as of January 2021 (DOWNLOAD the PDF)
It is expected that the majority of the remaining provisions of the Professional Governance Act (PGA) will be enacted in February by the provincial government. One of the additional significant duties that will be placed upon the Registrants of BCIA prescribes what is colloquially known as the “Duty to Report”. That duty has two related aspects of which BCIA Registrants need to be aware, pending the enactment date. This brief summary is taken from the current "BCIA Ethics for Professionals" course which is a requirement for all articling registrants as part of their respective articling period.
PGA Section 57 (2) requires codes of ethics for resource professionals to include the duty to,
- “report to the regulatory body and, if applicable any other appropriate authority, if the registrant, on reasonable and probable grounds, believes that the continued practice of a regulated practice by 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”. Please note that the current BCIA Code of Ethics adopted as of March 1st, 2020 includes this aspect.
PGA Section 58 goes beyond the ethical responsibility of Section 57 as it prescribes a duty to report,
- 58(2) “If a registrant has reasonable and probable grounds to believe that a identified registrant (which means a registrant of any regulatory body subject to the PGA) is engaged in the regulated practice that may pose a risk of significant harm to the environment or to the health or safety of the public, or a group of people” then, they must report this to the registrar even if the information on which the belief is based is confidential.
- This wording sets a high standard for reporting. It is meant to increase the number of serious concerns about competence or unprofessional or unethical conduct being brought to the attention of regulatory bodies, while not requiring reporting for lower level misconduct.
- A significant caveat to this standard is that Registrants should be able to reasonably identify unethical behaviour of another Registrant, regardless of profession or area of expertise but may only be able to identify incompetent behaviour of a Registrant with similar areas of practice and expertise.
- The Registrant should take reasonable steps to make that identification, but failure to do so is not a breach of the duty, and the reporting duty is not triggered.
- This duty is NOT meant to require Registrants to raise concerns about the risk of significant harm arising from government policies or authorization decisions a Registrant may be operating under. Registrants however may bring their concerns respecting a certain policy or practice (rather than the work of a Registrant) to the attention of the regulatory body which may forward the concern to the government.
- This duty is NOT triggered by non–registrants engaging in regulated practice as agrology does not yet have practice rights. Once practice rights have been confirmed there will be a new duty added to the Code of Ethics requiring the reporting of non registered practice.
- 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 registrants 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.
- Failure to meet the statutory duty to report could result in many different sanctions including but not limited to deregistration of a Registrant, imprisonment or a fine up to $200,000.
Scenarios that may trigger the Duty to Report
- 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)
- Unethical behaviour – e.g. removal of another consultant’s signed report or any tampering with documents
Filing a Report
- If a Registrant is unsure of whether they should be reporting, they may seek advice from their own regulatory body or the regulatory body of the identified registrant. An employer/partner may seek advice from the Office of the Superintendent of Professional Governance or from a regulatory body.
- The regulatory body must treat a report under s.58 as a complaint. Wherever possible the regulatory body shall be the complainant rather than the Registrant that filed the initial report
- When a regulatory body receives a complaint, they will follow the steps outlined in their complaint and discipline process, which may lead them to:
- Dismiss the complaint if the registrar determines there are no grounds for a complaint, or if the complaint is deemed to be frivolous, vexatious or made in bad faith;
- Initiate an investigation;
- Take extraordinary action to protect the public by imposing limits or conditions on the registrant’s practice, or by suspending the registration of the registrant; or
- Refer the complaint to a different entity if the complaint is outside the regulatory body’s jurisdiction
The PGA specifically prohibits any reprisals being taken as against a Registrant who acts in accordance with the duty to report as follows:
- 58(4)“If a person terminates the employment of an identified Registrant; revokes, suspends or imposes restrictions on the privileges of the identified Registrant or dissolves a partnership or association with the identified Registrant based on a belief described in subsection (2),the person must promptly report this in writing to the registrar of the identified Registrant's regulatory body.”
- 103 “A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on or otherwise discriminate against a Registrant because that Registrant (a) has reported a matter as described in Section 58 with respect to a Registrant or other persons”….
- If a registrant is experiencing reprisals for their role in making or assisting in a complaint or prosecution, they may talk to their regulatory body (through the complaint intake process) or to the OSPG through OSPGEnquiries@gov.bc.ca; and/or may seek legal recourse.
Staff of the Office of the Superintendent of Professional Governance (“OSPG”) and the staffs of the affected professions are diligently working on a series of communication pieces to assist all Registrants in understanding the provisions of the incoming legislation. This information will be provided as soon as it becomes available. Notwithstanding this please feel free to contact the BCIA office should you have any questions about the incoming PGA.
JP Ellson(B.A,Hon Cert.,L.L.B)
BC Institute of Agrologists
110-2800 Bryn Maur Rd.
Victoria, BC, V9B 3T4