Terri-Jane Yuzda

Courts Hear Three Cases
Involving APEGGA Titles

Editor's Note: Dave Todd, P.Eng., APEGGA's director of Compliance, mentioned previously that The PEGG would publish the outcomes of three court cases heard November 2001. Following are summaries of the decisions, followed by excerpts from the decisions themselves.

1. Kenneth Raymond Nichol

On Nov. 20, 2001, a prosecution application was heard in the criminal division of the Provincial Court of Alberta. Kenneth Raymond Nichol was charged under Part 1 of the EGGP Act for misrepresenting himself as a P.Eng. The judge rendered a guilty verdict and assessed Mr. Nichol a fine of $750 under Section 81 of the EGGP Act.

The violation was reported to APEGGA by a member who faxed copies of two business cards to the Edmonton office on Oct. 26, 1999.

Mr. Nichol had previously been registered and continually maintained that there was no point in reinstating his past membership as he did not practice, and that he was an engineer by education and 39 years experience.

2. Willy McCaffrey (McCaffrey Consulting Services)

An injunction application was heard in the Court of Queen's Bench of Alberta on Nov. 28, 2001, to prohibit Willy McCaffrey, a registered engineering technologist (R.E.T.), from engaging in the practice of engineering. Mr. McCaffrey engages in the practice of pressure transient analysis in the determination of petroleum reservoir characteristics. APEGGA considers some of these activities to be the practice of engineering. Justice E.A. Marshall gave the following reason for dismissing the application:

"I find no evidence of risk to the public in the respondent's performance of these activities. I dismiss the application."

The Alberta Society of Engineering Technologists (ASET) took this opportunity to publish an article in its Technology Alberta magazine. A response from APEGGA Executive Director and Registrar Neil Windsor, P.Eng., which was published in the March 2002 issue of the PEGG, has been sent to ASET for publication as a letter to the editor in Technology Alberta

3. Raymond Merhej

An injunction application was heard in the Court of Queen's Bench of Alberta on Nov. 28, 2001, to prohibit Raymond Merhej from holding himself out as a professional engineer by using the title of System Engineer and/or System Engineer Representative. Justice E.A. Marshall gave the following reason for dismissing the application:

"I am not persuaded that an injunction should issue to prohibit the Respondent designating himself as a System Engineer Representative. The application is dismissed."

Raymond Merhej was an attendee at a Microsoft Certified Engineer (MCSE) information session hosted in June 2000 by APEGGA's Compliance Department. It was then determined that he was using the title of System Engineer while not licensed by APEGGA.

Subsequent follow-up on Mr. Merhej revealed that an employee of his company who is not licensed by APEGGA was using the title Certified Engineer. The employee complied immediately when contacted by APEGGA by ceasing to use the word "engineer." Mr. Merhej chose to challenge the issue in court.

APEGGA is appealing this decision.

Case Number 1

Among the evidence against Kenneth Raymond Nichol was that he presented a card identifying him as a P.Eng., although he was not licensed.

The judge's decision said in part:

"In a prosecution under this Act, the burden of proving that a person is a professional engineer, professional geologist or professional geophysicist, registered professional technician (engineering) licensee, permit holder or certificate holder is on the accused. I am satisfied that Mr. Nichol has not met that onus. But in any event . . .I am satisfied that he was not registered under the Act. I hold that by presenting a card at this meeting. . .with the designation of his name and P.Eng., that he was holding himself out to be a professional engineer, licensee or permit holder under the Act. I am satisfied that those events occurred beyond a reasonable doubt. . ."

Case Number 2

The judge's decision to dismiss the prosecution's application against Will McCaffrey said in part:

". . .At the heart of this matter is a determination of whether the work carried out by the Respondent is engineering. These parties take opposing views on this issue, and have filed Affidavits of Professional Engineers who take opposing views. . ."
"The Applicant filed affidavits of two Professional Engineers, Todd and Mattar. Todd opined that some of the Respondent's activities constitute the practice of engineering, particularly that of pressure transient analysis (which) involves manipulation of technical data, including interpretation and analysis. Manipulation of technical data requires application of principles of mathematics.

"Dr. Mattar, a recognized authority in the area, opined that the practice of engineering is included in the process of pressure transient analysis, particularly (a) validation of the data , (b) differentiation between reservoir and non-reservoir influences, (c) interpretation of data, (d) selection of the appropriate model and applying it in forecasting future production.

"Brown, a Professional Engineer who is a Petroleum Engineer, filed an Affidavit for the Respondents opinion that they are not engaging in the practice of engineering. He stated that the various steps of pressure transient analysis, including collection of data, validation and interpretation of it, and forecasting future performances, are not within the practice of engineering. Brown had been consulted by the Applicant before these proceedings began to determine if the activity in question involved (the) practice of engineering.

"The area of activity (in) which character is in question is that of the interpretation of the data collected. Such interpretation is largely carried out by computer programs. The information is then validated, undoubtedly relying on experience and training. This still does not determine conclusively whether engineering is practiced. The conflicting views of the activities of the Respondents are equivocal, at best.

"The Applicant urges upon me a broad, generous, liberal interpretation of the statute. I agree that that is appropriate. The statute is intended, as are other regulatory statutes, to protect the public and ensure their safety in ensuring only qualified and trained professionals provide services to the public.

"In the present case, however, there is evidence of Brown, an experienced Petroleum Engineer, that there is no harm or risk of harm to the public where experienced technologists such as the Respondent carry out this process. In fact, four different engineers have scrutinized the activities of pressure transient analysis and have opposing views.

"The evidence before me does not satisfy me on a balance of probabilities that the Respondent carries out the practice of engineering. Even if it did satisfy me, I would not grant the relief sought. The provisions of the Act must be interpreted strictly in accordance with the primary purpose, public protection and safety. . .
". . .I find no evidence of risk to the public in the Respondent's performance of these activities. . ."

Technology Alberta published a story in January/February 2002 on the decision. The PEGG published a response from APEGGA Executive Director and Registrar Neil Windsor, P.Eng., in the March 2002 edition. Mr. Windsor wrote that a new definition of engineering under the act is not necessary, because the decision was not based on the relevance of the current definition. He also noted that 18 APEGGA members were involved in the decision-making process in the application against Mr. McCaffrey, and only two had opposing opinions.

Mr. Windsor wrote of a public safety concern coming out of the decision. ". . .(there was) the inference that software can be used by anyone without understanding the principles. . .We believe that the basics of sound engineering principles, judgment, double-checking computations, and proper review of work must still be utilized to produce competent work and to prevent catastrophe, both economic and physical. . ."

Case Number 3

The judge's decision to dismiss the application against Raymond Merhej, for his use of the title System Engineer Representative, said in part:

". . .the term System Engineer has been widely used in the IT industry and, while connoting a degree of expertise, does not indicate one is a professional engineer or the practice of engineering is being carried on. It has acquired a secondary meaning similar to Marine Engineer or Flight Engineer. This understanding is particularly clear to those familiar with the IT industry. Because of the modifier "system," there is little likelihood that confusion will arise because such engineers are representing themselves improperly.

"In addition, the Respondent is not holding himself out to the public in order to solicit work in the field of engineering. The Applicant does not contend that he should be prevented from carrying on his vocation, as he is at present.
"Ultimately, the public's safety must be the primary concern. The Respondent's situation is such that it cannot be contended that the public is likely to be deceived, confused or jeopardized by his use of the term. . ."

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