Notes_CHAPTER_09_Duties_and_oblig_to_the_profession_2009-03

Notes_CHAPTER_09_Dut - CONCORDIA UNIVERSITY FACULTY OF ENGINEERING AND COMPUTER SCIENCE ENGR 201 PROFESSIONAL PRACTICE AND RESPONSIBILITY PROFESSOR

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Unformatted text preview: CONCORDIA UNIVERSITY FACULTY OF ENGINEERING AND COMPUTER SCIENCE ENGR 201 PROFESSIONAL PRACTICE AND RESPONSIBILITY PROFESSOR : REMI ALAURENT, ENG. CHAPTER 09 CODE OF ETHICS : DUTIES AND OBLIGATIONS TOWARDS THE PROFESSION Topic 1: Derogatory acts Topic 2: Relations with the order Topic 3: Relations between colleagues p. 1 p. 5 p. 11 TOPIC 1 : DEROGATORY ACTS 1. COMMON PROVISIONS IN THE PROFESSIONAL CODE Specific sections of the Professional Code (R.S.Q., c. C-26) define particular acts that are deemed derogatory to the dignity of every profession: 59. Every professional who contravenes section 57, 58 or 58.1 commits an act derogatory to the dignity of his profession. Rev. 2009-03 © Concordia University, 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 These are : 1) discrimination, on the grounds listed and most likely for any other grounds included in the Charter of human right and freedoms (R.S.Q., c. C-12) or read into it by the courts of law : 57. No professional may refuse to provide services to a person because of the race, colour, sex, age, religion, national extraction or social origin of such person. 2) claiming to be a specialist or a doctor without any right to do so : 58. No person may use a specialist's title corresponding to a class of specialization defined in a regulation under paragraph e of section 94 or act in such a way as to lead to the belief that he is a specialist in that class of specialization unless he holds the appropriate specialist's certificate. A professional may not designate himself as a specialist unless he holds a specialist's certificate. 58.1. No professional may use the title of “Doctor” or an abbreviation of that title unless the title or abbreviation is placed 1) immediately before the professional's name, where the professional holds a doctoral diploma recognized as a valid diploma for the issue of the permit or specialist's certificate held by the professional pursuant to a government regulation under the first paragraph of section 184 or a doctoral diploma recognized as equivalent by the board of directors of the order that issued the permit or certificate, and unless the professional's name is followed by a title reserved for the members of the order; or 2) after the professional's name, and the title or abbreviation is followed by the name of the discipline in which the doctoral diploma is held. This section does not apply to the members of the Ordre professionnel des dentistes du Québec, the Collège des médecins du Québec or the Ordre professionnel des médecins vétérinaires du Québec. Another section of the Code deals with sexual misconduct: PAGE 2 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 59.1. The fact of a professional taking advantage of his professional relationship with a person to whom he is providing services, during that relationship, to have sexual relations with that person or to make improper gestures or remarks of a sexual nature, constitutes an act derogatory to the dignity of his profession. It is mainly relevant to medical and social professions and unlikely to be of any relevance in the context of the practice of engineering. 2. PROVISIONS IN THE CODE OF ETHICS OF ENGINEERS According to the Professional Code, the Code of ethics of every order must contain provisions respecting duties and obligations towards the profession : 87. The board of directors must make, by regulation, a code of ethics governing the general and special duties of the professional towards the public, his clients and his profession, particularly the duty to discharge his professional obligations with integrity. Such code must contain, inter alia: 1) provisions to prevent conflict of interest situations; 2) provisions defining, if applicable, the professions, trades, industries, businesses, offices or duties incompatible with the dignity or practice of the profession; 3) provisions to preserve the secrecy of confidential information that becomes known to the members of the order in the practice of their profession, and provisions setting out the conditions on which a professional may, in accordance with the third paragraph of section 60.4, communicate the information described in that paragraph and the procedure applicable; 4) provisions setting out the conditions and procedure applicable to the exercise of the rights of access and correction provided for in sections 60.5 and 60.6, and provisions concerning a professional's obligation to release documents to his client; 5) provisions setting out conditions, obligations and, where applicable, prohibitions in respect of advertising by the members of the order; PAGE 3 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 6) provisions identifying offences, if any, for the purposes of subparagraphs 5 and 6 of the first paragraph of section 45 or of the first paragraph of section 55.1. Until 2008, paragraph (1) was : (1) provisions determining which acts are derogatory to the dignity of the profession; Although this was removed, the Code of Ethics of Engineers (c. I-9, r.3) still contains provisions respecting the old paragraph (1) of section 87 in its section 4.01.01, placed in Division IV "Duties and obligations towards the profession" : § 1. Derogatory acts 4.01.01. In addition to those referred to in sections 57 and 58 of the Professional Code, the following acts are derogatory to the dignity of the profession: (a) participating or contributing to the illegal practice of the profession; (b) pressing or repeated inducement to make use of his professional services; (c) communicating with the person who lodged a complaint, without the prior written permission of the syndic or his assistant, whenever he is informed of an inquiry into his professional conduct or competence or whenever a complaint has been laid against him; (d) refusing to comply with the procedures for the conciliation and arbitration of accounts and with the arbitrators' award; (e) taking legal action against a colleague on a matter relative to the practice of the profession before applying for conciliation to the president of the Order; (f) refusing or failing to present himself at the office of the syndic, of one of his assistants or of a corresponding syndic, upon request to that effect by one of those persons; (g) not notifying the syndic without delay if he believes that an engineer infringes this Regulation. It does not contain any provision respecting paragraph (2), presumably deemed not applicable, and does not yet contain any provision respecting paragraph (6). PAGE 4 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 3. VIOLATIONS CREATED BY THE COMMITTEE ON DISCIPLINE The sections of the Professional Code which define acts that are "derogatory to the dignity of a profession" were overhauled on October 15, 1994 to give professional orders more flexibility. A general provision was added to the Professional Code. Section 59.2 allows a professional order to define and sanction conduct unbecoming of its members : 59.2. No professional may engage in an act derogatory to the honour or dignity of his profession or to the discipline of the members of the order, or practise a profession, carry on a trade, enterprise or business or hold an office or function that is inconsistent with the honour, dignity or practice of his profession. This came about after a few well-publicized incidents, among which was the PCB warehouse fire at Saint-Basile-le-Grand (Southeast of Montreal) on August 23, 1988 in which Marc Levy, eng. was involved. In conjunction with Section 59.2, Section 152 of the Professional Code makes it possible to enforce discipline even when there is no general or specific provision that describes a professional's "misconduct". For engineers, where there is no provision in the Professional Code, the Engineers Act or a regulation or by-law under this Code or that Act which applies in the particular circumstances, the Disciplinary council shall decide to the exclusion of any court: (1) whether the act with which the respondent is charged is derogatory to the honour or dignity of the profession or to the discipline of the members of the order; (2) whether the profession the respondent practises, or the trade, enterprise or business he carries on, or the office or position he holds, is incompatible with the honour, dignity or practice of the profession. Section 59.2 is mostly invoked when particularly hideous conduct has taken place, or when an affair has been publicized. Any complaint that invokes it must be very carefully thought out and documented. PAGE 5 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 TOPIC 2 : RELATIONS WITH THE ORDER As seen above, the Code of Ethics of Engineers defines certain acts which are derogatory to the profession in its fourth division entitled "Duties and obligations towards the profession". However, many of these acts are also relevant to the duties and obligations towards the public and the clients. Those which concern relations with the Ordre are : Fee conciliation and arbitration procedures exist by regulation (Regulation respecting the procedure for conciliation and arbitration of accounts of engineers (R.Q., c. I-9, r.8)) and must be complied with (Code of ethics of engineers, section 4.01.01 d)) Infringements to the Code of ethics by other engineers must be reported to the Syndic without delay (Code of ethics of engineers, section 4.01.01 g)) Obstructing the Syndic, the Professional inspection committee or any bona fide inquiry established by the Order is forbidden under the Professional Code : 114. It is forbidden to hinder in any way a member of the [Professional inspection] committee, the person responsible for professional inspection appointed pursuant to section 90, an inspector or an expert, in the performance of the duties conferred upon him by this Code, to mislead him by concealment or false declarations, refuse to furnish him with any information or document relating to an inspection carried out by him under this Code or to refuse to let him take copy of such a document. Moreover, it is forbidden for a professional to urge a person holding information about the professional not to cooperate with a person mentioned in the first paragraph, or not to authorize that person, when so requested, to disclose information about the professional..1 1 This section is applicable to inquiries conducted by syndics, assistant syndics and corresponding syndics pursuing to paragraph 2 of Section 122. PAGE 6 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 192. The following may, in the performance of their duties, examine a record kept by a professional, require the production of any document, make a copy of such a record or document, and require any information: 1) a professional inspection committee or a member, inspector or expert of such a committee, or the person responsible for professional inspections appointed under section 90; 2) a syndic, an expert whose services are retained by a syndic and any other person assisting a syndic in the exercise of inquiry functions; 3) a review committee referred to in section 123.3 or a member of such committee; 4) a disciplinary council or a member of such council; 5) the Professions Tribunal or one of its judges; 6) any committee of inquiry established by a board of directors, a member of such a committee or an investigator of the order; 7) an administrator designated by the Government under section 14.5; 8) a person, committee or member of a committee designated by the board of directors for the purposes of any of sections 45 to 45.2, 46.0.1, 48 to 52.1, 55 to 55.2 and 89.1; 9) (subparagraph repealed); For the purposes of this section, the professional shall, on request, allow the examination of such record or document and provide such information, and may not invoke his obligation to ensure professional secrecy as a reason for refusing to allow it. The Code of ethics also contains provisions regarding disciplinary inquiries : 4.01.01. In addition to those referred to in sections 57 and 58 of the Professional Code, the following acts are derogatory to the dignity of the profession: [...] (c) communicating with the person who lodged a complaint, without the prior written permission of the syndic or his assistant, whenever he is informed of PAGE 7 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 an inquiry into his professional conduct or competence or whenever a complaint has been laid against him; [...] (f) refusing or failing to present himself at the office of the syndic, of one of his assistants or of a corresponding syndic, upon request to that effect by one of those persons; 4.02.02. An engineer must, within the shortest delay, answer all correspondence addressed to him by the syndic of the Order, the assistant syndic or a corresponding syndic, investigators or members of the professional inspection committee or the secretary of the latter committee. Disciplinary Case no. 22-02-002 Florian Toutant The engineer refused to submit to professional inspection, alleging that a major industrial project kept him too busy. He offered to postpone the inspection by more that two months. He eventually made arrangements for the inspection to take place, but only after an inquiry into his conduct had been held by the assistant syndic. He pleaded guilty and was fined 600$. He also had to pay the fees (several hundred dollars). Certain criminal or disciplinary findings rendered elsewhere must be reported for consideration by the Board of directors of the Ordre, in an application for a permit or for entry on the Roll, or within ten days of being informed thereof if the person is a member : 45. The board of directors may refuse to issue a permit or to enter an applicant on the roll, or refuse any other application preceding admission to the profession, if the applicant 1) has been the subject of a decision of a Canadian court finding him guilty of a criminal offence which, in the reasoned opinion of the board of directors, is related to the practice of the profession, unless he has obtained a pardon; PAGE 8 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 2) has been the subject of a decision of a foreign court finding him guilty of an offence which, if committed in Canada, could have led to criminal proceedings and which, in the reasoned opinion of the board of directors, is related to the practice of the profession, unless he has obtained a pardon; 3) has been the subject of a disciplinary decision made in Québec by the disciplinary council of another order or by the Professions Tribunal in an appeal from a decision of that council, imposing the revocation of a permit or a striking off the roll, including a provisional striking off the roll; 4) has been the subject of a disciplinary decision made outside Québec which, if made in Québec, would have had the effect of a revocation of permit or a striking off the roll, including a provisional striking off the roll imposed by an order's disciplinary council; 5) has been the subject of a decision made in Québec finding the applicant guilty of an offence under section 188 or an offence under a provision of an Act of Québec or a federal Act identified for the purposes of this subparagraph in the order's code of ethics; or 6) has been the subject of a decision made outside Québec finding the applicant guilty of an offence which, if committed in Québec, could have resulted in penal proceedings under section 188 or penal proceedings under a provision of a Québec or a federal Act identified for the purposes of this subparagraph in the order's code of ethics. Before making a decision under this section, the board of directors must give the person concerned an opportunity to submit observations. A decision refusing to issue a permit or to enter an applicant on the roll, or refusing any other application preceding admission to the profession shall be served on the applicant in accordance with the Code of Civil Procedure ( chapter C-25); the decision may be appealed to the Professions Tribunal in accordance with Division VIII of Chapter IV. Within three years after a decision is made under this section, no new application for a permit or for entry on the roll or new application preceding admission to the profession may be presented to the board of directors that made the decision unless there are new facts that may warrant a different decision. 45.1. The board of directors may, after giving an applicant an opportunity to submit observations, enter the applicant on the roll, but restrict or suspend his right to engage in professional activities if the applicant PAGE 9 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 1) is the subject of a disciplinary decision made in Québec by the disciplinary council of another order or by the Professions Tribunal in an appeal from a decision of that council, imposing the restriction or suspension of his right to engage in professional activities; 2) is the subject of a disciplinary decision made outside Québec which, if made in Québec, would have had the effect of a restriction or suspension of the right to engage in professional activities imposed by the disciplinary council of an order; 3) is or has been, as the case may be, the subject of a decision described in section 45. A decision to restrict or suspend the right to engage in professional activities shall be served on the applicant in accordance with the Code of Civil Procedure ( chapter C-25); the decision may be appealed from to the Professions Tribunal in accordance with the provisions of Division VIII of Chapter IV. 45.2. A person must, in an application for a permit or for entry on the roll or in any other document that is filled out for the purpose of admission to a profession, inform the board of directors that the person is or has been the subject of a judicial or disciplinary decision described in section 45 or 45.1. A certified copy of a judicial or disciplinary decision described in section 45 or 45.1 that was rendered in Canada constitutes proof that the offence was committed and that any facts reported in the decision are true. The board of directors may require the person to provide any information or document it considers necessary for the purposes of section 45 or 45.1. The board of directors may refuse to examine the application until the information or document is provided to it. 55.1. The board of directors may, after giving the professional concerned an opportunity to submit observations, provisionally strike the professional off the roll or provisionally restrict or suspend his right to engage in professional activities if the professional has been the subject of a judicial decision described in subparagraph 1, 2, 5 or 6 of the first paragraph of section 45. The board of directors shall inform a syndic of any decision, which serves as a request under section 128. The decision is valid 1) until a syndic decides not to lodge a complaint; PAGE 10 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 2) until the disciplinary council or the Professions Tribunal renders a final, enforceable decision on a complaint lodged by a syndic; or 3) until the decision described in subparagraph 1, 2, 5 or 6 of the first paragraph of section 45 is quashed in appeal, if applicable. 59.3. A professional must, within 10 days from the day on which he is himself informed, notify the secretary of the order of which he is a member that he is or has been the subject of a judicial or disciplinary decision referred to in section 55.1 or 55.2. An engineer who needs a seal must obtain it only from the Ordre – it is illegal to make one up, by any means including computer assisted drawing (CAD) (Regulation respecting the business of the Bureau, the administrative committee and general meetings of the Ordre des ingénieurs du Québec ((1992) 124 G.O. II, 4568) [c. I-9, r.1.1], section 39) An engineer must accept to sit on an arbitration board, on the Disciplinary council or on the Professional inspection committee (Code of ethics of engineers, section 4.02.01) An engineer must, as far as he is able, contribute to the development of his profession by sharing his knowledge and experience with his colleagues and students and by his participation as professor or tutor in continuing training periods and refresher training courses (Code of ethics of engineers, section 4.03.01) Other miscellaneous provisions are to be found in the Professional Code (such as section 60, whereby a member must notify the Secretary of his choice of professional domicile and of every place where he practises his profession, and advise the secretary of any change within 30 days) and in various regulations (such as the regulation respecting professional liability insurance : see Chapter 12). TOPIC 3 : RELATIONS BETWEEN COLLEAGUES The Code of Ethics of Engineers has a few provisions respecting relations between colleagues. These provisions, however, come second when provisions respecting duties and obligations towards the public and the clients are also at stake. PAGE 11 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 Applying for conciliation to the president of the Ordre is a prerequisite to taking legal action against a colleague – however, the president may refuse to undertake this conciliation (section 4.01.01 e)) An engineer shall not abuse a colleague's good faith, be guilty of breach of trust, be disloyal towards him or wilfully damage his reputation (section 4.02.03) It is forbidden to take upon oneself credit for work which belongs to a colleague (including subordinates) (section 4.02.03 a)) It is forbidden to take advantage of one's capacity as employer or executive to limit in any way the professional independence of another engineer (section 4.02.03 b)) It is forbidden to induce a colleague to commit an offence against the rules and regulations governing the profession (section 4.02.03 c)) Proper notice must be given when reviewing a colleague's work or replacing a colleague in a mandate (sections 4.02.04 and 4.02.05) An engineer who is called upon to collaborate with a colleague must retain his professional independence. If a task entrusted to him goes against his conscience and principles, he may ask to be excused from doing it. (section 4.02.06) No engineer shall refuse to collaborate with a colleague on the basis of race, colour, sex, religion, national, social or ethnic origin or any ground mentioned in the Charter of human right and freedoms (R.S.Q., c. C-12). (section 4.02.07) PAGE 12 OF 13 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 09 REQUIRED READING None SUGGESTED READING Disciplinary Case no. 22-02-002 Florian Toutant (in French) http://www.oiq.qc.ca/ select "Decisions and Judgements" at the top of the page PAGE 13 OF 13 © Concordia University 2003 ...
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This note was uploaded on 05/09/2010 for the course ENGR 201 taught by Professor Remialaurent during the Winter '10 term at Concordia Canada.

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