What You Should Know About APEGA Disciplinary Action

If you are an engineer or geoscientist in Alberta, facing disciplinary action by the Association of Professional Engineers and Geoscientists of Alberta (“APEGA”) can be a daunting experience. Protecting your professional standing and reputation is your top priority, and you should act promptly. The first step is to get informed about the potential consequences, your legal rights, the procedures involved, and how you can strategically defend yourself against a complaint.

This article provides some essential information about APEGA disciplinary actions. As you read on, bear in mind that Taylor Janis strongly recommends that you obtain legal advice when navigating regulatory challenges.

APEGA’s Disciplinary Powers

The APEGA’s Regulatory Authority

In Alberta, the practices of engineering and geoscience are heavily regulated and subject to stringent licensing requirements. Under the Engineering and Geoscience Professions Act (the “Act”), the Association of Professional Engineers and Geoscientists of Alberta is the regulator for professional engineers and geoscientists. Its members also include engineers-in-training and geoscientists-in-training, who are also under APEGA’s regulatory purview.

Hence, if you fall under any of the categories above and are facing APEGA’s regulatory scrutiny, the rest of this article applies to you.

* The Act also governs applied science and engineering technologists, who are separately regulated by the Association of Science and Engineering Technology Professionals of Alberta (ASET). Taylor Janis offers legal services in all types of regulatory actions across Alberta. If you are concerned about potential ASET discipline, you can also contact us for legal advice.

The Consequences of Being Disciplined

The Act confers on engineers and geoscientists in Alberta the privilege to self-regulate. In fact, APECA is the largest regulator for self-regulated professionals in western Canada. Along with this privilege, the Act also confers on APECA broad regulatory discretion and powers to make legally binding discipline decisions against its members.

Upon finding unprofessional conduct and/or unskilled practice of the profession by a member, APEGA may do one or more of the following against the investigated member:

• Reprimand them;
• Cancel their registration;
• Suspend their registration either generally or from any field of practice;
  • The suspension can be for a specified period, until certain conditions are met (such as completion of a course of studies or obtaining supervised practical experience), or until APEGA is satisfied of their competency or fit for practice.
• Issue a fine up to $10,000;
• Recover certain costs related to the disciplinary process from the investigated member, subject to the Engineering and Geoscience Professions Bylaws (the “Bylaws”)
• Require them to undertake to limit their practice;
• Impose conditions on their practice;
  • Possible conditions include: practising under supervision, a prohibition on sole practice, periodic inspections, and an obligation to report on specific matters.
• Direct them to pass a particular course of study, receive counselling or assistance, or satisfy competence and fit for practice requirements;
• Direct the investigated person to waive, reduce or repay improperly rendered fees; and
• Make any other order deemed appropriate in the circumstances.

Additionally, since a contravention of certain sections of the Act is an offence, they may be prosecuted by the Crown and attract severe sanctions, including imprisonment.

APEGA’s disciplinary measures can have direct financial and career-threatening consequences. Even a seemingly “lesser” sanction, such as imposing a condition or restriction on an engineer or geoscientist’s practice, can be highly disruptive to their professional activities and even personal lives.

The Reputational Damage

Under the Act and its accompanying Engineering and Geoscience Professions General Regulation, APEGA may publish discipline orders as well as reports of disciplinary investigations. The usual policy of APEGA is to publish discipline orders in a manner that identifies a member by name, unless there are specific reasons for anonymization (such as to protect the identity of the complainant). Hence, being disciplined by APEGA may result in irreversible reputational damage.

The Importance of Early Legal Representation

If you are facing a potential APEGA discipline, you should be aware of its legally binding and potentially career-altering effects. Even a seemingly lesser discipline measure can have severe impacts on your finances, reputation and ability to practice.

Hence, our recommendation is to engage legal advice to avoid unnecessary risks. Furthermore, we recommend that you do it as early as possible, even when the possibility of being disciplined is seemingly remote. This is because the disciplinary process can be intensely stressful and disruptive, and a lawyer can provide valuable assistance in navigating the procedural complexity. You should read on if you have any concerns about impending disciplinary procedures.

The Disciplinary Process of APEGA

The disciplinary process of APEGA involves procedures that are complex, intense, and disruptive to your practice, and you should consider retaining legal counsel to assist you in navigating the procedural complexities. Below are some essential things to know about the APEGA disciplinary process.

Complaint/ Audit / Practice Review

Disciplinary actions normally arise because of complaints or practice reviews. Here is what you should know about these procedures:

• Complaints:
  • Any person can file a complaint with the Registrar of APEGA if they have a concern about a member’s conduct.
  • The Registrar can designate a mediator to assist in settling a complaint. (But you should be careful and not accept a settlement with unfair conditions).
  • Complaints that are unresolved or deemed unresolvable will be referred to the Investigative Committee for preliminary investigation.
• Practice reviews:
  • The APEGA Practice Review Board can lodge a complaint with the Investigative Committee if it believes a member has committed unskilled practice or unprofessional conduct.
  • For the purpose of investigation and discipline hearings, Practice Review Board members are conferred with the power of a commissioner for oaths. This means that practice review findings may be used as evidence against a member.

The key takeaway here is, a complaint does not necessarily come from a client, and a disciplinary action does not necessarily arise out of a complaint.

Investigations

A preliminary investigation is conducted by an investigation panel, which has the power to require the investigated person to produce any documents and records under their possession or control, and its findings will be reported to the Investigative Committee.

The Investigative Committee can do more than just investigate:

• It has to refer a complaint to the Discipline Committee for a formal hearing unless the complaint is frivolous, vexatious, or lacks evidence.
• The Investigative Committee also has the discretion and power to suspend your registration.
• If the investigated person admits to fault, the Investigative Committee can also propose disciplinary measures to the investigated person and APEGA. With their mutual consent, the proposed disciplinary measures will be taken as if a discipline order has been made.
  • Admitting to allegations and consenting to discipline is not a decision to be made hastily. Remember, this will result in reputational and career detriments equal to a discipline order. You should have a lawyer comprehensively review your case and only consent to what is reasonable.

An investigation can be highly consequential and disruptive to your practice. When undergoing an investigation, you have a duty to cooperate, but you should also be vigilant of legal pitfalls and avoid jeopardizing a defendable case.

Discipline Committee Hearings

The arguably most consequential stage of the APEGA disciplinary process is a formal hearing by the Discipline Committee. If a hearing becomes the next step, the stress and risks would elevate greatly, because:

• The hearing is a quasi-judicial and adversarial procedure, where both the legal and factual issues can be intensely contentious:
  • Both parties (the Investigative Committee vs. an investigated person) have a right to counsel.
  • A decision will be made based on the relative strength of parties’ submissions, meaning extensive preparation and strong advocacy can be integral to achieving a favourable outcome.
• The procedures have profound reputational implications:
  • Hearings are presumed to be open to the public.
  • Therefore, secondary reputational harm can occur before a decision is made, especially if the investigated person is underprepared or acts in ways that prejudice themselves.
• You may be ordered to produce evidence, testify as a witness and be examined under oath (i.e. intensely scrutinized with questions).
  • Failure to comply may result in further legal complications, including proceedings for civil contempt of court or perjury.

Our strongest recommendation is that you exercise your statutory right to counsel when facing a Discipline Committee hearing, due to its intense quasi-judicial nature, reputational implications and potential for high consequences.

Alternative Resolutions

As discussed above, alternative to going through the entire disciplinary process, you may have opportunities to resolve a complaint through mediation or by consenting to disciplinary measures. However, you should analyze the situation carefully before choosing to do so. There are a few reasons for this:

• A settlement is normally legally binding, so you should only agree to what is reasonable based on a comprehensive analysis of the applicable legal rules and the factual circumstances.
• Consenting to an order recommended by the Investigative Committee requires admission to alleged faults, which will substantially foreclose the possibility of seeking future judicial remedies on grounds of unreasonable fact-finding.
  • Orders based on consent are subject to the same publication policies as other discipline orders, thus having equal reputational impacts.

Hence, although these alternatives may have some advantages in the right circumstances, they are strategic decisions that should not be made hastily without obtaining legal advice first.

Navigate the Procedures with Legal Advice

A disciplinary action by APEGA involves a sequence of escalating disciplinary procedures, each heightening the potential risks. However, you should not leave the legal representation until the last minute, because even the early stages of a disciplinary process can be highly complex, stressful, disruptive and consequential. Your lawyer can assist you in navigating the procedural complexity, avoiding legal pitfalls and making strategically sound decisions.

Another reason to seek legal representation early is that your rights are immediately engaged when a disciplinary process commences. Please read on if you would like to know more about these rights.

Your Rights To Fairness

When undergoing an APEGA disciplinary process, you have rights rooted in administrative law, common law, and even the Constitution. Your rights are ultimately about fairness, and having legal counsel safeguarding your rights can be crucial for achieving a fair outcome.

What Rights Do I have?

Your specific entitlements when facing an APEGA regulatory action can be a complex legal topic, as your rights are embedded in and engaged by the procedures provided in the Act, its accompanying regulations, and the Bylaws. For a brief summary, you have three distinct rights:

• The right to unbiased decision makers:
  • The legal threshold is that a decision and its making process should not raise a “reasonable apprehension of bias” to a reasonably informed observer of the entire process.
• The right to procedural fairness:
  • You are entitled to know the case against you and make a full answer and defence.
  • Issues of procedural fairness can arise when there is a lack of due process or when a due process is conducted unfairly.
• The right to substantive fairness:
  • This means a decision must meet certain standards in its legal and factual reasoning and determinations.
  • Final decisions made by the APEGA appeal board can be appealed to the Alberta Court of Appeal. Hence, the standards here are: “no palpable and overriding errors” in fact-finding and “correctness” in legal reasoning (Vavilov & Housen).

It Is Challenging to Appeal a Decision

Rights-related issues should ideally be addressed as they emerge during a decision-making process. This is because once a decision is made, it is monumentally challenging to appeal and overturn it. Below are a few things you should know about appeals:

• The strict time limits: an internal appeal to the APEGA Appeal Board must be initiated within 30 days after receiving a discipline order, and further appeal to the Court of Appeal must be initiated within 30 days from receiving an Appeal Board decision.
• Limited scopes:
  • The APEGA Appeal Board can reconsider the factual findings of the Discipline Committee, but you may not submit additional evidence without leave (i.e. a permission from the Appeal Board).
  • An appeal to the Court of Appeal can only be decided on the records of the impugned APEGA decision, and it is not a chance for you to reargue your case. Normally, only rights and fairness-related issues can be considered.
• High Thresholds:
  • A claim of bias or unfairness requires strong legal and factual support, and an appellant has the onus of meeting the high legal thresholds as discussed above.
  • Moreover, courts are required to follow the common law principle of paying deference to regulators out of respect for legislative intent (Vavilov ).
• No automatic stay:
  • An appeal does not automatically pause the enforcement of a discipline order.
  • If an appeal is successful, the remedy might be that the matter is sent back to the Discipline Committee to be redetermined, creating further stress and risks.

The key takeaways here are that an appeal is procedurally complex and technically challenging, and that the damaging effects of a disciplinary measure can continue during the process. Hence, an appeal should be treated as a last resort attempt to address the wrongs resulting from an infringement.

The Importance of Early Legal Representation

Your rights are engaged at all stages of a disciplinary process, and they are integral to fairness. Having legal counsel on your side means that they can spot and flag rights-related issues as they arise, thus contributing to a fairer decision-making process and enhancing the chance of receiving a favourable verdict.

Hence, our strong recommendation is to have legal counsel engaged with the entire disciplinary process. If you are concerned about your rights when undergoing an APEGA disciplinary process or planning to appeal a decision, you can place your trust in Taylor Janis to safeguard your rights and assist you through this testing time.

Strategic Defence

When you are under the disciplinary scrutiny of APEGA, it is crucial to act promptly and proactively in engaging legal representation and strategically defending against an allegation. Formulating a robust defence should not be left to the last minute: a prompt and robust response at an early stage can lead to expedited resolutions.

When responding to and defending against an allegation, rule interpretation, evidentiary foundation and sound advocacy often play crucial roles.

Know the Rules

The first step in defending against a regulatory action is to know, interpret, and apply the complex rules.

Under the Act and the Bylaws, unprofessional conduct and unskilled practice are disciplinable. Unprofessional conduct includes more than conduct violating APEGA Code of Ethics or falling below the acceptable standards of practice. Under the Act, it includes:

• Conduct detrimental to the best interests of the public;
• Contravention of the Code of Ethics;
• Conduct that may undermine the standing of the profession generally;
• Displaying a lack of knowledge, skill or judgment in the practice of the profession; and
• Serious failure to comply with the Act, its accompanying regulations, and the Bylaw.

Hence, a robust understanding and interpretation of applicable technical, competence, professionalism and ethical standards are often crucial in establishing a strong foundation for legal defence.

Moreover, an APEGA member has to act within the boundaries of all laws at all times. Correspondingly, APEGA may have to take into account other sources of law when making a disciplinary decision. For example, the practice of an engineer or geoscientist often involves communications and agreements with clients, and when a dispute arises, laws governing contracts and business practices may be considered by APEGA in adjudicating a matter.

Engineering and Geoscience are challenging career paths. It may be unrealistic for an engineer or geoscientist to keep track of all the rules whilst staying fully committed to their career, especially when under APEGA’s disciplinary scrutiny. You should enlist the help of a lawyer and leverage their legal knowledge and research skills when facing regulatory actions.

Support the Facts with Evidence

APEGA can only base its discipline decisions on facts that can be substantiated with evidence. Establishing strong factual positions can be challenging without effective legal representation, because:

• The perspectives of different parties often diverge, and the factual disputes can be intense. Decisions are ultimately based on the relative strength of competing evidence, where skillful organization and presentation of evidence can be pivotal.
• Pieces of evidence are not equal in terms of reliability, factual relevance and legal materiality, and issues relating to these are not always obvious. Your lawyer, as your advocate, will highlight crucial evidence and advocate for the exclusion of opposing evidence that is irrelevant, unreliable or unduly prejudicial.

Legal acumen can be vital in building a robust factual defence, which involves more than simply presenting the facts from your perspective.

Shape the Outcome through Advocacy

Another major component of a robust defence is advocacy. A lawyer as your advocate can help the decision makers focus on key issues, highlight hidden factual and legal factors, as well as resourcefully persuade decision makers with precedents.

The regulatory regime governing engineers and geoscientists has significant ethical and public interest components, and the practice of engineering and geoscience often requires exercising professional judgment within technical and budgetary constraints. Hence, it can be necessary for APECA to engage in principled and full-picture analysis and take into account various competing interests and the entire circumstances. Your lawyer as your advocate can assist the decision makers by presenting and highlighting factors that would otherwise be overlooked, and thus enhancing the chance of a favourable outcome.

Act Promptly and Retain Legal Counsel

You should act promptly and retain skilled legal counsel when exposed to the potential of being disciplined by APEGA. The experienced lawyers at Taylor Janis can leverage their legal and practical experience to navigate you through the procedural complexity, safeguard your rights, and strategically defend you against a complaint.

Taylor Janis appreciates that every case is different, and so are each client’s needs. So, we always offer tailored legal plans. We can be your tenacious advocates or practical problem solvers, and we are also prepared to give you good-faith advice when the risk is minimal.

The first step in securing a tailored legal plan is an initial consultation. Please do not hesitate to contact our offices in Edmonton or Calgary. Taylor Janis Workplace Law offers legal services to engineers and geoscientists in all areas of Alberta, and we look forward to assisting you through any regulatory challenges.

Frequently Asked Questions

Can My License Be Suspended Immediately Following a Complaint?

Under the Act, the APEGA Investigative Committee has the discretion and power to suspend your registration during the course of an investigation until a decision can be reached. The current published policy of APEGA is that the Investigative Committee may do this to protect the public. Hence, how you respond to an investigation can be highly consequential. On the other hand, as regulatory decision makers, APEGA should not make arbitrary decisions that discard your rights. Consult a lawyer if you are concerned about your ability to practice during an investigation.

How Long Does an APEGA Disciplinary Process Typically Take?

This depends. If a complaint lacks merit or is frivolous or vexatious, the investigation is likely terminated fairly quickly. Otherwise, the matter may take a few months or even more than a year to resolve. If you are concerned about the disruptive effects of the disciplinary process, you should retain a lawyer to assist you in streamlining the process where possible and reasonable.

Can Evidence From APEGA Disciplinary Process Be Used in Future Legal Proceedings?

This depends. The records from APEGA investigations and practice reviews may be used against you in future APEGA disciplinary proceedings. Generally, the records from a Discipline Committee hearing can also be used as evidence in other future legal proceedings, subject to applicable rules of evidence. However, your testimony at a hearing cannot be directly used against you in future proceedings, except for proceedings for perjury. On another note, if a proceeding gives rise to suspicion of additional unprofessional conduct or unskilled practice, further investigation may be commenced, thus opening up potential for further complications. You should be careful when undergoing a disciplinary procedure. Please consult a lawyer if you have any questions.

APEGA Has Made an Unfair Licensing Decision Against Me. What Can I Do?

You can appeal an APEGA licensing decision to its Appeal Board, and you will be entitled to a hearing, during which you have a right to legal counsel. Appeal Board decisions regarding licensing should be considered final as they can only be judicially reviewed for very limited grounds. If you have concerns about an APEGA licensing decision, act promptly and retain legal counsel to assist you in protecting your license through the appeal process.

The APEGA Investigative Committee Has Terminated an Investigation against Me. Am I Still Exposed to Risks?

This is good news. However, you might still be exposed to some risks. The complainant can write to the Registrar to appeal to the APEGA Appeal Board for reconsideration, and if the appeal is successful, the complaint will be directly referred to the Discipline Committee for a formal hearing.

Conclusion

Facing an APEGA disciplinary action can be intimidating, and legal representation can be essential. APEGA discipline has legally binding effects and can be highly detrimental to your finances, career and reputation. Understanding the disciplinary process, strategically responding to and defending against a complaint, and vigilantly safeguarding your rights are key to achieving a favourable outcome and protecting your career. When facing regulatory scrutiny, you should take a proactive approach and secure legal representation as early as possible.

References:

• Engineering and Geoscience Professions Act, RSA 2000, c E-11
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235
• Engineering and Geoscience Professions General Regulation, Alta Reg 150/1999
• The Engineering and Geoscience Professions Act Bylaws
• APEGA Professional Practice Guideline

Resources:

• APEGA Recommended Discipline Order
• Past APEGA Discipline Orders

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