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The Architects and Engineers Scope of Practice Dispute Settlement Act (Various Acts Amended)

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S.M. 2005, c. 48

Bill 7, 4th Session, 38th Legislature

The Architects and Engineers Scope of Practice Dispute Settlement Act (Various Acts Amended)

(Assented to November 30, 2005)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE ARCHITECTS ACT

C.C.S.M. c. A130 amended

1           The Architects Act is amended by this Part.

2           Subsection 1(1) is amended

(a) in the definition "architect", by striking out "supervision" and substituting "review"; and

(b) by adding the following definitions:

"certificate of approval" means a certificate of approval issued under section 18 or 24; (« certificat d'approbation »)

"firm" means a partnership; (« firme »)

"practice of professional engineering" and "professional engineer" have the same meaning as they have in The Engineering and Geoscientific Professions Act; (« exercice de la profession d'ingénieur », « exécution de travaux de génie » et « ingénieur »)

"registered architect" means an architect who is a member of the association in good standing and registered as such; (« architecte inscrit »)

3(1)        Subsection 15(1) is amended by striking out "member of the association in good standing and registered as such" and substituting "registered architect".

3(2)        The following is added after subsection 15(1):

Work by a professional engineer

15(1.1)     Nothing in this Act prevents anyone entitled to engage in the practice of professional engineering under The Engineering and Geoscientific Professions Act from

(a) engaging in that practice in relation to the erection, enlargement or alteration of a building where a person or firm entitled to practise as an architect plans, or has planned, the erection, enlargement or alteration of the building;

(b) performing any work that, as determined by or under the applicable building construction code adopted or prescribed by regulation under The Buildings and Mobile Homes Act, may or must be performed by a professional engineer; or

(c) performing any work referred to in subsection 25(1).

Work by a holder of a recognition certificate

15(1.2)     Nothing in this Act prohibits the holder of a recognition certificate issued under section 34 from performing architectural work under that certificate.

3(3)        Clauses 15(2)(a) and (b) are amended by striking out "member of the association in good standing and registered as such" and substituting "registered architect".

3(4)        Subsection 15(5) is replaced with the following:

Declaration by sole proprietor

15(5)       A registered architect practising or intending to practise as a sole proprietor must file with the secretary a declaration setting out

(a) his or her full name and address;

(b) the name or style under which the practice is being or will be carried on;

(c) when the practice commenced, or will commence, to be carried on under that name or style; and

(d) any other information prescribed by the council.

Declaration by firm

15(6)       A firm practising or intending to practise as architects as permitted by subsection (1) or (2) must file with the secretary a declaration setting out

(a) the full name and address of each member of the firm;

(b) the name or style under which the practice is being or will be carried on;

(c) when the practice commenced, or will be commenced, to be carried on under that name or style; and

(d) any other information prescribed by the council.

Notice of changes

15(7)       An architect or firm required to file a declaration under subsection (5) or (6) must file with the secretary, in accordance with any rules prescribed by the council, a notice of any change in the information previously filed.

4           Section 16 is replaced with the following:

Practice under certificate of approval

16(1)       Despite subsections 15(1) and 25(2), a corporation or firm that does not meet the requirements of subsection 15(1) or (2) may practise architecture in its own name, and may use the designation "architect", "architects" or other words implying that it is practising architecture, if

(a)  the corporation or firm holds a valid certificate of approval;

(b) the professional liability insurance or alternative coverage for its practice of architecture meets the requirements prescribed by the council; and

(c) its practice of architecture is carried on by or under the direct personal supervision of one or more registered architects who have professional responsibility for the practice and are shareholders, members or permanent employees of the corporation or firm.

Group practice

16(2)       Despite subsections 15(1) and 25(2), a firm, joint venture, consortium or other unincorporated organization may practise architecture in its own name if

(a) each member of the organization is entitled to practise architecture under section 15 or subsection (1);

(b) the practice is carried on by or under the direct personal supervision of one or more registered architects who have professional responsibility for the practice and are members or permanent employees of the organization or of a member of the organization; and

(c) the organization meets the applicable requirements, if any, prescribed by the council.

Standards of professional conduct

16(3)       The practice of architecture by

(a) a corporation or firm under subsection (1); or

(b) an organization under subsection (2);

is subject to the same standards of professional conduct as if the practice were carried on by a registered architect.

Responsibility for practice and compliance

16(4)       An architect is personally responsible, along with the holder of a certificate of approval, for

(a) any professional misconduct relating to the practice of architecture by the holder of the certificate; and

(b) any breach of this Act or the by-laws by the holder of the certificate;

that occurred while he or she was named as the registered architect with professional responsibility for the practice of architecture by the holder of the certificate.

5           Subsection 16.1(1) is replaced with the following:

Temporary licence

16.1(1)     Despite subsections 15(1) and 25(2), the council may grant to a natural person, corporation or firm authorized to practise architecture in a jurisdiction outside of Manitoba a temporary licence to practise architecture in Manitoba in collaboration with

(a) a registered architect or firm of registered architects;

(b) a firm entitled to use the designation "architects" under subsection 15(2); or

(c) a corporation or firm entitled to practise architecture under a certificate of approval.

6           Section 17 is amended by striking out "partnership of corporations" in the part before clause (a) and in clause (b) and substituting "firm".

7           Sections 18 to 21 are replaced with the following:

Issuance of certificate of approval

18(1)       The council must issue a certificate of approval to a corporation or firm that

(a) applies for it in the form prescribed by the council;

(b) pays the applicable fees prescribed by the council;

(c) satisfies the council that

(i) it has the legal capacity to practise architecture,

(ii) its practice of architecture will be carried on by or under the direct personal supervision of one or more of its shareholders, members or permanent employees who are registered architects and will have professional responsibility for the practice;

(d) provides evidence satisfactory to the council of professional liability insurance or alternative coverage that meets the requirements prescribed by the council; and

(e) meets all other requirements, if any, prescribed by the council.

Duration of certificate

18(2)       A certificate of approval ceases to be valid

(a) at the end of the calendar year for which it was issued or, if it is renewed under section 22, at the end of that renewal period;

(b) when it is revoked under section 22; or

(c) when the holder ceases to meet any requirement referred to in clause (1)(c) or (e);

whichever occurs first.

Holder of certificate of approval to file information

19          The holder of a certificate of approval must file with the secretary, at the times prescribed by the council, the following information:

(a) the name and address of each registered architect who directly and personally supervises the practice of architecture by the holder of the certificate and assumes professional responsibility for it;

(b) proof of professional liability insurance or alternative coverage that meets the requirements prescribed by the council;

(c) any other information prescribed by the council;

(d) any change in the information previously filed under this section.

Joint and several liability of responsible architect

20          An architect is jointly and severally liable with the holder of a certificate of approval for any errors or omissions made in the practice of architecture by the holder of the certificate while the architect was named as the registered architect with professional responsibility for that practice.

Issuance of stamp

21          When issuing a certificate of approval to a firm or corporation, the council must provide it with an engraved stamp showing that the corporation or firm is approved and the number of the approval.  The stamp remains the property of the association and must be returned to the association upon demand by the association when the corporation or firm no longer holds a valid certificate of approval.

8           Section 22 is amended by striking out "partnership of corporations" wherever it occurs and substituting "firm".

9           Section 24 is amended

(a) in the section heading, by striking out "partnership" and substituting "firm";

(b) in the section, by striking out "partnership of corporations" wherever it occurs and substituting "firm"; and

(c) by striking out "or (2), as the case may be".

10          Subsections 25(1) and (2) are replaced with the following:

Work that may be done by non-members

25(1)       Nothing in this Act prohibits a person or firm from performing architectural work

(a) that relates to a building to which The Buildings and Mobile Homes Act does not apply; or

(b) that, under the applicable building construction code adopted or prescribed by regulation under The Buildings and Mobile Homes Act,

(i) relates to a building to which that code does not apply, or

(ii) is not required to be performed by an architect or a professional engineer.

Limitation

25(2)       No person or firm engaged in work mentioned in subsection (1) shall be styled as, or hold itself out as, an architect or firm of architects unless that person or each member of the firm is a registered architect.

11(1)       Subsection 28(1) is amended in the part before clause (a) by striking out "person or firm practising as an architect or architects in Manitoba in accordance with this Act" and substituting "registered architect or firm of registered architects".

11(2)       Subsection 28(2) is replaced with the following:

Application of seal

28(2)       Every registered architect or firm of registered architects must stamp with their seal all working drawings and specifications issued from their office for use in Manitoba.

12          Subsection 31(1) is amended in the part before clause (a) by adding "for a certificate of approval or" after "application".

13          The following is added after section 32:

Prime consultant

32.1        Nothing in this Act prevents a person or firm from being the prime consultant in respect of the erection, construction, enlargement or alteration of a building.

14(1)       Subsection 33(4) is amended by replacing the part after clause (c) with the following:

the secretary must refer the dispute to the joint board, which must consider it in a timely manner and, if possible, make a joint determination about how to resolve the dispute and give it to the council of The Manitoba Association of Architects and the council of The Association of Professional Engineers and Geoscientists of the Province of Manitoba.

14(2)       The following is added after subsection 33(4):

Determination to be implemented

33(5)       A joint determination under subsection (4) must be implemented by the council of one or both associations, whichever is necessary to give full effect to the determination.

15          The following is added after section 33:

Grandfathering: professional engineers

34(1)       The purpose of this section is to provide a mechanism whereby professional engineers who were performing competent architectural work immediately before September 16, 2005, may continue to do so even though they are not members of the association.

Joint board to establish criteria

34(2)       Within 60 days after this section comes into force, the joint board under subsection 33(1) must, by a joint determination, establish written criteria for determining whether a professional engineer who was performing architectural work immediately before September 16, 2005, has the competencies in that work to warrant issuing him or her a recognition certificate under this section.

Conditions

34(3)       Within that same 60-day period, the joint board must, by joint determination, establish conditions under which professional engineers may perform architectural work under a recognition certificate, which

(a) must include

(i) a condition requiring them to maintain professional liability insurance coverage that meets the requirements set by the board, and

(ii) restrictions as to the types of buildings for which they may do architectural work; and

(b) may include any other conditions the board considers necessary.

Chair to establish criteria if joint board does not

34(4)       If the joint board fails to establish the criteria or conditions within the required period, the chair of the board must do so within 30 days after the expiry of that period.

Application to joint board

34(5)       No later than 120 days after the criteria and conditions have been established, a professional engineer may apply to the joint board for a recognition certificate.

Joint board to make determination and issue recognition certificate

34(6)       Within 30 days after receiving an application, the joint board must make a joint determination as to whether the applicant meets the criteria, and, if so, issue a recognition certificate to the applicant.

Chair to make determination if joint board does not

34(7)       If the joint board fails to make a determination within the required period, the chair of the board must, within seven days after the expiry of that period, determine whether the applicant meets the criteria, and, if so, issue a recognition certificate to the applicant.

Additional conditions

34(8)       When issuing a recognition certificate, the joint board or the chair, as the case may be, may impose conditions on the certificate in addition to those established under subsection (3) or (4).

Validity

34(9)       A recognition certificate is valid until it is revoked or the holder ceases to be a professional engineer.

Revocation

34(10)      The joint board may, by a joint determination, revoke a recognition certificate if the holder fails to comply with any condition to which the certificate is subject.

No fee

34(11)      No fee may be charged for a recognition certificate.

Not a member of association

34(12)      The holder of a recognition certificate is not a member of the association and may not style or hold himself or herself out to be an architect.

PART 2

THE BUILDINGS AND MOBILE HOMES ACT

C.C.S.M. c. B93 amended

16          The Buildings and Mobile Homes Act is amended by this Part.

17(1)        Clause 15(c) is replaced with the following:

(c) adopting, establishing or prescribing

(i) a building construction code,

(ii) a building construction standard, or

(iii) a variation of a code or standard, which, without limitation, may include a requirement for plans, drawings and related documents in relation to a building to be prepared by a member of a specified professional association;

17(2)       Section 15 is amended by renumbering it as subsection 15(1) and adding the following as subsection 15(2):

Transitional power to make retroactive regulation

15(2)       A regulation made under clause (1)(c) or (d) within 90 days after this subsection comes into force, to the extent that it requires plans, drawings or related documents for an alteration of a building to be prepared by a member of a specified professional association, or prescribes conditions for a permit to be issued in respect of such an alteration,

(a) may be made retroactive to the extent necessary for it to apply in respect of any work done before the coming into force of the regulation; and

(b) may validate

(i) any permit, including a building or occupancy permit issued under this Act or a by-law of a municipality, or

(ii) conditions attaching to such a permit,

that would have been valid if the regulation had been in force when the permit was issued.

PART 3

THE ENGINEERING AND GEOSCIENTIFIC PROFESSIONS ACT

C.C.S.M. c. E120 amended

18          The Engineering and Geoscientific Professions Act is amended by this Part.

19          Subsection 16(1) is amended

(a) by replacing the subsection heading with "Practice under certificate of authorization";

(b) in clause (a), by striking out "requisite power and authority" and substituting "legal capacity"; and

(c) by replacing clause (b) with the following:

(b) the practice of professional engineering or professional geoscience is carried on by or under the direct personal supervision of a professional engineer or professional geoscientist, as the case may be, who assumes professional responsibility for the practice and who is a member, shareholder or permanent employee of the partnership, corporation or other entity;

20          The following is added after section 66 as part of Part 14:

Prime consultant

66.1        Nothing in this Act prevents a person or partnership from being the prime consultant in respect of the erection, construction, enlargement or alteration of a building.

21(1)       Subsection 68(4) is amended by replacing the part after clause (c) with the following:

the registrar must refer the dispute to the joint board, which must consider it in a timely manner and, if possible, make a joint determination about how to resolve the dispute and give it to the council of The Manitoba Association of Architects and the council of The Association of Professional Engineers and Geoscientists of the Province of Manitoba.

21(2)       The following is added after subsection 68(4):

Determination to be implemented

68(5)       A joint determination under subsection (4) must be implemented by the council of one or both associations, whichever is necessary to give full effect to the determination.

22          The following is added after section 68 as part of Part 15:

Grandfathering: professional engineers

68.1(1)     The purpose of this section is to provide a mechanism whereby professional engineers who were performing competent architectural work immediately before September 16, 2005, may continue to do so even though they are not members of the Manitoba Association of Architects.

Joint board to establish criteria

68.1(2)     Within 60 days after this section comes into force, the joint board under subsection 68(1) must, by a joint determination, establish written criteria for determining whether a professional engineer who was performing architectural work immediately before September 16, 2005, has the competencies in that work to warrant issuing him or her a recognition certificate under this section.

Conditions

68.1(3)     Within that same 60-day period, the joint board must, by joint determination, establish conditions under which professional engineers may perform architectural work under a recognition certificate, which

(a) must include

(i) a condition requiring them to maintain professional liability insurance coverage that meets the requirements set by the board, and

(ii) restrictions as to the types of buildings for which they may do architectural work; and

(b) may include any other conditions the board considers necessary.

Chair to establish criteria if joint board does not

68.1(4)     If the joint board fails to establish the criteria or conditions within the required period, the chair of the board must do so within 30 days after the expiry of that period.

Application to joint board

68.1(5)     No later than 120 days after the criteria and conditions have been established, a professional engineer may apply to the joint board for a recognition certificate.

Joint board to make determination and issue recognition certificate

68.1(6)     Within 30 days after receiving an application, the joint board must make a joint determination as to whether the applicant meets the criteria, and, if so, issue a recognition certificate to the applicant.

Chair to make determination if joint board does not

68.1(7)     If the joint board fails to make a determination within the required period, the chair of the board must, within seven days after the expiry of that period, determine whether the applicant meets the criteria, and, if so, issue a recognition certificate to the applicant.

Additional conditions

68.1(8)     When issuing a recognition certificate, the joint board or the chair, as the case may be, may impose conditions on the certificate in addition to those established under subsection (3) or (4).

Validity

68.1(9)     A recognition certificate is valid until it is revoked or the holder ceases to be a professional engineer.

Revocation

68.1(10)    The joint board may, by a joint determination, revoke a recognition certificate if the holder fails to comply with any condition to which the certificate is subject.

No fee

68.1(11)    No fee may be charged for a recognition certificate.

Not a member of Manitoba Association of Architects

68.1(12)    The holder of a recognition certificate is not a member of the Manitoba Association of Architects and may not style or hold himself or herself out to be an architect.

PART 4

VALIDATION AND COMING INTO FORCE

Validation of regulations

23(1)       A regulation that

(a) was made under clause 15(c) of The Buildings and Mobile Homes Act before the coming into force of this section; and

(b) would have been validly made if clause 15(c) of that Act, as enacted by this Act, had been in force at the time the regulation was made;

is validated and declared to have been lawfully made.

Validation of permits

23(2)       Any permit – including a building or occupancy permit issued under The Buildings and Mobile Homes Act or a by-law of a municipality – that

(a) was issued before the coming into force of this section; and

(b) would have been valid had subsections 15(1.1) and 25(1) of The Architects Act, as enacted by this Act, been in force at the time of issuance;

is validated and declared to have been lawfully issued.

Coming into force

24(1)       Subject to this section, this Act comes into force on the day it receives royal assent.

Coming into force: proclamation

24(2)       Sections 4 to 9 come into force on a day to be fixed by proclamation.

Retroactive effect of scope of practice provisions

24(3)       Subsections 15(1.1) and 25(1) of The Architects Act, as enacted by this Act, are retroactive to the extent necessary for them to apply, for all purposes, in respect of any work done before the coming into force of this section in relation to a building or proposed building.