Design Professionals Flashcards
Negligent Misrepresentation
Complainant successful bidder has cause against pro in NM if:
1) where bidder relies on plans/specifications prepared by professionals
2) where the plans/specs contain errors; and
3) Bidder suffers damages as a result of its reliance
Design pro inspecting material
An engineer who accepts defective materials on behalf of the owner may be jointly and severally liable to the owner along with the supplier of defective materials
Sources of law governing practices of architecture and engineering
- Common law and provincial statutes
- Some affect from federal statutes
Federal Statute implications
Governed provincially but there are federal statutes (ex: bridges act) which can affect the practice of engineering
Provincial statutes
Enable governing bodies (self-regulating professions)
Architect
a person who is licenced or registered to practice architecture by the relevant provincial or territorial association
Practice of architecture involves
preparation of design to govern construction of building that has as its principle purpose human habitation or occupancy
Landscape architecture
involved design, planning and management of outdoor sites for a variety of purposes
Interior design
involves construction, demo, or management of alteration/furbishing of interior space
Architectural technologist
generally completed a 2 yr post secondary technical program + at least 2 years work experience at technician or technologist level
Arch practicing w/out a licence
Individuals who construe themselves as ‘architects’ without licence may be:
1) Restrained from doing so by injunction; or
2) Fined for improper use of title
Basic requirements to be an architect
1) Be Canadian Citizen or Permanent Resident
2) Obtain a degree in architecture from college/university
3) Completed period of training in the practice or under direction of registered architect; AND
4) Passed exams required by relevant provincial association
Some extra requirements to be an architect in some provinces
- Min age for licensing (ON,MB,BC)
- “Good/Moral character” (BC,ON,MB,NS)
Professional engineer
person who holds an engineering licence or member of provincial/territorial association
Practice of professional engineer
any act of planning, designing, evaluating, reporting, directing or supervising that:
1) Requires application of engineering principles and
2) Concerns safeguarding life, health, property, economic interests, public welfare or environment
Practice of geoscientist
Includes assessments relating to any activity directed towards discover/development of: oil, coal, minerals, natural resources or water.
Geoscientist
governed by engineering statutes
Consulting engineers
engineer who provides engineering/geoscience services to persons other than employer of that engineer (usually retained on special projects where specialist required)
Engineering technicians
- completed accredited 2 yr post secondary engineer technician/applied science program + 2 yrs work experience
- Duties: testing, drafting modeling and surveying
Engineering technologist
- completed accredited 3-yr post-secondary engineer technologist/ applied science program + 2 yrs work experience
- Duties: supervising, coordinate and train technical staff, manage, determine procedures, as well as planning and development
Engineer practicing without a license
Individuals not licensed to practise may not hold themselves out as a professional engineer (just cause you graduated eng doesn’t mean pro)
When can eng graduates practice engineering without license?
- As long as licenced engineer assumes responsibility for their work
- Only those with licence can sign off on engineering work
Basic Requirements to be an engineer
1) Acquired sufficient work experience
2) Graduated from accredited program
3) passed relevant exams established by provincial/territorial associations
Specific provincial requirements to be an engineer
- In MB/ON/NB: must be at least 18 to obtain licence
- BC/ON/NB: must be Canadian citizen or permanent resident
- BC/ON/NB:possess good character
- PEI: need to be or are about to be a resident of PEI
Non-residents of the province practicing in arch/eng?
Residents of Canada: if licenced in one province can practice in another if they are members of an association recognized by the relevant province or if there is reciprocal agreement between provinces
Non-residents of Canada Practicing in arch/eng
can only be granted licences/temp licences to practice in Canada if association they belong to or work/educational experience are recognized by respective provincial association
Legislation on scope of services that can be performed
BC: only architects can practice architecture, while there are some carved-out exceptions of acts that non-architects can perform (i.e. repair certain types of buildings)
NB/PEI: comparable carved-out exceptions for engineers and non-architects.
Joint architectural/engineering boards
Most provinces have legislation require establishment of joint architectural/engineering boards to maintain professional relationship and advise on standards/guidelines etc.
Court intervention
disputes regarding areas of practice may also be decided by courts. Injunctions can be granted for scope
Professional Associations
corporate bodies formed to:
- Administer relevant provincial statutes
- Licence individuals entitled to practice.
- Maintain and advance standards of profession
- Regulate those offering architectural and engineering services and
- Safeguard general public
Legislation confers right to
self-government upon professional associations of architects and engineers in each province.
National Associations
Responsible for:
1) Assessing academic qualifications
2) Setting and advancing standards of practice
3) Promoting and maintain professional relations of members of provincial associations.
What do National Associations perform?
- Do not perform regulatory functions
- Do influence policy and professional guidelines
The National associations are:
- Royal Architectural Institute of Canada
- Committee of Canadian Architectural Councils
- Canadian Engineering Accreditation Board
- Engineers Canada
Architectural code of ethics ethical obligations
Ethical obligations:
1) Duty to discharge professional duties with integrity
2) Perform professional services only when qualified
3) Avoid conflicts of interests and
4) Have regard for health + safety of public
Architectural code of ethics specific obligations
1) Must not provide architectural services without contract
2) Must discharge obligations before becoming bankrupt
Engineers’ Code of Ethics ethical obligations
1) Hold paramount health and safety and welfare
2) Undertake work only if qualified
3) Conduct themselves with fairness and good faith towards clients + colleagues
Engineers’ Code of Ethics specific obligations
1) Present to employers and clients the possible consequences if engineering decisions or judgements are disregarded
2) Duty to refrain from accepting financial rewards for material suppliers for recommending their product
Councils
design professionals are governed by councils established under their provincial statutes
disciplinary committees
- councils implement disciplinary committees to inquire into complaints brought against members of the association
- conduct hearings
Resigning
cannot avoid disciplinary action by resigning
Standard of proof in disciplinary proceedings
balance of probability
Sanctions for professional misconduct
Variety, can include: Revocation/suspension of licence, restrictions on practice, and imposition of fines.
Appeals
can be appealed to court of relevant jurisdiction.
Architects discipline in NB
only one investigatory committee for complaints
Engineers discipline
established separate and distinct investigation/discipline committees.
Contractual relationship between arch and eng
usually none
agency relationship
Design pro will generally act as clients agent
Scope of work done by design pro is governed by
1) Contract and 2) the regulating statute
Implied terms between design pro and client
1) Will be completed reasonably near to cost estimate they provided
2) Design reasonably skillful/effective to achieve clients purposes
3) Design have regard to site conditions
4) Design pro will ascertain clients needs and advise them if they cannot be met
Client obligations to design pro (usually written sometimes implied)
1) Give full instructions as to the client’s total project requirements
2) Make all relevant info available upon which the design pro is entitled to rely
3) Make decisions in a timely manner
4) Notify design pro if any fault or defect becomes apparent
5) Engage specialist subconsultant as recommended by design pro
6) Authorize architect or engineer to act as the clients agent
7) Make payments as provided under the contract
8) Grant appropriate access to project site
9) Obtain permits, approvals, and licences
Normal course for copyright
copyright remains with design pro regardless of whether contract is completed or executed
What does copyright include?
Includes drawings, plans, models, designs, specs, and other data
When is normal course for copyright not the case?
designs that carry some sort of individualistic style
What is needed for client to make use of IP work done by design pro?
Payment is a condition precedent
What if they want to use IP again?
To use it again need their consent
What if design pro terminated (IP)
Need consent to use if the design pro is terminated and they need to hire someone else to complete the work
Can design pro assign?
Design pro may assign the right or grant an interest in the copyright but that needs to be in writing
Moral right
authors right to protect the integrity of their work and their right to be recognized as the author
Moral rights assignable?
No, but can waive in whole or in part
When is moral right infringed?
if work is mutilated or changed
Patents
Eng creates invention created on the project
Use of patent for construction project
- construction contract will grant a license to use patent in relation to the project for which it was created
- Limited to the end of the project
- After project engineer retains ownership of the patent
Design Pro as Payment Certifier
- Design pro acting as agent for owner has obligation to ensure that part of the work has been done
- still has obligation to act quasi-judicially (make decisions and investigate)
Why does Law impose special duties on design pro
they recognize a duty of care because they are a professional whose competence and judgment others will rely on
Duty to the owner
Duty of care to contractors/potential contractors not to misrepresent in act or omission something that bears on the price of the work
Standard of care for design pros
Design pro owes duty to client to exercise reasonable care, skill and diligence expected of an ordinarily competent professional
When is the standard of care judged
At the time of work (not with benefit of hindsight)
standard of extraordinary degree
Not standard of extraordinary degree of skill unless you are holding yourself out to this degree
Modifying standard of care?
Can be modified by contract (can specify higher standard of care)
If they exercise standard of care
No liability if they exercised this and still are not successful
