract LawLength of Time: One weekFor more info read: Law text, Chapter 1

Introduction:This distance learning program intends to focus your study efforts on the key principles that will be covered in the PPE exam. As a result, the Law section focuses primarily on contract and tort law. Miscellaneous topics found in Chapters 2, 21, 22, 24, 28, 30, 32, 33 and 36 of the Law textbook will only be touched on briefly and should be reviewed at least once on your own.

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The Canadian Legal SystemThe Canadian Legal System

Based on English commonBased on English common--lawlaw

Sources of LawSources of Law Common lawCommon law LegislationLegislation

Topic: The Canadian Legal SystemFor more info read: Law text, Chapter 1, pages 1 to 3

Before focussing on tort and contract law, it is helpful to provide students with an overview of the Canadian legal system.

The Canadian Legal System is based on the English legal system. In England, there used to be two types of courts: common law and equity. The common law courts were based on a strict set of rules. The equity courts were based on the principles of fairness. In Ontario, there is only one court that applies both common law and equity principles.

There are two sources of law: common law and legislation. Each source of law plays an important part in identifying legal rights and responsibilities of people, including engineers.

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LegislationLegislation

Law codified or made by the governmentLaw codified or made by the government

For example:For example: The Professional Engineers Act of OntarioThe Professional Engineers Act of Ontario Human Rights CodeHuman Rights Code Employment Standards ActEmployment Standards Act

Legislation is created and passed by the government. There are a number of examples of statutes, acts, and codes listed above.

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Common LawCommon Law

Cases (JudgeCases (Judge--made law)made law)

Theory of precedent = apply legal principles Theory of precedent = apply legal principles established by similar or analogous fact established by similar or analogous fact situations to the current fact situationsituations to the current fact situation

Changes slowly over timeChanges slowly over time

Common law is a term for judge-made law. Case law or common law is typically used to interpret acts, statutes and codes written by the government where there is an unclear or ambiguous term. In addition, there are some legal issues that are not specifically governed by legislation and, therefore, case law applies.

For example, in an employment law case, the Employment Standards Act may govern the relationship and provides a minimum standard for severance or termination pay should an employee be dismissed from employment. However, case law or common law also becomes important and relevant in these cases. Case law may suggest that given the former employees experience, position, responsibility, age, ability to find new work, that he/she may be entitled to more pay than the Employment Standards Act provides based on previous cases.

Another example is in the personal injury context. There are no set amounts should you injure any part of your body and it is another persons fault (e.g. the tort of negligence). As a result, lawyers research previous cases to determine how much an injury is worth.

The theory of precedent is extremely important in Canadian law. The principle is defined above. Judges in lower courts must apply the principles established by judges in higher courts to similar fact situations. This prevents judges from deciding matters subjectively; they must apply the principles that have been developed over time. (This definition has been tested on a prior exam.)

Common law eventually may lead to a change in the legislation. For example, in

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Structure of the CourtsStructure of the Courts

CanadaCanada EnglandEngland

Supreme Court of CanadaSupreme Court of Canada House of LordsHouse of Lords

Court of AppealCourt of Appeal Court of AppealCourt of Appeal

Superior Court of JusticeSuperior Court of Justice Trial JudgeTrial Judge

For more info read: Law text, Page 7

As you are reading the text, it is important to understand why there are so many references to English as well as Canadian cases. We learned earlier that the Canadian legal system was adopted from the English legal system. As a result, Canadian judges continue to pay attention to legal principles that are developed in England.

As you are reading, you may also be confused by the reference to the different levels of courts. You will recall that the decisions of higher courts bind the lower court judges to apply the established legal principles to similar fact situations. When a law suit commences, it is initially heard by a trial judge in the Superior Court of Justice (Ontario). If one party disagrees with the result, the case can be appealed. If it is appealed, it is heard by the Ontario Court of Appeal. If the case is appealed again, it may be heard by the Supreme Court of Canada. (The Supreme Court of Canada does not hear all appeals. It tends to hear appeals that are highly controversial or those that are important to public policy.) The Supreme Court of Canada is the highest court across the country and hears appeals from all of the provinces.

In England, the trial division is called the trial judge. If appealed, the cases are heard by the Court of Appeal. In England, the equivalent court to the Supreme Court of Canada is called the House of Lords.

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The Burden of ProofThe Burden of Proof

Civil law= the balance of probabilitiesCivil law= the balance of probabilities

Criminal law = beyond a reasonable doubtCriminal law = beyond a reasonable doubt

Topic: Burden of ProofFor more info read: Law text, Chapter 6, pages 73 to 75

Civil law means anytime a person (plaintiff) is suing someone else (defendant). Suing a person is also referred to as bringing an action or making a claim.

The difference in the burden of proof makes it more difficult to convict a person in criminal law than in civil also known as common law (except in Quebec).

Please note that in all of the exam questions, the burden of proof is the civil burden. A lawyer must prove that it was more likely than not that the contractor/engineer caused the damage.

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Limitation PeriodsLimitation Periods

Limitation period means that any law suit must be Limitation period means that any law suit must be commenced within a certain period of time commenced within a certain period of time otherwise the law suit will fail otherwise the law suit will fail

Law Book Law Book 33rdrd Edition is WRONG! The law Edition is WRONG! The law changed as of January 1, 2004changed as of January 1, 2004

Tab 6 Tab 6 -- Now, all claims: tort, contract and Now, all claims: tort, contract and professional negligence, must be commenced professional negligence, must be commenced within 2 years of being within 2 years of being discovereddiscovered

Topic: Limitation PeriodsFor more info read: Tab 6

According to the new Limitations Act, every action (law suit or claim) must be commenced within 2 years of being discovered. This idea of being discovered refers to when the plaintiff discovered that damages or injuries occurred.

For example, I have a dishwasher in my house. The dishwasher stops working. On July 1, 2006, a plumber repairs the dishwasher. If the dishwasher breaks on July 10, 2006, I have two years, anytime before July 10, 2008, to commence my action and sue the plumber for damages.

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Limitation Periods (2) Limitation Periods (2)

Principle of discoverabilityPrinciple of discoverabilityWhere there is a breach of the duty of care, Where there is a breach of the duty of care,

the limitation period does not begin until the the limitation period does not begin until the plaintiff discovers or ought reasonably to plaintiff discovers or ought reasonably to have discovered the damagehave discovered the damage

There is an ultimate limitation of 15 years There is an ultimate limitation of 15 years after the service or product was providedafter the service or product was provided

Discoverability has been tested as a definition question on prior exams.

There is an ultimate limitation period of 15 years. This means that if damage occurs more than 15 years after providing the service or product, a plaintiff cannot sue for damages. Frankly, it becomes difficult to remember what happened 15 years ago and find records of those events. Also, the courts dont want people to be liable for their actions forever.

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Contract LawContract Law A contract is an agreement between two or A contract is an agreement between two or

more parties which is enforceable at lawmore parties which is enforceable at law

An enforceable contract requires 5 elements:An enforceable contract requires 5 elements: Offer and AcceptanceOffer and Acceptance Mutual intention to contractMutual intention to contract ConsiderationConsideration CapacityCapacity Lawful purposeLawful purpose

Topic: Contract LawFor more info read: Law text, Chapter 7, page 75 to 76

Everyone is familiar with contracts. You may have signed an employment contract, verbal or written, entered into an agreement of purchase and sale for a house or a condominium, or rented an apartment.

We will begin contract law with an explanation of each of the 5 elements of an enforceable contract. The case questions only test your knowledge of consideration and legality of purpose. As a result, we will not be answering the questions in the law text on offer and acceptance.

Identifying the five elements of an enforceable contract has been a definition question on a prior exam.

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OfferOffer

A promise made by one person (offeror) to another A promise made by one person (offeror) to another (offeree) communicated orally or in writing(offeree) communicated orally or in writing

Until accepted, may be withdrawn unless made Until accepted, may be withdrawn unless made expressly and irrevocable by its terms.expressly and irrevocable by its terms.

An offer will lapse after a reasonable amount of timeAn offer will lapse after a reasonable amount of time

If changing any terms, then a counterIf changing any terms, then a counter--offer (not offer (not acceptance)acceptance)

Topic: Offer and AcceptanceFor more info read: Law text, Chapter 8, pages 77 to 81

The first element of an enforceable contract is offer and acceptance.

An irrevocable offer means that the offer cannot be withdrawn for a specific period of time.

If a person is offered a job, it is anticipated that the offer will not be open for acceptance two years after it is made. If there is a disagreement whether the offer was still open for acceptance, it is up to the judge to determine the reasonable amount of time.

If I want to sell my bike to Dave, I could offer it to him for $100. It is now open for Dave to accept my offer. If Dave says, no, how about $50, he has not accepted my offer, he has made a counter-offer of $50 which I can now accept or not.

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AcceptanceAcceptance

Acceptance must be clearly communicated by Acceptance must be clearly communicated by words or conductwords or conduct

Occurs when the offeror receives the acceptance Occurs when the offeror receives the acceptance or, when the acceptance is mailed (includes or, when the acceptance is mailed (includes courier) courier) Postal RulePostal Rule

Revoking an offer is effective when the offeree Revoking an offer is effective when the offeree receives notice of the revocationreceives notice of the revocation

Acceptance can be communicated by conduct. For example, when OSPE hires Dave and me to teach a Law & Ethics preparatory course, they make us an offer. If we show up to teach the course that weekend, then we have accepted the offer by our conduct.

Acceptance occurs when it is received, or when the acceptance is mailed. This is called the Postal Rule.

The postal rule does not apply when one party is revoking an offer (i.e. withdrawing an offer). The revocation occurs when the party receives notice of the revocation, not when it is mailed.

The question in this chapter at page 81 has not been examined on prior exams.

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Governing LawGoverning Law

Governing law = law of the place where the Governing law = law of the place where the contract is accepted (except where otherwise contract is accepted (except where otherwise agreed upon)agreed upon)

For more info read: Law text, page 79

The geographic location or where a contract is accepted becomes important as it determines the governing law of the contract. i.e. you may prefer the laws in one jurisdiction over another and, therefore, want to accept the contract in that jurisdiction.

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Mutual IntentMutual Intent

Both parties must agree to the terms of the Both parties must agree to the terms of the contractcontract

Topic: IntentionFor more info read: Law text, Chapter 9, pages 85

The second element of an enforceable contract is mutual intention. The parties must intend to contract. There is a latin phrase called consensus ad idem which means meeting of the minds. Consensus or mutual intention to contract and agreement on the terms is essential.

On the exam, mutual intention is almost always present.

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ConsiderationConsideration

The reason, motive, cause, or price that causes a person to enter into a contract (something of value or a detriment exchanged by the parties at some point)

Each party promises to do something. E.g. a service is provided for a fee, or each party makes a promise to each other (not necessarily $)

Topic: ConsiderationFor more info read: Law text, Chapter 10, pages 86 to 92

The third element of an enforceable contract is consideration.

Most contracts involve a service or product in exchange for money. For example, we teach the preparatory course for the OSPE (give up our time and expertise) in exchange for money. Without consideration, there is only a promise to do something (because both parties havent given up something).

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ConsiderationConsideration

The courts do not concern themselves with the value or amount of consideration i.e. it is up to the parties to negotiate the price for a

product or service

Without consideration, there is only a promise to do something, not an enforceable contract

Typically, the courts are not concerned with the adequacy of consideration (i.e. the value) unless there is duress, fraud, or intimidation.

Question: I received a phone call from the University of Western Ontario asking for a donation of money as a member of their alumni. At the time, they asked for a three year donation whereby I would donate some money every year. Is this a contract?

Answer: No. Although I have agreed to pay the university three years in a row, there is no detriment to the university. There is no exchange of consideration by them. As a result, I have only promised to pay the university this is a promise rather than an enforceable contract.

Question: What happens if I am a wealthy alumni and agree to donate $1 million for a new wing of a building and, in return, the university agrees to name the wing after me?

Answer: Arguably, the university has exchanged something of value and, therefore, this is more likely an enforceable contract (assuming all of the other elements are present.)

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SealsSeals If a document is If a document is sealedsealed, this satisfies the requirement , this satisfies the requirement

of consideration for an enforceable contractof consideration for an enforceable contract

Two types of seals:Two types of seals: Personal seal Personal seal red adhesive waferred adhesive wafer Mechanical seal Mechanical seal mechanical devicemechanical device

Tenders in construction contracts are often sealed (as Tenders in construction contracts are often sealed (as an irrevocable offer must have consideration)an irrevocable offer must have consideration)

For more info read: Law text, page 87

This seal is not the same as the seal referred to in the Ethics section (an engineers stamp).

A corporate seal or a personal seal (uncommon) can take the place of consideration. Today, corporate seals can be embossed on documents.

This seal concept originated in England when documents were sealed with red wax and imprinted with an emblem or a ring. It was equivalent to I give you my word.

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Equitable Estoppel Equitable Estoppel --a Lack of Considerationa Lack of Consideration

Without consideration, there is only a promise. This is Without consideration, there is only a promise. This is not a legally binding contractnot a legally binding contract

The question is: The question is: 1.1. Can one party avoid the obligations of a new contract Can one party avoid the obligations of a new contract

(promise) because no consideration was exchanged? (promise) because no consideration was exchanged?

2. Can one party enforce the strict contractual terms of the 2. Can one party enforce the strict contractual terms of the original contract?original contract?

For more info read: Law text, pages 88 to 92

This is the first type of law case question found on the exam.

In some cases, even though there hasnt been an exchange of consideration, the court may determine that there is a contract because it would be unfair to do otherwise. i.e. the principle of equitable estoppel applies preventing the party from relying on the strict terms of the original contract.

Equitable means fair. Estoppel means to stop.

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Equitable EstoppelEquitable Estoppel 2 parties contract. 1 party performs the work. The other party pays

for those services. At some point, the parties change the terms of the contract, or no

longer comply with the strict terms of the contract. Both parties act as if the terms of the contract have changed. In fact, one party relies on the actions of the other party indicating that the terms have changed.

Then, that party refuses to pay and reverts back to the terms of the origina