A Testing Time

On July 1, a regulation comes into force in Ontario that has a profound effect on professional engineers. Under Building Code Statute Law Amendment Act 2002, known as Bill 124, anyone who reviews and takes responsibility for designs in a building permit application must be “qualified.” To be qualified, the individuals — be they engineers, architects, technologists or construction company employees — have to take examinations set by the Minister of Municipal Affairs and Housing to show their knowledge of relevant sections of the building code. As well, consulting engineering firms providing services to the public have to be “registered” with the Ministry. These firms must have qualified people on staff and they must carry a specified amount of insurance coverage.

The initiative came from the Mike Harris Progressive Conservative government but the Liberal Government of Dalton McGuinty is forging ahead with the requirements. At press time the Ontario Architects Association had arranged with the Ministry to administer a parallel qualification process, but so far Professional Engineers Ontario has not agreed to do so.

Some engineers are upset by the new requirements. Leading the charge of protest is John Gamble, P.Eng., President of Consulting Engineers of Ontario. We interviewed him in Toronto in February.

Q. What is the problem with Bill 124?

Let’s go back to the initial intent. It was about improving the building permit process. Developers and owners had a lot of concerns about the length of time that was required to get a building permit. It was causing delays and costs to the industry. Consulting engineers, acting as agents of both public and private owners, shared their frustration.

The Building Regulatory Reform Advisory Group (BRRAG) was created to look at the problem and was used as the basis for Bill 124. BRRAG looked at the amount of red tape and the process required in getting building permits. As well, the municipalities, quite fairly, were concerned that they were the deep pockets if things went wrong, whether it was a failure of a building or something taking a long time.

Engineering companies are also very much exposed in these matters, and we certainly supported the notion of distributing liability.

However, the legislation that we see in place today does not achieve the core objectives. Here we are, four ministers, three premiers and two governments later, and I don’t think we’ve ended up with what we started out to achieve.

Q. In what way?

Starting with the red tape issue. If you visit the Ministry of Municipal Affairs and Housing website and see all the things you have to do, things you need to be aware of, that weren’t there prior to Bill 124, it does not suggest to me that red tape is reduced.

The distribution of liability, which was another keystone item on the “to do” list for the BRRAG group, was compromised when the contractors successfully lobbied their way out of the insurance requirements of Bill 124. In fairness to the contractors, they simply pointed out the truism to the government that the insurance requirements were going to have an enormous economic consequence for the building sector.

As a consequence, the deep pockets now will be the same deep pockets after July 1 — the municipalities and the designers. So nothing has been greatly accomplished. The liability continues to be on the shoulders of people who are already licensed under provincial statutes, whereas a lot of paraprofessionals and a significant number of the unregulated community — certainly in the contracting industry — who are very much involved in building and code compliance are not required to become registered as service providers under this legislation, and so they aren’t going to be required to carry the insurance.

Q. Why do you think the government does not think being licensed as an engineer is enough to show expertise?

When this first came to the government’s attention it was because people felt they weren’t getting building permits quickly enough. Then the blame game started. It was always everybody else’s fault, somebody else didn’t know the code properly. The government got frustrated and said, you’re all going to have to demonstrate your knowledge of the building code.

While historically there probably are designers who have not issued drawings at the level of quality they should have been, the criticism is equally applicable across all sectors.

The problem is that the government moved forward without really defining the extent and the magnitude of the problem. The building permit process varies widely from municipality to municipality. Some municipalities are quite happy to see the engineer’s or architect’s seal and they wave the project on and it is approved. Other municipalities sit and basically try to redesign the building. In many cases people have submitted incomplete documents to get their place in queue. And sometimes the interpretation of the code is a subject of negotiation between the government official and the designer.

It’s pretty tough to define the scope and the magnitude of the problem when you have that much disparity in how the building code is enforced. Unfortunately the government decided to jump in with both feet.

Q. How do the requirements of Bill 124 particularly affect consulting engineering firms?

The examinations are not a realistic way to determine the qualifications of professional engineers. There is a Professional Engineers Act and this testing is being done outside the context of that Act. There are over 50 pieces of legislation that refer to the PEA and if the genie is out of the bottle, are we going to be expected to write tests on every piece of legislation that we’re referred to? That’s without getting into ASTM, ASHRAE and CSA codes. Writing code-specific tests is just not sustainable over the breadth of the entire profession.

That’s not to say there aren’t ways to improve the regulation of the engineering profession. In fact, this was a great opportunity to take on that issue in a meaningful way. Consulting Engineers of Ontario has historically supported the creation of licensing that reflects a practitioner’s primary area of practice and recognizes the importance of ongoing professional development. Unfortunately, the obsession with the building code tests is going to draw resources away from other more effective forms of professional development. Frankly, writing a multiple-choice, open book test probably won’t achieve a lot.

Q. The architects are going along with the testing process.

That’s different from supporting it. Engineering has become much more complex. It involves a lot of interrelated disciplines, interrelated codes, and so forth.

I think we would be better suited to go and take a fundamental look at how the profession is regulated. And if there are problems, they should be addressed through the Professional Engineers Act.

We have a Professional Engineers Act, and this is basically circumventing it. We have the Brownfields legislation requirement for Qualified Persons, and potentially a lot more coming down the pipe where different Ministries are presuming either to define the practice of engineering or presuming to define what the qualifications are. With all due respect to the Ministry of Municipal Affairs, their saying “Here’s what we want you to do, and here’s how we want it to happen,” is not respecting the self-regulation of the profession.

Q. What about engineers operating out of their basements? Won’t having to take the examinations ensure that their work is higher quality?

My concern is that because it is an open book, multiple-choice test, the fact that an engineer has passed the examination could give a false impression that their work is on a par with engineers who have spent their whole careers in the field.