Can disciplinary offences be cleared over time?
No. A disciplinary complaint is indefeasible. A disciplinary complaint may be lodged at any time against anyone who committed an offense while a member of the Order. Time lapse may however affect the complainant’s capacity to build a clear and convincing case and that of the respondent to make "full answer and defence” under natural justice rules. For example, a disciplinary inquiry may be launched regarding a file that has been destroyed by an engineer after the prescribed ten-year retention period. It may however be more difficult to build a case. Why is a disciplinary complaint indefeasible? The disciplinary proceeding is of a public nature. Lodging a complaint against an engineer and imposing penalties aims to protect the public at large, to discourage the guilty engineer from reoffending as well as discouraging any other trade member who may aspire to commit similar wrongful acts.
Must an engineer comply with the Code of Ethics wherever he or she practices?
Yes. Each member of the Order is individually liable for complying with the Code of Ethics, wherever he or she may be practicing. Any engineer who carries out professional acts outside of the Province of Québec must comply with ethical obligations. Acts committed outside of Québec shall not lessen any prejudice. Where an act has been committed does not in any way affect the capacity of the Disciplinary Committee to hear and assess a complaint. The Code of Ethics applies to professional conduct not to a specific territory or limited public. By joining the Order, an engineer agrees to be under the control of his or her professional order wherever he or she practices.
I am a member of the Order. May I reject the dates of the meeting proposed by the syndic or refuse to meet with the syndic?
No. You are under the obligation to meet with the syndic upon request (Prof. C. S. 114 & 122, Code of Ethics of Engineers S. 4.01.01f)). Pleading appointments with other clients or claiming other priorities does not constitute reasonable motive for denying the meeting requested. The syndic may however take into account exceptional circumstances that you will have to explain. Any refusal to meet with the syndic may be deemed as hindering the inquiry, which may result in a disciplinary complaint and possibly provisional strike-off the roll (Prof. C. S. 130).
I am a member of the Order. Am I under obligation to answer the syndic's questions?
Yes, you must answer the syndic’s questions. You cannot mislead the syndic by concealment or false declarations (Prof. C. S. 114, 122, 192). By refusing to answer, a disciplinary complaint may be lodged against you for hindering the inquiry. You may even be subject to provisional strike-off the roll. (Prof. C. S. 130).
I am a member of the Order. Am I under obligation to answer any correspopndance sent by a syndic?
Yes, you must answer in an expeditious manner any correspondence sent by the Office of the Syndic (Prof. C. S. 114 ; Code of Ethics of Engineers, S. 4.02.02). In failing to do so, you may be the object of a disciplinary complaint or subject to provisional strike-off the roll (Prof. C. S. 130).
A syndic is asking me for documents. Am I under the obligation to provide them?
Yes. The Professional Code states that a syndic may demand any and all information or documents relating to the inquiry. The syndic may examine them or require their production and make a copy of such documents (Prof. C. S. 114, 122, 192).
Is an engineer committing an offense by disclosing confidential information?
No. Section 192 of the Professional Code explicitly states that a professional may not invoke his obligation to ensure professional secrecy as a reason for refusing to answer a syndic’s request.
Must an engineer inform the Order only of the main place where he practises his profession?
No. Under Section 60 of the Professional Code,any professional must elect a professional domicile and so inform the Order. Such professional domicile is the place where the member principally practises his profession. Should the member not be practising the profession, his principal place of employment or place of residence shall constitute the professional domicile. Under Section 60 of the Professional Code a professional must also inform the Secretary of his order of all the other places where he practises his profession, even if only occasionally. Having only a few clients to whom professional services are provided elsewhere does not exempt the engineer from such obligation.
Must an engineer found guilty of drunk driving advise the Order of the fact?
Yes. Under combined Sections 45, 55.1 and 59.3 of the Professional Code, a professional must, within ten (10) days of having been so informed, advise the Secretary of the Order that he has been found guilty of a criminal offence, even if such judgment has been rendered by a foreign court. However, in the latter case, the offence for which the professional has been found guilty must relate to an offence, which, if committed in Canada, could have led to criminal proceedings. Consequently, the professional must advise the Secretary if found guilty of driving under the influence, just as for any other judgment relating to an offence under the Penal Code.
Does an engineer who checks a colleague's work become professionally liable?
Yes. If each case must be evaluated individually, an engineer who checks a colleague’s work becomes professionally liable. Such liability is not always limited to the allocated mandate, hence the importance of properly determining in writing the scope of one’s mandate. In some cases, the engineer can be held liable not only for the work to be checked but also for any additional element that the engineer knew had to be considered. An engineer must consequently expose any and all noted anomalies, including those outside of his mandate. For example, an engineer who is asked solely to check basic structural analyses cannot not take into account the load rating of the ground on which lies this framework, claiming that it is not part of his mandate.
The engineer that I have hired did not inform me of the approximate cost of his services and I deem unreasonable the amount billed for these services. What can I do?
There are several remedies including some that may be exercised concurrently: 1. you can lodge an inquiry request with the Office of the syndic. The engineer was bound by his Code of Ethics to inform you of the extent and terms and conditions of the mandate that you have given him and to obtain your agreement in that respect (Section 3.02.03), to inform you of the approximate cost of his services and of the terms and conditions of payment (Section 3.08.03) and of any changes in this respect. The engineer must also charge and accept fair and reasonable fees (Section 3.08.01 and 3.08.02) and must give you all the necessary explanations for understanding his statement of fees (Section 3.08.04). 2. You may request in writing the conciliation of the bill of costs within sixty (60) days of receiving the bill, even if said bill was paid in part or in full, in accordance with Regulation respecting the conciliation and arbitration procedure for the accounts of engineers. Conciliation could also be requested should a disciplinary decision expressly calls into question the quality or relevance of a professional act charged for (Prof. Code, Section 88) 3. You may also assert your rights under the Québec Civil Code or other applicable law. This remedy is not however under the control of the Ordre des ingénieurs du Québec. You may make reference to conciliation, mediation or arbitration provisions under your contract with the engineer, if any. This remedy is not however under the control of the Ordre des ingénieurs du Québec.
Can an engineer cease to act for the account of a client for no reason?
No. In this regard, Section 3.03.04 of the Code of Ethics clearly states that “an engineer may not cease to act for the account of a client unless he has just and reasonable grounds for so doing. The following shall, in particular, constitute just and reasonable grounds:
a) the fact that the engineer is placed in a situation of conflict of interest or in a circumstance whereby his professional independence could be called in question;
b) inducement by the client to illegal, unfair or fraudulent acts;
c) the fact that the client ignores the engineer’s advice.“
Can an engineer refuse to provide a notice of compliance?
Yes. An engineer cannot be forced to issue and shall not issue a notice or certificate of compliance if he deems that the work does not comply or that compliance cannot be established to his satisfaction, including when work does not comply with applicable laws or rules or with plans or specifications signed and sealed by an engineer, or when information is insufficient to knowingly issue such a notice, a frequent occurrence when the engineer did not supervise the work. It must be specified that only the acting engineer can personally issue such a notice.
As an engineer, I think that some works constitute a threat to public security. Who should I notify?
Under Section 2.03 of the Code of Ethics of Engineers, any engineer who considers that some works are a danger to public safety must notify the Ordre des ingénieurs du Québec or the persons responsible for such work. This public responsibility is also valid when the engineer is not directly involved in the works. The engineer should first try, as soon as possible, to notify the persons responsible for the work, which could be an employer, the contractor, the owner or the client. Should the engineer be unable to contact a person responsible for the work or if approaching the persons responsible for the work is unfeasible or fails to bring results, or should the engineer opt to remain anonymous, he will contact the Order. The engineer may also try and notify directly competent authorities (such as CSST, the Régie du bâtiment du Québec, a town, a government department or emergency services (911)). Assessing the work as dangerous does not require that the engineer produce an expert report. The engineer may not have the specific knowledge if the work is outside of his field of expertise. The assessment refers more to an estimate or approximate calculation. Finally, if he deems the work a danger to public safety, the engineer must avoid making irresponsible or unnecessary alarming public statements.
Can an engineer hold on to client-related documents (other than those prepared by him) that are part of his record if the client fails to pay his professional fees?
In principle no. Where documents not prepared by the engineer are concerned (and not provided by the client), such as a construction permit or letter from the city, the engineer must allow the client to take cognizance of their content and provide him with a copy upon request within the period specified under Section 3.07.01 of the Code of Ethics of Engineers. In this respect, the engineer may charge the client reasonable fees not exceeding the cost of sending, transcribing or copying a document. Whenever the client requests such a copy, the engineer may hold on to it until the client has paid said transmission, transcription or reproduction fees. The engineer must however provide the client with a copy once the client has paid copying fees, even if this client has not yet fully paid the due professional services fees.
How long must an engineer keep a client file once his mandate has expired?
An engineer must keep records for at least ten (10) years. Under Section 2.04 of Regulation respecting the keeping of records and consulting offices by engineers (Sec. I-9, r.13), the engineer’s records must be kept for a minimum period of ten (10) years from the date of the last service rendered or, when the project has been carried out, from the date of the end of the work. The engineer should however be careful before destroying a record. His client may wish to retrieve original documents or other important documents. It might be good practice to always communicate with the client to inquire about his intentions.
Can an engineer hold on to documents or items provided by the client if said client fails to pay the engineer's fees?
No. Under Section 3.07.06 of the Code of Ethics of Engineers, the engineer must act with diligence on any written request made by the client to retrieve a document or item which the client has left him. Furthermore, Section 3.07.06 of the Code of Ethics states that the engineer must indicate in that client’s record, as the case may be, the reasons for the client’s request. Section 2.05 of the Regulation respecting the keeping of records and consulting offices by engineers states that where a client withdraws a document from the record which concerns him, the engineer must file a note in the client’s record, signed either by the client or himself, indicating the nature of the document and the date of the withdrawal.
Can an engineer refuse to hand over plans and other documents prepared by him if the client has not yet paid his professional fees?
It all depends on the agreement entered into by the engineer and the client and of potential consequences. The engineer cannot refuse to hand over the product of his work to a client who has not paid his professional fees, unless it has been agreed in writing that the engineer’s work would be handed over only after payment of professional fees. This contractual provision cannot however have precedence over obligations under the Code of Ethics of Engineers, including under Section 3.05.01 the engineer’s obligation to subordinate his personal interest to that of his client and under Section 3.03.04, the engineer’s obligation not to cease to act for the account of his client, unless he has just and reasonable grounds to do so. The agreement is subject to compliance with provisions of the Code of Ethics, said provisions being of public policy. Therefore, should holding on to work put the client in a difficult situation or be prejudicial to him, the engineer cannot exercise his retaining right under the agreement at the risk of violating his code of ethics. In the absence of a contractual provision allowing the engineer to hold on to deliverable work under the contract if professional fees are overdue, the engineer must hand over to the client all plans or other documents prepared by him. In case of non-payment of his professional fees, the engineer must hand over his work to the client, submit his professional fee statement and, if need be, file a request with a court of competent jurisdiction.
Can an engineer carry on his professional activities within a joint-stock company or a limited liability partnership?
Not unless he can exercise the exception clause under Section 28.1 of the Engineers Act. Since 21 June 2001, the Professional Code allows the constitution of a company, joint-stock corporation or limited liability company for the purpose of providing engineering services solely under the express condition that the Order make a legislative rule in that regard. Such regulation has yet to be made. Section 28.1 of the Engineers Act states that an engineer may carry out his professional activities within a joint-stock corporation, which includes companies, only if that corporation was constituted for that purpose before 21 June 2001. That means that the joint-stock-corporation was operational on that date and already provided engineering services. Consequently, a joint-stock corporation or company constituted before 21 June 2001 but not offering engineering services on that date cannot be used.