Resolution 6 and accompanying material


Resolution 6 and accompanying material

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We also strongly recommend that you read and familiarize yourself with our submission to the George Thompson Commission. This is located on the following link:

CAPE Submission on PEO Appeals Process

Resolution 6
BE IT RESOLVED that CAPE constitute an advocacy committee to draw up an advocacy plan. The terms of reference for this group will include but not be limited to:

  • Exploring all avenues of advocacy including strengthening CAPE membership, Community Coalition and advisory resources
  • Evaluating strategies going forward including voicing our concerns to politicians and policy makers, setting up a fund for possible legal action, working at the grassroots levels with CAPE members and communities.
  • The legal issues with licensing, role international mobility and commitments to GATS and NAFTA,, liberalizing trade in services and competitions should be evaluated at from CAPE advocacy perspective
  • Developing a new platform for CAPE advocacy based on the findings of these evaluations

Background
Members are increasing calling upon CAPE to strengthen its advocacy, seek legal action and take collective action to address issues facing them. The main basis of our advocacy has been limited to regulation of our profession and in particular to the issues surrounding public documentation what constitutes Canadian experience. The following case is of relevance to this position is laid out by Lisa C. Wong as follows:
Recommendation 1:CAPE should set up an active advocacy platform.
The Board urges the members to approve this resolution

AN OVERVIEW OF RECENT CASES FOR REGULATORY BODIES
Lisa C. Fong, NG ARISS FONG, Lawyers, www.ngariss.com

The Petitioner, Dr. Serguei Tchou-San-Da, in Tchou-San-Da v. Association of Professional Engineers and Geoscientists of British Columbia,12 is an engineer trained in Russia. He applied to the Association of Professional Engineers and Geoscientists of British Columbia (“APEG”) in 2000. In August 2001, he was told he required 18 months of satisfactory supervised engineering experience in Canada or the US. In 2004 he returned and was told he had not successfully demonstrated experience with the entire project cycle and was told to gain a minimum of one additional year. In 2005 he returned and was told he did not show the progression and level of responsibility required for the Canadian environment, and had to gain a further nine months of satisfactory engineering experience. Dr. Tchou-San-Da returned one final time in September of 2006 was told he needed an additional nine months of satisfactory engineering.

It was at this point that he brought a petition against APEG seeking that the court order that the September 2006 decision be quashed and that his eligibility be reconsidered. His argument was that the Engineers and Geoscientists Act13 (the “EGA”) requires that the experience to be required for membership in APEG be set out in its bylaws. He alleged that, instead of explicitly setting out the experience requirements in the bylaws, APEG had adopted a bylaw purporting to delegate back to itself the discretion to decide whether an applicant’s experience was satisfactory. He claimed that is an impermissible delegation, and therefore the bylaw in question was not properly constituted as it was beyond the power of the APEG to adopt. The relevant section of the EPA (s. 13(1)(c)) requires APEG’s council to admit an applicant to membership where the applicant submits evidence of, among other things, “experience in engineering or geosciences work established by the bylaws has been obtained”. However, the bylaw being challenged (Bylaw 11(e)(2)) merely established a requirement of four-years, while reserving the acceptability of any experience to the discretion of the council, i.e., “4 years’ experience in engineering or geosciences satisfactory to the Council.…”

The court held that as the EPA granted a power to “establish” requisite experience through the bylaws, the council could not simply pass a bylaw setting out a discretion to decide on requisite experience. This would, in effect, subject members to wide divergence of rules and opinions, ever-changing according to the individual notions of councillors, and amounted to improper sub-delegation. The bylaw was not saved by the imposition of a four-year requirement. The court found the Bylaw 11(e)(2) to be invalid by reason that it was unlawful sub-delegation of power and accordingly struck it down.

In a final ironic twist, although Dr. Tchou-San-Da succeeded in having the bylaw struck, at last report, he was still unable to seek registration until APEG passes a revised bylaw.14 The Tchou-San-Da decision is of particular interest to regulatory bodies in that when read in isolation it seems to imply that the courts might require that at least a broad outline of registration requirements be placed in the bylaws. What seemed to motivate court’s decision was the council’s constantly shifting requirements as to the amount and nature of experience Dr. Tchou San-Da required for registration. While such treatment was possible because of the discretion conferred by bylaw, the court chose not to examine the exercise of the discretion but rather the insufficiency of the bylaws in setting out objective requirements.
11 R.S.O. 1990, c. H-19
12 [2007] B.C.J. No. 2057, 2007 BCSC 1403 (B.C.S.C.)
13 RSBC 1996,c. 116
14 Tchou-San-Da v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2007] B.C.J. No. 2681,2007 BCSC 1815


Recommendation 2:CAPE set up an advocacy community to develop and report upon an advocacy plan and platform for CAPE.
The Board urges the members to approve this resolution