Once an engineer, always an engineer: exposure of C-suite engineers to regulatory discipline

In two recent decisions, the Appeal Board of the Association of Professional Engineers and Geoscientists of Alberta (“APEGA”) confirmed that professional engineers—who exclusively make managerial engineering decisions in a corporate setting—are conducting the “practice of engineering.” This recognition brings them under the purview of the APEGA Code of Ethics and the Engineering and Geoscience Professions Act (“EGP Act”).

Complaint backgrounds

Numerous complaints were lodged against provincial school board senior engineers. The engineers were acting in senior leadership roles and making managerial decisions rather than performing technical engineering work.

The parties that lodged the complaints alleged that the engineers demonstrated unskilled practice and unprofessional conduct by not installing HEPA filters in school buildings to mitigate infections during the COVID-19 pandemic.

The engineers argued that installing HEPA filters for this purpose would be ineffective and prohibitively costly and thus did not warrant implementing.

The APEGA Investigative Committee (the “IC”) dismissed the complaints for insufficient evidence of unskilled practice or unprofessional conduct.

Grounds of appeal

The complainants claimed that the IC’s decisions were unreasonable and requested appeals under s. 51 of the EGP Act.

In both appeals, the primary and overlapping ground of appeal was the allegation that the IC failed to appropriately assess whether the engineers met their professional obligations and responsibilities.

One of the grounds from which this allegation arose was the IC describing the engineers as being in senior leadership or managerial roles and not in engineering roles.

The complainants argued that this description indicated that the IC did not hold the engineers to their professional responsibilities and obligations under the APEGA Code of Ethics and the EGP Act.

The complainants went on to argue that this alleged failure to use the correct standard for assessing the engineers’ conduct led to the IC wrongfully investigating and dismissing their complaints.

Reasoning

The Appeal Board rejected both arguments. They found that the IC held the engineers to their professional responsibilities and obligations and appropriately evaluated that their conduct met these standards.

The IC described the engineers’ roles as senior leaders or managerial decision makers to outline their positions within their organizations and contextualize their conduct. These descriptions were not used to determine that the engineers acted in non-engineering capacities and thus were exempt from their professional responsibilities and obligations. Instead, the IC came to the opposite conclusion. Since the engineers held the P.Eng title and their work fell within the EGP Act’s definition of the “practice of engineering,” their actions remained subject to professional standards.

The Appeal Board then concluded that the IC used the correct approach to investigate the complaints and reached the appropriate conclusion. The IC’s investigation centred on the fundamental question of whether the engineers’ conduct was ethical and complied with their professional responsibilities and obligations when they decided not to install HEPA filters. The IC’s verdict? These actions were indeed reasonable and compliant.

Decision

The Appeal Board ultimately dismissed both appeals, rejecting all grounds raised by the complainants and affirming the IC’s decisions to dismiss the complaints.

These outcomes emphasize that even when working in a managerial capacity, an engineer’s decisions are still subject to their professional responsibilities and obligations under the APEGA Code of Ethics and the EGP Act.

Should you have any questions or need further information on this insight or on related professional liability or engineering matters, please contact Don Dear, K.C., in our Calgary office who can help you understand how we can help.