Professional Governance Act – The Statutory Duty to Report

The Office of the Superintendent of Professional Governance (the “OSPG”) has confirmed that effective February 5, 2021, the Professional Governance Act, SBC 2018, c 47 (the “PGA”), is in force. The PGA replaces numerous other acts, such as the Engineers and Geoscientists Act, the Agrologists Act, the College of Applied Biology Act, the Foresters Act, and the Applied Science Technologists and Technicians Act.

While the PGA is being implemented in stages, once fully in force, it will include a statutory duty to report. Under this duty, a registrant must report another registrant to their professional body if they have reasonable and probable grounds to believe that a registrant’s practice may pose a risk of significant harm to the environment or to the health and safety of the public or a group of people.

The provisions of the PGA include severe penalties for offences under the PGA, including a failure to report. The provisions include fines of up to $200,000 and two years of imprisonment for offending individuals and fines of up to $500,000 for offending firms.

The OSPG^[1], in its recent release explained that in addition to the statutory duty:

Section 57(2)(i) of the Professional Governance Act (PGA) requires regulatory bodies to set an ethical responsibility, through their codes of ethics, for their registrants to report to the regulatory body or any other appropriate authority if they have reasonable and probable grounds to believe that the practice of another registrant or other person, including firms and employers, might pose a risk of significant harm to the environment or to the health or safety of the public or a group of people. A regulatory body may also extend or clarify a registrants’ ethical responsibility to report any hazardous, illegal or unethical professional practice, including disclosure of legal proceedings, findings or records respecting oneself.

Exactly what will lead to “reasonable and probable grounds” of “significant harm to the environment” triggering the duty to report is unclear. The OSPG recommends that affected governing bodies provide guidance on these terms. For example, the BC Institute of Agrologists comments that^[2]:

• The test or standard for “reasonable and probable grounds” considers what a reasonable person would conclude based on objective and credible information. “Reasonable” is a subjective assessment which means fair, just, moderate, suitable under the circumstances, rational, governed by reason, not immoderate or excessive. “Probable” means supported evidence strong enough to establish presumption but not proof.
• A Registrant must believe the identified registrant’s practice may pose a “significant harm to the environment or to the health and safety of a group of people.” Applied contextually “Significant” means a noticeably or measurably large amount; “Harm to the environment” means damage or detriment to external conditions affecting the growth of plants or animals.

The OSPG acknowledges that the trigger for the duty to report may require an assessment of the registrant’s behaviour, but it is of the view that registrants should be able to identify unethical behaviour of fellow registrants. The OSPG outlines examples of scenarios that could trigger a duty to report, including:

• Misrepresented credentials or the areas of practice a registrant is competent to practice in;
• Conflicts of interest (actual or perceived) where appropriate steps have not been taken to address the conflict;
• Incompetence or technical errors observed (where potential impact requires urgent attention or where registrant refuses to address the errors); and
• Unethical behaviour – e.g. removal of another consultant’s signed report or any tampering with documents.

Alongside the duty to report, the PGA includes ‘whistleblower’ protection wherein a registrant is protected from reprisal for:

• carrying out their duty to report;
• complaining, or being named in a complaint; and
• giving evidence or assisting with a prosecution, complaint, or proceeding under the PGA.

If an affected registrant is unclear of their duty to report, or they are suffering from reprisals for whistleblowing, they should refer to their revised or newly enacted codes of ethics, contact their professional associations and/or the OSPG, or seek legal advice.

We do not yet know the types of situations where the OSPG will impose penalties against registrants for a failure to report. The OSPG says it expects to promote compliance with the duty to report through guidance, education and warning letters, and to only resort to escalated enforcement measures and sanctions when needed. Time will tell whether the punitive trigger will be the severity of behaviour or severity of impact.

For more information, please contact a member of our Construction & Engineering Group.

References:

[1] Report: OSPG Guidance: Duty to Report and Reprisal Protection, February 5, 2021, issued by Paul Craven, Superintendent, Office of the Superintendent of Professional Governance. Available here.

[2] Report: Duty to Report under Professional Governance Act as of January 2021, JP Ellson, Executive Director/Registrar, BC Institute of Agrologists. Available here.