Lesson 7

7.1 Professional Digity

Dignity is a feeling of respect or esteem that an individual holds themselves in. Certain actions can cause damage to the positive sense of esteem about the person. Causing damage to the positive feeling of esteem of a person could cause grievous psychological harm to the individual.

In a similar fashion, professional dignity is considered a positive sense of esteem that the profession has collectively acquired as result of the positive contributions the profession makes to society. But this dignity or honourable reputation of the profession is fragile and can easily be compromised. Any member of the profession, through their irresponsible actions can cause damage to the dignity of the profession. In Québec, it is a mandatory duty of each individual engineer to safeguard the dignity of the profession. This duty is prescribed in the province’s Professional Code and in the Code of Ethics for Engineers.

7.2 Relations with the Order of Engineers

Maintaining professional dignity requires the individual professional to demonstrate adequate respect for the Order, and for the role the Order plays in ensuring engineers are accountable to society. As a result, it is very important for the individual engineer to take his or her relations with the Order very seriously.

These relations are scrutinized very strictly by the Order. One important requirement is for an engineer to comply with any request from the Order to participate in the self-governance of the profession.

The engineer does not have a choice and must agree to contribute voluntarily to the Order. Similarly, the engineer must reply to any correspondence or letter from the Order as soon as possible. Delayed replies could form the basis for a disciplinary investigation.

Another vital point is that individuals are forbidden to interfere, or otherwise,obstruct a professional inspection or investigation conducted by the Order. During such an inspection or investigation, an engineer is required to submit all their professional records (including their computers) for scrutiny. Not complying with such an order can result in a disciplinary investigation.

7.3 OIQ Controls Over its Members

The Order of Engineers Quebec (OIQ) exercises considerable control over its members to ensure that the association as a whole is meeting its legislative mandate of developing engineers, who remain accountable to society and who contribute positively to public welfare. In order to do so, OIQ exerts control on key aspects:

• membership,
• nature of practice,
• social accountability.

We will examine each of these aspects in detail.

7.3.1 Membership

For an engineer, to be a member of the OIQ is crucial to practice the profession. This is so because in Quebec a person can be designated an engineer in the workplace only if they are a registered member of OIQ. A member of OIQ is required to hold a permit issued by OIQ and their name be entered on OIQ’s roll. Thus, if for some reason they lose their membership, it is not possible for the person to continue practicing the engineering profession legally. Thus, it becomes vital for a member to constantly meet membership conditions. Important membership conditions are as follows:

• Ensure registration on the roll every year on April 1st.
• Not be temporarily or permanently stricken off the roll of OIQ.
• Ensure that your permit is not revoked by the disciplinary council.
• Meet important membership conditions for member renewal. These conditions include not having a criminal record outside the profession in Canada or in another country. Another condition is to have completely paid any disciplinary penalties or assessment during the year.

It may also be required to meet physical/mental competencies to continue active professional life.

7.3.2 Nature of Practice

(1) Emsure Continuous Monitoring of Practice of Engineers

A major function of OIQ is to ensure continuous monitoring of the practice of engineers registered with it. OIQ employs different methods to monitor the professional practice.

A vital and ongoing responsibility is exercised through the process of professional inspection.

• Professional inspection is conducted at OIQ by the Professional Inspection Committee.
  • The primary mission of the inspection committee is to ensure that their membership meets minimum required standards for proper professional practice.
  • In order to evaluate standards of professional practice, inspectors can examine any material aspect of practice, including records, books, registers, chemicals, products, substances, apparatus, and equipment entrusted to the professional by a client or employer.

The Committee conducts general inspection according to a program published in the PLAN (the professional magazine published by the OIQ). In addition to the general inspection, the committee also conducts specialized inspection of a member, if it is explicitly asked to do so as part of an investigation. If during the inspection, the committee believes that the member is engaging in unethical practice, it cannot take disciplinary action but it can inform the Syndic if there are reasonable grounds that an offence has been committed.

##### (2) Discipline and Penalty

Another major aspect of professional practice that is controlled by OIQ is discipline and penalty. All members of OIQ (including retired members or junior engineers) can have their professional practice investigated. Investigation is an internal process that aims to examine if unethical or offending practice was undertaken by a member.

Once the process of investigation concludes that unethical practice was indeed conducted, the member is liable for disciplinary actions or penalties.

• In Québec, the OIQ has exclusive jurisdiction over any such investigations or disciplinary processes. In other words, these investigations or disciplinary processes cannot be challenged in a regular civil or criminal court.
• Investigations of malpractice are investigated by the Syndic. After concluding the investigation, the Syndic makes their recommendation to the OIQ’s disciplinary council.
• It is the disciplinary council that judges the complaint, hears the member and makes a decision to award penalties. According to the gravity of the offense committed by the engineer, the disciplinary council can recommend the following penalties:
  • An oral reprimand;
  • removing the member temporarily or permanently from the roll;
  • a fine of $1,000-$12,500 with fines doubled for repeat offences;
  • an obligation to remit a sum of money to the entitled person;
  • or restriction or suspension to engage in professional activities.

7.3.3 Social Accountability

A key means of ensuring that members remain accountable to society is through the conciliation or arbitration process. The conciliation or arbitration process is a means adopted by OIQ to serve society.

Any resident of Québec, who is unhappy over the fees they provided to an engineer and feels they were over-charged, can utilize OIQ’s arbitration process to determine if they were actually over-charged.

• This procedure applies only when the member is engaged in private practice and not employed by a company.

As part of the arbitration process, the OIQ can examine the quality of service provided by the engineer to verify if the client was overcharged or not. If the investigation reveals that the engineer did over-charge the client for their services, OIQ’s council of arbitration will determine the amount of reimbursement the engineer has to pay to the client.

About Learning Activity

Building trust as an engineer requires attention to at least six components:

1) disclosing limits,

2) integrity and transparency,

3) availability and diligence,

4) independence and impartiality,

5) confidentiality,

6) fees.

Bear in mind these components as you go through the two scenarios and answer the questions. Take some time to reflect on your answers.

Lesson 8

8.1 Duty towards the Public

This is a key duty for engineers who wish to practice the profession in Québec. Here the term public is understood very broadly. When we use the term public, we usually mean citizens. The meaning of public refers to the duty of engineers to the citizens of Québec/Canada. But it also uses public in another sense to mean the opposite of private. In that sense, public means the common good of people in Québec. Engineers have a duty to safeguard the common public good in Québec. This duty to safeguard the common public good is enforced through two duties – the first to humanity and the second to protect life and environment.

8.1.1 Duty to Humanity

The Code of Ethics for engineers specifies that fundamentally “In all aspects of their work an engineer must respect their obligations towards humanity.” This duty specifies that, first and foremost, engineers exist to protect and respect humans. While this obligation towards humans arises from many civil and criminal laws, fundamentally it is governed by key legal frameworks in Canadian and Québec law – the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms. The Canadian charter guarantees certain fundamental freedoms to humans living in the country. These freedoms include fundamental freedoms, such as freedom of conscience, religion, belief, expression, and association. In addition, the charter gives rights, such as democratic rights, mobility right, legal rights, equality rights, and language rights. In other words, in their work, professionals have a duty to not violate the provisions of the Canadian charter and the Québec charter. One major implication of this duty is to ensure that engineers do not engage in discrimination of any form. Discrimination is a violation of the Canadian charter, especially the equality rights specified in it. In turn, this means that no professional may refuse to provide services to a person because of their race, colour, age, sex, religion, national origin or ethnicity of such person.

8.1.2 Duties towards Life and Environment

The Code of Ethics also specifies that “In all aspects of their work, the engineer must take into account the consequences of the performance of his work on the environment and on the life, health and property of every person.” There are two aspects to this duty. The first is to act in a manner to safeguard the environment, and the second is to be mindful of the life, health, and property of every human. Safeguarding the environment requires the engineer to be mindful of technological choices that do not promote the pollution and eventual destruction of the environment and will further sustainable development. The respect for life, health and property relates closely to the rights mentioned in the Canadian charter.

8.2 Ethics Construcst

8.2.1 Prejudice

An opinion formed without taking time and care to judge fairly, often based on incomplete and stereotyped information.

8.2.2 Discrimination

Treating people differently because of some particular social attribute such as race, gender, or religion.

Adverse Effect Discrimination: Discrimination that happens as a result of applying a rule or policy uniformly.

Systemactic Discrimination: A discrimination that is rooted in accepted ways of doing this in a business profession or occupation. This tends to prevent categories of people from achieving their goals.

• Glass Ceiling: A form of systemic discrimination that prevents women from achieving their full potential by blocking advances in their careers beyond a point.
• Cultural Imperialism: A form of systemic discrimination that reduces some cultures as secondary to other more successful or widespread cultures.
• Physical/Attritudinal Barriers: prevent differently abled from achieving their full potential not because of targeted discrimination but because fullyt abled cannot perceive the barriers that the differently abled face.

Direct Discrimination: Discrimination that is directed against person on the basis of prejudice.

8.2.2 Harassment

This is a particular type of discrimination. It occurs when a person is subjected to unwanted behaviour that offends, demeans or humilitates. Form:

• Sexual
• Racial
• Ridicule

8.3 Thinking About Inclusivity and Diversity

8.3.1 Prejudice, Discrimination, and Harassment

In thinking about discrimination, it is useful to understand the concept in the context of two related concepts of prejudice and harassment.

• The Association of Professional Engineers, Geophysicists, and Geologists of Alberta (APEGGA) defines prejudice as an opinion formed without taking time and care to judge fairly, often based on incomplete and stereotyped information. The key point is that prejudice is a biased opinion that is often based on incomplete information.
• Discrimination is usually built on prejudiced opinions, but it takes prejudice a step further because it influences behaviours. Discrimination implies treating people differently because of some particular social attribute, such as race, gender or religion. Discrimination, when it results in an extreme form of behavior, results in harassment. It occurs when an individual is subjected to unwanted behaviour that offends, demeans, or humiliates.

Discrimination comes in several forms, some of them are directed while others are less easy to identify.

• Direct discrimination is discrimination that is directed against person(s) on the basis of prejudice. This is the most clearly identifiable form of discrimination, primarily because it happens in the open so that people become aware of it.
• Another form of discrimination is adverse effect discrimination. It is a discrimination that happens as a result of applying a rule or policy uniformly. When governments or companies apply a policy in society, it often discriminates against groups in society as a result.

A good example is positive discrimination in hiring that favours visible minorities or women. There is an adverse effect discrimination that is created against those who do not fall within these groups. Their chances at getting the same jobs have been reduced because of the preference that underrepresented groups have.

• A final form of discrimination is systemic discrimination. This discrimination is widespread but not very easy to identify. It is a discrimination that is rooted in accepted ways of doing things in a business, profession, or occupation. This tends to prevent categories of people from achieving their goals.

A good example of this is the glass ceiling. The glass ceiling is the existence of a barrier that prevent women from advancing in their careers in that organization beyond a particular level.

8.3.2 Multiculturalism and Diversity

Multiculturalism and diversity are the opposite of discrimination.

• Diversity is the variety in different social categories, such as gender, race, ethnicity, age, religion, national origin or sexual orientation.
• Multiculturalism is an equal acceptance for social differences in terms of gender, age, sexual orientation, ethnicity, race or national origin.

While diversity is the presence of cultural differences in society, multiculturalism is a positive accepting attitude towards these differences. Such a multicultural orientation that fosters diversity has several advantages. It fosters a spirit of mutual understanding in the workplace, and more importantly, it allows everyone to develop their abilities to its full potential.

In Canada, multiculturalism is an official policy that reflects an equal acceptance of races, religions, languages and cultures. This policy is furthered through Canadian legislation. The preservation and enhancement of multicultural heritage in Canada is the aim of the Canadian Charter of Rights and Freedoms. In addition, Canada’s Multiculturalism Act of 1988 protects aboriginal rights, and the rights of people to enjoy their cultures and use of languages other than English and French. This legal background has allowed a mix of ethnic groups, languages, and cultures to co-exist in Canada. It is for these reasons that Canada is considered a cultural mosaic unlike U.S., which has adopted a melting pot approach. Canada, unlike U.S., seeks to foster diversity without assimilating different cultural groups.

8.4 Honesty

Honesty is a moral virtue that is widely accepted but not very well understood, primarily because it is a practice relevant to many different facets of our existence in society. In such a situation, since we could encounter honesty in so many spheres of our life, we do not often realize that we have been honest or dishonest in a particular aspect. In the personal sphere, honesty can be interpreted as truth-telling.

So an honest person is one who can be relied on to tell the truth irrespective of circumstances.

But in the professional context, honesty is not limited to just speaking the truth.

It also implies representing oneself, our actions, and our views openly and truthfully. So in addition to honesty being the act of truth telling, it also means that to be honest in the workplace implies:

• the act of following scientific facts,
• the act of avoiding inappropriate means,
• the act of showing respect to colleagues in a professional relationship.

The difference between honesty as truth-telling and honesty as correct representation of actions can be distinguished by the difference between an act of commission and an act of omission. While telling a deliberate lie would be an act of commission on the part of the person speaking a lie; on the other hand, we lie by omission when we neglect to mention a relevant event, information, or circumstance to a person. Thus, honest representation requires us to avoid both acts of commission and omission.

8.4.1 Duty to be Honest

Although not mentioned separately as a mandatory duty for engineers, the duty to be honest has considerable overlap with the trust-building obligations of engineers towards clients or employers and with their duty towards humanity. But a few obligations indicate the duty to be honest. These are:

• The engineer shall express their opinion on matters dealing with engineering, only if such opinion is based on sufficient knowledge and honest convictions.
• An engineer must be impartial in their relations between the client and the contractors, suppliers, etc.
• An engineer must safeguard their independence at all times to avoid situations of conflict of interest.

8.4.2 Whistleblowing

Whistleblowing is an act that follows directly from the requirement of engineers to be honest and transparent in their actions and views. It has been defined as an act by an employee of informing the public or higher management of unethical or illegal behavior by an employer or supervisor. As an engineer, if you come to know of the commission of unethical or illegal actions in the workplace, your duty to be honest as an engineer demands that you approach either the supervisor or the public to reveal the existence of such actions. Not doing so would mean you have engaged in an act of omission.

Whistleblowing can be categorized into two types – internal or external, depending upon whether the whistle is blown inside or outside the organization.

• Internal whistleblowing would mean going over the head of an immediate supervisor (who maybe engaged in unethical action) to a higher level of management.
• External whistleblowing would mean going outside the company and report unethical or illegal actions to the media or to law-enforcement agencies directly.

In the context of professional engineering in Québec, there are well instituted procedures for whistleblowing. At a first level, when you encounter an illegal or unethical action in your workplace, your action should be to bring it to the attention of the company, first verbally, and then failing which clearly indicate in writing to the company, the consequences that may result from ignoring your advice. If after this, there is no satisfactory resolution, as an engineer, your option, especially when certain works are a danger to public safety, must be to notify the Order. For an engineer in Québec, going public would imply approaching the OIQ rather than going to the media.

9. Law and Legal Systems

9.1 Law and Legal Systems

9.1.1 Law

Law, as we have described earlier, is a rule that regulates what is accepted or forbidden in a society. Laws are created by a competent authority, such as a parliament or a legislative assembly.

Laws are enforced through a system composed of enforcement agencies (example: the police) and the judiciary. The body of law that governs a society can be subdivided, according to its focus, into two broad domains – public law and private law.

• Public laws are those laws that govern the actions of the state (or government) or the relations of the state and individuals. Examples of public law are international law, constitutional law, administrative law, or criminal law.
• Private law, on the other hand, is solely concerned with regulating the relations and disputes between private individuals. Examples of private law include commercial law, family law, property law, etc.

9.1.2 Legal Systems

Legal systems are related to laws, but as the name implies, it is the system that has built up around the process of implementing laws in a society. Legal systems could be defined as existing system for interpreting and enforcing laws. A legal system becomes the basis for:

• The sources of laws and regulations that govern a society
• The practices and customs followed by courts in interpreting laws to make decisions regarding legal disputes
• And as frameworks that govern interpretation of statutes, legislation and bylaws

Different countries around the world have different legal systems. In this module, you will find a map of the world indicating the major legal systems and their combinations, which are prevalent in different countries. Click on the major legal systems to understand their key features. In this class, we are concerned with two major legal systems – civil law and English common law systems. There are some key features that distinguish these two major legal systems. First, in a civil law system, laws are written into systematic collections referred to as codes. Second, Laws are created by legislatures alone. Third, legal decisions made by judges are based solely on applying the laws to the case. Finally, justice is produced through an inquisitorial process led by the judge. English common law, on the other hand, is based on laws and earlier cases that are similar. Second, laws are created both by legislatures and judges on the basis of the precedence value of earlier cases and judgments. Third, legal decisions are based not only on laws but also on precedence value of previous judgments. Finally, justice is produced through an adversarial process between two opposing sets of advocates with the judge acting as a neutral umpire.

9.1.3 Québec’s Legal System

Québec’s legal system is unique in Canada, because it has a mixed legal system. While other provinces in Canada follow the English common law system, Québec, given its French history, follows a mixed legal system that has elements of English common law and French civil law.

In Québec, all criminal matters are decided through English common law, while property and civil matters for disputes between private citizens are based on the Québec Civil Code.

Québec Civil Code is derived from French civil law, and therefore, legislation is the primary source of law and courts are not dependent on taking into account the precedence value of previous judgments. Laws in the Québec Civil Code have been arranged systematically to form a code comprising ten books. Each book deals with a body of law, such as persons, family, successions, property, etc.

9.2 Legal Systems in the world

Civil Law

• Laws are written into systematic collections.
• Laws are created by legislatures.

Common Law

• Laws are the result of legislation and previous cases.
• Laws are created by legislatures and judges.

Muslim Law

• Laws are derived from religious texts of Islam

Customary Law

• Laws relate to customary norms, which are related to particular communities.

Mixed System

• Prevalent in a majority of countries in the world.
• Mix of civil law, english common law and other laws.

9.3 Intellectual Property in Canada

In our modern innovation-driven economy, ideas (especially new ideas) are valuable commodities that often form the basis for lucrative commercial ventures.

If we look around, we can quickly see how some ideas have become the basis for popular devices, objects, technologies, or programs. In such a situation, these ideas are indeed very valuable and require legal protection so that those who developed these ideas can derive benefit from them. In law, novel ideas are considered intellectual property and, if it meets certain conditions, can acquire the same kinds of protection that other pieces of property like land, money, or houses have. Canada recognizes five major types of intellectual property – patents, copyright, trademark, industrial design protection and Integrated Circuit Topographies (ICT) protection.

All types of intellectual property are protected through dedicated federal laws. Intellectual property is administered in Canada through the Canadian Intellectual Property Office. You can visit their website http://www.cipo.ic.gc.ca for more information regarding intellectual property administration in Canada. We will now describe each major kind of intellectual property in detail.

9.3.1 Patents

A Patent is a government grant that gives inventors exclusive rights to their inventions. It gives the inventor an exclusive right to make, sell, and use the invention. In order to receive a patent, the invention must meet the following criteria:

• it must be new;
• must show utility (or in other words, must be working model that is functional and operative, it is not enough to have a concept);
• and must show inventive ingenuity not obvious to someone with the same skills.

A patent can be given for a product, a chemical composition or process, but it cannot be granted for a principle, theorem, idea, or computer program. The term of the protection for any new patent is 20 years from the date the application was filed.

9.3.2 Copyright

A copyright protects the expression of information in literary, musical, dramatic, or artistic works. The work must be published, recorded, performed, or communicated in order for the copyright protection to apply.

Copyright provides the author the exclusive right to allow someone to copy a creative work.

The following are not eligible for copyright protection ‒ facts, themes, ideas, most titles, names, catch-phrases, and other short-word combinations.

Copyright is owned by the creator, employer, or one who commissioned it. One aspect that makes copyright unique is that it does not require registration. All it requires that the author place the copyright symbol © followed by the author’s name and year in the work to gain copyright protection. In Canada, the duration of copyright protection exists for the life of the creator plus 50 years following death.

9.3.3 Trademark

A trademark protects marks used to distinguish goods or services of one organization from those of others. It is usually provided for catch-phrases, short-word combinations, symbols or designs, or a combination of these. A registered trademark allows the owner to use the trademark in association with specific goods or services. The term of protection is 15 years, but it can be renewed indefinitely as long as it is in continuous use. There are three types of trademarks:

• Ordinary marks are words and/or symbols that distinguish the goods or services of a specific firm (e.g., Dell or MacBook).
• Certification marks identify goods or services that meet a standard set by a governing organization (e.g., Energy Star or LEED certification).
• Distinguishing guise identifies the shaping of wares or their containers, or a mode of wrapping or packaging wares (e.g., iPad).

9.3.4 Industrial Design Protection

Industrial design protection protects the shape, configuration, and pattern or ornament (or any combination of these) applied to a finished, mass-produced item. Examples of items protected include furniture, toys, household items, and vehicles. The protection may apply to, for example, the shape of a table, or the ornamentation on the handle of a spoon.

What cannot be protected are: the functional features of an article; a principle of construction, or how an article is built; the materials used in the construction of an article (for example, glass); colour; or ideas. The period of protection is 10 years.

9.3.5 Integrated Circuit Topographies (ICT) Protection

An integrated circuit topography refers to the three-dimensional configuration of electronic circuits used in microchips and semiconductor chips. ICT protection will give you exclusive rights over the copying of the topography and the commercialization of circuits that are contained in the topography. Registration grants you exclusive rights for 10 years on your original circuit design.

9.4 Occupational Health and Safety in Canada

Occupational Health and Safety (OHS) legislation provides a framework to regulate and minimize exposure of workers to hazardous or dangerous working conditions and workplaces. In Canada, the jurisdiction of legislation is shared between federal and provincial or territorial governments. However, in practice, over 90% of Canadian workers are governed under provincial legislation. It is only the remaining 10% of the workers working in federal installations and workplaces, such as airports that are governed by federal OHS legislation.

Despite the major provincial role for governing OHS legislation, the federal government has established the Canadian Centre for Occupational Health and Safety as a clearinghouse and advocacy group to advance safe and healthy workplaces in the country.

9.4.1 Key Features

OHS legislations in Canada have some key features that are common to most such legislations.

One key feature is that employees, under OHS legislation, are granted certain rights. An important right is the ability to refuse to do unsafe work. In other words, workers can refuse to do work that they think is unsafe or dangerous. Workers also have the right to be informed about actual and potential dangers.

Another right is to participate in workplace health and safety activities through Joint Health and Safety Committee (JHSC) as a worker health and safety representative. In addition to worker rights, supervisors, or employers have important responsibilities to ensure workplace safety. Key aspects of supervisor responsibility are:

• To ensure that workers use prescribed protective equipment devices
• To advise workers of potential and actual hazards
• To take every reasonable precaution in the circumstance for the protection of workers

Another important aspect of OHS legislation is the concept of due diligence. Despite, their best efforts, if there is an accident in the workplace, supervisors can use due diligence as a defence, if they are charged with violating OHS guidelines. Due diligence is a legal defence that suggests that all reasonable precautions, under the particular circumstances, were taken. If charged under OHS laws, a defendant may be found not guilty, if he or she can prove that due diligence was exercised in protecting the workplace.

9.4.2 Québec OHS Legislation

Québec OHS legislation called the Act Respecting Occupational Health and Safety (Québec) was introduced in 1979. It is a progressive legislation that has all the major features of OHS legislation in Canada. It provides workers with the right to refuse unsafe work and participate in Health and Safety Committees. In addition, it places the burden of responsibility on employers or supervisors to ensure safe workplaces.

Another feature of Québec’s OHS legislation is that it distinguishes workplaces into “ordinary” workplaces, where workers are not exposed to very dangerous environments, and to “special” workplaces, that have elevated risks of injury. Depending on the nature of the workplace, different measures are needed.

10. Responsibility and Liability

10.1 Responsibility and the Evolution of Liability

10.1.1 Responsibility

Responsibility can be defined as responding to or answering for an action performed. All actions that we take have consequences either for ourselves or for other people who surround us. Now it may not always be possible to foresee the kind of consequences that may arise from our actions, but in most situations it is possible to know the consequences of an individual’s actions. Answering or accounting for the consequences of ones actions is what is implied by responsibility. In order for a person to be held morally responsible for an action, we should be able to determine two aspects.

• First, we need to verify agency of the action, in other words who did the action.
• Second, we need to know the degree of wilful intent or in other words, the nature of circumstances that guided the action.

In some situations, the responsibility for the action might be less because of the nature of circumstances. Fixing these two aspects allows us to fix the moral responsibility of an action.

A key aspect associated with thinking about responsibility is the concept of role. A role (especially a social role) is a position that an individual holds. A few such common roles are parent, student, professor, engineer, doctor, etc. Individuals often fills multiple roles in society. One could be an engineer who is also a parent. The idea of role is crucial to understand responsibility. Because if a person fills a role in society, then society has expectations about how that person should act in that role. Individuals are held responsible when they do not meet the expectations of the role they fill in society. So if you are an engineer, there is an expectation that you will act responsibly when producing products for society. If you do not meet that expectation, you will be held responsible for it.

10.1.2 Evolution of Liability

When talking about responsibility in the legal context, we encounter the term liability. Liability can be defined as the responsibility that is backed by the power of the law. In other words, if you do not meet the expected responsibility in your professional work, you could be held liable or legally responsible by the consumer or client for your actions, especially if it causes damage to them. Liability can be of two types ‒ contractual or extra-contractual.

Extra-contractual: responsibility that is owed by tort or regulatory damages

Contractual: responsibility that is owed within the bounds of an explicit contract

In our description of liability, we are mostly concerned with extra-contractual liability. In the professional context, we are not usually concerned with intentional liability, since we assume that professionals will act in an ethical fashion. However, negligence is another matter. We have already discussed some aspects of professional liability arising from negligent practice in an earlier podcast.

We will talk about this in more details in the next podcast also. Here we will discuss the evolution of product liability or the changes in the liability associated with goods that are manufactured for society.

Till about two hundred years ago, there was no such thing as product liability. If a buyer bought a product in the market, it was the buyer who took the risk of buying, and therefore had to bear the price of any damage done while using it. There was no compensation that a buyer could expect for damages, caused by a product that they bought. This legal approach is referred to as “caveat emptor” – let the buyer beware. In the last hundred and fifty years, legal systems around the world have moved away from a caveat emptor approach towards an approach that is commonly called “caveat vendidor” – let the seller beware. With the increasing complexity of products, producers, manufacturers, and designers are now held legally responsible for the products they introduce in society. The producer is thus expected to compensate for damages done in the presence of negligent designs or construction. In the general public interest, product liability in many countries have moved in the direction of strict liability. Strict liability is the legal responsibility assigned in the public interest, even in the absence of negligence on the part of the manufacturer. This has created the responsibility for engineers to not just make safe products for the intended user, but also consider its effect on all likely uses and users of products. A good example of strict liability is the message that manufacturers put on plastic bags that the bags could be a choking hazard for children. This message is an effort to reduce the strict liability that courts assign to a product. While strict liability is quite common in U.S., in Canadian courts, strict liability is not widely enforced.

10.2 Liability in Quebec

10.2.1 Liability

Liability in Québec is enforced through Québec Civil Code. Like in common law jurisdictions, liability in Quebec is understood as a civil liability.

Civil liability refers to the responsibility of the guilty party to pay compensation to the plaintiff for damages or harms caused. There is no punishment in terms of fine or imprisonment that is possible through liability laws in Québec. Under Québec’s liability legislation, compensation in damages is awarded only if three things are established by the plaintiff. First, the plaintiff needs to show that there was an act of omission in the design or construction of the product. An act of omission is taken to mean a defect or a negligent construction in the product. Second, the plaintiff has to demonstrate that a consequence or damage took place. Third and the most vital part is to demonstrate that a cause-effect relation exists between the act of omission and the consequence or damage. In other words, the plaintiff has to demonstrate that as a result of using the product with the defect, the consumer suffered damages. If the court is convinced that all three points have been adequately demonstrated, only then is compensation awarded to the plaintiff.

10.2.2 Liability Insurance

Liability insurance is purchased to address business liability risks that are not covered by general liability insurance. Liability insurance is also referred to as “errors and omissions” insurance or “malpractice” insurance. In professional practice, a liability insurance policy pays other parties for damages for which the policy holder is legally liable as a result of negligent acts, errors or omissions in the performance of their professional service. While the insurance pays the compensation to be paid to the plaintiff, it reduces the seriousness that such tort claims can have on the actions of the professional. On the other hand, the insurance is useful, because it protects the firm, the professional, or employees from serious financial disruption. And it provides clients with financial security for the professional services they have received.

In Québec, the professional code requires every order to determine the categories of its members that should secure liability insurance coverage. The OIQ accordingly adopted a regulation requiring professional liability insurance for all members. Thus, every member of the OIQ shall join the group plan insurance contract (with a specified minimum coverage) to address professional liability.

10.3 Contract and Tort

10.3.1 Contract

A contract is a legally 0binding agreement between individuals. Since it is legally binding, if one party to the agreement does not meet their obligations, the other party can approach the courts to redress the situation. A contract can be formally defined as a voluntary agreement made between at least two persons with the mutual intention of creating a legal obligation. When courts examine the validity of contracts, they consider the following elements in deciding on whether the contract is legal or not.

• First, there has to be a mutual voluntary agreement to enter into the contract. If one party forced another party to enter the agreement, that makes the contract void and legally unenforceable.
• Second, there must be evidence that an offer was made by one party and the other party accepted the offer and then entered into the contract. If the court sees an intent to enter into a contract then that party is thought to have accepted to enter the contract and therefore making it legally binding.
• Third, a contract should have a motive. In other words, there must be a consideration of benefit for each party to enter into the contract. If it appears that only one party to the contract is giving something while the other party has not given anything, then there is no contract.
• Fourth, if the contract is made on an illegal matter, then it is unenforceable in a court because the contract is considered illegal. For example, if two people enter into a contract to rob a bank, such a contract cannot be enforced even if one party is not faithful to the contract. Finally, the parties who enter into the contract have to be legal persons.

Thus vulnerable people like minors, the mentally incapacitated, or the intoxicated, or aboriginals cannot usually enter into a contract. In addition individuals like public authorities or associations cannot enter into contracts. Such contracts are considered null and void.

10.3.2 Contract and Employment

As professionals, a class of contracts they encounter in the workplace is contracts associated with employment. Depending on their status in an organization, an employee would sign one of the following contracts:

• Regular employees: an individual who works for an employer and is entitled to wages under an employment contract that controls the details of work performance
• Contract employees: an individual who has an employment contract for a fixed term
• Independent contractors: an individual who has a contract for services with the client or customer to undertake a specific project but who is left free to do the assigned work

The following factors help in distinguishing between an employee and a contractor. In the case of an employee, it is the employer who decides the work conditions of an employee, such as when they should come to work. In the case of an employee, it is the employer who owns tools/equipment to accomplish work-related tasks. Finally, it is the employer who benefits from any profits or bears losses from doing a task. In the case of a contractor, in all these factors, the client is not usually concerned with conditions, tools or bearing profits or losses. All these are the responsibility of the contractor.

10.3.3 Tort

The word tort is derived from the French word tort, which means to do wrong. In the legal context, tort refers to the breach of a private obligation to not do wrong to another person. What does private mean in this sentence? It refers to the idea that the damage caused by one person is to another person only and not to society as a whole. More serious actions, such as willful injury or murder, are considered public damage, because they affect society not just the person who was affected. It is for this reason that in criminal cases it is the government that prosecutes the case rather than the victim of the action. A good example of tort would be a person’s private obligation to not make defamatory statements against another person. The person, who makes such statements, may have to face a tort case for their actions. If found guilty in a tort case, the defendant has to pay compensatory damages to the plaintiff. There is no punishment or imprisonment possible within a tort case. There are three types of tort that are recognized in the law – intentional torts, negligence torts, or strict liability torts. Intentional torts as the name suggests occur, when a person acts with the intent of causing harm to another person. Such torts include fraud, trespass, defamation and intimidation, and assault and battery. Negligence torts, as the name suggests, is caused when a person acted negligently to cause harm to another person. Such torts include nuisance, professional negligence, and product liability. It is the last two torts that professionals commonly encounter within their work. It is to avoid these kinds of tort cases that professionals need to pay attention to the work they do. In trying to determine whether a professional was negligent in their actions, courts use a standard known as “duty of care” to evaluate the actions of professionals. The duty of care can be defined as the professional expectation to exercise reasonable care to avoid injuring the plaintiff. A final category of torts is strict liability torts, which do not usually apply in Canada. Here a person can be held responsible for damages caused to another person without any negligence or intention.

11 Issues in Professional Practice

11.1 Compromise and Conflict Resolution

11.1.2 Compromise

In the context of ethical work practice, compromise is a slippery term to define. The slipperiness of the concept arises from the fact that the term can be defined with both positive and negative connotations.

• The positive connotation for compromise in a conflict situation arises from finding a common ground between differing sides in the spirit of mutual agreement.
• Another positive connotation associated with the term is that it suggests the quality of flexibility on the part of individuals as they adjust their goals in light of the circumstance.

However, at the same time, compromise also possesses some equally striking negative connotations. Compromise suggests a willingness to surrender one’s stated objectives and principles. It also suggests a sign of weakness in conviction. Given these radically differing connotations, the moral status of compromise is always not very clear and requires some clarification. In some conditions making a compromise does not involve ethical issues while in others it does. Under which conditions is making a compromise an ethical issue?

Making a compromise is not an ethical compromise, when individuals agree on fundamental values but disagree on the implementation process. For example, while engineers agree that transparency in job advertisements is necessary but one feels that advertisements should be placed on the internet and the other feels they should be placed in the newspaper. A compromise would mean deciding on an implementation strategy whereby some jobs are advertised in newspapers, while others are put on the internet. Making a compromise is not an ethical compromise when individuals disagree on the relative importance of two different values for example reliability and inexpensiveness. Using the example above, if one engineer feels that job advertisements should be placed on the internet because they are inexpensive, while another suggests that they should be placed in the newspaper because they are reliable, then you attempt to develop a synthetic position that addresses both values. In the example above, a synthetic position would be to arrive at the understanding that it is enough to advertise jobs at universities rather than on the internet or newspapers, because they are both reliable and inexpensive. Making a compromise is an ethical issue, when parties disagree on the same fundamental value. For example, should we compromise on harassment? Making such a compromise usually betrays ones ethical principles and personal integrity. However, even in the case where there is a disagreement on fundamental values, a compromise is acceptable under some specific conditions.

If there is a great degree of factual or conceptual uncertainty in making the decision. When the moral issue has great complexity and there is no black/white answer. When there are resource constraints (time limits or physical inabilities) that will lead to an imperfect decision. There is a danger of breaking vital cooperative relationships – team, friends, or family. Under these conditions, it may be more appropriate to reach a compromise on a fundamental value conflict.

11.1.3 Conflict Resolution

In resolving conflicts, it is not just necessary to examine the ethical aspects of the differences in opinion. It is also necessary to consider the personal and psychological aspects of how individuals deal with differences of opinion. Individuals deal with conflict and disagreement very differently, depending on their workplace personalities. In thinking about how individuals react in conflict situations, it is important to consider two aspects regarding how individuals behave and think. The first aspect is assertiveness or the degree of concern individuals have about the self, and the second aspect is cooperativeness or the degree of concern individuals have about others. The combination of assertiveness or cooperativeness gives individuals their preferred mode of dealing with conflicts. Becoming aware of one’s conflict mode as well as the other person’s allows us to think of a pathway to resolve conflicts. According to these two aspects, people can be categorized into five modes of conflict handling.

1. Competing mode: Individual pursues self-interest at the other person’s expense.

2. Accommodating mode: Individual neglects self-interest to consider the other person’s needs.

3. Avoiding mode: Person avoids conflict situation and does not address it.

4. Collaborating mode: Works with the other person to find a solution that meets the interests of both persons.

5. Compromising mode: Only partially satisfies both parties.

According to this logic, compromising is an imperfect solution because it only partially addresses the needs of both parties. However, the important aspect of this five-part categorization is not to say that one mode is always better than the others. Depending on the nature of the conflict, the circumstances, different modes are more appropriate. For example, in an emergency situation where one person has to go to a hospital, one would not attempt a collaborating mode of resolving a conflict of who takes the taxi. In such situations, a competing mode will be the most appropriate. In other situations, like trivial conflicts, it may be the best strategy to avoid the conflict altogether.

11.2 Safety Risk and Public

In thinking about public safety and risk in professional practice, a few points need to be born in mind. First, safety (both in terms of workplace safety but also public safety) is a key responsibility engineers need to take very seriously. Second, a way to consider safety is to analyze the nature of risk that the public is exposed to from particular products or processes. We will consider these aspects in more detail below.

11.2.1 Safety and Accidents

Safety is a key responsibility for engineers, both in the workplace as well as for the public. We discussed the legal implications of workplace safety. So we will only consider the implications for public safety here. In thinking about public safety, an engineer needs to bear in mind both product and process safety. Thus, it is not enough to consider how safe products are, but also how safe industrial processes are for the public. Issues of safety are particularly important in the context of accidents. In the industrial environment, accidents can be broadly categorized into three types:

• Procedural accidents: Such accidents are attributed to operator errors, the failures to follow regulations or standard operating procedures.
  • Solution is to provide better operator training, supervision and regulation.
• Engineered accidents: Such accidents result from flaws in engineering design or from sub-optimal performance.
  • Solution is to conduct better research and testing of materials and designs.
• Systemic accidents: These accidents are the ones that are least diagnosable and predictable. These accidents are the result of complexity and coupling between sub-systems that lead to unforeseen accident pathways that can have catastrophic consequences.
  • Solution is to provide multiple redundancies to prevent cascading failures in industrial systems.

In trying to address these different kinds of accidents, one means engineers have to improve safety is through design. Designing for safety would require engineers to consider the following aspects. First, design must comply with applicable legal standards, in other words, obey legal requirements. Second, design must comply with accepted engineering practice or keep up with the state of the art in knowledge and practices. Third, research all possible alternative designs, including discuss design strategies with other designers. And finally, foresee possible uses and misuses especially in system design, and then create redundancies or backups to address system deficiencies.

11.2.2 Risk and Risk Communication

Yet another way to address safety is by analyzing and communicating the risk associated with a process or product. But what is risk? Risk can be defined as the probability of an event occurring and of the consequences of that event. Risk, therefore, combines the probability or chance of an event occurring with the consequences of that event. Risk assessment is the process by which the risk associated with a process or product can be characterized. In other words, risk assessment is the determination of quantitative value of risk related to a recognized threat. There are several existing methods that attempt to model and assess the risk associated with complex processes. Some examples of existing methods include Failure Mode, Effects & Criticality Analysis (FMECA), Hazard Analysis & Critical Control Points, and Failure Tree Analysis. The objective of these methods is usually to identify, model, and evaluate the unique inter-relationship of events leading to failure or unintended events. The end goal of this process being to understand the working of the system better in order to neutralize known sources of risk. Risk neutralization can be defined as the utilization of safety measures to reduce the danger potential of a product or process. It must be born in mind, that while it is possible to reduce risk, it is impossible for a product or process to have zero risk. Zero risk does not exist.

Once an engineer has assessed the relevant risk, they need to realize that communicating risks to the public requires a well thought out strategy and it is not sufficient to tell the public about the risk associated. One factor that needs to be considered in all efforts to communicate risk is risk perception. Risk perception can be defined as the degree of sentiment of danger among individuals who are exposed to the source of risk. Given that the perception of risk is a sentiment or feeling, it varies depending upon a host of non-technical factors, such as whether the risk is well known, whether the consequences are short-term or long-term, whether delayed or immediate, whether it is fair or evenly distributed, whether exposure is voluntary or involuntary, or whether there is real possibility of catastrophe. For example, if people believe that they are involuntarily (or not of their choosing) exposed to a risk, they perceive the risk to be higher. Similarly, if the risk is a near-term risk, the public believes it is higher. Again, if there is a possibility, however remote, of a catastrophe associated with the process or product, the perception of risk is always higher.

In this context, the goal of risk communication is to not only inform people and to warn them of potential risks, but also foster trust in the analysis/assessment of risk. With this goal in mind, risk communication requires a well thought out strategy that must have the following elements. Communication must be made by persons in charge and having the authority to share information. All stakeholders affected must be identified and their concerns addressed. Otherwise, it will result in distrust; be honest in assessments but ensure that you do not add to hysteria. Such risk communication is not only important at times of crisis and emergencies, but more importantly to gain voluntary consent of the public before introducing processes or products in society. A good example where voluntary consent is needed to address risk perception would be introducing cutting edge advances in technology, such as nanotechnology devices or genetically modified organisms. Voluntary consent by the public is an essential basis of liberal democracy in a “risk society” – that is a society where products and processes expose citizens to varying levels of risk. Such voluntary consent requires engineers to provide or disclose information and then obtain voluntary agreement from concerned stakeholders for introducing new products or processes.