March 2007 ISSUE
COMPLIANCE
Court of Queen’s Bench of Alberta
Editor’s Note: The following decision of the Court of Queen’s Bench of Alberta demonstrates a strong understanding of APEGGA’s right-to-title and right-to-practice legislation. A background story on the decision appears in the regular Compliance Department report on page 4 of this month’s PEGG.
Citation: Association of Professional Engineers, Geologists and Geophysicists of Alberta v. Broere Electric Ltd., 2007 ABQB 61
Date: filed: January 31, 2007
Docket: 0603 04696
Registry: Edmonton
Between:
The Council of the Association of Professional Engineers, Geologists and Geophysicists
of Alberta
Applicant
— and —
Broere Electric Ltd., Broere Electric Ltd. carrying on business as Broere Electric, A.C. Dandy Products Ltd., and Hans Broere
Respondents
Memorandum of Decision of the Honourable Mr. Justice E.A. Marshall
Introduction
[1] The Applicant is the statutory regulatory body for the Engineering,
Geological and Geophysical professions. It is a creature of the Engineering,
Geological and Geophysical Professions Act, R.S.A. 2000 c.E-11. The
present application is brought under s.3 of the Act to enforce the right to title
to the term, “engineer” and to prevent misrepresentation of the
practice of engineering by the Respondents, none of whom are professional engineers
or staffed by professional engineers.
Facts
[2] The essential facts are not in dispute. Hans Broere is the sole
shareholder and director of Broere Electric Ltd. and A.C. Dandy Products Ltd. The
companies carry on business in Wetaskiwin. Broere is a master electrician. Broere
Electric Ltd. formerly built electrical systems and devised; A.C. Dandy Products
Ltd. has done so since 1990. Broere designs the layout for the custom systems
produced. He personally signs all the shop drawings. He refers to
himself as, “B.Eng.” in correspondence and in a drawing which is
an exhibit, — the engineer is “HB”. All systems produced
are CSA approved. Signage on Broere Electric Ltd. premises and vehicles
uses the term “engineer” and “engineered electrical systems.” The
systems produced are used in Canada and other countries as well.
[3] The design and production of the electrical systems and devised does not involve “engineering”, as it is legally defined in the Act.
[4] One aspect of the present application involved advertising of the Respondent’s business carried out on the internet. The Respondents were unaware of the content of the advertising and immediately stopped the offending aspects from continuing when they became aware of the specific material. I need not be further concerned about the internet advertising.
Positions of the Parties
[5] The Applicant states that the issue is the right to title of the term “engineer” and
the misuse of the term, “engineered electrical systems,” which the
Respondents are improperly using. The Respondents say firstly, that the
legislation does not prohibit the use of the term “engineer” or “engineered” and
since the statute is to be strictly construed, such use is not prohibited. It
is also said that since the primary purpose of the statute is to protect the
public, in the face of evidence that no member of the public has ever been harmed,
the Court should exercise its discretion to refuse the remedy sought. The
Respondents also claims the Applicant was aware of the activity of the Respondents
for many years and due to the delay in commencing action, the doctrine of laches should
be applied to deny relief to the Applicant.
The Law
[6] Section 3(1)(b) of the Act statues:
3(1) No individual, corporation, partnership or other entity, except a professional engineer, licensee or permit holder entitled to engaged in the practice of engineering, shall
(b) represent or hold out, expressly or by implication, that the individual, corporation, partnership or other entity
(i) is entitled to engage in the practice of engineering, or
(ii) is a professional engineer, licensee or permit holder.
[7] The legislature restricts the use of certain titles so the public is not misled regarding the qualifications of the parties who hold themselves out in a particular profession. Section 3(1)(b) prohibits misrepresentation or holding out that one is entitled to engage in the practice of engineering or is a professional engineer, when such is not the case. The protection of the public is the major purpose of the legislation.
[8] The principle of strict construction of such regulatory statutes has been set out by the Supreme Court. Laporte v. College of Pharmacists of Quebec, [1976] 1 S.C.R. 101.
[9] Insofar as the matter of delay is concerned, it is evident that the Applicant relied on a signed undertaking given by Broere to not use the terminology until he was registered in 1994. This explains the delay in part. However, the question arises as to whether equitable considerations play any role in the decision to grant an injunction in this case.
[10] The application for an injunction is founded on statutory authority provided in s.9 of the Act:
9 The Court, on application by the Council by way of originating notice, may grant an injunction enjoining any person from doing any act or thing that contravenes this Part, notwithstanding any penalty that may be provided by this Act or the regulations in respect of that act or thing.
[11] he issue appears to have been frequently addressed by the B.C. courts, as summarized by Rowles J.A. for the Court in Prince George (City) v. Rahn Bros. Logging Ltd., [2003] B.C.J. No. 77, 2003 BCCA 31:
[para 54]...The foundation for the injunctive relief the respondent sought was statutory rather than equitable. As Cumming J.A. pointed out in Maple Ridge (District) v. Thornhill Aggregates Ltd., supra, at para. 7, “Factors that might be considered by a court in an application for an equitable injunction will be of limited, if any, application to the grant of a statutorily based injunction.” The court retains a discretion to refuse to grant a statutory injunction but where a clear breach has been established, the court should only refuse the application in exceptional circumstances: see Attorney-General v. Bastow, [1957] 1 Q.B. 514, [1957] 2 W.L.R. 340, [1957] 1 All E.R. 497, and Maple Ridge (District) v. Thornhill Aggregates Ltd., supra. As Mr. Justice McDonald noted in Coquitlam (City) v. Aweryn (2001), 18 M.P.L.R. (3d) 208, 2001 BCCA 373, at paragraph 4:
It has been held by this court that a judge has a discretion to refuse enforcement, but it is narrow in scope having regard to the public nature of the right sought to be enforced: Burnaby (City) v. Pocrnic (1999), 6 M.P.L.R. (3d) 250 at 254-5 [1999 BCCA 652].
[12] In Rivergate Properties Inc. v. West St. Paul (Rural Municipality), [2006] M.J. No. 281, 2006 MBCA 76, Hamilton J.A. stated:
[para55] Canadian courts have been diligent and consistent in restricting the equitable defence of laches to claims that are founded in equity or eek equitable remedies (see, for example, the quote from M. (K.) at para. 51 above and Attorney-General of Nova Scotia v. City of Halifax (1968), 2 D.L.R. (3d) 576 (N.S.S.C.), and 251798 Ontario Inc. v. The Queen, [1978] 1 F.C. 90. Where defendants have successfully prevailed upon the courts to decline awarding non-equitable remedies on the grounds of delay, the courts were not, strictly speaking, applying the doctrine of laches. See, for example, Newfoundland Association of Public Employees v. Newfoundland et al. (1998), 167 Nfld. & P.E.I.R. 72 (C.A.), and United Steel Workers of America, Local 6516 v Sydney Steel Corporation (1980), 39 N.S.R. (2d) 151 (N.S.C.A.) at 152-53.
Where the relief sought is based on statute, as in this case, there is little scope for consideration of the defence of laches or delay.
Decision
[13] Broere
denies misleading his customers by using the term, “Engineer HB” or “H.Broere,
B.Eng.” He states that all his customers are told, when they ask
for “stamped plans,” that the services of a Professional Engineer
would be required (Para. 42 of his Affidavit). He claims that the term “B.Eng.” is
a term used in Europe as a designation for someone with his level of training
and expertise in the electrical field (Para. 45 of his affidavit).
[14] The Applicant has no monopoly on the use of the word “engineer”; it may refer to a diversity of occupations and work. Certain uses are, however, proscribed bys. 3 of the Act. In this case, the word is being used by Broere, apparently to refer to himself as an engineer in correspondence. The only reasonable inference for his use of the term “B.Eng.” in conjunction with his name on drawings is that he intends to convey the impression that he is a professional engineer. It follows that such use is a representation by implication, if not expressly, that he is entitled to engage in the practice of engineering. This use if prohibited by s. 3 of the Act.
[15] While there is no evidence of any harm to the public through the activity in question and, to the contrary, the product of the Respondents appears to meet very high standards, there is no need for proof of harm. The statute forbids such conduct and indeed makes it an offence punishable as a summary conviction under s. 98 of the Act.
[16] The matter of the potential of harm to the public by dealing with persons who they believe possess qualifications they do not possess is a concern the legislature addresses through the statutory and regulatory regime.
[17] Notwithstanding the record of exemplary production carried out by the Respondent, it cannot be said there is no risk to the public in the usage employed by Broere. His work entails design and production of complex electrical systems which doubtlessly require significant safety considerations.
[18] With respect to use of the term, “engineered electrical systems,” or “engineers,” the same considerations apply. In the context of the work being carried out, it is difficult to see any other reason for usage of the terms than to communicate that Broere Electric Ltd. has an engineer carrying out engineering which is an integral part of the work produced. I am satisfied the Applicant has provided facts establishing contravention of s.3 of the Act.
[19] To the extent that the granting of an injunction under the authority of s.9 engages the discretion of the Court, the public interest far outweighs the interests reflected in consideration of delay, or of any inconvenience to the Respondent in this case.
Order
[20] The
application of the Applicant is granted. The relief sought in the nature
of an injunction enjoining the Respondents from holding themselves out as entitled
to practice engineering is given in the terms of the Originating Notice of Motion.
Heard on the 30th day of November 2006.
Dated at the City of Edmonton, Alberta, this 31st day of January, 2007.
“E.A. Marshall”
E.A. Marshall
J.C.Q.B.A.
Appearances:
Barry J. Massing,
Hendrickson Gower Massing
for the Applicant
Kenneth R. Sockett, Q.C.
for the Respondents