The PEGG

March 2002

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 PTA.

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 being examined.

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 Marshall's comments.

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.