APEGGA's Mandate Has Not Changed -- Despite Decision
of Courts in PTA Case
BY NEIL WINDSOR, P.ENG.
APEGGA Executive Director And Registrar
The January/February 2002 issue of Technology Alberta published an article
with the headline, Pressure transient analysis is not professional engineering
- courts. The article describes the dismissal of a Nov. 28, 2001, injunction
application by APEGGA alleging unauthorized practice of engineering by
Willy McCaffrey. The case originated in 1998 when an APEGGA permit holder
submitted reports to APEGGA's Compliance Department of two non-registered
individuals engaging in the practice of pressure transient analysis, or
After considerable investigation a segment of the reports were considered
by APEGGA's Enforcement
Review Committee to be the practice of engineering. Both individuals
were notified and requested to comply with the requirements of the EGGP
Act. One complied immediately by obtaining a permit to practice for his
company. Mr. McCaffrey chose not to comply which resulted in the application
for a court injunction under Section 9 of the EGGP Act.
In the following paragraphs I provide my comments on several points raised
in the article to provide clarification of APEGGA's position.
The headline of the article and the decision of the judge both imply
that PTA in total is not considered to be the practice of engineering.
The primary issue is not about the practice of PTA in total or about Mr.
McCaffrey holding himself out to practice. It is about the approximately
25 per cent of Mr. McCaffrey's activities involving judgement, interpretation
and analysis of data which utilize the application of engineering principles
to prepare, for example, a deliverability report on a gas well. The gathering
of data consisting of approximately 75 per cent of his remaining activities
is not considered and was not alleged to be the practice of engineering.
There is an implication that APEGGA was threatening to take away Mr.
McCaffrey's livelihood. Section 2(4)(b) of the EGGP Act allows engineering
technologists such as Mr. McCaffrey to practice under the supervision
and control of a professional engineer. In this particular case the approximately
25 per cent of his activities considered to be the practice of engineering
can be performed by Mr. McCaffrey, however, it must be reviewed and signed
off by a professional engineer. The remaining approximately 75 per cent
consisting of data gathering does not require the involvement of a P.Eng.
The article suggests that four different engineers had opposing views.
In actuality, a total of 18 APEGGA members were involved in the decision-making
process with 16 supporting and two opposing opinions. APEGGA's Enforcement
Review Committee was a key player. The ERC is composed of 12 engineers,
two geologists and one geophysicist. They are supported by legal counsel
and review all contentious practice and title cases and, if required,
determine litigation proceedings.
In deciding on practice issues, the ERC considers the question: "
Is the activity the practice of engineering, geology or geophysics?"
Not who is able to, capable of, or habitually carries out the activity
In its deliberations and investigation of the practice of PTA, the ERC
considered several pieces of information. Included were a 1983 prior similar
case in which the ERC at that time initiated court action on a company
for a similar practice; verbal comments from one member; written report
from one member and the advice of a member expert in the field.
The inference is made that, as the result of this case, the definition
of engineering as stated in the EGGP Act is problematic and should be
reviewed. At this point we do not have a copy of the transcript of the
trial proceedings and as such do not have the actual wording of Justice
Although reference was made to the definition during the trial, the final
judgment was not based on a point of law, i.e. relevance of the definition.
Justice Marshall provided an opinion that leaves the matter far from clear.
He did not analyze individual components of PTA in relation to the definition
(i.e., the fact that only a specific segment is considered to be the practice
of engineering) or give credence to the testimony of a world-renowned
expert on the subject.
The distinction is clear and we do not see any overlapping of the professions
or a need to review the definition of engineering. APEGGA continues to
place priority on the matter of public safety and considers the present
definition to be quite applicable in today's environment.
One major concern regarding public safety evolving from this trial was
the inference that software can be used by anyone without understanding
the principles behind the numbers. Much of the discussion during the trial
revolved around the use of software programs to perform PTA and that non-engineers
are qualified and capable of using it. We believe that the basics of sound
engineering principles, judgement, double-checking computations, and proper
review of work must still be utilized to produce competent work and to
prevent catastrophe both economic and physical.
Mr. McCaffrey feels he is equally as qualified as a professional engineer
to practice all aspects of PTA and submit final recommendations to clients.
If this is the case he has the option of seeking R.P.T. status. The R.P.T.
category was established specifically to accommodate and legitimize the
activities of individuals like Mr. McCaffrey. If he is as qualified and
capable as he claims to be he should promptly pursue the application for
registration he previously initiated.
It is APEGGA's statutory mandate to protect the public interest from the
unauthorized practice of engineering. The Association will continue to
take appropriate action against any individual or corporation who are
practicing any of the three professions and not registered by the Association.