Notes_CHAPTER_10_Controls_REV_2009-03

Notes_CHAPTER_10_Controls_REV_2009-03 - CONCORDIA...

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: CONCORDIA UNIVERSITY FACULTY OF ENGINEERING AND COMPUTER SCIENCE ENGR 201 PROFESSIONAL PRACTICE AND RESPONSIBILITY PROFESSOR : REMI ALAURENT, ENG. CHAPTER 10 CONTROLS Topic Topic Topic Topic Topic 1: 2: 3: 4: 5: OIQ membership p. 1 Professional inspection p. 3 Discipline p. 6 Conciliation and arbitration of fees p. 15 Control of the ability to practice p. 16 TOPIC 1 : OIQ MEMBERSHIP In the Province of Québec, an engineer is someone who holds a permit issued by OIQ AND is entered on its Roll An engineer must renew his registration every year (April 1st) and provide up-to-date information about his addresses (where he principally practices and every other place where he practices, and his residence), activities, insurance requirements, etc. (Professional Code, sections 46 and 60, etc.) (Regulation respecting professional liability insurance for the members of the Ordre des ingénieurs du Québec, section 10) Rev. 2009-03 © Concordia University, 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 An engineer may lose his member status : o If he fails to register on the Roll yearly (on April 1st) o If he ceases to meet registration requirements (see Topic 5) o If he is temporarily or permanently stricken off the Roll by the Disciplinary council after having been found guilty following a complaint (see Topic 3) o If he is temporarily or permanently stricken off the Roll by the Bureau on the recommendation of the Disciplinary council or the Professional inspection committee, (see Topics 2 and 3), because of a disciplinary or criminal conviction or for medical reasons (see Topic 5) o If he decides to cease to be a member o If his permit is revoked by the Disciplinary council o There is a provision in the Professional Code (section 56) for the revocation of a permit or specialist's certificate obtained by fraud Disciplinary Case No. 22-98-0002 : Giorgiu Kurti He used a forged diploma to obtain his permit Consequence : revocation of that permit PAGE 2 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 Of course, being personal, membership cease with the member's death: this can be a major problem if there is any work in progress. When a member ceases to practice, certain actions must be taken to protect those who benefited from his services, mainly by finding a custodian for his records (see the Regulation respecting the records of an engineer who ceases to practise, R.Q., c. I-9, r.4) TOPIC 2 : PROFESSIONAL INSPECTION Each and every order is required to adopt regulations respecting the practice of the profession: 91. The board of directors must, by regulation, determine standards concerning the keeping, holding and maintenance by a professional in the practice of his profession of records, books, registers, medications, poisons, products, substances, apparatus and equipment as well as property entrusted to him by a client or another person. It must also, in the regulation, determine the rules, terms, conditions and formalities for the preservation, use, management, administration, transfer, assignment, provisional custody and destruction of the records, books, registers, medications, poisons, products, substances, apparatus and equipment of a professional, and the rules, terms, conditions and formalities for the preservation, use, management, administration and provisional custody of property entrusted to him by a client or another person, applicable in the event of his death or his being struck off the roll or ceasing to practise, or in the event of his right to practise being restricted or suspended, his permit being revoked or his accepting an office which prevents him from completing the mandates that have been entrusted to him. The board of directors may, in the regulation, determine standards for the operation of a consulting room and other offices by a professional. In cases described in the second paragraph, the board of directors may take possession of the records and the property held by the professional or require their delivery to an assignee or provisional custodian. In such a case, the board of directors shall determine by resolution the remuneration and the responsibilities and powers of the assignee or the custodian and the procedure for the recovery, from the professional or his successors, of expenses incurred or fees paid by the board of directors, the assignee or the custodian. PAGE 3 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 Professional inspection is an essential activity, carried out by a statutory committee constituted by the Board of directors under provisions enacted in the Professional Code and in a mandatory regulation: 109. A professional inspection committee is established within each order. Such committee shall consist of not less than three members appointed by the board of directors which shall designate a chair from among them. Three members, or such greater number as the board of directors may fix by regulation, including the chair, shall be a quorum of the committee. If there is a sufficient number of members on the committee, it may sit in divisions of three members, including the chair or another member of the committee designated by the chair to act as chair of a division. 110. When a member of the committee is absent or unable to act, he may be replaced by a person appointed to perform his duties. 111. Each member of the committee, inspector or expert shall take the oath contained in Schedule II. The same requirement applies to a person appointed as the person responsible for professional inspections pursuant to section 90. However, the oath shall not be construed as prohibiting the sharing of useful information or documents within the order for the protection of the public. 90. The board of directors must determine, by regulation, the composition, the number of members and the procedure of the professional inspection committee of the order. The board of directors may, in the regulation, determine a procedure for appointing inspectors or experts to assist the committee, and determine the requirements the committee may recommend in addition to the recommendations regarding refresher courses or periods of refresher training it may make under the first paragraph of section 113. The board of directors may also, in the regulation, provide for the appointment by the board of directors of a person to be responsible for professional inspection, delegate the powers of the committee or the committee members under sections 55, 112 and 113 to that person, and then delegate the powers of the board of directors under those sections to the committee. The Committee conducts general inspections according to the program approved by the Board of directors and published in PLAN; it also conducts more specific inquiries into the professional competence of a member when there is cause for concern, using experts if needed: 112. The committee shall supervise the professional practice of the members of the order. Its functions include inspecting their records, books, registers, PAGE 4 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 medications, poisons, products, substances, apparatus and equipment relating to their professional practice, and inspecting the property entrusted to them by their clients or other persons. At the request of the board of directors, the committee or a committee member shall inspect the professional competence of a member of the order; the committee or a committee member may also act on its or his own initiative in this regard. The committee or a committee member may be assisted by inspectors or experts appointed as determined in a regulation under section 90. The inspectors must be members of the order. The committee shall send the board of directors 1) any inspection report the board requests that is the basis for recommendations for a decision of the board; 2) any report following a specific request by the board to carry out an inspection; 3) any other inspection report the board requires. On its own initiative or at the request of the board of directors, the committee shall report to the board on its activities, and make any recommendations it considers appropriate. In addition, the committee shall inform a syndic if it has reasonable grounds to believe that a professional has committed an offence referred to in the second paragraph of section 116. On its own initiative or at the request of a syndic, the committee may also, when it considers it relevant, disclose information to that syndic for the protection of the public. Contrary to the Disciplinary council, the professional inspection committee does not take final decisions: it makes recommendations to the Bureau: 113. The professional inspection committee may, for the reason it indicates, recommend to the board of directors of an order that it require a member of the order to successfully complete a period of refresher training or a refresher course, or require the member to do both, or it may recommend that any other requirement determined in a regulation under section 90 be imposed. The committee may also recommend to the board that it restrict or suspend the right of the member concerned to engage in professional activities until he has met the requirements or fulfilled the conditions imposed. 115. The professional inspection committee shall report annually to the board of directors on its activities. PAGE 5 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 TOPIC 3 : DISCIPLINE 1. WHY DISCIPLINE EXISTS Because the law demands it! In Quebec, under Division VII of the Professional Code In other provinces and territories, mainly under acts respecting each profession Elsewhere: it depends. Professional discipline has been instituted to allow the enforcement of professional rules under the constraint of the law. Discipline is an internal process aiming to correct offending conduct (not to punish it, as the theory goes) and to prevent its reoccurrence through deterrence and exemplarity. In Quebec, the disciplinary institutions, mechanisms and procedures are created by the Professional Code and further defined in the jurisprudence( under the principles of common law). The basic principle is, however, self-rule within each profession when it comes to deciding on the facts : disciplinary councils are considered to be "specialized forums" of a quasi-judicial nature as they are called to interpret and enforce rules which are often "profession-specific". Through jurisprudence, discipline has evolved into a complex branch of administrative law, borrowing some rules from penal and criminal law and other rules from civil law. PAGE 6 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 2. THE DISCIPLINARY PROCESS JURISDICTION The disciplinary process set up according to the Professional Code has exclusive jurisdiction to dispose of every complaint respecting offences to the law and regulations pertaining to the profession. (Professional Code, sections 116 and 152) WHO CAN BE DISCIPLINED ? Any "professional" or "member of an order", i.e. any person who holds a permit issued by an order (OIQ in our case) and who is entered on its roll. Any Engineer-in-training or junior engineer, since he or she holds an “engineer-in-training” or “junior engineer” permit and is entered on the roll of the OIQ Any person who has been a member of an order if the offence has been committed while that person was a member thereof. (Professional Code, section 116) BY WHOM ? In every order, the Board of directors must appoint a syndic and, if need be, assistant syndics and corresponding syndics. These persons have an exclusive jurisdiction on disciplinary inquiries. (Professional Code, section 121) Although they are appointed by the Board of directors of the Ordre, the syndics are fully independent in the discharge of their duties and cannot hold any other official position within the order. (Professional Code, sections 121.1 and 121.2) The syndic and assistant syndics have extensive powers of inquiry that begin with any information to the effect that an engineer may PAGE 7 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 have committed an offence. They may also retain the services of an expert. (Professional Code, sections 122 and 121.2) In special circumstances that have to be justified, a "syndic ad hoc" may be appointed by the Board of directors. (Professional Code, section 121.3) The Disciplinary council, created under the Professional Code, has an exclusive jurisdiction on disciplinary offences. (Professional Code, section 116) The council is presided by a lawyer appointed (and remunerated) by the provincial government and the other members (at least three of them) are engineers appointed by the Board of directors. The president and members are all appointed for fixed terms of at least three years. (Professional Code, section 117) HOW DISCIPLINE IS ENFORCED A complaint may be lodged with the Disciplinary council by the syndic, an assistant syndic, a syndic ad hoc or by any other person. (Professional Code, section 128) Disciplinary hearings and decisions are public and public notices are sometimes published when the Professional Code requires it or when the council decides so. However, closed hearings and publication and divulgation bans may be ordered to protect witnesses, certain confidential information etc. (Professional Code, sections 139 to 149 and 179 to 182) For each count contained in the complaint on which the professional is found guilty, the disciplinary council must impose AT LEAST one of the following penalties : (a) reprimand; PAGE 8 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 (b) temporary or permanent striking off the roll, even if he has not been entered thereon from the date of the offence; (c) a fine of not less than $1,000 nor more than $12,500 for each offence; when an offence is continuous, its continuity shall constitute a separate offence, day by day. In the case of a subsequent offence, the minimum and maximum fines prescribed in that subparagraph are doubled (d) the obligation to remit to any person entitled to it a sum of money the professional is or should be holding for him; (d .1) the obligation to transmit a document or the information contained in any document, and the obligation to complete, delete, update or rectify any document or information; (e) revocation of his permit; (f) revocation of his specialist's certificate (does not apply to engineers as no such certificate is ever issued); (g) restriction or suspension of his right to engage in professional activities. A fine AND a temporary striking off the Roll must be imposed when the professional has committed an offence under section 58.1 (sexual misconduct). A temporary striking off the Roll must be imposed when the professional is found guilty of having appropriated, without entitlement, sums of money or securities held by him on behalf of a client or of having used sums of money or securities for purposes other than those for which they were entrusted to him in the practice of his profession. The Council may also recommend to the Board of directors that refresher training or courses be imposed. It may impose conditions, such as publication of a notice of the decision in a newspaper having PAGE 9 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 general circulation in the place where the professional has his professional domicile and in any other place where the professional has practised or could practise.. The sanctions usually take effect when the delay for appealing expires, but the council may order otherwise. (Professional Code, section 156 to 160) The professional who has been found guilty usually has to pay the legal fees and court costs incurred by the ordre (service fees, stenographer, etc.), and may also have to pay the fees of the complainant's expert, and the cost of publishing the aforementioned notice in the newspaper. APPEALS The Professions Tribunal, created under the Professional Code, has an exclusive jurisdiction on appeals. (Professional Code, sections 162 to 177.1) The Superior Court of Quebec retains its general powers of judicial review respecting any decision rendered by the Disciplinary council or the Professions Tribunal. From there, a case may make its way to the Supreme Court of Canada. 3. A FEW EXAMPLES PAGE 10 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 Disciplinary Case No. 22-97-0004 : Frank Pigeon A young engineer, dissatisfied with his working conditions in a large plastic toys manufacturing company, tries to sell proprietary information to his employer’s largest competitor. With the help of that competitor, he gets caught, and is disciplined. The fines total 4200 $ and he must also pay court costs. Of course, after having been confronted with the evidence, he also loses his job, in disgrace. Disciplinary Case No. 22-00-0002 : Jean-François Mailloux A young engineer, frustrated by his impending layoff from a « high tech » company that designs motorcycle antitheft devices, wipes out critical software and confidential files from his computer, but keeps a copy by himself and tries to blackmail his former employer. He faces a disciplinary complaint AND a civil lawsuit. He is stricken off the roll for 60 days and fined 600 $, the decision is published in " PLAN " and he must pay the court costs. Disciplinary Case No. 22-00-0033 : Roger Farrell An apartment building on Hastings Street in the West Island suburb of then Dollard-des-Ormeaux attracts the attention of municipal inspectors. Inquiries ensue. Major incompetence and neglect in structural engineering : the failed balconies are obvious, but there are many major structural deficiencies. Construction is halted. The building is evacuated. PAGE 11 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY PAGE 12 OF 25 CHAPTER 10 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 The affair "makes the news" PAGE 13 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 Consequences : Mr. Farrell's license is revoked, he is ordered to return any seal in his possession and to pay court fees (including the professional fees of the syndic's expert) and expenditures. 4. ALTERNATIVES TO DISCIPLINE In some instances, when public safety is not at risk and when no sexual misconduct is alleged, the Syndic or an Assistant syndic may propose conciliation to the person who requested the inquiry and to the engineer. The procedure is in sections 123.6 to 123.8 of the Professional Code. PAGE 14 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 This procedure may lead to material considerations. Any settlement is voluntary, done in writing and must be agreed to by the Syndic or Assistant syndic. TOPIC 4 : CONCILIATION AND ARBITRATION OF FEES The Professional Code requires that every order establishes a procedure for the conciliation and arbitration of the professional fees charged by its members. 88. The board of directors of an order whose members charge fees must establish, by regulation, an accounts conciliation and arbitration procedure that may be used by persons to whom fees are charged. The regulation shall include 1) provisions allowing a person to use the procedure if the account has already been paid in whole or in part, provided the application for conciliation is made within 45 days after the day the person received the account or within a longer time prescribed by the regulation. If two or more accounts were issued for the same professional service or if an account is payable in instalments, the time to apply for conciliation runs from the date of receipt of the most recent account or from the most recent instalment due date, and the application may cover all the accounts issued or instalments due in the year preceding the application. If the member has withdrawn or withheld sums from funds held or received for or on behalf of the person, the time runs from the time the person became aware that the sums were withdrawn or withheld; 2) provisions for the setting up of a council of arbitration with the power to determine the amount of any reimbursement to which a person may be entitled; 3) provisions for the arbitration of accounts by a council of arbitration composed of one or three arbitrators, according to the amount of the dispute as prescribed in the regulation. The regulation may specify the fees payable on applying for arbitration. In such a case, the arbitration council must rule on the reimbursement of such fees. The regulation may also contain provisions which, when all or part of the account in dispute is maintained or when a reimbursement is granted, enable the council of arbitration to add interest and an indemnity, computed in accordance with PAGE 15 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 articles 1618 and 1619 of the Civil Code, from the date of the application for conciliation. The arbitration council may, in particular, consider the quality of the services rendered in relation to the fees charged. Despite any provision of a regulation under subparagraph 1 of the second paragraph, account conciliation may be applied for within 45 days after a decision of the disciplinary council that expressly calls into question the quality or the relevance of a professional act that is charged for in the account, except if the account has already been referred to conciliation or arbitration. The member may not institute proceedings in respect of an account until the time allowed to apply for conciliation has expired. However, the member may institute proceedings before that time has expired, with the authorization of the person indicated by regulation of the board of directors, where there is a risk that recovery of the account will be imperilled unless proceedings are instituted. See the Regulation respecting the procedure for conciliation and arbitration of accounts of engineers (R.Q., c. I-9, r.8); enacted under the rules in existence until 2008, it may be revised soon. The procedure applies only to private practice, as "fees" do not include "wages". However, the fees charged by an engineering firm may be subject to arbitration even if the engineer in charge actually is paid a salary. TOPIC 5 : CONTROL OF THE ABILITY TO PRACTICE 1. Conditions to enter the Roll To be entered on the Roll, conditions must be met : 46. Every person who applies therefor to the secretary of an order shall be entered on the roll of the order if he satisfies the following conditions: 1) he holds a permit issued by the board of directors of the order; 2) within the period specified, he pays the assessments he owes to the order as well as the amount of the contribution he owes under Chapter VIII.1; PAGE 16 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 2.1) within the period specified, he pays the other amounts he owes to the order in connection with an activity related to the supervision of the practice of the profession; 3) within the period specified, he furnishes security to cover his professional liability and, if applicable, the liability of the partnership or the company, in accordance with paragraph d or g of section 93, or pays the amount determined under section 85.2; 4) he has paid any costs awarded against him by the disciplinary council, the Professions Tribunal or the accounts arbitration council as well as any fine or amount imposed by any of those bodies that he owes, or he complies with the payment agreement that has been reached; 4.1) he has repaid the compensation paid by the order under a regulation under section 89.1 or he complies with the payment agreement that has been reached; 5) he has completed the formalities and paid the fees for entry on the roll determined under paragraph 8 of section 86.01; 6) he satisfies the other conditions for entry on the roll prescribed by this Code or by the Act constituting the order. If these conditions are not met, a person will not be allowed to become a member. If these conditions cease to be met, a person will be stricken off the roll. A frequent cause: failure to secure insurance coverage for private practice. To reenter the Roll, every condition must be met again: 46.0.1. A professional who has been struck off the roll of an order must, even on the expiry of a provisional striking off the roll, comply with the conditions and formalities set out in section 46 in order to be again entered on the roll. Unless the board of directors decides otherwise, entry on the roll entails the resumption of any supervision measure to which the professional was subject on ceasing to be a member of the order and which therefore ceased to be applied at that time. The decision to strike members off the Roll for administrative reasons may be published. PAGE 17 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 2. Disciplinary or criminal record Having a disciplinary or criminal record anywhere as an applicant or as a member may lead to the rejection of an application or to a striking of the Roll or a restriction or suspension of the right to engage in professional activities. This is provided for by the following sections of the Professional Code : 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; 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; PAGE 18 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 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 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; PAGE 19 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 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; 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. PAGE 20 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 55.2. The board of directors may, after giving the professional an opportunity to submit observations, apply the disciplinary penalty handed down 1) in Québec by a disciplinary council of another order or by the Professions Tribunal in an appeal from a decision of that council, imposing the revocation of the professional's permit or specialist certificate, a striking off the roll, including a provisional striking off the roll, a restriction, including a provisional restriction, or a suspension of the right to engage in professional activities; or 2) outside Québec which, if handed down in Québec, would have had the effect of a penalty described in subparagraph 1, with the necessary modifications. The penalty imposed by the council ends on the expiry date of the disciplinary penalty described in subparagraph 1 or 2 of the first paragraph. 55.3. A certified copy of a judicial or disciplinary decision described in section 55.1 or 55.2 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 professional to provide any information or document it considers necessary for the purposes of section 55.1 or 55.2. The board of directors may strike the professional off the roll until the information or document is provided to it. 149.1. A syndic may, by way of a complaint, seize the disciplinary council of any decision of a Canadian court declaring the professional guilty of a criminal offence which, in the opinion of that syndic, is related to the practice of the profession. A certified copy of the judicial decision is proof before the disciplinary council that the offence was committed and that any facts reported in the decision are true. The disciplinary council then imposes on the professional, where expedient, one of the sanctions prescribed by section 156. 3. Physical or mental condition The Professional Code provides for medical control of the ability to practice: PAGE 21 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 48. The board of directors of an order may order the medical examination of a person who is a member of such order, who applies for entry on the roll or who makes another application preceding admission to the profession where it has reason to believe his physical or mental condition is incompatible with the practice of his profession. (the procedure is in sections 49 to 53) 54. Every professional must refrain from practising his profession or performing certain professional acts to the extent that his state of health is an obstacle thereto. 4. Competence and proficiency The Board of directors may assess the competence of an applicant who has held a diploma for years without applying, or who has been out of the profession for a number of years : 45.3. The board of directors may assess the competence of an applicant for a permit described in section 42 when the applicant has satisfied the conditions set out in that section for a number of years greater than that prescribed by a regulation under paragraph j of section 94. The board of directors may also assess the competence of an applicant for entry on the roll when the applicant has held a permit without being entered on the roll for a number of years greater than that prescribed by a regulation under paragraph j of section 94. Based on the results of an assessment under the first or the second paragraph, the board of directors may, after giving the applicant an opportunity to submit observations, 1) refuse to issue a permit to or enter on the roll the applicant whose knowledge or skills are not equivalent to those of the members of the order; 2) enter the applicant on the roll but limit or restrict his right to engage in professional activities until successful completion of a period of refresher training or a refresher course, or both; in the case of repeated failure to successfully complete a required period of refresher training or a required course, the third paragraph of section 55 applies. A decision under the third paragraph 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. PAGE 22 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 No new application may be presented to the board of directors after it has made a decision under this section unless there are new facts that may warrant a different decision. The Professional Code provides ways to restrict a member's practice if his competence is insufficient, and to redress the situation : 55. The board of directors of an order may, on the recommendation of the professional inspection committee or the disciplinary council or in the cases determined by a regulation under paragraph j of section 94, require any member of the order to successfully complete a period of refresher training or a refresher course, or both such training and course. It may also impose on the member any other requirement provided for in a regulation under section 90 that is recommended by the professional inspection committee Where the board of directors of an order imposes a requirement described in the first paragraph on a member of the order, the board of directors may, on the recommendation of the professional inspection committee or the disciplinary council or in the cases determined by a regulation under paragraph j of section 94, restrict or suspend the member's right to engage in professional activities until that requirement is met. In case of repeated failure to meet a requirement imposed under the first paragraph accompanied by a restriction or suspension, the board of directors may, after giving the professional concerned the opportunity to make representations, strike the professional off the roll, or permanently restrict the professional's right to engage in professional activities reserved for members of the order. The decision of the board of directors shall be served on the professional 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. See the professional inspection and disciplinary procedures. A professional may consent to restrict his right to practise without going through the whole process : 55.0.1. In addition to the other cases provided for in this Code or the Act constituting the order, the board of directors may restrict a member's right to engage in professional activities if the member consents to it. PAGE 23 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 The board of directors may reassess the situation of the member concerned on an application in writing by the member, after obtaining the recommendations of the professional inspection committee. 5. Appeals of decisions other than disciplinary The Professions Tribunal has an exclusive jurisdiction on appeals from most administrative decisions. (Professional Code, sections 182.1 to 182.9) The Superior Court of Quebec retains its general powers of judicial review respecting any decision rendered by the Bureau or the Professions Tribunal. From there, a case may make its way to the Supreme Court of Canada. REQUIRED READING1 Code of Ethics of Engineers, Division IV Regulation respecting the professional inspection committee of the Ordre des ingénieurs du Québec, R.Q., c. I-9, r.3.1 Regulation respecting the cessation of practice of a member of the Ordre des ingénieurs du Québec ((1994) 126 G.O. II, 683) [c. I-9, r.2.1] 1 Professional Code, Division VII Regulation respecting the procedure for conciliation and arbitration of accounts of engineers, R.Q., c. I-9, r.8 To be found on www.canlii.org as previously shown or OIQ - Laws and regulations on www.oiq.qc.ca. PAGE 24 OF 25 © Concordia University 2003 ENGR201 PROFESSIONAL PRACTICE AND RESPONSIBILITY CHAPTER 10 SUGGESTED READING • Disciplinary decisions (in French) on the OIQ web page http://www.oiq.qc.ca Look for "Decisions /Judgements" • Decisions by the Professions Tribunal on its web site, easily found through http://www.canlii.org PAGE 25 OF 25 © Concordia University 2003 ...
View Full Document

Ask a homework question - tutors are online