ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO PROFESSIONAL PRACTICE EXAMINATION ~ April 11, 2015 PART “A”. Professional Practice and Ethics This examination comes in two parts (Part "A" and Part “B"). Both parts must be completed in this sitting. You will be given @ total of 180 minutes to complete the exemination, Use the correct colour-coded Answar Book for each par, place in the correct envelope and seal after completed. White Answer Book for Part A white question paper Coloured Answer Book for Part 8 coloured question paper. This is a “CLOSED BOOK” examination. No aids are permitied other than the excerpts from the 1990 Ontario Regulation 941 covering sections 72 (Professional Misconduct) and 77 (Code of Ethics) supplied at the examinetion. Dictionaries are not permitted. The marking of questions will he based not anly on academic cantont, but also (on lgibilty and the abilty to express yourself clearly and correctly in the English Janguage. if you have any doubt about the meaning of a question, please stato clearly how you have interpreted the question. All four questions constitute @ complete paper for Part “AY. Each of the four {questions is worth 26 marks. WHERE A QUESTION ASKS IF A CERTAIN ACTION BY AN ENGINEER WAS ETHICAL _OR NOT, _A_SIMPLE “YES” OR “NO” ANSWER IS_NOT ‘SUFFICIENT. YOU ARE EXPECTED TO COMMENT ON AND DISCUSS THE ACTIC THE DIFFERENT INDIVIDUALS AND/OR ORGANIZATIONS INVOLVED IN EACH SITUATION AS IF YOU WERE PERSONALLY INVOLVED. You should identity where spplicable the appropriate clauses in Regulation 941. API TE CLAUSES WITHOUT A DISCUSSION OF HOW THE CLAUSE APPLIES IN THE SITUATION DESCRIBED IS NOT SUFFICIEN} Part A PPE, April 11,2015 Poge 1 of ‘Ay sila inthe questions to acta perans or eircunstnces is oieQuestion 1 (86) PRO issues both a Certificate of Authorization and aP.Eng. Licence. Briefly ‘explain the purpose of each. (8) (b) Ise mechanical engineor allowed to perform services that are nonmally within the scope of civil engineering? Explain (5) Deseribe the funetions af the “Discipline Committee? (10) (4) PEO issuos the following four licences: Professional Engineer, Temporary Licence, Limited Licence and Provisional Licence. Which licence holders can take independent responsibilty for engineering work? What limitations are placed on cach licence (any)? {dn your answer, DO NOT discuss the qulifiations/oquiroments for obtaining this license.) Question 2 Tau, P-Eng., employed by a large well-known automobile parts testing laboratory, represents the firm on an international standards advisory commitie. Eight members ‘of te ten-person committee are licensed professional engineers. ARer an extensive discussion on a standard at a recent mecting, the committe voted in favour of the new standard. Although Tau vas the only dissenting vote, the committee carefully ‘eansiderel Tau'e enson for abjecton; and aftr further discussions, the comraitee ‘greed they were uncubstantited and pasced a motion to accept and publish the standard ‘Subsequently, the Iahoratory where Tan is employed received a contract 1 test automobile parts to this standard and Tau was assigned the job of supervising the tests, prepacing the final report indicating thatthe parts met the standard and signing it on ‘behalf ofthe firm. However, Tau is still vehemently opposed to the standard and therefore refuses the assignment, Tau argues that signing a report attesting tothe conformance of the pars to the standard would suggest endorsement of the standard, Using PBO's Code of Ethies und Code of Professional Misconduct as your guide. (10) (@) Is Tau's argument for rofusing the assignment correct? Discuss your reasons, (10) (&) What action should Tau have taken? Discuss, () (©) Would Tau suffer any consequences from PEO? Discuss. Past A PPE, April 11, 2015 Page 2of4 sm ‘At sili nto questions to set pesos or erumtances i coincidentalQues Frey, PEng. (a recently licensed geological engineer) was hired by Boring Eng Ine. to act as assisiant project manager on the construction of a pipeline in southern Ontario for Oversight Eneigy. She reported to Loki, a very experienced P, Eng, wha was the ‘project manager. Loki was not experionced in geological testing. The pipeline vas boing constructed by Trencher Inc. whose work was being directed by Thor who is not AP. Eng. Frey was thrilled to have been hired for such an important position and to be Working under suck an experienced project manager. ion 3 ‘The design had ben done by Boring who had also been hired to verify the construction ‘on behalf of Oversight. Part of Frey's work involved checking the progress payments submited by Trencher, verifying them as being within the contract and submitting them to Loki for approval. Loki's signature on the payment approval certifies that the costs were in the criginal agreement and thatthe interests of the pipeline were being served, Almost immediately, Frey began to experience doubis about the project. The soil the Pipeline was going through was very unsiable in areas and the design called for deep trenches. Frey was concemed that not enough geological testing had been done to identify potential problem areas. She reported her concerns to Loki who told her not 19 worry her pretty litle head over this since the work had been done by Boring's engineers according to normal engineering procedures. Frey was sill concerned but ‘wondered if it was more ffom Loki's altitude than from a valid eoncem over the engineering. Shorly after, her fears were confirmed when several segments of the trench collapsed causing extensive additional work for Trencher. Fortunately, no workers were hurt, Trencher submitted a progress payment for approval that included addiional substantial costs for te-digging the collapsed trenches. Frey found thatthe contract did not have any mention of removal of this material and refused to sign the progress payment until changes had been made to the contract. At frst Frey's position was supported by Loki; however, with mounting pressure by Thor, Loki ondered Frey sign off on the costs anc submit it to im for approval. He told her that, though the costs ‘were not inthe original contact, there was enough maney in the budget to cover these costs. Loki said that there was no need to involve the client and re-negotiate the contract. Frey refused to do so, insisting that it would be a viclation of Oversights Interests which Boring was charged to protect. Loki fired Frey for not following his specific instuetions and signed the progress payment himself. Using PEO's Code of Ethies and Code of Professional Misconduct as your guide: 20) @) Discuss Frey's actions (10), as well as those of Loki (7) and Thor (3), identilying eny consequences each might lace. () _(®)I5 there a wecommended recourse that Frey might pursue in view of these actions and her dismissal? Part A ~ PPE, April 11, 2015 hat ‘Any silty the quesons to acl pero or camstances i concentQuestion 4 Local Environmental Studies (LESS) was hited by Regressive Properties o couduct a study on the contamination on former industrial site that they had purchased and wished to redevelop into residential properties. LESS held e Cerificate of ‘Authorization and the responsible professional engineer was Zeta P-Eng. who worked per time for LESS as an employee, usually inthe evenings and on weekends. Zeta ‘vas a well qualified engineer in this field with over 15 years of experience, His principle employer, MORE, was not aware of his employment with LESS and was pot fn competition with LESS, LESS employed 4 experienced technicians but no other P.Pngs. The work of thie technicians was normally ected and reviewed by Zeta who signed all reports ‘Tac report prepared for Regressive was not reviewed or signed by Zeta. LESS gave the report to Regressive, who thea submited it to the Ministry of the Environment as part of Regressive’s application for redevelopment, Zeta was not aware of this work or LESS's action. ‘The Ministy found thatthe report contained some serious erors ane did not accurately identity the leaking of PCBs (a lnown cancer causing material) into a nearby watercourse, These leakages had been identified ina previous study that had bees submited to the Ministry by a qualified engineering firm on behalf ofthe previous ‘After the report was submitted to Regrossive, Zeta reviewed the report and found those ‘errs, He informed LESS ofhis findings but did not notify Remtessive or the Ministry df the Environment, LESS also did not tify Regressive or the Ministry ofthe eros. [Neither Zeta nor LESS attampted t9 remedy the report or take action to prevent the release of the PCB's Using PEO's Code of Bthies and Cod of Professional Misconduct as your guide: (10) (@) Discuss dhe conduct and responsibilities of LESS, giving any consequences, (40) () Discuss the conduet and responsibilities of Zeta gi ing any consequences. 5) (©) What actions should Zeta have taken before entering int the working relationship with LESS? Discuss Parc A BPE, Apt 11,2015 Page 4 of 4 noth ‘Any sry tho questions o actual prsens or ccustaesf cone,ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO PROFESSIONAL PRACTICE EXAMINATION ~ April 11,2015 PARTB" - Ensineering Law and Professional Liability ‘This examination comes in two parts (Part “A” and Part “B"). Both parts must be completed inthis siting, You wil be given a total of 180 minutes to complete the examination ‘Use the correct colour-coded Answer Book for each part, plave inthe correct envelope and seal after completed White Answer Book for Part A white question paper Coloured Answer Book for Part B coloured question paper. ‘This is a “CLOSED BOOK” examination. No aids are permitied other than the excerpts froma the 1990 Ontario Regulation 941 covering sections 72 (Professional Misconduct) and 77 (Code ‘of Ethics) supplied tthe examination, Dictionaries are not permitted. ‘The marking of questions wil be based not only on academic content, but also on legibility aad the ability to expreas yourself clearly and corectly in the English language. If you have any doubt sbout the meaning of « question, please state clearly how you have intepreted the question, All four questions constitute a complete paper for Part “B". Each of the four questions ie worth 25 masks, Front PagePart B, PPE, April 11, 2015 Page L of 4 es) @5) |LBriefy define and explain any five of the following: © Bguitable estoppel Gi), —Vieacious iabilty i) The discoverability concept Gv) Statutory holdback ()—Seeretcommission vo, (Wi) The New York Convention (ii). ‘The difference between arbittation and mediation (ili) Contra proferentem 2. A long-established manufacturing company, XYZ Ltd, contemplating the possibilty of a sale of some of its properties, retained an environmental consulting firm, PTne, to prepare an environmental compliance audit ‘The Vice-President of E Inc., a professional engineer, responsible for the performance of the environmental compliance audit, ned Une matter over one of E ‘c.’s employees who liad only recently become licensed as a professional engineer However, of the basis of previous assignments, the Vice-President had been Very impressed by the young engineer's abilitios. The Vice-President was also aware that an ‘extremely busy sehedule would likely limit the amount of time he himself could spend ‘on the environmental compliance audit and, accordingly, selected the younger ‘employee engineer in the hope that the young engineer's invelvement would decrease the Vice-President’s supervisory time in connection with the audit, ‘The camployee engineer caried out an environmental compliance audit with respect to each of the properties identified and F. Inc. submitted fis reports on each property. Included at the begining of each report was the following qualifying Statement “This cepost wes prepared by B Tne. for the account of XYZ Ltd. The material in it reflects E Tne.'s est judgement in light of the information available to it at the time of preparation. Any use Which a thi party makes of this report, or any reliance ‘on decisions to be made based on it are the responsibility of such third pastes. E Ine. accepts no responsibility for damages, if any, suffered by any thd party as a result of Aecisions made or actions based on tis report.” Some time later, XYZ Ltd. sold two of its properties to Acquisitions Ine. In negotiating the aalo with Acquisitions Ine, E Inc.'s reports were shown to Acquisitions Inc, but Acquisitions Ine. had no dealings with E Ine. E Inc. hal no knowledge of the@) Part B, PPE, April 11,2015 Page2 of 4 sale to Acquisitions Ine. until approximately four years later wien Acquisitions Inc commenced a lawsuit against E Inc. Acquisitions in. claimed it had commenced the Jawsuit in tort against E Ine, because it had encountered hazardous substances on one of the properties and had subsequently obtained the opinion of another environmental consulting firm who confirmed thatthe report in question by E Inc. contained negligent ‘misstatements which, in the opinion of the second consulting frm, had resulted from E Inc’s representatives: having spent too litle time investigsting the property for Dpazardous substances. Acquisitions Inc. claimed in its lawsuit that & Inc, was aware that the report might be shown to prospective purchasers and, accordingly, E Inc. should be responsible for damages arising as ¢ result of reliance by Acquisitions Ine 6m the negligent misstatements i E Inc.'s report “What potential liabilities in tor law arise inthis case? In your answer, explain ‘what principles of tort law are relevant and how each applies to the ease, Indicate & Ukely eutcome to the matter. In your answer indicate if your eonelusion would differ if {the reports by E Inc. had not contained the qualifying stetement identified above and, if ‘your conclusion would differ, explain why. - 3. An Ontario muniipality (the “Owner") decided to construct « major concrete Inne sricnire as part of ite rd ininsimiiine servicing a new muhdivision. To da so, the Owner planned to invite competitive tenders from contractors forthe construction of the new beidge structure. ‘The Owner's consultant on the projett, a professional engineer, designed the laidge and prepared the Tender Documents 16 be given lo contractors interested in bidding on the project. Each of the bidders was required to he prequalified and approved by the Owner for patticipation in the bidding. The Tender Documents included the Plans and Specifications, the Tendering Instructions which doseribed the tendering. procedure and other requirements tobe followed by the bidders, the Tender Form to be completed by the bidders, the form of written Contract thatthe successful contractor ‘would be required to sign after being awarded the contrac, and i number of other documents. According to the Tendering Tns(uctions, each tender bid as submitted wes to remain “firm and irevoesble and open for acceptance by the Owner fora period of 60 days following the last day for submitting tenders”, The Tendering Instructions also jrovided thet all bids were to be submitted ja accordance with the instructions in the ‘Owner's Tender Documents and thatthe Owner was not obligated to accept the lowest or any tender.@s) Part B, PPE, April 11,2015 Page3 of 4 ‘Tenders were submitted by five bidders. All bids were submited in aovordance with the Owner's Tender Documents. The lowest bid was well within the Owner's budget. Within the 60 days specified and before the Owner's consultant had made a recommendation fo the Owner as to whom the contract should be awarded, the consultant was called to a meeting with a prominent member of the Municipal Council ‘who noted that the lowest bidder was not one of the bidders who were “local bidders from within the Municipality. The Councillor expressed a very strong view that the ‘contract should in fact be awarded to local bidder, ‘There had been no reference in the Tendering Instructions to any preference ‘being shown © local contractors. How should the consultant deal with the political pressure being applied by the Couneil member? Wy If the contract is awarded to the lowest local bidder what potential liabilities in contract law may arise? If the consultant engineer recommends to the Owner that the contract be awarded as the Councillor suggests what liabilities may arise for the engineer? Please provide your ressons and analysis. 4, $30,000,000 contract for the design, supply and installation of @ cogeneration facility was entered into between a pulp and paper company (Pulpoo”) and an industrial contractor. The cogeneration facility, the ‘major components of which included a gas turbine, a heat recovery steam generator and a steam turbine, was to be designed and constructed to simultaneously generate both electricity and steam for use by Pulpco in its operations. “The contract provided thatthe electrical power generated by the cogeneration facility was not to be less than 25 mogawatts. A liquidated damages provision ws included in the contract specifying & pre-estimated amount payable by the contractor to Pulpeo for each megawatt of electrical power generated less than the minimum 25 ‘megawatts specified. Other provisions specified additional liquidated damages at prescribed rates relating to other matters under the contract, including any failure by the contractor to meet the required hea rates ot to achiove completion of the Facility for commercial use by a stipulated date. However, the contract also included a ‘maximum liability” provision that limited to $5,000,000 the contractor’s liability for all liquidated damages due to failure to achieve (i) the specified electrical power output, (i) the guaranteed heat rate and (i) the specifiedPart B, PPE, December 11,2015 page 4 of 4 ‘completion date, ‘The contact cleatly provided that under 0 éircurnstances was the contactor to bo lable for any other damages beyond the overall total of $5,000,000 for liquidated damages Pulpco's ste and exchsive romedy for damages under the contact vas steely limited tothe trl liguidaied damages, upto the maxiimano of $5,000,000. The contrat specified thet Pulpeo was not entitled (0 ruke any other claim for damages, whether on account of any direct, inde, spesial or consequential damages, howsoever caused. ‘Unfortunately the contractor’s insullation fell far short of the ‘lectrical power generation specificetions (achieving less than 25% of the ‘specified megewatts) and the heat rate specifications provided in the contract. "The contractor was paid $27,000,000 before the problems were identified on startup and testing. Because of is very poor pesforence, the contractor also failed to meet the completion date by a very substantial racgin, Applying the liquidated damages provisions, the eonteactor’s coveral liability for all liguidated damages under the contract totalled ‘$4,000,000, Ultimately Pulpco had to make arrangements through another ‘contractor for new equipment items and parts to be ordered and installed ji onder ta enable. he cogeneration facility to mect the technical specifications, with the result thet the total cost of the replacement ‘equipment and parts reached an additional $15,000,000 beyond the ‘original contract price of $30,000,000. Explain and discuss what claim Pulpco could make against the contractor in the circumstances. Tn answering, explain the approach taken bby Canadian courts with respect to contacts that limit ability and inelude brief summary ofthe development of relevant case precedents,