and the Engineering Profession
The Distinction between Mandatory and Discretionary
Ronald S. Girvitz, B. Admin., P.Eng., LL.B
1 & 2 (combined)
professional engineers are faced with a variety of environmental
standards addressing topics such as ethics, general standards
of conduct and specific practice areas. The difficulty
often faced by these engineers is to ascertain which of
these standards warrant serious attention and which exist
merely for their consideration.
engineers first and foremost responsibility is to
rely upon his or her professional judgement and apply standards
which are reasonable and effective. The following chapters
of this monograph will discuss many of these standards
which the engineer ought to consider for implementation.
the above, many engineers will look to consequences to
determine which standards they would consider implementing.
From this perspective, many engineers will discern standards
which are mandatory only because of the sanction imposed
for their breach. The purpose of this chapter will be to
examine the various forms of environmental standards which
an engineer might face and to discuss the potential implications
for a failure to comply. From this, a decision maker can
then weigh the consequences and determine a suitable course
of conduct. From a review of the consequences of a failure
to comply, a distinction can be drawn between those standards
which ought to be considered mandatory and those which
are merely discretionary based on the type and severity
of sanctions which are attached to each.
ENVIRONMENTAL STANDARDS SET BY ENGINEERING ASSOCIATIONS
first place to examine standards affecting the engineering
profession is to look to the standards set by the engineering
associations themselves. Because of the importance of the
role an engineering association plays in the regulation
of the conduct of engineers, the nature of the organization,
how standards are enforced and the types of standards engineering
associations set which relate to environmental practice
shall first be reviewed.
What Is A Professional Association
is considered to be one of the "pure" professions
owing to its responsibility for public health and safety.
For this reason, provincial legislation is responsible
for the creation of the profession and governs its existence.
A profession is an occupation characterized as one having
the following characteristics:
work performed in the occupation is skilled or specialized
with a strong intellectual component. Usually a significant
period of technical training is required.
professional is expected to be committed to moral principles
which go beyond the duty of honesty. This duty may, in
fact, transcend the duty to the client, as in the case
of the lawyer whose duty of forthrightness to the court
may result in disclosure of matters adverse to his client's
interest. In general, a professional has, and is seen
to have, a duty to the wider community.
professional usually belongs to an association which
restricts admission and sets codes of conduct and ethical
behaviour, and has mechanisms for enforcing them.
organizations were created primarily because of the potential
effect on life, health safety or property of the public
by professionals, and the need to set standards and controls
on the actions of these professionals. These organizations
are typically granted the right to self regulate their
members. The organization sets requirements which must
be met for a person to gain admission into the organization.
Also, the organization sets standards which are intended
to ensure that its members adhere to certain practices,
which primarily relate to the protection of the public.
associations are examples of professional organizations
created to help ensure the protection of the public. To
facilitate this protection, the engineering organization
is granted the right of self regulation and exclusivity
of practice. Self regulation includes the ability to set
admission standards to gain membership and the ability
to set and enforce practice standards. Any failure by a
member to practice in conformity with these practice standards
could subject that member to internal disciplinary proceedings.
of practice refers to the ability of a professional organization
to restrict practice only to its members. Any person engaging
in an activity that falls within the definition of the "practice
of engineering" must be a member of the requisite
engineering association. Practicing engineering without
such membership is considered an unlawful act.
How Engineering Associations Enforce Standards
committees determine whether actions of a member have fallen
below the acceptable standard. The standard is typically
referred to as "unskilled practice" or "professional
misconduct." For example, the Association of Professional
Engineers, Geologists and Geophysicists of Alberta ("APEGGA")
relies on the following standards to determine whether
disciplinary actions are required. Specifically, any conduct
is detrimental to the best interests of the public,
contravenes a code of ethics of the profession established
under the regulations,
harms or tends to harm the standing of the professional
displays a lack of knowledge of, or lack of skill, or
judgement in the practice of the profession, or
displays a lack of knowledge of, or lack of skill, or
judgement in the carrying out of any duty or obligation
undertaken in the practice of the profession,
unskilled practice or unprofessional conduct and invokes
the disciplinary process.
a disciplinary committee finds that the impugned conduct
constitutes unskilled practice or professional misconduct,
the committee is typically granted a wide range of remedies
for rehabilitating or punishing the member, the most serious
being revocation of membership.
Types of Standards Set by the Engineering Organization
Code of Ethics
most visible standard of conduct set by the organization
is its Code of Ethics. A code of ethics is the standard
by which an engineering organization helps to ensure that
the conduct of its members is maintained at an acceptable
standard. Its primary purpose is to protect the public
but also serves to promote competence and integrity. As
discussed, a breach of any one of the codes will constitute
unskilled or unprofessional practice.
codes of ethics used by Canadian engineering associations
reflect environmental standards. Rule 1 of APEGGA's Code
of Ethics specifies that:
engineers, geologists and geophysicists shall have proper
regard in all their work for the safety and welfare of
all persons and for the physical environment affected
by their work"
statement is elaborated upon by APEGGA as follows:
shall not complete, sign or seal plans or other documents
that, in their professional opinion, would result in
projects hazardous to the public or detrimental to human
welfare, would have unnecessary adverse effects on
the environment or do not conform to current engineering,
geological or geophysical standards."
somewhat different wording is found in the British Columbia
Code of Ethics:
paramount the safety, health and welfare of the public,
and protection of the environment and promote health
and safety within the work place."
Canadian Council of Professional Engineering (the "CCPE")
provides similar language to the British Columbia approach
in its Code of Ethics and interprets "paramount" as
meaning of "paramount" in this basic tenet
is that all other requirements of the Code are subordinate
if protection of public safety, the environment or other
substantive public interests are involved."
is incumbent upon any practicing engineer to understand
and ensure compliance with the applicable engineering Code
of Ethics. Failure to comply can result in disciplinary
action and subject the engineer to a wide variety of sanctions,
the most serious being a revocation of membership requiring
the engineer to refrain from practice.
addition to a code of ethics, engineering associations
frequently issue practice standards which set specific
performance criteria. Similar to the code of ethics, a
breach of a practice standard will likely result in internal
disciplinary action. The facts of any particular situation
will dictate the seriousness of the breach and what remedy
might be imposed. It should be noted that the same scope
of remedies are available for a breach of a practice standard
as for a breach of the code of ethics.
first environmental practice standard issued in Canada
by an engineering association occurred in June 1994 with
APEGGAs publication of an environmental practice
standard entitled, "Environmental Practice - A Guideline" (hereafter
referred to as the "Guideline"). The Guideline
was prepared because of the recognition of the relationship
between environmental degradation and its effects on the
health and safety of the public. For this reason, APEGGA
determined that guidance should be provided to its members
on sound environmental management approaches. This would
help APEGGA members to contribute actively to the protection
and well being of the public, while still participating
in their capacity of promoting economic development. A
summary of the Guideline is presented below. Other engineering
associations across Canada including the CCPE have followed
suit and published their own versions of environmental
of the facts of a situation, a breach of a practice standard
can easily constitute a "lack of skill or judgement" sufficient
to constitute unskilled practice or unprofessional conduct
and subject that member to the internal disciplinary process.
An engineer should be aware that a breach of a practice
standard can be held to be of equal seriousness to a breach
of the code of ethics.
of the APEGGA Environmental Practice Guideline
engineers, geologists and geophysicists are committed to
environmental protection and safeguarding the well-being
of the public.
Engineers, Geologists, and Geophysicists:
Shall develop and maintain a reasonable level of understanding
of environmental issues related to their field of expertise.
Shall use appropriate expertise of specialists in areas
where the member's knowledge alone is not adequate to address
Shall apply professional and responsible judgement in their
Shall ensure that environmental planning and management
is integrated into all their activities which are likely
to have adverse environmental impact.
Shall include the costs of environmental protection and/or
remediation among the essential factors used for evaluating
the life-cycle economic viability of projects for which
they are responsible.
Shall recognize the value of waste minimization, and endeavour
to implement the elimination and/or reduction of waste
at the production source.
Shall cooperate with public authorities in an open manner,
and strive to respond to environmental concerns in a timely
Shall comply with legislation, and when the benefits to
society justify the costs, encourage additional environmental
Are encouraged to work actively with others to improve
environmental understanding and practices.
ENVIRONMENTAL STANDARDS SET BY LEGISLATION
General Standards Of Conduct
environmental legislation, whether provincial or federal
in jurisdiction, impose a general standard of conduct with
penalties for their breach. For the purposes of this Chapter,
a general review of the various types of environmental
offenses will be offered, followed by the type and severity
of sanctions which are available for their breach. An engineer
must be aware of the severity of sanctions available for
a breach of legislated conduct in order to ensure these
requirements are placed in their proper perspective.
common law has long recognized a distinction between "criminal" (or mens
rea) offenses and "regulatory" offenses.
Criminal offenses are those crimes which are primarily
found in the Criminal Code while regulatory offenses are
primarily found in legislation (enacted by either provincial
legislatures or federal parliament). Regulatory offenses
are further divided into two categories: strict liability
offenses and absolute liability offenses.
offenses or mens rea offenses require two elements
to substantiate a conviction:
proof beyond a reasonable doubt of the prohibited act
(the actus reus) in question; and
2. proof of the requisite mental element (the mens rea).
crimes are typically signified by either their presence
in the Criminal Code or in legislation where explicit requirements
of a mental element are included in the offence ("knowingly,
intentionally, with intent to..."). The consequences
of these offenses are the most serious of all the types
of offenses and usually carry a sentence of a high monetary
fine (up to $1 million) or imprisonment (up to 2 years)
Absolute Liability Offenses
liability offenses are reserved for the least serious offenses.
These offenses are utilized for convenience in that the
crown does not have a great burden to meet to make out
the elements of an offence. The crown need only prove that
the prohibited act (actus reus) has occurred beyond
a reasonable doubt. The mental element (mens rea)
is irrelevant. Once the act is proven, there are no defenses
available to an accused as the reasons and circumstances
of why the offence has occurred are of no consequence.
penalties for these offenses are in the form of a small
fine (typically up to $1,000) and there is never a possibility
of imprisonment. An example of this offence found in the Alberta
Environmental Protection and Enhancement Act (the "EPEA")
is disposal of waste on highways, on land owned by a local
authority, in water, or on land owned by another person.
Strict Liability Offenses
middle category, strict liability offenses, comprise the
vast majority of environmental offenses. These offenses
represent a compromise between the rigorous requirement
of proving the mental element (mens rea) offenses
and the abolition of any available defenses (absolute liability).
crown is required to prove the prohibited act (actus
reus) has occurred beyond a reasonable doubt similar
to an absolute liability offence. The burden then shifts
to the accused who must then establish the due diligence
defense on a balance of probabilities in order to be acquitted.
In the EPEA, the due diligence defense is stated as:
person shall be convicted of an offence under section
... if that person established on a balance of probabilities
that he took all reasonable steps to prevent its commission."
though the burden is shifted to the accused to prove his
innocence, this process can withstand an attack from the
Charter of Rights.
vast majority of environmental offenses are strict liability
offenses. The typical penalty for a violation of these
offenses is a maximum of $50,000 for an individual and
$500,000 for a corporation and there is never a possibility
Operating Permits and Regulations
addition to the general standards of conduct imposed by
environmental legislation, specific performance standards
are usually imposed. These performance standards are typically
in the form of an operating permit which sets specific
air and water release targets for companies or individuals
who are licensed to engage in activities which are held
to adversely affect the environment. In addition to operating
permits, most environmental legislation also contain regulations
which set specific release standards. It is an offence
to breach the terms of an operating permit or the regulations.
ENVIRONMENTAL STANDARDS SET BY INDUSTRY ASSOCIATIONS
are three major sources of environmental standards set
by industry associations in which an engineer might encounter.
The first are standards or environmental principles issued
by the specific industry to which the engineer practices.
Industry associations such as the Canadian Chemical Producers Association,
the Canadian Association of Petroleum Producers, the European
Petroleum Industry Association and many others have complied
environmental principles and standards for their constituent
second major source of environmental standards which an
engineer might encounter are those issued by the Canadian
Standards Association ("CSA"). The CSA is a not-for-profit
organization whose primary purpose is to develop standards,
certification and testing of products and services for
Canadian organizations. The CSA has issued a series of
guidelines which pertain to topics such as environmental
management systems, risk analysis, environmental auditing,
pollution prevention and site assessment. Many of these
specific guidelines will be discussed in later chapters.
Adherence to environmental standards are not mandatory
but serve as useful and information guidelines on how companies
can address specific environmental issues.
in nature to the CSA, the third major source of environmental
standards are those issued by the International Organization
for Standardization ("ISO"). ISO provides standards
and guidelines that are developed by representatives from
some 118 countries. Once these standards are approved they
are intended to be adopted as national standards by each
country involved in their development. Some of these internationally
adopted standards are known as "specification standards".
These standards contain specific requirements that must
be met by an organization before they can claim to be in
compliance with the standard. Specification standards may
be audited by an independent third party so that the organization
can prove they are in compliance. This independent audit
is usually performed by a registrar. If an organization
meets the requirements of the standard the registrar will
enter the name of the organization, and the standard it
has met, into a register that is open to public inspection.
Registrars obtain accreditation from government approved
or controlled accreditation agencies such as the Standards
Council of Canada.
set of standards of particular interest are the ISO 14000
series which address such topics as environmental management
systems, environmental labeling and life cycle assessment.
LEGAL IMPLICATIONS OF ENVIRONMENTAL STANDARDS AND PRACTICES
method to determine the importance of adhering to any one
of the environmental standards is to assess the potential
consequence for its breach. One approach to considering
such consequences is to ascertain how any of these standards
might be used in a court of law. There are two circumstances
where the provided environmental services might come under
such scrutiny. The first is pursuant to an allegation of
professional negligence and the second is pursuant to establishing
the due diligence defense to a charge of a strict liability
respect to professional negligence, the general standard
by which a professional is held accountable is:
duty to exercise the skill, care and diligence which
may reasonably be expected of a person of ordinary
competence, measured by the professional standard of
engineer is not obliged to perform to the standards
of the most competent member of the profession, unless
he so covenants. What is required is reasonable skill,
care and diligence as judged by standards of competence
in the profession in which he practices".
second circumstance pertains to the due diligence defense
which is stated by Section 215 of the EPEA as follows:
person shall be convicted of [a strict liability] offence
... if that person establishes on a balance of probabilities
that he took all reasonable steps to prevent
The "reasonable" standard
has emerged as the standard by which the actions of a professional
are most often required to meet in a court of law in response
to both an allegation of professional negligence or establishing
the due diligence defense. The question then becomes what
constitutes "reasonable" and whether the existence
of an environmental standard (whether established by a national
standards organization, industry association or an engineering
association) would contribute to a determination of the "reasonable" standard.
leading case on the use of professional standards and practice
to determine whether a professional was negligent (and
hence, fell below the "reasonable" standard)
is the Supreme Court of Canada decision of Roberge v. Bolduc.
In Roberge, an allegation of professional negligence
was considered against a notary as a result of advice given
to prospective purchasers of real property that the vendor
has good and valid title to the property. The evidence
showed that the notary, while following common notarial
practice, committed an error in the advice given to his
clients. At issue was whether the common notarial practice
itself was reasonable. The Court concluded:
may very well be that the professional practice reflects
prudent and diligent conduct. One would hope that if
a certain practice has developed amongst professionals
in regard to a particular professional act, such practice
is in accordance with a prudent course of action. The
fact that a professional has followed the practice
of his or her peers may be strong evidence of reasonable
and diligent conduct, but it is not determinative. If
the practice is not in accordance with general standards
of liability, i.e. that one must act in a reasonable
manner, then the professional who adheres to such a
practice can be found liable, depending on the facts
of each case." (emphasis added)
the Canadian judiciary has given deference to existing
professional practices in determining acceptable standard
of conduct. By following accepted and recognized professional
practices, a professional can make a strong case that he
was acting reasonably. This position is not absolute, however.
It is fair to challenge the notion that the existing standards
and practices of the profession might themselves, be unreasonable.
issue remains as to what standards or guidelines might
amount to a statement of commonly held professional practice
so as to influence the standard of conduct expected of
a professional in a court of law. It is suggested that
the following indications might influence which type of
standard may help comprise the "practice of the profession":
who comprises the membership of the organization;
does the organization purport to represent the entire
industry or are major players not included;
have the standards been adopted by major players in
the industry who are members of the organization that
has issued the standard; and
does the organization have exclusivity of practice,
implying that if membership is revoked is that party
still entitled to conduct its business or remain in
indication of the emergence of what environmental standards
might be considered an acceptable practice of the profession
is offered in a recent decision of the Provincial Court
of Alberta in R. v. Prospec Chemicals Ltd. Propsec
was convicted of unlawfully contravening a term or condition
of an approval under the EPEA. The Court ordered Propsec
to deliver a certified copy of certification under the
ISO 14001 Environmental Management System Specification.
To ensure its compliance, Prospect was ordered to post
a letter of credit payable in the amount of $40,000. The
recognition by a Court of the ISO 14001 standard adds some
weight to an argument that this standard might emerge as
an acceptable practice of the profession.
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