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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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