Effective August 20, 2021, Red Pennant Communications Corp. has a Permit to Practice, and is now a Registrant Firm with Engineers and Geoscientists British Columbia (EGBC). In accordance with the Professional Governance Act (PGA), Red Pennant has been granted the legal authority to engage in the reserved practice of engineering or geoscience in British Columbia (BC), Canada. That’s taken care of another dot on the i and cross of the t in our business. But what does it mean? And how come that an abstract thing like a business can now “engage” in a reserved practice?
Prior to EGBC’s Permit to Practice program, the legal authority to engage in the reserved practice of engineering or geoscience in BC, was vested only in the person of an individual Professional Geoscientist (P.Geo.), with the rights and responsibilities attached to that. Now, in addition to that human P.Geo., the firm that employs the individual, and serves as the legal and financial framework for providing the engineering and geoscience services, must also be granted authority to practice by EGBC.
This process of accrediting firms that are used to deliver reserved practices, such as Geoscience, has taken EGBC a few years to get off the ground. It is in line with similar programs in other Canadian provinces and territories. The Permit to Practice program replaces, amongst other things, EGBC’s Organization Quality Management (OQM) certificate of approval. This ended on December 31, 2020. The OQM certification, often used by large consulting firms running expansive Quality Management programs, has now been subsumed into the Permit to Practice program, which applies to sole practitioner firms and corporations alike.
Have policies – will practice
In order to obtain the permit and to keep it, the staff of the firm in question, even if it is a single person, has to undergo training on the Permit to Practice program, and complete 30 hours of Continuing Education (CE) per year, including a minimum of one CE Hour of activity in each of categories of Ethical Learning and Regulatory Learning. Also, the staff of the firm has to develop and maintain specific policies and programs, and document these in their Professional Practice Management Plan (PPMP) Manual. In the case of Red Pennant, as part of the application process, policies were documented in the following areas:
- Code of Conduct, including ethics and relationship management
- Continuing Education
- Professional Practice, including:
- Document and Records Management
- Checking and Reviewing
- Independent Review of High-Risk Professional Activities
- Risk Assessment
- Sign-off and Recording of Reviews and Checks
- Authenticating Documents
- Direct Supervision
- Field Reviews
For a small organization this requires a large amount of effort. But it is part of the reasoning about the humanization of abstract concepts like businesses, and the ideas and principles that define and drive businesses:
In all regulated professions, abstract concepts such as ethics, trust, reputation, risk, prioritization, authorization, authentication and precedence are important and are applied in a practical manner. Documenting the policies forces you to think practically about these abstract ideas, about what they mean and imply, and how they are realized in people’s everyday behaviours.
Read the fine print
When the process of obtaining the Permit to Practice kicks off, these concepts cease to be sublimated or ignored and become top-of-mind – because you have to focus on them. Business owners would do well to pay attention to the actual, detailed wording of the EGBC’s Permit to Practice regulations, as well as your own Professional Practice Management Plan (PPMP).
The documentation of policies in a business owner’s PPMP should not be handed off to a party who has no vested interest in the business, because when things go wrong, as they do, not only can the registered professional be held liable, but potentially also the registered firm. That is the crux of the matter: a practicing professional is a natural person – and a business is a separate legal person or corporate personality. The Permit to Practice is granted to a legal person.
In jurisprudence, a natural person (also physical person in some Commonwealth countries) is a person (in legal meaning, i.e., one who has their own legal personality) who is an individual human being; as opposed to a legal person, which may be a private or public organization, for instance a business entity or non-governmental organization.
Your business as a legal “person”
“Business people are generally aware that a company is a separate legal ‘person’ and, by its creation, limits the personal liability of any individual officer, director or shareholder for its behaviour.
However, all should be mindful of the exceptions to this general principle both at common law and by statute.”Mohrbutter, J. (Regina) and Tava Burton, T.(Winnipeg), A Piercing Look at Corporate Personality, MLT Aikins LLP, Feb. 26, 2020, rtrvd. 23-Aug-2021
The idea of a business as a legal person is based on the legal principle of corporate separateness which was first upheld in a landmark case in 1896. Subsequently all modern corporate law statutes state that a corporation is an entity separate from its shareholders, who are not ordinarily liable for its debts.
There are limited circumstances where the courts will “look behind” or “lift the corporate veil” to find individuals responsible for acts perpetrated in the name of a company.
This “lifting of the veil” would only occur under “extraordinary circumstances”, and typically “…only when the company is ‘incorporated for an illegal, fraudulent or improper purpose'”, or in “…situations of fraudulent or improper conduct or agency.” But it can happen, even if a corporation has only one shareholder and one director.
As to what a corporation can be held liable for, there are two main streams of statutory liability for directors and officers: First is the responsibility of wage related deductions and benefits, and tax remittances. The second is for statutory offences, such as environment and criminal liability. (Reference for the previous quotations: Mohrbutter, J. and Burton, T., A Piercing Look at Corporate Personality)
Professionals who are registered with EGBC will be aware of exactly what constitutes environmental and criminal liability in geosciences and engineering, and it is a subject of their continuing education.
Awareness of the implications
The first important implication of starting the process of getting the Permit to Practice is that with all legal matters, including the subjects discussed above, you should obtain your own legal advice from a registered professional. This article is merely a discussion and opinion. (And in case you are wondering: yes, we at Red Pennant consulted with our own lawyer about this, right at the start of the permit application process.)
The principle of a company as a separate legal person provides some protection for business owners and shareholders. However, one must not forget that there have been exceptions to this general principle.
Moreover, as the EGBC guide for developing the required Professional Practice Management Plan (PPMP) makes clear, this legal principle will not help you when your personal reputation and your company brand are impacted, either directly or by association, even if the offence in question falls outside the scope of environmental and criminal liability, and does not affect the public. Your reputation can be damaged purely by association.
The negative consequences of corporate liability, and particularly culpability, include financial penalties, but more importantly, damage to the reputation of the Professional registrant and their firm, and damage to the relationship of trust between the firm and its clients.
EGBC states in its Regulation of Firms Permit to Practice Manual, that:
“…a Registrant Firm’s reputation is built on trust that takes time to build, but only takes one momentary lapse of judgment to destroy. The reputation of a Registrant Firm is established over time, based on the integrity and expertise of the people it employs.”EGBC, Regulation of Firms Permit to Practice Manual, Version 1.0
A good reputation, for instance for integrity – honesty, accuracy, fairness and transparent conduct – takes a long time to build but can be quickly damaged by association. It can happen because of the missteps of not only by the owner or shareholder, but the firm’s clients, associates, stakeholders, even former employees.
Trust, once broken, will be difficult, if not impossible, to reestablish. Even if you have been tarred with a nasty brush through no fault of your own, the tar will still stick, and for a long time. So don’t let that happen to you. After all, you’re not sheeple.
Is something rotten in the State of Denmark?
The best approach to take to this particular risk is to not rely on “corporate separateness”, or to consider ethics a piece of corporate waffle or and the Permit to Practice a grudge purchase. Think of this part of your PPMP manual as the real, practical rules that spell out what you, the business owner and registered professional, and those who work with you, will never, ever do.
When you assess a potential client, project or service provider before taking on a job, and you think something smells rotten in the State of Denmark (sorry, Shakespeare), you should make like Prince Hamlet’s friend Marcellus and get out of there.
The PPMP is about more than what you will do – it’s what you and yours definitely won’t do.
If you boil down the rules set by EGBC, it comes down to old-fashioned honesty and reciprocity – a.k.a. the “Golden Rule”. That makes the thoughtful process of documenting of your firm’s PPMP, and your informed decision to obtain a business Permit to Practice, whether from EGBC or another professional organization, meaningful and useful. And also necessary.
To quote actual lawyers: “This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.” (Ref.: Mohrbutter, J. and Burton, T., A Piercing Look at Corporate Personality)