Engineers in British Columbia have a duty to look out for the public interest, not just in their own work, but in their observation of the work of others. Engineers may be uniquely positioned to identify unsafe or illegal situations. As such, engineers have a legal and ethical “duty to report” which obligates them to bring these situations to light. The duty to report is crucial to protect public safety, but is also important for engineers to protect themselves. The failure of an engineer or a firm to report risks to the environment or to the health and safety of the public can result in substantial fines and even imprisonment. Further, decisions surrounding the failure to report are released publicly and could affect the career of an engineer. This article is intended to provide a general overview on what engineers are required to report, and how to go about doing so.
There are two main sources for the Engineer’s duty to report: the Engineers and Geoscientists of British Columbia (“EGBC”) Code of Ethics (the “Code of Ethics”) [1] and section 58 of the Professional Governance Act, (the “PGA”)[2].
The Statutory Duty under the PGA
Section 58 of the PGA requires that a registrant to report to regulatory body if they have reasonable and probable grounds to believe the practice of an identified registrant might pose a risk of significant harm to the environment or to the health and safety of the public or a group of people. In this section, an identified registrant means a registrant of a regulatory body believed to be engaged in the allegedly unsafe conduct. The PGA governs engineers, accordingly they are subject to this statutory duty.
The PGA creates protections for registrants who report (section 103), and conversely punishments for registrants who fail to report (section 106). If convicted, individuals can face a fine of $200,000 and imprisonment for no more than two years, and firms can face a fine of $500,000.
The Code of Ethics Duty
EGBC registrants are required under the Code of Ethics to report risky, illegal or unethical circumstances. Similar to the duty under the PGA, registrants are required to report when they have reasonable or probably grounds to believe that:
- the continued practice of a Regulated Practice by another Registrant or other person, including firms and employers, might pose a risk of significant harm to the environment or to the health or safety of the public or a group of people; or
- a registrant or another individual has made decisions or engaged in practices which may be illegal or unethical.
Reasonable and Probable Grounds:
Both duties outlined above use the wording of “reasonable and probable grounds” as the threshold for reporting. “Reasonable grounds” means that a reasonable person placed in the position of the registrant (with similar knowledge and experience) would share the same concerns based on objective and credible information. However, a registrant need not be certain before reporting: “probable grounds” means more likely than not the allegation is true.
Risk of Significant Harm:
Both duties also contain the threshold requirement of the existence of “risk of significant harm” to the environment, or to the health or safety of the public or a group of people. The threshold is a high standard for reporting. The intention is to have professionals to raise serious concerns, but does not require reporting for lower level misconduct. The courts have interpreted this threshold to inherently include an element of urgency, however in some cases slower-developing hazards can still pose significant risk. Case law suggests that where the risk can be expeditiously remedied, there is no requirement to report. This aligns with EGBC’s guidelines for their duty, which suggests that a potential complainant first speak with the offending registrant about the situation. If something can be remedied at the outset, reporting may not be necessary.
Case law sheds light on what constitutes the risk of significant harm. Bryson v APEGBC,[3] was a case where APEGBC was investigating an engineer, Bryson, and found a report that identified structural deficiencies in the building that posed a risk of significant harm to specific people. Bryson wanted to wait to obtain an expert opinion before disclosing the report, and the APEGBC moved to have the report disclosed to the city of Surrey immediately. The court found that this report indicated there was a significant risk of harm, and ultimately the report was disclosed to the city.
The extent of the duty to report:
Only serious misconduct is covered by the duty to report, however the Code of Ethics duty stipulates that registrants may have a duty even if some action has been taken to address the risk. The duty also extends to reporting a continued risky practice of registrants. Engineers are generally not required to report on situations that are outside the scope of their engagement in a project, however if they’re ever unsure about whether the duty applies they can contact a professional advisor at EGBC.
Who has to report and who can be reported:
The Code of Ethics duty only applies to registrants of EGBC, however the scope of the statutory duty is broader since it extends to employers and business partners of the registrants. The scope of the statutory duty is also expanded given that all registrants governed by the PGA have a duty to report another registrant when appropriate. The PGA currently governs:
- Agrologists
- Applied Biologists
- Applied Science Technologists/Technicians
- Architects
- Engineers
- Geoscientists
- Forest Professionals
Who do you report to:
The Code of Ethics duty stipulates the first priority is to alert the person who could mitigate the risky, illegal or unethical situation, particularly when there is a risk to someone’s immediate safety. Registrants have a duty to promptly notify their employer, client, and the person responsible for the safety of the project. In this context, “promptly” means whenever the threshold has been reached, however in some situations a registrant may have time to consult with another expert before reporting. Best practice encourages a registrant to discuss the behaviour with the offending party before, in addition to reporting their actions. However this is not a strict requirement.
The process for reporting:
When reporting to EGBC, the registrant is required to submit a complaint on their website, including a description of the problem, its consequences, and recommendations for remedial actions. EGBC further states that reports should be submitted by email with documents containing relevant information attached. This reporting may conflict with an obligation to maintain confidentiality, however public safety is considered paramount and overrides any other obligation of the registrants.
When reporting to the client or other responsible parties, the best practice is to reference the duty to report under both the Code of Ethics as well as the PGA. Explaining this duty may help mitigate pushback or hostility from those involved in the harmful conduct.
What happens after reporting:
The Code of Ethics duty dictates that registrants are not obligated to correct a problem they identify, however they ought to follow up to see that action is being taken pursuant to their complaint. Under the Code of Ethics, registrants are to ensure that clients and employers are made aware of the full consequences of not following their technical advice. It is also recommended that registrants keep records of any communications regarding the issue, including assessment of the situation, steps taken to report and any responses from the relevant parties.
[2] Professional Governance Act
[3] Bryson v. Association of Professional Engineers and Geoscientists of British Columbia, 2015 BCSC 2453