Two key developments are shaping the technology landscape in the Province of Alberta. The first is a recent decision of the Court of King's Bench of Alberta, and the second is the passing of Bill 7, the Engineering and Geoscience Professions Amendment Act, 2023, by the Government of Alberta.
To start, on November 9, 2023, the Court of King's Bench of Alberta released its decision of Alberta (Council of the Association of Professional Engineers and Geoscientists) v Getty Images Inc., 2023 ABKB 635 (the "Decision"). In the Decision, the Court held that employees within the technology sector that use the title "Software Engineer" are not practicing engineering. The Court further held that there is no property to the title "Software Engineer" licensed under the Association of Professional Engineers and Geoscientists of Alberta (APEGA) to practice engineering.
With respect to the Decision, a dispute between the Alberta Council of the APEGA (the "Council") against Getty Images, a US Corporation operating in Alberta as iStock, and Jobber, an Edmonton-based software development company (collectively, the "Companies"). The Companies employed numerous employees under the term "Software Engineer", but collectively only three individuals within the Companies had permits to practice engineering that were issued by APEGA. As a result, the Council sought an injunction under Section 9 of the Engineering and Geoscience Professions Act, RSA 2000, c E-11 (the "Act"), prohibiting the Companies from using the title of "Software Engineer" to describe their employees who participate in the design, architecture, development, maintenance, and testing of software (the "Application").
In bringing the Application, the Council relied on Section 3(1) of the Act, which states that no individual, partnership, corporation, or other entity could use the word "engineer" in combination with another other name associated with them unless they were a professional engineer or a permit holder entitled to engage in the practice of engineering by APEGA.
In considering the Application, the Court reviewed similar cases and found that this case was distinguishable on the basis that the employees within the Companies who were referred to as "Software Engineers" were aligned with industry norms and standards and that they did not seek accreditation under the APEGA. In contrast, the three employees who did have permits under the APEGA did not breach any professional obligations nor were they considered detrimental to the case of the other Software Engineers. As a result, the Court did not grant the Application prohibiting the Companies from using the title of "Software Engineer" to describe these employees, as the Court held that they were not practicing engineering and, therefore, not in breach of the Act. The reasoning of the Court relied heavily on the fact that a Software Engineer was not considered a professional engineer under the purview of APEGA and therefore not captured under the umbrella of the Act.
It's important to note that the Decision was appealed by the Council to the Court of Appeal of Alberta, and we will provide an update on the outcome of that appeal when it is available.
In addition to the Decision, and as mentioned, the Government of Alberta passed Bill 7, the Engineering and Geoscience Professions Amendment Act, 2023, which also has had an impact on the technology landscape in the Province of Alberta.
In particular, Bill 7 has amended the Act, therefore permitting the technology sector to have greater freedom to use the title of "Software Engineer" to attract talent to Alberta to bolster the growth of its technology sector. The amendments under Bill 7 include the following:
- Affirming the title of "Professional Engineer", with the designation of "P.Eng" remaining reserved for individuals accredited under the discretion APEGA; and
- Permitting the Minister of Advanced Education to make further regulations prescribing titles related to "Software Engineer".
As stated by the Minister of Advanced Education, Rajan Sawhney, these amendments are designed to support the growth of the technology sector in Alberta without compromising the high standards maintained by the APEGA.
These amendments have received widespread support from the technology and innovation sectors across Canada, including the Council of Canadian Innovators, as President Benjamin Bergen stated that Alberta's technology industry is thriving, and that they are excited to continue working on common-sense policies that set the Province's innovation economy on a path for sustained success.
Conclusion
With Alberta's technology sector booming, 2024 is likely to bring more developments regarding the above noted issues. This will bring conversations and consultations between the Government of Alberta and industry leaders to find a happy medium where professional designations are protected while industry standards in Alberta are aligned with that of the technology sector worldwide. While the Act has been amended, the appeal by APEGA is still ongoing as is the debate surrounding these issues across Canada. We will continue to follow these developments as the technology sector in Alberta has become an industry leader nationwide.
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