APSC 450 NotesAPEGBC-Engineers and Geoscientist Act [RSBC 1996], c. 116. -APEG Bylaws govern the association -Code of Ethics governs the behaviour of Engineers and Geoscientists -Association is both reactive and proactive -Sets standards of practice -Sets investigative and disciplinary standards -Provides guidelines for registration -Professional Development Federal, Provincial and Municipal Compliance Legislation Associations are self-governing because: Specific skills are necessary for society Public Trust, in the judgement of Engineers and Geoscientists

Investigation and Discipline Professionalism based on the Code of Ethics Public Trust paramount Maintenance of Professional Standards important to ensure Public Trust

EIT & GIT Graduated from an accredited University Engineering program as outlined by Engineers Canada and approved by the Canadian Engineering Accredited Board and Engineers Canada, and the Canadian Council of Professional Geoscientists

Education - Examinations or - Accredited Bachelors Degree or Equivalent 4 Years Satisfactory Experience under Professional Supervision - Experience, Training and Development Application of Theory Practical Experience Management of Engineering Communication Skills Social Implications of Engineering Sustainability Sponsorship 1 year experience in a Canadian Environment Law & Ethics - Seminar - Professional Practice Examination Good Character Legal Systems and Legal EntitiesConstitutional Law: principles of governance, rights freedoms, Constitution Act 1982Common Law: judge made law, based on precedence; includes property, criminal, tort, contract law, equity Statute Law: parliament and provincial government law, can override common lawAdministrative Law: government delegated rule making to tribunals and boards (APEGBC included)

Tort Law (Civil Wrongs)Primary Objective: Compensation Secondary Objective: Deterrence

Basis of Liability: Intention Strict Liability Negligence

Intentional Torts: Battery; harmful, offensive contactAssault: apprehensive threat of contactFalse Imprisonment: complete confinement Defamation: false statement to discredit one

Unintentional Torts: Strict Liability: if collect something thats potentially harmful and if thing escape would cause damage and mischief, then your faultNegligence ABC Rule: Duty of Care Breach of that Duty of Care Damage as a Result of the Breach Defence: But for test; think causation or whether preventive

Contract LawElements of a Valid Contract: Intention to create a legal relationship Offer (tit for tat)Acceptance Consideration Capacity Legality

-A contract may be defined as an agreement between two or more persons that is enforceable at law. -Comes into existence when the parties have established all of the elements to make it enforceable. -Differs from tort law in that the parties are free to define their own rights and duties, as between themselves, which the law will then enforce. -Offer not biding until accepted; promises not always enforceable; acceptance must be communicated as specified and may be through conduct; gratuitous promise unenforceable unless binding specified

Professionals are liable both in Torts and Contracts even if there is no written contract. Professionals are still liable in Torts and Third Party Liability: Proximity Foreseeability Employees are exempt from liability, however, you may be let go if your actions breach your employment contract.

Employment LawWrongful Dismissal: Is when an employer dismisses an employee without sufficient reasonable notice Dismissal with Cause: Theft, Dishonesty, Conflict of Interest, Willful Disobedience, Insubordination, Incompetence, Absenteeism or Lateness, Intoxication & Sexual Harassment Constructive Dismissal: Unilateral change to the fundamental term of employment contract, employee must resign and then sue for wrongful dismissal

Employee Duties:>General duty of good faith >Fiduciary duties >Duty of confidentiality >Duties may continue after employment

Employment Standards Act: Sets Minimum terms and conditions of employment Deals with: Hours of work, overtime, leaves, vacations, statutory holidays & severance Applies to everyone except Professional Engineers & Union Members Exemptions from portions of the Act are Managers, High Technology Professionals & Other Employees of High Technology Companies

Labour Relations Code: Governs the relationship between Employer and Unions Oversees: How to Unionize, right to Unionize, collective bargaining, obligations, right to strike, lockout & picket, How to decertify

Human Rights Code: Protects Employees against Discrimination Protected Grounds: age/sex/sexual orientation, race/religion, colour/ethnic origin, marital/family status, disability, conviction unrelated to work area

Workers Compensation Act: Work related injuries and illness Safety Requirements

Employee Contract:Duties of EmployeesExpectations of an employee in the organization must be stated. Along with designation of specific business tasks of a role, the expectations in terms good faith, confidentiality, and fiduciary duties must be stated. This includes disclosure of private business information, working in the interest of competing organizations, and promoting and maintaining good business performance of the organization in everyday acts.

Detailed standard rights and conditionsOutlining the application of: the Employment Standards Act, Labour Relations Code, Human Rights Code and Workers Compensation Act, to the specific organization. These include: the wage and hour terms, union and protest mechanisms, discrimination rights, and safety and health regulations, respectively.

Termination TermsThe terms and conditions of termination should be stated. This includes length of notice given by the terminating party, and the cause for termination, such as conflict of interest, absenteeism, incompetence, theft and wilful disobedience.

ProprietorshipThe structure of the ownership and liability within the organization should be stated; whether the organization assumes a sole, partnership or corporate proprietorship model. This includes the capital division and ownership status and options for employees in the cases of corporate or partnership structures, which would present shareholder options and conditions. Also the liability of business must be stated, in terms of who assumes monetary and legal risks and losses in potential scenarios. This implies business regulations in terms of documentation, partner succession and promotion opportunities, trading of shares, accounting issues, management structures, a expected lifespan of the organization company and what exactly the employee is signing up for in a business context.

Intellectual Property LawMake sure theres no prior art, novel, original, etcIf you publicly non-confidential disclose, also prior art

Patents: Unique object or process; needs to be new, inventive (not obvious), and useful; Exclusive right to make, use, import, and sell; Canada 20 yr protection, must be filed within 1 yr of disclosure Other jurisdictions filing requirement vary First Apply Rule and must be inventor Patent infringed if every aspect is copied

Industrial Design: Protects outwardly, visible features of shape or ornamentation, not the function5 years, renewable for another 5 years US for 14 years, no renewable Copyright: Original artwork/writing; protect expression, not ideas No need register Canada, exclusive right to reproduce Last for the life of the artist or writer, plus 50 years

Trademarks: Symbol used to distinguish wares or services No personal names, place names, product descriptions, or similarities with existing trademarksOptional registration; common law through use

Trade Secrets: Business or Technical information kept secret for competitive advantage; non-disclosure, confidentialLaw provides remedies only if someone unfairly misappropriates your Trade Secret

Aboriginal LawAboriginal and Treaty rights are guaranteed by the Constitution Act, 1982 and includes the right to hunt, fish, trap & gather for food, ceremony & social purposes. First Nation Peoples include: First Nations, Inuit and Mtis peoples. Section 91(24) of the Constitution Act gives legislative authority to the Federal government; however Provinces and Territories must consult, accommodate and compensate the First Nation, Mtis or Inuit community when taking up the land for legitimate legislative initiatives.

Environmental LawBio-centric Ethics: views all life, not just humans, as having intrinsic value; i.e. there is a reverence for life and all individual living creatures are important. Eco-centric Ethics: considers ecological communities, not individual organisms, trying to preserve the ecological integrity of whole regions. Industrial Ecology: studies and tracks chemical, physical and biological flows and interactions within industrial systems in an effort to promote more harmonious and sustainable systems. Life cycle analysis is an important tool. Sustainable Development: considers social, economic and environmental aspects; development must not compromise the well-being of future generations.

If an environmental issue arises and requires remediation, what are the important steps?

1.Stop all operations surrounding the incident 2.Quickly analysis the situation 3.Report the incident to your superior 4.Call in a third party to assess the situation 5.Use third party assessment for reporting and when authorized commence remediation action

Business FormsSole ProprietorshipSole proprietorship is an individual carrying on business in his/her name, or under a business nameAll individuals assets are liable for the businesss risks. A sole proprietor can register a business name, which simply is trade name in which the said individual is carrying out a business activity. Generally Provincial legislation requires that the name of the business be registered, but this act does not change the status of the business. Sole proprietor must obtain a Business Licence, and if he or she hires others, they must comply with related Labour and Employment Standards legislation.

Sole Proprietorship Disadvantages: Unlimited Liability Lack of continuity in business organization in absence of the owner Difficulty in raising capital Sole Proprietorship Advantages: Set up costs are lower Greater freedom from Regulation Owner in direct control of decision making No corporate reporting and tax filings simpler All profits to the owner

Partnership:Partnerships are governed by a Partnership Act in each province, and usually require that the partnership is registered. It is good business for the Partners to enter into a Partnership Agreement that sets down the rules related to contracts, division of profits, procedures for business decisions, and most importantly dissolving the partnership. Each Partner is jointly liable for all debts and obligations of the business. The Partnership must obtain a Business Licence, and if it hires others, it must comply with related Labour and Employment Standards legislation. Each Partner owes each other a fiduciary duty. A fiduciary duty is a special trust that forbid the partners from entering into separate competing businesses, from taking profits solely for personal gain, requires that they always act in the best interest of the partnership and to declare conflicts of interest.

Limited Partnership: Limited partnerships have one general partner, and one limited partner. General partners runs the business, and has unlimited liability. Limited partners are liable only for their cash contribution to the business, and in some provinces, the profits that they derive for the business relative to their cash contribution. Limited Partners cannot actively participate in the business.

Limited Liability Partnerships: Limited Liability Partnerships is a partnership in which the liability of the partners is limited only to the liability of the particular partner.

Partnership Disadvantages: Unlimited liability Lack of continuity Divided authority Difficulty in raising capital Difficulty in finding suitable partners Possible development of conflict between partners Partnership Advantages: Ease of formation Relatively low start-up costs Additional sources of investment capital Possible tax advantages Limited Regulation Broader management base

Corporation: A corporation is considered to be legal person, that is capable of carrying out business. It is the corporation that is responsible for all debts and obligations of the business in question, and this liability does not extend to the Shareholders, Officers, Directors or Employees. Corporations are created pursuant to the Canada Business Corporations Act, RSC 1985, c.C-44 and related provincial statue.

Corporation Disadvantages: Closely Regulated Most expensive to for organization Charter restrictions Extensive record keeping necessary Possible development of conflict between Shareholders and Executives

Corporation Advantages: Limited liability Specialized management Continuous existence Separate legal entity Possible Tax advantage Easier to raise capital

Corporations are owned by Shareholders, in proportions to their shareholdings. The Individual, Partnerships, or Corporation can be shareholders. Shareholders vote to elect Directors, and authorize fundamental changes to the corporation. Legal documents such as the Articles of Incorporation, Memorandum of Association, or Letters of Patent (depending on the jurisdiction of where the corporation is formed) creates the corporation, defines the type and number of shares issued, and the name of the corporation. A Corporation, as a legal entity, has the capacity to enter contracts. A Corporations Directors, Officers or Employees have the authority to enter into contracts, in the name of the Corporation; however this authority is both defined and limited according to the Corporations By-Laws.

A Corporations value is based on its debt and equity. Debt is the Corporations obligations to pay or render a service to someone else. Equity is the residual value of a property or business after deducting mortgage and liability costs. Debt Financing usually comes from a Bank. Equity Investment usually comes from Shareholders. Equity comes through the earning of profits.

A Private Corporation is a corporation in which all of the shares are held by a small group of shareholders In a Private Corporation, the profit/loss of the corporation does not have to be made public, only the names of the Directors, Officers, and Shareholders. A Public Corporation is one that the shares are publically traded, generally on the stock exchange. A Public Corporation operates under stringent legislative rules that include public access to, and the filing of accounting records.

Corporations Directors, Officers and Shareholders must observe specific rules governing their actions. This includes: Fiduciary Duty, Conflict of Interest, and Governmental Liabilities, and abstaining from Insider Trading

Directors and Officers owe a Fiduciary Duty to the Corporation. The Directors and Officers cannot operate a separate competing business or take profits from the corporation solely for themselves. They must act in the best interests of the business, be loyal to the corporation, act honestly and in good faith, and declare all conflicts of interest. These obligations are absolute, and only owed to the corporation and do not extend to the Shareholders. Having said this, in some Provinces, now permit derivative actions, which are court actions by the oppressed minority shareholders against a corporations Directors and Officers.

Unlawful Insider Trading occurs when investors use or are provided with privileged, non-public information to trade on securities or commodities markets in contravention to the law. Insider Trading may include the purchase or sale of shares prior to the disclosure of a corporate news release, or may involve the purchase or sale of shares on the basis of information that may never be released to shareholders. This includes non-public information, or stock tipping, about a company. Both civil and criminal penalties are available for insider trading and stock tipping, and apply to anyone who participates in the information exchange.

Dispute Resolution

Capitulation: Giving up and surrendering

Negotiation: Dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference

MediationAn alternate dispute mechanism whereby the mediator acts as a facilitator assisting the parties in coming to a mutually agreed settlement Informal process Can be made mandatory by statute

ArbitrationA dispute resolution mechanism, whereby an independent neutral third party is appointed to hear and consider the merits of the dispute, and who renders a final and binding decision called an award. Less formal than Court Process is by agreement Limited appeal to Court

Litigation: Taking legal court actionAdministrative Tribunal Trial Court: Small Claims under $25,000 and Superior Court over $25,000 Court of Appeal Supreme Court of Canada

Federal Courts: Federal Court Federal Court of Appeal Supreme Court of Canada

EthicsEthics is concerned with right and wrong behaviour how to organize social institutions in a way that respects people, animals and other valuable things

Ethics deals with moral choices made by people in dealing with other people, related to right and wrong, good and evil, justice, rights and obligations. Four Practical Philosophical Theories: Aristotle: Actions are right if they support good character traits (Virtues). Adopt golden mean between extremes. Locke: Each person has Rights which need to be respected. Kant: Every person must discharge Duties or universal obligations and rules of conduct. For example, it is a duty to be good and to be honest. Mill: Utilitarianism, governed by the maximum benefit for the greatest number of people. In particular, maximize happiness (sort of cost-benefit analysis.)

Conflict of Interest:

Personal benefit: The person or family members could benefit financially or personally. Moonlighting: Working simultaneously for other employer/ cause, interferes with primary employment. Sharing confidential information with competitors or a 3rd party. Misusing employers property or services for personal activities or causes. Arranging future employment which competes with current employer. Accepting secret commissions or gifts. Doing something to improve your reputation, with no value, or a negative value, to your employer or society. Doing something to support other organization, e.g. a religious/political organization, to which you adhere.

Categories of Conflict of Interest:Actual: You currently have a conflict. Apparent: You may be perceived to be in conflict by others, even if, in your opinion, you are not. Potential: If some things (which are quite possible or even probable and may be beyond your control) happen, you would be in conflict.

If you see a Conflict coming: Try to avoid it. Disclose to all concerned. Recuse/excuse yourself.

Whistle blowing:

The matter in question must be important. Failure to act could result in harm to people and/or environment. The whistleblower must have clear first-hand knowledge of the infraction(s) (not hearsay), as well as relevant expertise. All other actions within the power of the employee should be exhausted before blowing the whistle. All normal avenues of communication should be pursued before seeking help outside the organization. Internal: Employee goes over the head of the immediate supervisor, e.g. to the company CEO or Board of Directors. External: Employee reports the perceived wrong-doing to a newspaper, a well-known expert in the field, or a law-enforcement body.

Whistle-blowing - employee fights what he/she perceives as an unsafe, harmful, unethical or illegal situation by informing management or someone outside the organization (e.g. government agency, newspaper). The action is usually taken reluctantly and with as little publicity as possible in an effort to right wrongs and improve the organization. The whistle-blower is fulfilling his/her duty to safeguard the public, and exercising the right to disclose wrongdoing. Whistle-blower may be fired (wrongful dismissal in B.C.), punished, or life in the company made miserable.

Key facts from Rick Van Lee case-van Lee, 63, was accused by employers, Asia Pacific Resources International Limited (APRIL), for illegal copying of sensitive company information.According to Inkiri-wang, van Lee's lawyer:- van Lee and wife had car confiscated and were placed under house arrest for 6 weeks, guarded by APRIL's private security staff in the company's residential compound. Detained because he didn't want to sign a new contract, prefer to take a job with a competitor -van Lee was transferred into the custody of Indonesian authorities and charged based on an Indonesian criminal law that prohibits stealing or altering electronic documents belonging to others.- Lack of evidence; police never performed digital forensics on van Lee's computer, and evidence contained on van Lee's laptop and external storage devices may not have been handled properly by investigators. Evidence should be confiscated from the person that owns it, not from company-improper court conduct; judges act as if they are public prosecutors, took part in questioning witnesses directly APRIL denies preventing the couple from leaving the compound or meeting with his lawyers. van Lee collaborated illegally with a competitor; found evidence of several months' worth of collaboration with a direct competitor. Discovery triggered an internal company investigation, which led APRIL to involve the police.Van Lee suffered a minor stroke and lost 45 lbs while in custody. If convicted, up to 8 yrs in Indonesian prison.