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the case
In Alberta (Council of the Association of Professional Engineers and Geoscientists) v Getty Images Inc, 2024 ABCA 230, the Court dismissed APEGA’s appeal because it was moot following certain legislative amendments.
APEGA sought an injunction against Jobber and iStock for using the job title “Software Engineer.” APEGA claimed that use of this job title violates professional title restrictions in the Engineering and Geoscience Professions Act (the “EGPA”). Justice Little denied APEGA’s application on November 9, 2023.
On December 7, 2023, amendments to the EGPA came into force. While the legislation still protects the title “engineer,” the amendments introduce an exception that permits unlicensed individuals to use the title “software engineer.”
On December 8, 2023, APEGA filed an appeal of Justice Little’s decision. APEGA conceded that the legislative amendments fully address use of the title “Software Engineer.” However, APEGA requested appellate review of other issues that it believed to be outstanding, namely:
- Use of other engineer-related titles, such as “Data Engineer,”
- The proper test for a statutory injunction.
Nonetheless, the Court of Appeal determined that the crux of the issues between the parties were now moot and declined to hear the appeal.
The test for mootness is set out in Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC). The Court must consider whether the dispute has disappeared rendering the issues academic, and if so, whether it should exercise its discretion to hear the case regardless, considering the adversarial context, judicial economy, and the role of the legislature.
In this case, the Court of Appeal decided that hearing materials were focused on the title “Software Engineer” only. Issues and evidence relating to other titles or the test for an injunction were not on the record and would make the appeal speculative and non-adversarial. The true dispute between the parties had disappeared following the amendments.
The Court of Appeal decided not to exercise its discretion to hear the appeal, especially because the amendments to the EGPA allow the Minister to designate further exemptions in the regulations. The Court of Appeal was reluctant to make a ruling that could interfere with the executive branch of government. As such, the appeal was dismissed.
our two cents for free
This decision provides an interesting example of judicial deference to the legislature and executive branches. In its decision, the Court of Appeal reiterated that the legislature had clear intentions when drafting the amendments and did not want to obstruct the Minister’s ability to make further exemptions in the future. While it is not surprising for courts to defer to existing decisions of the legislature, it is notable that the Court of Appeal exercise pre-emptive deference towards future decisions of the Minister. One could argue that the Court of Appeal’s decision leaves a void of uncertainty with respect to other titles that use the term ‘engineer’ – at least until the Minister amends the regulation.
question
Are any legislative amendments coming down the pipeline that could affect litigation that your organization has in progress?
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