Alberta (Council of the Association of Professional Engineers and Geoscientists) v Getty Images Inc., 2023 ABKB 635

Court of King’s Bench of Alberta Citation: Alberta (Council of the Association of Professional Engineers and Geoscientists) v Getty Images Inc., 2023 ABKB 635 Date: 20231109 Docket: 2103 17770 Registry: Edmonton Between: Council of the Association of Professional Engineers and Geoscientists of Alberta Applicant - and - Getty Images Inc. and IStockphoto LP by its General Partner IStockphoto ULC and Octopussap Operating As Jobber Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice J.S. Little _______________________________________________________ I.

Nature of the Application [ 1 ] The Council of the Association of Professional Engineers and Geoscientists of Alberta (APEGA) seeks an injunction under s 9 of its governing legislation the Engineering and Geoscience Professions Act ( EGPA ) prohibiting the Respondents (iStock and Jobber) from using the title “Software Engineer” and related titles to describe their employees who “participate in the design, architecture,

development, maintenance, and testing of software” (iStack Brief at para 7). [ 2 ] iStock has developed and maintains a database of images and videos from which customers can choose for their own personal or commercial use. As an example, a business may wish to use a photo of a giraffe in its advertising. iStock will have purchased such photos from photographers who agree that iStock may “sell” those images to its own customers. Those customers need not worry about tracking down the photographer and negotiating a fee.

That process has already been done by iStock. [ 3 ] Getty Images Inc., a US corporation, acquired iStockphoto Inc. in 2006. At that time and for some time, the people performing the same functions were called Software Developers in the Canadian operation and Software Engineers in the American operation.

As the two operations began working together, some resentment developed because those employees who used the Software Engineering title “were perceived to be more autonomous and of higher rank” (iStock Brief at para 8) than their Software Developer colleagues. [ 4 ] Jobber, based in Edmonton, has developed software for small businesses to assist them with quotes and invoices. Again, by way of example, an independent carpenter might purchase a software program that allows her to receive a request by email for a renovation project, fill in blanks and follow prompts in the software program to provide a quote,

schedule dates, and send an invoice on completion of the job. Jobber describes these as “one size fits all” or “prefabricated packages” (Jobber Brief at paras 11 and 12). [ 5 ] It is common ground among the parties that of the numerous employees of the Respondents who describe themselves as Software Engineers, only three have a permit issued by APEGA to practice engineering (APEGA Brief at para 25). [ 6 ] It is common ground also that Software Engineering is a discipline recognized and regulated by APEGA in the same way as civil or mechanical or electrical engineering. II.

Specific Relief Sought [ 7 ] As against iStock, APEGA seeks an Order directing that: iStock immediately cease the use of the word “Engineer” in the titling of its employees in Alberta, and iStock, within 30 days, cause to be removed from its website and any other online, or other materials all representations, express or implied, that they are entitled to engage in the practice of engineering in the province of Albera. [ 8 ] As against Jobber, APEGA seeks an Order directing that: Jobber immediately and until such time as it becomes a permit holder properly registered with APEGA and entitled to practice engineering cease using job titles containing the reserved title “Engineer”, and Within thirty days of the Order being granted … remove or cause to be removed any and all representations, express or implied, that they are engaging in the practice of engineering or entitled to do so from the Jobber website and any other publicly available or online materials.

III. Legislation [ 9 ] APEGA frames its application as being required as part of its mandate, as the regulator for the practice of engineering, to protect the public from the unauthorized use of restricted titles. [ 10 ] The relevant sections of the EGPA are as follows:

Definitions

Section 1 (q) “practice of engineering” means (

i) reporting on, advising on, evaluating, designing, preparing plans and specifications for or directing the construction, technical inspection, maintenance or operation of any structure, work or process; (

A) that is aimed at the discovery, development or utilization of matter, materials or energy or in any other way designed for the use and convenience of humans, and;

(

B) that requires in that reporting, advising, evaluating, designing, preparation or direction the professional application of the principles of mathematics, chemistry, physics, or any related applied subject, … Exclusive use of name Engineer Section 3(1) No individual, corporation, partnership or other entity, except a professional engineer, licensee or permit holder entitled to engage in the practice of engineering, shall (

a) use (

i) the title “Professional Engineer”, the abbreviation “P. Eng.” or any other abbreviation of that title, (ii) the word “Engineer” in combination with any other name, title, description, letter, symbol, or abbreviation that represents expressly or by implication that the individual, corporation, partnership or other entity is a professional engineer, licensee or permit holder, or (

b) represent or hold out, expressly or by implication, that the individual, corporation, partnership, or other entity (

i) is entitled to engage in the practice of engineering, or (ii) is a professional engineer, licensee or permit holder. Injunction

Section 9 The Court, on application by the Council, may grant an injunction enjoining any person from doing any act or thing that contravenes this Part, notwithstanding any penalty that may be provided by this Act or the regulations in respect of that act or thing. [ 11 ] While the focus of APEGA’s application is on the use of the title “Software Engineer”, it is noteworthy that in 2021, Jobber used the title “Engineer” to identify a number of other job descriptions including Data Engineer, Intermediate Engineer, Growth Engineer, Principal Engineer, Site Reliability Engineer, Full Stack Engineer, Staff Engineer, Level I and Level II Engineer, and Security Engineer (Feb 7/22 Pillar Affidavit at para. 26).

IV. What is Software Engineering? [ 12 ] APEGA seeks enforcement not because it believes that the Respondents are actually practicing engineering but because they are using the titles of engineers in connection with their work. Therefore, it is necessary to start at the beginning and understand what kind of work is being done. [ 13 ] The definition of “practice of engineering” in s 1 of EGPA is broad.

At first blush, it appears that the kind of problems the people calling themselves software engineers must solve in their work with Jobber and iStock would involve the application of mathematical principles ( EGPA s1(q) (i) (B)) and that the processes, sorting images or developing accounting programs, are for the convenience of humans ( EGPA s1(q) (i) (A)). [ 14 ] But for the narrower purposes of this Application, an understanding of the practice of software engineering is required. [ 15 ] In his affidavit, Mr.

Paauwe, a Vice-President of iStock, adopts a definition from the Institute of Electronics and Electrical Engineers, Inc. as "the application of a systematic, disciplined, quantifiable approach to the development, operation, and maintenance of software", and traces the origins of the term back to the 1950s. (Affidavit Jan 22, 2020) [ 16 ] APEGA in its submissions refers to and relies upon a “White Paper on Professional Practice in Software Engineering” (the White Paper) prepared by the Canadian Engineering Qualifications Board Software Engineering Qualifications Board Software Engineering Task Force (May, 2016). [ 17 ] Jobber and iStock argue that I should place no reliance on the White Paper which was prepared by representatives of engineers across Canada, including from APEGA, for engineering regulatory authorities.

In other words, it was prepared in part by APEGA to provide guidance to APEGA and amounts to a position paper as opposed to evidence. [ 18 ] I note, however, that the White Paper, which it will be remembered is intended to be guidance nationally and not just provincially, contains a somewhat more restrictive definition of the practice of engineering as: Any act of planning, designing, composing, evaluating, advising, reporting, directing or supervising, or managing any of the foregoing, that requires the application of engineering principles, and that concerns the safeguarding of life, health, property, economic interest, the public welfare or the environment . (Section 2, emphasis added) [ 19 ] With that further qualification that does not appear in the Alberta legislation, the White Paper goes on to state that: In the case of software engineering, a piece of software, or a software intensive program can therefore be considered an engineering work if both of the following conditions are true: • The development of the software required “the application of a systematic, disciplined, quantifiable approach to the development, operation, and maintenance of software”,

• There is a reasonable expectation that failure or inappropriate functioning of the system would result in harm to life, health, property, economic interests the public welfare or the environment. (emphasis in original) [ 20 ] The examples of such engineering works given in the White Paper are software systems used in nuclear energy or avionics. [ 21 ] The Respondents are not creating “engineering works” as contemplated in the White Paper.

While their activities in working with software programs to develop data bases of images or invoicing systems for small businesses may involve the first criterion of engineering described in the White Paper, namely the use of mathematical or other quantifiable approaches, there is no reasonable expectation of harm as is required in the second criterion. It is not difficult to imagine the catastrophic consequences of a failure of software in the avionics or nuclear energy industries.

It is difficult to imagine any catastrophic consequences from the failure of software used by customers of Jobber or iStock. [ 22 ] What I conclude from the above is that even if, as the respondents argue, the White Paper is self-serving, it does not support the claim by APEGA that prevention of the use of the title Software Engineer by these particular respondents is required in the public interest. V. Restricted Titles – Case Law [ 23 ] But that does not mean that the Respondents are not holding their employees out as software engineers in breach of s 3 (1) (a) (ii) or s 3 (1) (

b) of APGA. [ 24 ] The elephant in the room is the Azazi case [1] , upon which all parties rely to different effect. [ 25 ] In that case, APEGA in 2019 sought the same relief it seeks here against a Mr. Azazi, who was using the title “Software Engineer” in his on-line profiles such as LinkedIn, Facebook, and Twitter. While he did not submit any evidence by way of affidavit, he explained to ACJ Nielsen that he worked in Calgary with a company headquartered in the United States with other international offices, ie. he had not hung up his own shingle as a Software Engineer.

When asked why he used the term Software Engineer as opposed to something like Software Developer, he explained that the term Software Developer was “considered a lower tier in some places of the world” and that the title Software Engineer was accepted almost everywhere else but in Alberta. [ 26 ] Those facts are remarkably similar to those in the case before me: the term is used mostly internally, largely because it has a greater cachet than other descriptions that would be available without challenge and is accepted in other jurisdictions without challenge. [ 27 ] What distinguishes the case is that Mr.

Azazi had applied to APEGA for registration as a member in training in the software engineering discipline but was advised in 2016 that his educational qualifications did not meet the requirements for such registration. APEGA advised him what steps he would need to take to become eligible. [ 28 ] ACJ Nielsen granted the relief sought against Mr.

Azazi on the basis that his use of the title Software Engineer was in breach of s 3(1)(a)(ii) of EGPA , namely that “he is using the term software engineer, which by implication could lead a member of the public to conclude that he is a professional engineer, licensee, or permit holder with APEGA.” (Transcript p 19, lines 27-29) [ 29 ] APEGA argues that the principles of judicial comity and horizontal stare decisis apply to make Azazi binding upon me.

Alternatively, they argue that even if it is distinguishable, it should be highly persuasive. [ 30 ] In the context of a constitutional case but with a broader reach, the Supreme Court of Canada provides guidance on this issue in R v Sullivan , 2022 SCC 19 at para 44 : In the result, I agree with the conclusion reached by Paciocco J.A. that the ordinary principles of stare decisis govern the manner in which a declaration issued by a court under s 52(1) affects how courts of coordinate jurisdiction in the province should decide future cases raising the same issue.

I would however clarify the situations when a superior court may depart from a prior judgment of a court of coordinate jurisdiction. The standard is not that the prior decision was “plainly wrong”.

A superior court judge in first instance should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in Spruce Mills are met. [ 31 ] Those three exceptions from Re Hansard Spruce Mills Ltd , [1954] 4 D.L.R. (BCSC), restated by the Supreme Court of Canada in Sullivan , are: [76] First, a Judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions.

This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at para 542). [77] Second, a Judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam , or by inadvertence, a circumstance generally understood to be “rare” (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd. , 2017 BCSC 1988 , 4 B.C.L.R. (6th) 370, at para. 132 ).

The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision.

It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19). [78] Third and finally, a Judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills , at p. 592).

[ 32 ] As to the first exception, there have been no prior decisions brought to my attention by counsel. [ 33 ] As to the second, counsel for the respondents argue that ACJ Nielsen did not have the benefit of the Alberta Court of Appeal decision in Association of Professional Engineers, Geologists and Geophysicists of Alberta (Council of) v Merhej, 2003 ABCA 360 . In Merhej , the then equivalent of APEGA had sought an injunction against Mr. Merhej who was using the title “System Engineer” or “System Engineering Representative”.

Marshall, J. dismissed the application at 2001 ABQB 1062 : [7] The term “System Engineer” has been widely used in the IT industry and, while connoting a degree of expertise, does not indicate one is a professional engineer or the practice of engineering is being carried on. It has acquired a secondary meaning similar to “Marine Engineer” or “Flight Engineer”. This understanding is particularly clear to those familiar with the IT industry.

Because of the modifier “system”, there is little likelihood that confusion will arise because such engineers are representing themselves improperly. [8] In addition, the Respondent is not holding himself out to the public in order to solicit work in the field of engineering. The Applicant does not contend that he should be prevented from carrying on his vocation, as he is at present. [9] Ultimately the public’s safety must be the primary concern.

The Respondent’s situation is such that it cannot be contended that the public is likely to be deceived, confused or jeopardized by his use of the term. [ 34 ] Counsel for APEGA in Azazi referred ACJ Nielsen to the Merhej case (written phonetically in the transcript as Meresh). Counsel referred to that decision as predating the White Paper, which, as I found earlier, does not support APEGA’s position. [ 35 ] Counsel noted also that one distinguishing factor was that Mr. Azazi was using the term System Engineer, which was a “very different title”.

But Marshall, J. specifically discussed and approved the use of a modifier like Marine or Flight in conjunction with the word “Engineer”. [ 36 ] Counsel further referred to the decision being dated: This is also 2001, times change significantly and quickly when it comes to our lives and how the public interest is affected by – by software engineering. [ 37 ] I do not agree that software or software engineering were novel concepts in 2001. [ 38 ] Counsel, however, did not refer ACJ Nielsen to the Court of Appeal decision in Merhej which confirmed the decision of Marshall, J.

Its decision is short, the entirety of which is set out below: [1] We dismissed this Appeal from the bench. The Chambers Judge made no errors in his decision. We adopt his reasons and add to them. [2] The issue in this case is this. When the Respondent uses the title “System Engineer” or “System Engineer Representative”, is he impliedly representing to the public that he is a professional engineer, that is, that he is an individual who holds a certificate of registration to engage in the practice of engineering in the Province of Alberta?

Registration is controlled by the appellant. [3] Neither the Appellant nor the Respondent allege that the Respondent is carrying on the practice of engineering or that he seeks registration as a professional engineer . The concern expressed by the Appellant is for the best interests of the public. It is the same interest that it must protect in monitoring the conduct of professional engineers: s 44(1) of the Engineering, Geological and Geophysical Professions Act, R.S.A. 2000, c. E-11 (the “ Act ”).

Of course, the profession itself also has an interest in restricting the use of the title “Professional Engineer” to those registered. [4] The Act prohibits representing that one is registered when one is not. If one is not registered, one cannot use the title “Professional Engineer” which would make the clear and express representation that one is registered. And, if one is not, one cannot use a title that has another word in front of the word “Engineer” which would make an implied representation that one is registered. [5] Is the respondent impliedly representing that he is registered?

The answer can only be arrived at by looking at the facts as the Chambers Judge has found them. The respondent works in the field of information technology and has a certificate from Apple Canada describing him as a “System Engineer Representative”. That title and that of “System Engineer” have been used extensively and, for some time, in the information technology industry. The Appellant has acknowledged, and the Respondent has put forward evidence, that there is a great deal of overlap in that industry. There was no evidence before the court of any injury to the public interest.

The Chambers Judge correctly concluded that the public is not likely to be deceived, confused or jeopardized by the respondent’s use of the title “System Engineer”. There are similarities between this case and that of a recent graduate from a Faculty of Engineering, not yet registered, who might describe himself or herself as a “Civil Engineer”. That person would not be held to be in breach of the Act unless he or her was found to be representing that he or she was registered.

Yet it might be more likely the public would be confused by that example than the case before us. [6] We find that in this case the use by the respondent of the title “System Engineer” or “System Engineer Representative” does not violate s 3 of the Act . We uphold the decision of the chambers judge dismissing the Appellant’s Application for an injunction. (emphasis added) [ 39 ] Counsel for APEGA here, who was not counsel before ACJ Nielsen, explained that it did not refer to the Court of Appeal decision in Merhej only because it did not show up in its noting up the Queen’s Bench decision.

I attribute no fault in that regard. But I do find the determination by the Court of Appeal that: • an unlicensed graduate could use the title “civil engineer” without violating the EPGA ,

• a term like “system engineer” had been used extensively in the information technology industry, • there was no injury to the public interest, and • the public was not likely to be deceived, confused, or jeopardized by the use of the title, would have been of great assistance to ACJ Nielsen in the Application before him, as strange as it may sound to find that reference to a lower court decision and not the appellate decision which affirmed it may have changed the result. [ 40 ] In my view, the reasoning of the Court of Appeal in Merhej is sufficient to dismiss this application based on the second exception from Sullivan. [ 41 ] I will note that in Merhej , the Court of Appeal suggests in para 3 that if Mr.

Merhej had sought registration as a professional engineer, as was the case in Azazi , the result may have been different. That is consistent with ACJ Nielsen’s finding that Mr. Azari was holding himself out to the public to solicit work in the field of engineering (Transcript, p 13). That is not the case before me. [ 42 ] I do not find, as submitted by the Respondents, that the third exception in Sullivan applies to the decision in the Azazi case. ACJ Nielsen allowed Mr. Azazi a full opportunity to seek an adjournment if he wished to seek counsel or argue more fully.

While his decision was not made in exigent circumstances, the mere fact of it having been made in Chambers is not a sufficient reason to find that it was not a considered decision. Mr. Azazi had applied for registration and was soliciting work from the public in the engineering field. That case was properly decided on those distinguishable facts. [ 43 ] In the case at hand, the context is much different. No one is applying for registration. The Respondents are using the title in their recruiting efforts, and employees are using it on their resumes and social media used by others in the industry.

Neither is soliciting work from the public. [ 44 ] The Applicant points out that there are software engineers registered with APEGA among the employees of the Respondents. Three of Jobber’s employees, a Principal Software Engineer, a Staff Engineer, and a Senior Software Engineer, were registered with APEGA and claiming professional practice hours as part of their continuing education requirement.

The Applicants argue that implicit in that claim is that those employees, and presumably their colleagues, were practicing engineering. [ 45 ] It seems to me that if three individuals are claiming professional practice hours for work similar to that being done by others who deny that they are practicing engineering, that is a matter better dealt with by the Practice Review Board of APEGA established by Regulation 150/1999 . [ 46 ] If my

interpretation and application of Merhej is wrong, I consider another case from this level of court and by the same judge whose decision was upheld in Merhej . In Broere [2] , a master electrician signed drawings he prepared with his name followed by “B.Eng”. He argued that in Europe, that was acceptable for a person with his qualifications. Justice Marshall found, however, that it was a thinly disguised means of implying that Mr. Broere was a professional engineer contrary to s 3 of the Act . As context to that case, Mr. Broere also was using that abbreviation to sign off on drawings.

That is a typical engineering function recognized in s 3(2) of the EGPA . [ 47 ] APEGA members have the exclusive right to use the title Professional Engineer or P.Eng. under s 3(1)(a)(

i) of EGPA . Interestingly, though, Justice Marshall also found, as he had earlier and as the Court of Appeal confirmed in Merhej , that APEGA “has no monopoly on the use of the word “engineer”; it may refer to a diversity of occupations and work.” (Para 14) [ 48 ] What that means is that a breach of s 3(1)(a)(ii) of EGPA , which refers to a person representing, expressly or by implication that one is registered or licensed by APEGA, requires more than just the use of a field of work followed by “engineer”. VI.

Public Protection and Proof of Harm [ 49 ] APEGA frames part of its argument on its obligation to protect the public from the unauthorized practice of engineering. If authority for that proposition is needed, it refers to a number of reports from various commissions established to guide regulators of various professions.

But there is nothing in the evidence to suggest that the use of the term Software Engineer by the Respondents’ employees in any way puts the public at risk. [ 50 ] APEGA further argues that, unlike the more rigorous test for regular civil injunctions, the test for a statutory injunction which it seeks is just that it establishes, on a balance of probabilities, a clear breach of the statute. For the reasons I have given above, I am not satisfied that the Respondents’ use of the title Software Engineer is a clear breach.

Further, while Justice Marshall at para 15 of Broere stated that there was “no need for proof of harm”, the context for that conclusion makes frequent reference to risk to the public being the basis for the prohibition: [15] While there is no evidence of any harm to the public through the activity in question and, to the contrary, the product of the Respondents appears to meet very high standards, there is no need for proof of harm. The statute forbids such conduct and indeed makes it an offence punishable as a

summary conviction under s 98 of the Act . [16] The matter of the potential of harm to the public by dealing with persons who they believe possess qualifications they do not possess is a concern the legislature addresses through the statutory and regulatory regime.

[17] Notwithstanding the record of exemplary production carried out by the Respondent, it cannot be said there is no risk to the public in the usage employed by Broere. His work entails design and production of complex electrical systems which doubtlessly require significant safety considerations. [ 51 ] Similarly in Merhej , more extensively cited above, the Court of Appeal refers to the risk to the public to be a factor taken into account: …There was no evidence before the court of any injury to the public interest.

The chambers judge correctly concluded that the public is not likely to be deceived, confused or jeopardized by the respondent’s use of the title “System Engineer”. (para 5) VII.

Conclusion [ 52 ] I find that the Respondents’ employees who use the title “Software Engineer” and related titles are not practicing engineering as that term is properly interpreted. [ 53 ] I find that there is no property in the title “Software Engineer” when used by persons who do not, by that use, expressly or by implication represent to the public that they are licensed or permitted by APEGA to practice engineering as that term is properly interpreted. [ 54 ] I find that there is no clear breach of the EGPA which contains some element of possible harm to the public that would justify a statutory injunction. [ 55 ] Accordingly, I dismiss the Application, with costs. [ 56 ] Thank you to all counsel who prepared excellent briefs and delivered compelling oral arguments. [ 57 ] I know that all parties were seeking significant costs for this Application.

If they are unable to agree on the quantum or allocation of those costs, they are free to make further application to me. Heard on the 6 th day of September, 2023. Dated at the City of Edmonton, Alberta this 9 th day of November, 2023. J.S. Little J.C.K.B.A. Appearances: Field Law: Katrina Haymond, KC, Alisha Hurley for the APEGA Tingle Merrett, Amy M. Cooper for the Respondent, Jobber McLennan Ross, Michael D. Aasen

For the Respondent, IStock