You should be aware of the following information, and use it in your practice:
- Safeguarding Intellectual Property
- Site Photographs and Privacy
- Solar Panel Installations
- Limit States Design - Foundations
- Site Reviews
- The Practices of Architecture and Engineering
- Withholding Letters of Certification for the Purpose of Procuring Payment
- Errors & Omissions Liability Insurance
- City Of Winnipeg Occupancy Certification Requirements
- Attention to Detail
- Communication with Peers
- Coordination of Engineering on Projects
- Design of Residential Buildings Using Engineered Lumber Products
- Fiduciary Responsibility - A Matter of Trust
- Flood Protection Dykes
- House Inspections
- Is Anyone Else Using Your Seal?
- The Professional Engineer as a Contractor
- Public Release of Reports
- Snow Load Removal from Existing Roofs
Safeguarding Intellectual Property
Concern has been raised to the attention of the Investigation Committee regarding the use of designs or design elements by engineering firms who did not create them. This practice note will outline the concept of copyright and the less-familiar moral rights in engineering design, and discuss the importance of establishing contractual terms to address these matters between designers and clients.
Intellectual property rights are governed in Canada by the Copyright Act (R.S.C., 1985, c. C-42), which establishes the grounds for ownership and transfer of ownership of copyright. Copyright itself is unique from other elements of intellectual property protected by Canadian law, namely: patents, trademarks, industrial designs, and integrated circuit topographies.1
Note that some specialized questions of the Copyright Act have not been broadly explored in Canadian law and thus have limited precedent.Copyright
The Copyright Act defines copyright as "the sole right to produce or reproduce the work or any substantial part thereof in any material form..."2 Per the Copyright Act, the umbrella of artistic work includes drawings, maps, charts, plans, and architectural work. Architectural work is defined as any building, structure, or model thereof. These definitions establish the grounds by which engineering designs qualify for copyright protection, provided they are also original expressions. It is important to note that copyright does not apply to the idea or the function of the design.3
Copyright can be assigned or transferred in writing by the owner of the right, wholly or in part, per section 13(4) of the Copyright Act. Registration of copyright with the Canadian Intellectual Property Office is not required but provides administrative benefits as well as documented evidence of the registered owner.
Section 13 of the Copyright Act establishes the author of the work as the prime owner of the copyright. If the author of the work creates a design under the employment of another person or a firm, the employer will hold the copyright unless there is an explicit arrangement otherwise.Moral Rights
Separate from copyright is another element of intellectual property protected under the Copyright Act, called moral rights. Moral rights are not transferrable nor is their transfer implicit with an assignment of copyright; however, they may be waived wholly or in part. This aspect of intellectual property has seen limited exposure in Canadian courts with regard to its implications on design documents in the engineering and geoscience realm. Moral rights involve the author's right to the integrity of the work as well as the right, per section 14.1(1), "where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous."Safeguarding Designs
Given that copyright is transferrable and moral rights may be waived, a written contract is an important tool for protecting the work firms and designers complete from subsequent improper use by the client and others. The Association of Consulting Engineering Companies (ACEC) Document 31 provides general contract terms to establish the engineering documents as the property of the engineer (author) and set the grounds for the client's use of copies of the documents, as well as terms to indemnify the engineer should costs arise from improper use of the design documents by others.4
When submitting designs to an authority who takes ownership of the designs, firms should be aware that their work may be deemed good engineering practice and become subject to public use. Firms should be aware of the contract stipulations and consider making appropriate disclaimers to indemnify them from future use of the designs by others.
The Alberta Association of Architects similarly states in their practice bulletin PB-17, Copyright and Intellectual Property, that, "in the event that copyright is assigned under contract or it is otherwise agreed to provide a license to authorize some specific reuse of work products by the member, the Association advises that additional protection against unwanted liability is required."5
The Investigation Committee recommends that legal advice be sought when establishing contract terms and disclaimers to protect ownership and use of engineering documents.
- Government of Canada. (2019). A Guide to Copyright.
- Copyright Act. (R.S.C., 1985, c. C-42).
- Pawson, O. and Tomkowicz, R., Miller Thomson LLP. (2007). Protecting Your Designs. Canadian Consulting Engineer.
- The Association of Consulting Engineering Companies. (2010). ACEC Document 31 - 2010 Engineering Agreement Between Client and Engineer.
- The Alberta Association of Architects. (2019). PB-17: Copyright and Intellectual Property.
Site Photographs and PrivacyBackground
After having a renovation done, a homeowner noticed some issues, which dictated an inspection and review by the contractor's engineer. In the course of inspection to determine the cause of the issues, photographs were taken. The inspector obtained permission to take photos in a particular area, but then, unknown to the homeowner, took additional photos in another area that he believed was related to the engineering issue. However, the homeowner felt their privacy had been compromised with these additional unauthorized photos, and launched a complaint with the Association against the engineer.What to do
Practicing members are reminded that photos they take on any jobsite, in any client's or third party's place of business or residence, must only be taken after obtaining expressed consent to do so, preferably in writing. Further, the practitioner should advise their client or third party, what will be photographed, why it needs to be recorded, and how it will be used. It would also be prudent to indicate what controls will be in place to protect the confidentiality and privacy of the client or third party.
The Federal Personal Information Protection and Electronic Documents Act (PIPEDA) governs the handling of personal information by Canadian organizations. It applies to any personal information collected, used, and/or disclosed in the course of commercial activities. Although the legislation doesn't specifically define how it applies to a sole proprietorship or individual, it would simply be good business practice for any practitioner to follow. Provincial legislation also addresses the statutory rights of clients or third parties with respect to breach of privacy under the Privacy Act, C.C.S.M. c. P125.
Further information and a clear outline of the practitioner's responsibilities can be found in the toolkit for compliance with PIPEDA for businesses, which is available online.
Solar Panel Installations
The Investigation Committee has become aware that some past reviews of solar panel installations have not adequately addressed the structural considerations that arise from the associated change in loading. The Investigation Committee wants all members to consider the following prior to undertaking review of roof-mounted solar panel installations, particularly with respect to wood framed roof structures.
Prefabricated Metal Plate Connected Roof Trusses are warrantied by the supplier. Changing the load invalidates that warranty and transfers it to the entity instructing and authorizing the load change.
Structural designers should refer to the Western Wood Truss Association (WWTA) Solar Panel Info sheet, first presented to the Manitoba Building Officials' Association (MBOA) at their seminar in April of 2017. As noted in the attached WWTA document, any existing roof considered for new Solar Panel applications must undergo a structural evaluation by an Engineer familiar with the design of the roof structural components, roof snow load design and installation details of the proposed Solar Panel project.
Structural designers should also refer to the attached Truss Plate Institute of Canada (TPIC) Technical Bulletin #7, which is the detailed requirement that must be followed by Truss Fabricators in the design of Prefabricated Wood Trusses for support of Solar Roof Panels. The Manitoba Building Code (MBC) references TPIC as the document for prefabricated truss design. Therefore, Bulletin #7 is required by code for the design of installation of solar panels that will be supported by trusses.
Further with respect to wood trusses, attention should be given to the connection system. TPIC trusses are not designed to accommodate lagging directly into truss top chords.
For prefabricated wood trusses, the design should be reviewed by a Truss Fabricator and their Engineer as they are the only ones that have proprietary Truss Software that conforms to the Truss Design Procedures And Specifications For Light Metal Plate Connected Wood Trusses (TPIC 2011) and that can design in accordance with TPIC Technical Bulletin #7 and the impact on members and truss plate joints.
Truss plate joints are a critical component of the capacity of trusses. Therefore, only Truss Fabricators can provide a reliable evaluation of an existing truss roof or on-site reinforcement to an existing truss. Since Truss plates come in multiple increment sizes, trusses are initially designed with the smallest plates that meet the required design. Even a change in load of 1 psf can cause joint plate sizes to increase. Site reinforcing is possible but consideration must be given to the issue of access to the bottom chord and heels.
In the case of "Solar Ready" trusses, consideration has already been made for the changes in loading and the potential anchoring of the solar system. However, the fabricator should be contacted for any design limitations and assumptions made at the time of the original design.
In the case of wood rafter roofs, the applicable codes are MBC (Part 9 and Part 4) and CSA 086-09. Part 4 of the MBC would be required for any load other than uniform load design, even in the case of single-family residential structures. In other words, with a point load system, the Part 9 rafter Tables are invalid as the load sharing and system factors are not applicable. Additionally, the exposure to wind factor (Cw = 0.75) used in Part 9 would not be appropriate in that review.
Please contact Engineers Geoscientists Manitoba if you have any questions.
Limit States Design - Foundations
It has come to the attention of the Engineers Geoscientists Manitoba's Investigation Committee that some members have attempted to design foundations for buildings using a methodology that falls below the acceptable standard of professional engineering. The methodology in question relies on analyzing the prescriptive aspects of the Manitoba Building Code (MBC) found in section 188.8.131.52, which includes a prescriptive description of piles acceptable for single-storey attached garages. The methodology, which the IC does not condone, involves the calculation and prediction of soil capacities based on reverse-engineering these prescriptive details.
All of Engineers Geoscientists Manitoba's practitioners must employ Limit States Design (LSD) methodology for the design of foundations of buildings that fall under the MBC. The prescriptive details illustrated in the figures presented in 184.108.40.206 are only appropriate for the specific use described in each detail. Therefore, the design of piles other than those for single-storey attached garages must include an appropriate establishment of soil capacities for the site in question.
Some Authorities Having Jurisdiction (AHJ) may have established soil capacity values that can be used for ULS and SLS foundation designs for specific Part 9 structures in their jurisdiction. These AHJ's may be consulted in the absence of site specific geotechnical information.
Engineers Geoscientists Manitoba's Investigation Committee wishes to further provide direction regarding sentence 220.127.116.11.b of the MBC. This sentence allows for "structural members and their connections" to "be designed according to good engineering practice such as that provided in CWC 2009, Engineering Guide for Wood Frame Construction". It is not 'good engineering practice' to rely on this sentence as justification to use Working Stress Design methodology for the design of foundations.
The Investigation Committee encourages all of Engineers Geoscientists Manitoba's practitioners to embrace Limit States Design as the only acceptable methodology for the engineered design of all building structural elements (including foundations).[top]
The Investigation Committee has assessed several complaints related to review of buildings by responsible professionals. These complaints have related both to the review of site prior to the development of a design, as well as reviewing construction sites for compliance with engineering drawings and specifications. This practice note will clarify the minimum standard expected of practitioners in their direct review of the site or supervision of reviews by others.
- Practitioners, or another suitably qualified person responsible to them, must perform site reviews
for the work represented in the drawings they've sealed.
The Investigation Committee recognizes that practitioners are occasionally engaged to prepare design drawings
for projects that do not advance to construction. The Investigation Committee also recognizes that practitioners
may not ultimately be the professional engaged to perform site reviews. However, practitioners should generally
provide design services on the assumption that the project will proceed to construction and that they are also
being engaged to review the implementation of the design. Frequently the Building Permit Process requires that
Professional Designers provide Letters of Assurance or commitments to conduct field reviews during construction.
There are two instances where a practitioner may professionally assume that they will not be performing the site review.
- Projects where the contract between the practitioner and the client clearly indicates that site review services will be performed by others, in which case the drawings must clearly indicate that the designer has not been engaged to perform site reviews; and
- Projects where the contract between the practitioner and the client has been terminated, in which case the practitioner must notify the authority having jurisdiction concerning the cessation of field review commitments.
- Practitioners should properly document their site reviews. Practitioners must maintain a record of each site review, including the date of the visit, personnel in attendance, observations made during the review, directions provided verbally on-site, and, where appropriate, photographs. Verbal instructions provided on-site should also be committed to the permanent project records after the review. If a site review is carried out by a third party on behalf of the practitioner, the practitioner must certify the record document as reviewed with a signature and the date. Appropriate third-party reviews are described in Item 5 below.
- Practitioners should perform a sufficient number of site reviews over the course of the project to allow for a reliable certification of the work. The investigation committee recognizes that a prescribed number of site reviews is not feasible. However, practitioners should indicate to their clients and contractors a minimum number and the stages of site reviews required. Practitioners should clearly identify any critical stages where a site review must be performed prior to implementation of a subsequent phase. For example, practitioners must make clear to clients and contractors the importance of a site review prior to the pouring of concrete cast-in-place piles, as the confirmation of the depth of the pile and placement of steel is impractical after the pour. Where a practitioner becomes aware of a project proceeding past a critical stage without a review and without alternative provisions, the practitioner must notify the Authority Having Jurisdiction of the issues created and the potential resolution.
- Where a practitioner is delegating a site review to another person, they should ensure that the reviewer is qualified to perform the task. The level of training and experience of the reviewer should be consistent with the technical needs of the assignment. For example, should an intern who is a recent graduate be sent to perform a site review by themselves, the work must be appropriate for their comprehension of the work, carried out under clear instructions and guidelines, and conducted with the benefit of instant communication with an experienced supervisor available remotely.
- Practitioners should be very cautious about relying on site reviews performed by individuals, who may have a conflict of interest. The building owner or the contractor constructing the project may lack the impartiality to effectively perform a site review. Ideally, practitioners should directly review the site or have the site reviewed by a person employed under their supervision. Alternatively, an impartial third-party can be engaged to perform the site review. Note that this applies equally to new-build projects as well as reviewing an existing building prior to making recommendations for changes to that building. Generally it is inappropriate to substitute direct reviews or pre-arranged third- party reviews with correspondence sent by the contractor, even if photographs are included. In some cases in remote job sites and/or due to extraordinary circumstances, it may be necessary to rely on information provided from the field by owners or contractors. In these cases, the practitioner must document the circumstances, the specifics concerning the exchange of information, and reasons why the information is judged to be reliable. Failure to do so could be judged to be professional misconduct.
The Practices of Architecture and Engineering
The following document, which was reviewed by the MAA, provides clarity about the overlap of practices of engineering and architecture. The Practices of Architecture and Engineering
Reviewed by Investigation Committee, September 2021[top]
Withholding Letters of Certification for the Purpose of Procuring Payment
The Investigation Committee has received questions about the appropriateness of withholding a letter of certification for the purpose of procuring payment for a project. With respect to adherence to Engineers Geoscientists Manitoba (EGM) Code of Ethics, there is no ethical obligation for any member to continue to provide services if the contract with the client, or the client's agent, has been properly suspended. To ensure that the cessation of services is conducted properly, EGM's practitioners have a duty to ensure the following:
- For the design of buildings, the contract between a member or a holder of a certificate of authorization and its client shall contain a provision for suspension of services, including a prescribed notification period.
- Members and holders of certificates of authorization shall take appropriate steps to
- determine whether or not the suspension of services presents safety concerns, and
- protect the public, including construction site personnel, by notifying them of the safety concerns.
- The Authority Having Jurisdiction shall be notified of the suspension of on-site services and of safety concerns that have been identified.
Practitioners and holders of certificates of authorization may suspend their contract as per the contract terms but should continue to provide services during the notification period identified in the contractual agreement, as identified in point 1 above.
In the event there are contractual issues, including financial issues, between the client and practitioner, channels for independent assessment of these issues exist, including the option for civil action. EGM practitioners should not withhold letters of certification for the purpose of guaranteeing payment from their client.
Failure to adhere to these recommendations may expose the member to a complaint of professional misconduct.
Revisions approved by Investigation Committee, June 15, 2021[top]
Errors & Omissions Liability Insurance
The Investigation Committee has become aware that there may be ambiguity with respect to the standard expected of members and holders of certificates of authorization as it pertains to liability insurance. The purpose of this practice note is to establish a common practice for the engineering community in Manitoba. Members and holders of certificates of authorization are expected to follow the recommendations below.
As described in article 16(2)(e) of the Act and By-law 14, one of the requirements for holders of a certificate of authorization is proof of errors and omissions liability insurance. This requirement is in place to protect the public in instances where a holder of a certificate of authorization makes an unintended error and omission. It ensures that financial remediation is available for aggrieved recipients of engineering services.
If a holder of a certificate of authorization, or a member acting on behalf of a holder of a certificate of authorization, takes action that renders their insurance policy null and void, it defeats the purpose of the requirement for insurance. Therefore, the Investigation Committee has determined that:
- all members and holders of certificates of authorization must understand their insurance policies,
- all members and holders of certificates must take any and all steps necessary to ensure that the policy remains in effect for any claims, and
- any action taken by a member or holder of certificates that invalidates their insurance coverage is considered professional misconduct.
Prepared by the APEGM Investigation Committee, May 2013[top]
City Of Winnipeg Occupancy Certification Requirements
On March 21, 2012 the City of Winnipeg amended the Winnipeg Building By-law and the Winnipeg Electrical By-law. The by-laws no longer prescribe the wording for professional certification required at the time of project completion. However, the by-laws give the authority to the designated employee to develop and require certification wording. To that end, the City of Winnipeg has collaborated with the Association of Professional Engineers and Geoscientists of Manitoba and the Manitoba Association of Architects to develop wording which is consistent across all disciplines, to the greatest extent possible, and is now required by the City of Winnipeg without modification.
The certification will require a header indicating the address, project description, tenant name, unit number (as applicable), related permit numbers (both trade and building permit numbers are required for Mechanical and Electrical certifications), date, etc. and must be signed and sealed. The required wording can be found in the Guidelines.Revisions approved by Investigation Committee, September 2021 [top]
Attention to Detail
The Association has received a number of expressions of concern about the care and attention that some professional engineers are exercising in designing and supervising the engineering work for which they are responsible.
One of these cases involved the preparation of documents submitted to the Authority having Jurisdiction in support of a Building Permit to renovate a building. In this case the level of design and detail on these documents was found to be inadequate for anyone to effectively determine whether the proposed projects would be safe and in compliance with the applicable sections of the relevant statutes, regulations, standards, codes, by-laws and rules applicable to the projects.
Another case involved the supervision and inspection of a project to repair and renovate a residential building foundation. In this case inadequate care was exercised to ensure that the repair and renovation work was carried out in compliance with the drawing and specifications which had been prepared and approved for the project, and in compliance with the applicable sections of the relevant building codes and regulations.
The Association's Code of Ethics indicates clearly that the professional practitioner shall:
- Hold paramount the safety, health and welfare of the public and the protection of the environment and promote health and safety with the workplace.
- Offer services, advice on or undertake engineering or geoscientific assignments only in areas of their competence, and practice in a careful and diligent manner and in compliance with applicable legislation
- Act as faithful agents of their clients or employers, maintain confidentiality...
Each professional engineer is encouraged to examine his or her practices in the light of the above noted clauses of the Code of Ethics, and to act in such a way as to ensure that the engineering needs of each client or employer are satisfied in a professional manner.
Revisions approved by Investigation Committee, September 2021[top]
Communication with Peers
Working Together for Canon 5.6 of the Code of Ethics for the Practice of Professional Engineering and Professional Geoscience stipulates that each practitioner shall "notify a practitioner, as soon as practicable, when giving an opinion on that practitioner's work".
Recently, the Investigation Committee investigated a situation where two professional engineers were involved with the expansion of an existing building. Neither engineer was engaged directly by the owner of the property. Initially, one engineer had been engaged by a drafting service for the structural design of the expansion. Subsequently, the second engineer was engaged by the contractor to redesign the foundation because the owner had decided to incorporate an expanded feature which necessitated a change in the foundation design. The expansion was built by the contractor using the foundation design prepared by the second engineer and the superstructure design prepared by the first engineer, with the exception that one of the support connections in the superstructure was changed on the advice of the second engineer.
When the time came to certify the project for the purpose of obtaining an occupancy permit, a problem arose. The second engineer declined certifying the superstructure as it was not "his" design and he had some concerns about the adequacy of the design. The first engineer was reluctant to certify the superstructure because he had not been advised that the project had "gone ahead" and therefore had not supervised or inspected the project during construction and had not authorized the change to the "support connection". While the permit authority ultimately received the required certification and issued an Occupancy Permit, the owner and the contractor were greatly inconvenienced and put to additional trouble and expense. In the end it was the opinion of the Committee that communication between the two engineers, initiated by the second engineer, would have served the owner better.
Each Professional Engineer is required to notify the other engineer, not only when engaged to undertake an assignment to give an opinion on the other practitioner's work, but also when engaged to undertake work which impinges upon the work of the other practitioner, in order to ensure that the public's interest is served effectively.
Prepared by C.R. Bouskill, P.Eng., June 1999[top]
Coordination of Engineering on Projects
There continues to be a trend to develop projects on a design/build basis. A number of concerns have been expressed about certain shortcomings arising from the design and inspection procedures associated with this method of project development.
The Investigation Committee has reviewed a matter of the partial collapse of a one-storey structure which was developed using the design/build process. This review revealed that there were at least three professional engineers involved in various structural aspects of the building, but there was no one professional engineer in overall charge of coordinating the structural design of the building and providing field inspection services for the structure. This lack of coordination of the structural aspects of the building contributed to the conditions which ultimately resulted in the partial failure of the structure.
Each professional engineer who is involved in providing design engineering services for projects for which there is not a prime consultant is strongly reminded that it is the responsibility of each professional engineer to:
- identify the design professional who is providing overall coordination of the engineering design services within the applicable area of practice (e.g. structural, mechanical, etc.),
- clearly specify the requirements for 'designs to be provided by others' in those situations where his/her design interconnects with that of another designer, and
- inform the client of the importance and value-added benefits of inspections and the significance of their being undertaken by the professional engineer responsible for the design.
Revisions approved by Investigation Committee, September 2021[top]
Design of Residential Buildings Using Engineered Lumber Products
APEGM members involved with design of residential buildings using engineered lumber products; .i.e. Laminated Veneer Lumber (LVL), Parallel Strand Lumber (PSL) and Structural Composite Lumber (SCL) should take note of a potential problem associated with the use of standard adjustable steel columns and footings as referenced in Part 9 of the Manitoba Building Code (MBC). This concern was brought to the attention of the Association's Safety Committee by suppliers of pre-fabricated building components and building regulatory authorities.
With the introduction of engineered lumber products LVL, PSL and SCL it is now possible for the designer to provide greater clear spans between structural supports. Consequently, because of the increase in tributary area from larger more open floor areas, the loadings to the structural supports are increased. As such, routinely specified structural elements for residential buildings such as footings and teleposts that are intended for use with dimension lumber could easily become overloaded.
Overloading of Standard Teleposts
The Manitoba Building Code, Subsection 9.17.3, references a standard to which typical adjustable steel columns are to be manufactured. That standard (CAN/CGSB 7.2 - M88) specifies that these columns be designed to support loads up to, but not exceeding 36 kN (8,000 lb). However, as noted above greater loads are now commonly developed.
In considering solutions it is to be noted that the doubling up of two standard teleposts is not good engineering practise and should not be used. Alternative design usually involves a heavy-duty telepost or specialized column design.
Better Footing Design Needed
A further issue arises when increased loads must be supported. The standard footing design as outlined in the Manitoba Building Code may well be under capacity and cannot be used. Once again, an alternative design will be required.
It is strongly recommended that professional engineers providing services for residential building under Part 9 of the MBC take note of whether the structural system is other than the standard system provided for in the MBC. If not, the particular attention should be paid to the capacities required of the column and foundation systems, and if necessary, alternative designs provided. The supporting documentation to demonstrate code compliance should be submitted to the authority having jurisdiction.
Prepared by the APEGM Safety Committee, April 2003[top]
Fiduciary Responsibility - A Matter of Trust
Canon 3 of the Engineers Geoscientists Manitoba (EGM) Code of Ethics states in part that practitioners shall "Act as faithful agents for their clients or employers..." and Canon 5 states in part that practitioners shall "Conduct themselves with integrity, treat clients, colleagues, and others with equity, fairness, courtesy and good faith, give credit where it is due..."
The Investigation Committee reviewed a matter with implications of copyright infringement that concerned the development of a design/build project for a large structure for a commercial enterprise. The owner, the commercial enterprise, engaged a consulting engineer to assist it in the development of the parameters and the documents for a Request for Proposal, and to assist it in assessing the Proposals that were submitted. After reviewing the proposals the owner "short listed" the proposals of two of the design/build teams and invited each of these two teams to submit ideas to the owner as to how the project might be modified to reduce the cost of the project. A revised Request for Proposal was subsequently prepared and sent to the two "short listed" contractors inviting them to submit revised proposals.
The primary concern investigated by the Investigation Committee was whether the owner's consulting engineer had breached its fiduciary responsibility by incorporating the "intellectual property" of one design/build team into the revised Request for Proposal and thereby providing it to the competing team. Based on the evidence provided, the Committee reached the conclusion that there had been no breach. However, the exercise provided some clear insight into the potential for problems.
Practitioners, whether employees or employers, engaged in consulting or industry or government or university, are reminded of their responsibility to act as faithful agents of their clients or employers.
When engaged as a consultant, preparing and administering a design/build Request for Proposal, practitioners must take care to ensure that the "intellectual property" of one respondent is not intentionally or inadvertently "given" to a competing respondent. If such "intellectual property" is shared, it must be done only with the written permission of the originator of the "intellectual property" and with appropriate reimbursement and/or acknowledgment of the originator. If this regard for "intellectual property" cannot be respected, it is important that it be so stated in the Request for Proposal.
Respondents to requests for design/build proposals are encouraged to clearly identify their "intellectual property" when submitting a proposal and to maintain clear records of all agreements or understandings regarding such "intellectual property" as the bidding process progresses.
Prepared by C.R. Bouskill, P.Eng., June 1999
Revisions approved by the Investigation Committee, June 15, 2021
Flood Protection Dykes
One of the developments in flood protection that has been introduced as a result of the 1997 Red River flood has been demountable structural dykes - often referred to as "assembly dykes". Typically, they have a structural foundation and some form of seepage control works as permanent features. The remainder of the dyke, vertical members, panels and other components, are to be stored on site for erection when a flood condition is imminent.
Professional Engineers who undertake to provide design services for such flood protection works are cautioned that there are design issues involved that go beyond structural engineering. Addressing the geotechnical requirements of the site and the hydraulic effects of the flood waters on the installation are equally significant. It should be recognized that, typically, an individual practitioner may not be sufficiently qualified to assume responsibility for all three aspects of such a design.
Manitoba Natural Resources has, in response to the trend to use assembly dykes, produced a guideline entitled, "Guidelines for the Design and Construction of Structural Flood Proofing Dykes", dated October 27, 1997. It is recommended that practitioners providing services for such installations carefully consider that guideline.
Given that, with the passage of time, the availability and suitability for assembly of the unassembled components may be problematic, installation and storage instructions for the unassembled components are critical to long term performance. Designers should also make note of the potential for future liability claims associated with the performance of the installation.
The provincial guideline is available from Manitoba Natural Resources, Water Resources Branch, 200 Saulteaux Crescent, Winnipeg, Manitoba.
Revisions approved by Investigation Committee, September 2021[top]
During the past few years there has been an increasing number of complaints before the Investigation Committee arising out of inspections and reports on the structural condition of single family houses. Some of these inspections have been pre-purchase related, while others have been to identify deficiencies and recommend remedial work.
In its desire for understandable and reliable reports, the public has become more interested in knowing the significance or the potential impact of various conditions which it has observed, or which have been noted by the engineer during an inspection. As an example, many lay people do not understand the difference between, or the significance of, a crack in a wall resulting from a structural stress or fault as opposed to a crack which is essentially cosmetic in nature.
It is important for a professional engineer who undertakes house inspections to determine in advance what the client expects from the inspection and report, and for the engineer to ensure, as far as possible, that the client clearly understands what services will be provided.
As the majority of engineers conduct their business with other professionals or business people, house inspections provide the professional engineer with a unique opportunity to interface with the public and demonstrate to it the value of the engineering profession to society. For many people, a house inspection is one of the few opportunities to communicate with an engineer about the professional's area of expertise.
The Investigation Committee recommends that each engineer engaged to undertake a house inspection take care to observe and act on the following suggestions. These suggestions have resulted from complaints that have been directed to the Committee in recent months. As you can see, these suggestions seem to be common sense and good courtesy. They are intended to assist the engineer to uphold and enhance the honour, integrity and dignity of the engineering profession.
- Communicate effectively with each client in a timely and effective manner during the course of any investigation and reporting, particularly if the matter relates to a civil action arising out of the construction of a residence.
- Exercise prudent and proper care and consideration to provide a standard of service that is at least that which can reasonably be expected of a prudent engineer of average skill and ability in the areas of expertise required, particularly as it relates to foundations.
- Take care to explain to each client what engineering services are offered and the fees associated with each of the services.
- Treat each client with respect, respond to the client's questions as clearly and concisely as possible, and take care to explain the possible ramifications of abnormal conditions observed during an inspection.
- Determine the client's wishes by listening to the client's directions, by asking appropriate questions and by guiding the client responsibly, and then provide the services as agreed upon.
- Provide the agreed-upon services in a timely manner.
- If it is determined that more extensive work is necessary, after having agreed upon the services to be provided, and the fee for those services, notify the client of the conditions which have given rise to the more extensive work deemed necessary, together with a revised estimate of the fees, and obtain approval before proceeding to undertake the extra work and to bill extra fees.
- Prepare and retain adequate notes of the conditions observed during the inspection, particularly abnormal or suspicious conditions.
- Report the significant findings of the inspection fully, factually and concisely, and describe the extent of the inspection, indicating any limitations or restrictions which relate to the inspection, all in language that will be understood by the public. For example, state that the inspection is a visual inspection only and does not involve removing wall panels and/or insulation for a more detailed examination of the condition of such things as concrete foundations, electric wiring, water pipes, etc.
Published in August 1994 issue of MPE[top]
Is Anyone Else Using Your Seal?
In 1993, a Winnipeg heating and air conditioning contractor installed an air handling system in a restaurant according to specifications and drawings that had been prepared and sealed by a professional engineer. In 1994, the contractor attempted to secure work for a second restaurant and had been requested to provide construction drawings. Drawings were submitted by the contractor bearing a "counterfeit seal" copied from the earlier drawing. The professional engineer who sealed the 1993 drawing had no knowledge of the 1994 project. This matter was reported to the member and the Association through the diligence of other members of the Association.
At the request of the Association, this matter was investigated by the Winnipeg Police Service. The employee of the contractor who admitted transferring and altering the date on the 1993 seal was identified and the Department of Justice was notified. The Crown, in a letter to the Association, declined to prosecute the individual and suggested that the person may be in breach of The Engineering Profession Act and advised the APEM that it may wish to commence a prosecution under this Act.
The Act allows for prosecution of the individual if he or she holds himself or herself out to be an engineer - something the individual did not do. The individual did admit to transferring the seal and signature, which would be a basis for a charge of forgery. He was not prosecuted because the Summary Convictions Act specifies a time limitation for the prosecution under the Criminal Code, which had been exceeded.
THIS MATTER IS BEING BROUGHT TO THE ATTENTION OF THE MEMBERSHIP TO CAUTION MEMBERS TO TAKE EXTREME CARE TO ENSURE THAT THEIR SEALS ARE NOT USED FRAUDULENTLY, AND TO NOTIFY THE ASSOCIATION IMMEDIATELY IF THERE IS A CONCERN OF FRAUDULENT USE OF THE SEAL.
Reviewed by Investigation Committee, September 2021[top]
The Professional Engineer as a Contractor
One matter which was recently concluded by the Investigation Committee concerned the potential for a conflict of interest in the practice of professional engineering, specifically where the engineer is also acting as a contractor, or is in the employ of a contractor.
The concern expressed in this matter was that a potential for conflict of interest may exist in that the advice proffered by the engineer/contractor could be deemed to be self-serving in that it might be directed more towards creating business and profit for the contractor than in being in the best interest of the client or employer.
The Association's Code of Ethics states that:
"Practitioners shall act with fairness, courtesy and good faith to their associates, employers, employees and clients. They shall uphold the values of truth and honesty. They shall act in the public interest. They shall safeguard human life and welfare and the environment."
Further to these basic tenets, the Code of Ethics also indicates that a practitioner shall:
"3. Act as faithful agents of their clients or employers, maintain confidentiality and avoid conflicts of interest, but, where such conflict arises, fully disclose the circumstances without delay to the employer or client"
Each professional engineer who is acting as, or for a contractor is encouraged to examine his or her practices in the light of the above noted clauses, and to take action to advise each client or employer of any potential for a conflict of interest, in clear unequivocal terms, either before, or at the time of providing an opinion that is, or may be deemed to be a professional engineering opinion.
Revisions approved by Investigation Committee, September 2021[top]
Public Release of Reports
The Association's Code of Ethics, Clause 2.5, states the practitioner:
shall not issue statements on engineering or geoscientific matters, or provide criticism or argument, or allow any publication of reports or any part of them, in a manner which might mislead.
Recently the question has arisen as to how the practitioner can control the publication of reports by the client, or any part of them, once the report has been issued. For example, if a report or statement is made on an Engineering or Geoscientific matter to be given to a public body or requested by an investigative group, how can the practitioner ensure that its release or publication will not be made in a manner which might mislead? Two possibilities come to mind in this connection.
Firstly, the report or statement might be issued with a caveat to the effect that the contents of the statement or report are not to be used or published in whole or in part, in a manner which might mislead.
Secondly, the report or statement might be released with a caveat to the effect that the contents of the statement or report are not to be quoted or published, in whole or in part, without first obtaining the written consent of the practitioner.
In the latter situation, the practitioner could review the manner in which the statement or report would be released and thus have some control over the manner in which the information is to be released.
Every practitioner who issues statements or reports that are for, or are likely to be used to provide information to the public is encouraged to bear in mind this clause of the Code of Ethics, assess whether and how the contents of the statement or report might be used in a manner which might mislead, and to take steps to avoid their use in a misleading manner.
Published in June 1993 issue of MPE, modified to conform to the November 1998 Code of Ethics[top]
Snow Load Removal from Existing Roofs
Because there have recently been incidents of damage and/or collapse of existing roofs in Manitoba attributable to improper practices in the removal of snow from roofs, the Association's Safety Committee provides the following background information and some considerations to be taken into account when professional engineers are providing services related to the snow load removal from existing roofs.
Building codes prescribe minimum roof design snow loads which are based on a probability of occurrence. In some years, such as the winter of 1996-97, snow accumulations can result in loadings which exceed the code requirements.
Additionally, recent research has shown that large roofs, and roofs adjacent to large roofs, are prone to snow load accumulations greater than previously contemplated in earlier editions of the National Building Code of Canada (NBC). The 1995 edition of the NBC now incorporates increased snow accumulation factors.
Building owners often undertake removal of snow from roofs but do not routinely engage professional engineer services to plan and advise on the removal operations. When the professional engineer is engaged to provide such services there are considerations to be taken into account.
Some considerations to be taken into account
- When equipment is to be used in the snow removal process, the loading effects of the equipment including workers must be considered.
- Snow load should be removed in a fashion to prevent overloading supporting members and damaging roof membranes.
- The capacity of existing roof structure to withstand the current and additionally imposed loads should be investigated.
- Care must be taken to ensure that the removal process does not result in unacceptable accumulations in other areas of the roof.
- Depending upon the ability of roof to withstand the accumulated snow load and additional loads imposed during the removal process, a recommendation to limit occupancy may be required. If there is a recommendation to restrict the use of all or part of the building, the Building Authority Having Jurisdiction and Workplace Health and Safety should be notified.
- In instances, where loading is judged to be excessive, or the capacity of the roof is inadequate, the installation of temporary shoring and/or permanent reinforcing may be required. (The building code states that it is not acceptable to rely on snow load removal to justify the adequacy of a substandard roof.)
- The professional engineer should ensure that the person in charge of the removal of the snow understands the specified removal procedure. Monitoring of the removal operations may also be appropriate.
Prepared by the APEGM Safety Committee, December 1998
Reviewed by the Investigation Committee, June 15, 2021