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MY INITIAL COMMENTS ON PEO REGULATORY PERFORMANCE – CAYTON “FINAL” REPORT, 30 APRIL 2019
LEW LEDERMAN QC, PUBLIC MEMBER OF PEO COUNCIL MAY 15th, 2019
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These my Comments, as a Public Member of PEO Council, are intended by me to be part of PEO’s Council records.
INTRODUCTORY NOTE
Engineering is a Great Profession. With a Great Contribution made and to be made to Ontario and Canada.
I, like all of us, was looking forward to this Study (“Review”), to aiding it, and to seeing how it could be used by us to ensure that PEO is not only doing its job, but also continuously improving.
Accordingly, I thank Harry and his colleagues, Kate and Deanna, for giving us this Report. Moreover, I’d like to personally thank Dave and all of our colleagues in PEO Management and Staff for contributing to making this Review happen.
Their job is now over.
And ours – the Council’s – now begins, begins in earnest.
So, what should we do? My method, as a Public Council Member – who trained and worked many years in Law – would, in fact, be essentially the same as that of an Engineer:
Overall – Assess Facts (Evidence), Apply Authority (Law) & Logic.
Procedurally – Caucus & Deliberate; Study & Analyse; Consult & Collaborate; Plan & Proceed sensibly, Project-by-Project, to do what we think should be done.
Openly & Transparently. (We are a Statutory Body not a Private Club.)
That is my initial view, before having the benefit of at least the start of the “Open & Transparent” Work that, I think, must occur. We must embrace our Members & the Public, not hide from them.
Accordingly, what I set out here is …
First the General, that is: “Big Picture” and
Then the Particular, that is “Item-by-Item” (at least the main features of them) as set out in the Report:
“What’s There”, and importantly, “What’s Not There, Though Should Be”.
In both the General and the Particular, my aim would not be to attempt an encyclopedic analysis, but to “zero-in” on things I know reasonably well. In other words, to do a sort of “Spot Audit”, both as a Framework to assess the specific area in question, and as a gauge against which to measure the other, less familiar areas.
Right Now …
I see Very Serious Problems.
I record them, describe them, analyse them, here, in the following pages.
So, until this Report is looked at, really looked at, thoroughly, really thoroughly, and fixed as needed …
Speaking as a Public Member – I strongly recommend
Not approving any of it. Not even approving it in principle.
And – forthwith – Disavowing those Demonstrably Wrong, even Provocative Comments addressed on p. 15
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GENERAL OVERVIEW
Here are my Initial Comments on the Review, for convenience called: the Cayton Report.
A Lot of Work. Some Good, Some Mixed, Some Unfortunately Bad.
But with More (Much More) Evidence, Thinking & Focus Needed.
Clearly this Report represents a lot of Work. In some senses it is a prodigious undertaking. As stated earlier, Harry Cayton and his team of Kate Webb & Deanna Williams are to be thanked. Their efforts (at short notice and under time-dead-line pressure) are much appreciated – even if some of their analyses & views are (perhaps not surprisingly) not always agreed with.
It is a Beginning. Some Work Good. Some Mixed. Some Unfortunately Bad. It canvasses, to greater or lesser degree, very large amounts of material from varied sources.
Now More, Much More Evidence, Thinking & Focus are needed.
To come from the PEO Council itself.
(With advice from PEO Management.)
The “Top Issues” – Licensing, Volunteers, Chapters, Governance & Discipline
This Cayton Report centres on a number of Issues. The Top Issues are:
Licensing. We already have known for some time that this area is a Big Problem. But fresh insights help.
Volunteers. A surprise (at least to some). We always were told by Management that Volunteers were fundamental to PEO’s strength. Indeed, in many ways (primarily through Committees) central to expert assistance and for the so-called “Peer Review”.
Chapters. A simmering question, just below the radar screen, except with respect to Financial Issues, and Framework Reform. Problems: “Yes”. But: Strengths too. And, we must guard against “throwing out the baby with the bath-water”.
Governance. This, of course, is not officially part of the assignment (but to come later as a “Phase 2” of sorts), but has cropped up in several instances now as a sort of “brooding omnipresence” none-the-less. With – even on an early look – significantly divergent views. I see a serious problem here.
Discipline. This is a key regulatory function. But, even so, not a well understood one. We will get a reasonably well-considered glimpse at this, the “Spot Audit” treatment earlier referred-to. I have a serious problem here. The facts & analyses and, consequently the recommendation are, simply put: Dead Wrong.
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These Comments Give Some of My Initial Thoughts. More to Come.
I will be absent from our end-of-May Meeting, so set out here some of my initial thoughts.
Of course, I would have preferred a “face-to-face”. Please accept this as second best for now.
And, of course, as I say below (see below – This will be a “Many-Council-Meeting” Exercise.)
We have more to come.
Inevitably.
Much more. I expect it will be a long and complicated process.
This Will be A “Many-Council-Meeting” Exercise. Open & Transparent.
I expect consideration of this Report will be a “Many-Council-Meeting” exercise (at least it should be). Especially, as we need to discuss it (in a Well-Considered & Explained Framework) with PEO’s Committees & Chapters; our “Sister” Organizations such as OSPE; of course, the Ontario Attorney General’s Office; our Delegate and Partner, Engineers Canada; other Provincial Regulators (for Professional Engineers, and for General Principles: more broadly); the Engineering faculties at Canadian Universities; and naturally-of-course: the PEO membership as a whole. And, of course, all of it: Open & Transparent.
And, necessarily, there would be inevitable Statutory changes – changes with implications across the whole of Ontario’s (and likely the Canadian) landscape. We will have to have our well-evidenced & well-reasoned “ducks-in-order” for this.
A Need For “Before-Final” Versions & Comments.
As this is described as a “Final Report”, and as it was formally commissioned by Council, then it follows, I think, that Council should – for “completeness” – see the material parts of (i) the Instructions (Understandings) Given; (ii) Consultations; (iii) the “Before-Final” Versions; and (iv) Comments (if any) made by PEO Management respecting them.
Indeed, I should be unambiguously blunt here … To be absolutely clear:
Q.1: Was Mr. Cayton given an understanding of results/nuances/features that Management favoured?
This should be transparent to Council, who is “The Client”.
If there were such an understanding, Council should know.
For then the Report could be (should be) seen as: part-advocacy, and it should be so described.
Q.2: Did Management provide comments on, or assist in the writing of, the Report (or parts) ?
Again, if so, Council should know about it.
I look forward to receiving these in due course. As should all of Council.
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While We Should Not Delay, We Should Not “Sole Source” the “Companion” Governance Study.
There is no reason for Council to delay its “Companion” look at Governance.
By the same token, there is – as I see it – no persuasive reason why we should expedite it either,
nor “sole source” this matter.
We should Not Expedite it. As it deserves careful attention. By Council itself. (Albeit with Advice as needed.)
We should Not “Sole Source” it. With anyone. Not with Mr. Cayton’s Group*, nor with anyone else.
We should put it out to Tender.
(* Despite Mr. Cayton’s distinguished reputation, and his admitted current “learning curve” advantage.
But balanced contra by his apparent disadvantage of being at odds with – at least some Canadian
legal authority. See later comments in the Discipline section on the McRuer Royal Commission Report.)
“Carriage” of This Matter Going Forward – How & By Whom – A Needed “New-Broom*” Mindset.
(*Meaning, as the saying goes: A “New Broom” sweeps clean, doing the job, that an Old Broom can’t.)
The “Carriage” of Council’s examination – that is: “How & By Whom” – of both this “Regulatory Performance Review” & any future Governance Review, will need very Careful Consideration.
In particular, I suggest we need to have a “New-Broom-Mindset”.
In other words – the understandable themes “steady hand at the tiller” & “many new & unfamiliar people on Council”, notwithstanding – those who have in the past run PEO, though knowledgeable, must of necessity & by definition, bear the Burden* of any inactions (or, indeed, mistakes) that may be, at least, part of the source of what we may now find to be inadequacies at PEO. Or, indeed, these “past-runners” may (not unreasonably) be seen as potential “road-blocks” in acknowledging inadequacies in a clear and straight-forward way.
*This is not a question of “Blame”, nor an exercise in assigning it. It is an exercise in “Improving”.
Of course, almost all of us on Council (except the newly-minted ones) must admit to be somewhat potentially “conflicted” (in the sense above, of at least, possible “inaction”), but many, especially our Officer-Corps, must surely be more-than-just-somewhat “conflicted” (as they were “running-the-show”). They should – as is normal – at least Declare this Conflict and, if, nevertheless, they wish to play a more-than-a-general role, have Council address it. With the greater their “prior-running-of-the-show”, the greater their onus of convincing (a justifiably reluctant) Council to contemplate the proposed degree of their involvement. To be clear: I do not criticize those who have been “running the show”. Those “running the show” did their Duty as they saw it. (As we all must.)
But, Facts Are Facts.
Moreover, in addition to the (I think needed) “New-Broom-Mindset”, there must be a proper opportunity to accomplish an orderly transition from the previous, now retired, Council Membership, which had the benefit of background on the Issues here, to the new Council, with as I said above “newly minted” Council Members, who need to come up to some sort of comfort-level adequate to the task.
This cannot, and should not, be rushed.
Most certainly, at the May 30/31 & June 1st Sessions: Discussing & Thinking – “Yes”. Deciding – “No”.
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SOME DETAIL
Mr. Cayton’s Executive Summary
Extracts here and throughout (in quotation marks & italics) …
The Standards of Good Regulation used in this report were adapted from those developed by the Professional Standards Authority in the UK. The Standards in this review cover three areas of regulatory activity:
· Licensing and registration
· Complaints, discipline, compliance and enforcement
· Professional standards and guidance.
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My Comment 1:
These Standards of Good Regulation (attached as “Annex “A” to the Report) are, in effect, the central “yardstick” here. As such they are supposedly Critical.
To the Review.
To our Understanding.
They are described in a footnote as follows:
The Standards of Good Regulation have been in use for 12 years and have been the basis for over 100 performance reviews of professional regulatory bodies in seven different jurisdictions.
The focus of the Professional Standards Authority referred-to, as I understand it, is the Health Field. With its prior main focus the UK. Whether or not these should apply to Engineering in Ontario, may well be an issue. At least something to think about.
The Standards set out for the complaints, discipline, compliance and enforcement areas are these 11:
1) About raising a concern.
2) About sharing concerns.
3) About the regulator determining if a complaint has merit.
4) About review on receipt of conduct and competence complaints.
5) I quote this in full: “The complaints, discipline and enforcement processes are transparent, fair, proportionate and focused on serving and protecting the public interest.”
6) About protected titles.
7) About avoiding delays.
8) About updates & participation.
9) I quote this in full: “All decisions made at the initial and final stages of the complaints and discipline process are well-reasoned, consistent, and protect the public interest.”
10) Is about publication of all final decisions.
11) Is about information retention.
Numbers 5 & 9 are central here, in my view.
And, my initial impression is that there is Not Much Detail, especially not the sort of detail, nor Supposedly Objective Criteria, that I would expect to “Securely Anchor” the Report’s criticisms, especially that PEO Discipline Panels are “insufficiently independent of PEO’s council”.
More on this below, and in my later section (“Spot Audit”) on Discipline.
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For the present, I’ll say that in the Discipline area the Review seems to have missed a great deal.
In particular, and surprisingly, the Review missed the extensive analyses of Ontario’s Royal Commission Inquiry into Civil Liberties (the “McRuer Report” of 1968) which, inter alia, describes at length –
· Why Discipline Panels (across the Regulated Professions spectrum) are mostly composed of Regulated Professionals in the fields in question, as they have expertise;
· Why Lay Members should be appointed by Government to Councils and to Panels to ensure protection of the Public Interest in the former, and Fairness in the latter;
· Why they are to be Independent; and
· Why this intentional design feature, accordingly, cannot be or create, an improper conflict.
(See my 1 page extract, dated Spring 2019, that accompanies these Comments.)
This current approach – including the direction to be Independent – is the one mandated by Statute.
So, again, I do not see how it can be called a “conflict”, or “insufficient” in the normal sense of these terms.
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The Report continues:
The Standards were agreed with PEO in advance of the review.
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My Comment 2:
I do not recall Council “agreeing” to the Standards, as referred-to above.
And it is Council that is “The Client”.
Indeed, if the Standards for Discipline had been presented to me; my reaction would have been, I think …
· They are General, and
· They are Subjective, and
· Where’s the Specific Ontario Law ?* …
*Especially what McRuer (former High Court Chief Justice) – Chairing the Ontario Royal Commission which involved many leading experts – says, in detail. (Again,see the 1 page Attachment for much of this.)
Surely, what Ontario’s McRuer Report says must be “Bed-Rock” fundamental. Its omission in the Cayton Report here is both inexplicable and shows a glaring gap in Research & Method & Analysis.
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The review found that PEO meets one Standard of seven for licensing and registration.
Ø PEO meets six Standards and partially meets one of 11 for complaints, discipline, compliance and enforcement.
Ø PEO meets one Standard and partially meets two of four for professional standards and guidance.
Ø In order to meet a Standard PEO had to demonstrate that it did so with measurable outcomes. It is not sufficient for a regulator to have policies and procedures that would meet a Standard if properly applied.
Ø Overall the review finds a mixed picture of performance as a regulator. PEO meets just under half the Standards but the main area of weakness is in licensing and registration. PEO is aware that its approach to licensing is complicated, that it results in long delays for some, particularly international applicants and that it is open to a charge of inconsistency and unfairness. Complaints and discipline processes are insufficiently independent of PEO’s council although we found assessment of complaints to be careful and well managed.”
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My Comment 3:
The “key” here, of course, is: Just what is the “Standard” ?
While it is set out in Annex “A”, it relies – in essential features – on terms that seem to me to be potentially Subjective, such as “Fair”, “Efficient”. Especially when coupled with the Necessary Questions: What is the Evidence for meeting (or not meeting) it ? And by what Measure ? Both need a careful (but absent) look-see._
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The report finds that PEO is over-reliant on volunteers and that it has not yet fully discarded its history of being a professional association promoting the practice of engineering and the interests of engineers
The report suggests that PEO needs to invest more in professionalising its regulatory practice and in building a modern IT infrastructure to support its work and increase efficiency.
The report concludes with 15 recommendations for improving PEO’s performance and observes that leadership of PEO, both voluntary and staff, do together have the skills and energy to make the necessary changes to structure, processes and performance. Our conversations, observations and engagement with PEO and its people over the last six months leads us to believe that many also have the will to change.
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My Comment 4:
The above statement: “leadership of PEO, both voluntary and staff, do have the skills and energy to make the necessary changes to structure, processes and performance” is very revealing – though not, apparently, intentionally so. It earlier says: “PEO is over reliant on volunteers and … has not fully discarded its history of being a professional association promoting the practice of engineering and the interests of engineers”.
These two are, to my mind, Inconsistent. Inconsistent in logic. Inconsistent in fact. Misleadingly so.
(See Over)
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First – They seem to imply that the Councillors are “Volunteers”. This is simply not so, by any realistic use of language. Councillors, elected and appointed – as the statute says – constitute “the governing body and board of directors” of the Association, to “manage and administer its affairs”. In our context as a Statutory Regulator: saying we are “Volunteers” is wrong. Flat-out Wrong. We, who are Council, are the Statutorily-Constituted people who are in charge of PEO and its Regulatory work. Period. Yes, the “Electeds”, of their own volition, ran for Council – as, for that matter, do members of the Provincial Legislature. But that does not make them “Volunteers”. The “Appointeds” applied, but neither are they “Volunteers” in the sense implied. Of course, the PEO web site classes the Council, albeit mistakenly, under a heading called “Volunteers”, but this hardly matters – except to perpetuate the “history” that the Report says PEO “has not [yet] fully discarded”.
Second – This line of thinking mis-states who “leads” PEO and who is charged with doing its work.
It is the Council that has the Statutory role to “manage and administer” PEO’s affairs.
Of course, we do not “micro-manage”. Council appoints the Registrar, the Deputy Registrars, and “such other persons as are from time to time necessary or desirable in the opinion of the Council to perform the work of the Association”.
Of course also, as the Report points out: there are “Volunteers”, many of them, who, in part, populate Committees, Task Forces, and Working Groups, and in this sense do, as well, perform PEO work. And this work has been, and, in PEO’s current way of doing things (which is we must remind ourselves, is very much at issue here), is: integral & greatly valued.
But … these “Volunteers” – much as they are appreciated – are not part of PEO’s core structure as defined by our Statute. Nor, in the conventional sense of language, can it be said – as Mr. Cayton seems to – that their “skills and energy” are to be central in making the changes his Report sees as needed.
Surely that is Council’s job.
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Mr. Cayton’s Heading: Review and Approach
1.6 We consider that the information which we have been given, the examination of PEO’s work in practice and our discussions with its Council members, volunteers, registrar and staff have enabled us to come to a fair assessment of its performance against the Standards of Good regulation.
Right-touch regulation
1.7 Our approach to effective regulation is set out in the Professional Standards Authority paper, Right-touch Regulation Revised. Right-touch regulation means using only the regulatory force necessary to achieve the desired effect. It sees regulation as only one of many tools for ensuring safety and quality and therefore that it must be used judiciously. Professional regulation exists not to promote or protect interests of professional groups but to enhance public safety and protect the interests of the public.
1.10 PEO’s performance has been assessed against 22 Standards of Good regulation … adapted and agreed in consultation with PEO senior executive staff …
1.15 … Regulators tackle poor practice through investigating complaints and adjudicating on misconduct and incompetence. Good regulation in this area provides assurance that the regulator takes action against those practitioners who fall short of expected professional standards. Publishing details of discipline cases helps others to understand why action is or is not taken and help improve public protection as others learn from these incidents.”
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My Comment 5:
Licensing & Registration .
For the moment, I note that problems here have already been well-known for some time.
Discipline (my “Spot Audit”) .
For the moment: I note that the point encouraging publication is good, but incomplete. Good. Very Good. When cases are not publicly available: Then only one side – the PEO Prosecution – has them.
Hardly a “level playing field”. Hardly “Fair.”
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Mr. Cayton’s Heading: Legislative Framework
This section addresses, as its title indicates: PEO’s Legislative Framework.
It brings the relevant provisions together conveniently in one place.
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My Comment 6:
What the section misses: Is where the “Line” is. And where the “Line” should be … Between:
· Science & Applied Science
· Engineering & Professional Engineering
This is, surely, Critical.
And certainly, Central to what we as Regulator must do – now and in the future.
PEO does Not “Regulate” Science.
Indeed, even the most enthusiastic of Regulators would not even begin such a pretentious “Over-Reach”.
But PEO does “Regulate” aspects of “Applied Science”.
Moreover, when an Engineer “graduates” … How does what their University trains them to do: Require them to be “licensed” as Professional Engineers in order to do it ? Suppose it is MEMEs or A.I ?
The Report repeats the Statutory meaning of “practice of professional engineering” (which for completeness I reproduce below), and speaks of the so-called “industrial exception”, but does not, as far as I can see, address these Broader Questions. And these are the Broader Questions where we, as Regulator, and the Government which ultimately sets our parameters, can use help.
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2.10 The Act defines the scope of PEO’s regulatory interest: the practice of professional engineering:
‘practice of professional engineering’ means any act of planning, designing, composing, evaluating, advising, reporting, directing or supervising that requires the application of engineering principles and concerns the safeguarding of life, health, property, economic interest, the public welfare or the environment, or the managing of any such act.
Licensing requirements
Section 14 of the Act describes the requirements for issuing a full licence. The applicant must:
· Be not less than 18 years of age
· Comply with academic requirements
· Comply with experience requirements
· Comply with any other requirements as specified in regulations
· Be of good character.
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My Comment 7:
I have said earlier that the problems with Licensing have been well-known to PEO for some time. Hopefully Mr. Cayton’s suggestions may give some new insights.
The Report also addresses Certificates of Authorization, Continuing Professional Development, and Discipline (comprising also Complaints, Compliance and Enforcement).
As indicated earlier, of these: Discipline will be my primary focus.
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Mr. Cayton’s Heading: PEO’s Organization and Structure
3.1 PEO’s structure and organization requires some description so as to understand both its strengths and weaknesses as a regulator. Essentially it remains a hybrid of both professional association and statutory regulator despite establishing OSPE in 2000.
3.3 The Association of Professional Engineers of Ontario was established in 1922 as a professional association with self-regulatory powers. This was a common structure at that time. Despite reforms strengthening its legislation over the years and a decision in 2000 to separate its regulatory functions from its advocacy functions in establishing OSPE (see paragraph 3.27 below), PEO remains fundamentally an engineers’ membership association rather than a professional regulator.
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My Comment 8:
Mr. Cayton’s characterization of PEO as a “Hybrid”, unfortunately in the Real World of Ontario Profession Regulation, leads to a false dichotomy that is a Dangerous and Almost Impossibly Broad one for Regulatory Reform purposes …
(Continued Over)
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As this “Hybrid” element is integral to most Profession Regulators that I’m familiar with – including the Lawyers (indeed, I am, as a Lawyer, regulated by the Law Society of Ontario), the Pharmacists (on whose Council I sat as a Lay Public Member for some 9 years) – It would take a Government decision, implemented by Legislation, to change this in any fundamental way for PEO. And this would necessarily ripple through the whole Province. Not a small undertaking. And not an undertaking to be advanced on (inherently) Subjective considerations rather than on demonstrated Evidence .
Furthermore, it is to address the assurance of the protection of the Public Interest, including Fairness in Discipline matters – which is a fundamental feature of the Public Interest – that McRuer (following British precedent, in fact) recommended the appointment, by Order-in-Council, of Public Lay Members, to sit on Council and on Discipline. The Statutes of Regulators were amended accordingly, including PEOs.
I am one of those Lay Public Appointees (for over 11 years now, on two Councils– so I “know the ropes”).
My Role is to Do My Duty. As I see it. And take instructions from no one. (No matter how well-intentioned.)
And this often in the face of Elected-Members and Managements, that both (strangely) seem unaware of McRuer’s reasons: And have actually made clear to me, that they resent my presence – as I am not one of them. Astonishing, but true.
This also carries to Managements who mistakenly believe that Councils are mere “Policy” shops, “Rubber Stamps”; and that all the true business of the Regulator is decided by them. And this despite the Statutes saying, as PEO’s does: “The Council … shall be the governing body and board of directors of the Association and shall manage and administer its affairs”. I don’t really see how it can be said clearer (!)
Moreover, in my consultation with Harry Cayton & Deanna Williams (with background material): I made them aware (reminded them) of the McRuer Report and its salient features. And that McRuer’s extensive Royal Commission Report was not a simple forgotten minor footnote to history.
As I have already said here: McRuer caused Major Revisions of Ontario Statutes. And, Professor Mullan, in 2005, called the Commission “undoubtedly one of the watersheds in the evolution of Ontario administrative law and, indeed, the law of Canada”.
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The Council and the public interest
3.10 It is not the function of this review to concern itself with governance. PEO indicated that it will consider if a governance review is desirable in the light of this review of regulatory performance and any other matters it considers relevant.
3.14 Although there are eight Lieutenant Governor appointees only three are public members, therefore the public voice is weak and the direct public interest inadequately represented.
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My Comment 9:
As to the question of Governance –
Governance, though not officially on the agenda, suffuses much of what underpins this Report.
(Continued Over)
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As to Public Appointees and representing the Public Interest –
All PEO’s Council Members – Electeds as well as Appointeds – have a Statutory Duty to be guided by, and to implement, PEOs Statutory Objects, the “Principal Object” being:
[T]o regulate the practice of professional engineering and to govern its members … in accordance with this Act, the regulations and the by-laws in order that the public interest may be served and protected.
Of course, the Public Members do have an additional Duty, or Trust, or Focus, to be Alert To and Advance the Public Interest. Not in “lock-step”, nor according to “some interest-driven, secret, Public Members-only compact”, but – and I have seen it – diligently in pursuit of that Public Interest.
As for numbers: The Statute provides for minimums and maximums. P. Eng. Public Members: 5 to 7.
Lay Public Members: 3 to 5. Only minimums have been appointed recently. It is my understanding the PEO Management, in meeting with the Office of the Attorney General (a few years ago), said that it was “PEO Policy” that only minimums be appointed. When I heard of this, I protested. I said it was ultra vires; asked for proof of this so-called “Policy”; and was ignored.
If that means the “Public Voice” was “weak” as Mr. Cayton says, then perhaps so. I, myself, attribute it more to Weak Leadership at the Council level. Weak Leadership, in my experience, too often equates to a Weak Council generally. And I have said so. Openly. Transparently.
Perhaps more Public Members might make a material difference. I don’t know.
This “Weak Leadership” at Council is a problem, in essence, centred on the “hammer-lock” control of the so-called 3 Ps (the Past-President, Current-President and President-Elect), especially the Current-President, and the fact that the Current-President (who is, by definition, an “Elected”) is almost always Council Chair. I have protested this. Openly. Transparently.
In my experience, the 3 Ps, although well-meaning, and sincere, and hard-working, have – de facto – usurped Council authority, and, manifestly acted ultra vires. I have told them this too. (One, actually said he was tired of hearing “Latin:” So, I say here – “ultra vires” means “beyond authority”.)
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3.15 Members of the Council sit on the COC and DIC [the Complaints & Discipline Committees]. It is not a criticism of any individual involved to say that this creates an inherent conflict of interest as between roles. The complaints and disciplinary procedures are not fully independent of the PEO (see paragraph 4.78 below)
Here is 4.78 …
4.78 Members of the DIC are not independent from the Council and we observed a willingness on the part of some Council members to comment on the Registrar’s decision to appeal a DIC decision demonstrating an indifference to the importance of avoiding conflicts of interest and role.
Here is 5.11 …
5.11 We have found that the complaints and discipline process is competently managed, but we have concerns about its lack of complete independence from PEO’s Council and therefore PEO’s corporate interests. These concerns were compounded when we observed that some members of council attempted to challenge the registrar’s legitimate decision to appeal a disciplinary decision and that members of Council involved in that decision did not recuse themselves from the discussion.
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And here is the consequent Recommendation (12)…
Members of the COC and the DIC should not be drawn from the members of Council.
The members of these committees must be able to make judgements independent of the interests of PEO Council. (3.15, 4.78, 5.11)
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My Comment 10:
Starting in sequence…
With respect to 3.15, on supposed “inherent conflict of interest” – The Law makes it this way.
This characterization by the Report is simply NOT the way the Statute is set up. In other words, the Statute made things the way they are. Let’s be clear: This is the “Law”. Not some “Opinion”. Not some “Preference”. It’s the “Law”.
And as far as I can tell, all Profession Regulators, at least the ones with which I am familiar, work this way.
As for “Independence”, in my observation, the Discipline Committee and its Panels are independent.
If I suspected, for a moment, that they were not independent: I would have raised it at DIC and at Council – and as my colleagues (even those that disagree with me) will testify: I am not shy about this.
With respect to 4.78, on supposed “indifference to the importance of avoiding conflicts of interest” –
There is No such “indifference”. Perhaps Mr. Cayton and his colleague(s) lacked a complete understanding of the situation, and, moreover, came at the issue from a wrong perspective (see above on 3.15).
The Facts are:
The Registrar, himself, in his January 25, 2019 “Weekly Update” (sent to PEO Council, PEO senior staff, and Engineers Canada officials), reported on the Case in question:
The Paul D. Rew, P.Eng., and Rubicon Environmental (2008) Inc. Appeal, seeks that the not guilty order be set aside. PEO has appealed the decision issued December 18, 2018, under which the Discipline Committee [sic: “Panel”] acquitted the respondents of all the charges of professional misconduct. The grounds of appeal include: reasonable apprehension of bias; major errors of law and principle, including incorrect rulings concerning expert evidence, and application of the wrong tests for findings of professional misconduct under ss 72(2)(a), (b), and (c) and; imposition of an inappropriate onus of proof.
Thus, the Registrar, himself, laid the matter – in detail – before Council.
And before others. Including Engineers Canada officials who, though affiliated, are not Council Members.
So, for some purposes, might be seen effectively as “Strangers”.
And not “In Camera”. (Which PEO Council typically uses for Legal matters, especially contentious ones.)
So, the Registrar didn’t just “open-this-door”, with the whole Council (and others), he walked through it.
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There was a reply by Professor Roydon Fraser PhD, P. Eng, Elected Member of Council (and a long-standing, highly-regarded Member), to the Registrar and copied to the full Council February 4th, 2019.
To the Registrar, he said:
Can Council please have a copy of the discipline panel decisions for this week’s Council meeting?
(The Registrar provided them – as there were two: One dated November 16th, by myself and Tim Kirkby (P. Eng. Public Member), of 162 pages; and one dated December 18th, by Michael Wesa (P. Eng., Elected Member), and Michael Chan (P. Eng. Public Member), of 22 pages.
To the Council, he said:
This new trend of appealing Discipline Panel decisions is VERY disturbing. I can understand [another current appeal] … However, the Rew appeal, from my outside looking in perspective, raises some very concerning questions just as the recent Leong [Sic: “Leung”] appeal did … [Continued below]
[This earlier appeal was in 2017, and was the subject of not only Council deliberation then, but later there was a Motion by Professor Fraser and myself suggesting a new “Discipline Framework”. Our Motion was not adopted then, although the recorded vote was close. It was discussed and voted on in Council’s open (and accordingly, fully transparent) session. No one ever suggested – for either session – that this was a matter of potential, much less actual, conflict, nor for recusal – even though at least one Leung Panel Member (as I recall) was present.]
I attach with this Commentary, for completeness, a copy of a Note I prepared afterwards in Summer 2017 (intended for those interested in Regulatory matters, including the Ontario Government), suggesting the ideas presented in that Motion, which I considered “Public” and in the “Public Interest”, as “Model Arrangements”.
Professor Fraser continued:
Questions concerning the appeal process, motivations for appeal, discipline panel operations, and fairness. We must have a full discussion of this at this week’s Council meeting, or postpone actions until we do.
[The end of Professor Fraser’s email.]
So, that is how the Rew matter got before Council, in Public Session, consistent with prior PEO Council practice. And with No Suggestion from Anyone of Impropriety or Conflict or the Need for Recusals.
Accordingly, with respect to the above set out Report comments in 4.78 of “some Council members … demonstrating an indifference to the importance of avoiding conflicts of interest and role”.
I say that – even if based on a lack of understanding, and on misapprehensions on his part –
I am astonished.
As well as insulted.
His comments – even had he used measured language – are “flat-out” Wrong.
Dead Wrong.
To accuse Members of Council – any Member of Council – of such “indifference” is Wrong & a Mistake.
This, of course, is exacerbated in his comments in 5.11 below.
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With respect to 5.11, on supposedly Wrongful Non-Recusal & PEO’s “Corporate interest”–
First: There is a very old, well-respected doctrine in Law: “Audi Alteram Partem” (Hear the Other Side) which is used not only in Courts but in Business. Meaning; if you are going to criticize someone (especially in print), at least give them a chance to know what you think and to respond. Aside from volunteering negative comments on Council’s deliberations, Mr. Cayton did not Hear the Other Side. If he had, perhaps he would have maintained his view, but at least he’d have been better informed. For example, he would have learned that the Registrar’s so-called “legitimate decision” to appeal, came from a Council Motion (not from the Statute or other authority), passed by Council in 2017 after an open discussion*, as a result of the then Registrar’s encouragement. So, what Council (after Deliberation and Vote) can give, Council similarly can take away.
(*An open discussion, not unlike in kind the one Mr. Cayton complains of here.)
As for the substance of the Matter: Whether or not some Members (including the four members of the Panel in question, which as stated, includes me and two other Public Members) should have recused themselves for supposed Conflict …
I say: “No”. All proper processes were followed. Demonstrably.
And this wrongful blot on our honour is something that needs to be withdrawn.
I will certainly ask – and by this present document do ask – PEO Management to disavow it.
Had we been asked to either explain a suggested “conflict” or, out-of-an-abundance-of caution, to leave the room. We would have addressed that. Openly & Transparently. On the Record.
Second, on the Surprising View, based – as far as I can see – on No Evidence, that DIC Members, because (by Statute) also Council Members, would, as if by definition, prefer PEO’s “Corporate Interest” to the Public Interest (the Public Interest including Fairness, by the way) is Foolishness.
More so, it clearly and wrongfully implies that we (including non-Engineer Public DIC members) would acquit a Defendant-Engineer of Misconduct – and, accordingly, against the Public Interest – in order to protect a “fellow Engineer”.
This is surely a shocking thing to even imply, much less, in effect, say.
And I can tell you, based on personal observation: Dead Wrong.
Again, it is something that needs to be withdrawn.
In any event, as above, I now ask – PEO Management to disavow it.
I could say more. But I won’t.
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Proceeding sequentially …
The next parts of the Report are more logistical in focus: Committees, Volunteers, Chapters, Work-Load, Costs, Business Infrastructure.
Then comes the Report’s …
Assessment against the Standards of Good Regulation.
As with Licensing:
We already know there are problems.
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As with Discipline:
I have already commented.
As with Professional Standards and Guidance:
No comment.
On Protecting the Public
I have already addressed this, in its essential features in the Discipline section, including my references to the McRuer Report.
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My Comment 11 on Recommendations:
Overall, many could have been written before the Review. Many are normal up-dates & house-keeping.
My Comments are in italics below.
Recommendation 1: Review committees et al. – Up-dates & house-keeping.
Recommendation 2:
Part A: PEO should clarify roles of Council members. – The Law is already clear on this. Though, of course, in this as in most things: more can always be said.
Part B: Delegate more to executive staff. – This is misconceived. Management already runs too much.
Both a theme that generally is well-developed in literature & law-suits, and borne out specifically in a number of PEO examples. In any event, this is fundamentally a “Governance” recommendation for another time and place. (Even though, it seems to creep in here – in my view: inappropriately.)
Recommendation 3: In effect, severing the Chapters. – Not supported by sufficient evidence.
Recommendation 4: Implement Fairness Commissioner’s recommendations. – Already being dealt with.
Recommendation 5, 6, 7, 8: Rework Licensing. – We already know this area needs substantial attention.
Recommendation 9: Standards. – Being competently handled by Management. Assist if asked.
Recommendation 10: PEAK revise, make mandatory. – To be actioned. Do not make mandatory.
Recommendation 11: Discipline. – See earlier comments. Yes, give appropriate Reasons. Yes, Publish.
Recommendation 12: Discipline. – Drawing DIC Members from Council is the Law.
McRuer supports this. No Evidence of Problems.
Recommendation 13: Digital Strategy. Interesting, but hardly an immediate queue-jumping priority.
Recommendation 14: Modernization. – We must know what we want before we go to Government.
Recommendation 15: Assess & Implement Recommendations. – No. A lot of them just don’t make it.
Given the problems already highlighted here – I’d look hard at All of them.
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My Comment 12 – A Final Post-Script:
I have addressed “What’s in this Report”.
But there’s the further matter of “What should be in it, but isn’t.”
And that’s, as they say: A whole new kettle of fish.
Things … Like notions of “Duty”. Like how to handle big Engineering Companies with only a minority of
P. Eng staff. Like whether lack of money can mean lack of justice. And many more.
Of course, the big “Elephant-in-the-Room” centres on what I say in My Comment 6 (on page 9), and what do “the smartest people we can find” say: About where the “Line” should be between:
· Science & Applied Science
· Engineering & Professional Engineering.
In that regard, I commend to our Readers’ study a recent article in IEEE Spectrum on
The Marvelous Mr. MEMS highlighting Dr. Kurt Petersen, BS (cum laude) from University of California at Berkley, PhD in EE from MIT, who has been instrumental in establishing the promising field of MEMS (Micro-Electro-Mechanical Systems), as the sort of new world our Ontario Engineers should embrace, and conquer. And, as I read this Article, I asked myself:
· Is Dr. Pedersen a “P. Eng.” (in any jurisdiction)?
· What would a “P. Eng.” designation give him?
· How could any authority “regulate” what he does?
· (Or what the likes of Silicon Valley do for that matter.)
So, I’ll finish where I started …
Engineering is a Great Profession. With a Great Contribution made and to be made to Ontario and Canada.
We, PEO Council, as those entrusted with the Statutory Duty & Statutory Power to Regulate this Great Profession: Must do it the very best we can. Openly & Transparently.
Each of us doing our Duty in the Public Interest as we see it.
Given the Report’s Demonstrably Wrong, even provocative Comments, identified here.
It cries out in those Parts (especially those addressed on p. 15) – for Disavowal. Forthwith.
To be Clear: In my view, this Report is essentially a Public Document. Certainly, it’s an Official one.
It should surely be made Public. Ideally, soon. In any event, without “more-than-modest” delay.
Such delay: Likely & Properly for an “Official Council-Approved Statement”, developed in Public Session.
Followed by the sort of Detailed, Time-Consuming, Comprehensive & Systematic Work referred-to earlier.
As for these my “Initial Comments”, I make them as a Public Member of PEO Council pursuant to what I see as my Statutory Duty. In the Public Interest. I have – at my conclusion of writing – provided them to my fellow PEO Council Members & Management. I consider these Comments also to be probably a “Public Document”. ___________________________________________________________________________________________________________________________________________________
By Lew Lederman QC, Public Lay Member of PEO Council.
Member of PEO’s Executive Committee, Audit Committee & Discipline Committee.
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