5.1 Loyalty, Confidentiality & Fair Dealing with Clients and Employers

Loyalty, Confidentiality & Fair Dealing with Clients and Employers

The practice of applied science and engineering technology is grounded in relationships of trust. Clients and employers entrust Certified Technicians (C.Tech.) and Certified Engineering Technologists (C.E.T.) with proprietary technological processes, capital budgets, business strategies, and mission-critical infrastructure designs. In return, professional self-regulation demands that certified members discharge their duties with unyielding integrity, discretion, and commercial fairness. The OACETT Code of Ethics provides explicit rules governing how practitioners navigate their obligations to employers and clients while interacting constructively with professional peers.

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1. The Fiduciary Nature of Professional Service and clause (d)

Clause (d) of the OACETT Code of Ethics establishes a foundational pillar of professional conduct:

Clause (d): act with integrity towards clients or employers, maintain confidentiality and avoid a conflict of interest but, where such conflict arises, fully disclose the circumstances without delay to the employer or client

The Concept of Faithful Agents and Trustees

In professional practice jurisprudence, an engineering technologist or technician acts as a faithful agent and trustee for their employer or client. At common law, an agency relationship is formed when one party (the principal) delegates authority to another (the agent) to act on their behalf in business, contractual, or technical transactions. Because the principal relies upon the specialized expertise, technical competence, and honesty of the agent, the law imposes an elevated standard of conduct known as a fiduciary duty.

A fiduciary relationship exists whenever:

1. The professional exercises discretion or power over the interests of the client or employer;
2. The professional can unilaterally exercise that power to affect the beneficiary's legal or practical interests; and
3. The client or employer is peculiarly vulnerable to the professional's exercise of that power.

Acting as a faithful agent requires members to serve the legitimate business interests of their employer or client diligently, honestly, and without seeking undisclosed private advantages. However, professional loyalty is not absolute. As established in Chapter 4, clause (a) of the Code of Ethics makes public safety, health, environmental protection, and workplace safety paramount. A professional practitioner can never justify unsafe designs, falsified test results, or concealed environmental contamination on the grounds of "loyalty" to an employer or paying client. The hierarchy of professional obligation is unequivocal: public protection ranks first, client and employer loyalty ranks second, and personal self-interest ranks last.

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2. Confidentiality Obligations and Trade Secrets

During the course of professional engagements, engineering technologists frequently gain access to sensitive, non-public information. Clause (d) imposes a strict obligation of confidentiality to safeguard these assets.

Scope of Confidential Information

Confidential information encompasses any proprietary or commercially sensitive data that is not readily available to the general public, including:

• Technical Trade Secrets: Custom programmable logic controller (PLC) ladder logic, proprietary chemical formulas, unique manufacturing tolerances, patented process automation flows, and specialized geotechnical simulation models.
• Proprietary Drawings and Specifications: Preliminary CAD models, unreleased architectural layouts, mechanical piping diagrams, and structural shop drawings.
• Commercial and Financial Data: Bid pricing structures, project cost estimates, supplier discount agreements, billing margins, and client investment plans.
• Client Business Strategies: Unannounced land acquisitions, expansion plans, intellectual property filings, and industrial restructuring proposals.

Legal Foundation: The Duty of Confidence

In Canadian common law, the landmark Supreme Court decision Lac Minerals Ltd. v. International Corona Resources Ltd. established the three-part test for a breach of confidence:

1. The information conveyed must have the necessary quality of confidence (it cannot be common industry knowledge or public domain material);
2. The information must have been imparted in circumstances importing an obligation of confidence (such as an employment relationship, consulting contract, or formal Non-Disclosure Agreement);
3. There must be an unauthorized use or disclosure of that information to the detriment of the party communicating it.

Exceptions to Confidentiality

A practitioner may disclose confidential information only under specific, legally recognized exceptions:

1. Informed Written Consent: When the employer or client explicitly authorizes release in writing;
2. Statutory Legal Requirement: When compelled by subpoena, court order, or formal summons before an administrative tribunal;
3. Overriding Duty to Report: When required by statute, by clause (i) of the Code of Ethics, or by Rule 3.3 to report an imminent, serious hazard to public safety, human health, or environmental contamination (e.g., mandatory spill reporting under the Environmental Protection Act).

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3. Post-Employment Confidentiality vs. Portable Knowledge and Skills

A frequent source of legal and ethical conflict occurs when an engineering technician or technologist changes employers or leaves a firm to establish an independent consulting practice.

The Enduring Nature of Confidentiality

The ethical and common law duty of confidentiality survives the termination of the employment or consulting relationship indefinitely. An employee cannot leave Company A on Friday and provide Company A's proprietary manufacturing drawings, custom software source code, or internal client pricing spreadsheets to Company B on Monday. Retaining, copying, or utilizing proprietary electronic files, CAD drawings, or client databases constitutes an egregious breach of confidence and misappropriation of trade secrets. It also breaches clause (d) of the Code and can amount to professional misconduct under Rule 3.10 (conduct that would reasonably be regarded as disgraceful, dishonourable or unprofessional).

Portable Skills vs. Employer Property

Courts and professional regulators draw a fundamental distinction between proprietary employer assets and the practitioner's personal professional development:

Engineering technologists are entitled to use the generalized skills, analytical methodologies, and technical knowledge gained throughout their careers. They are strictly prohibited, however, from taking physical or digital copies of former employer deliverables, design libraries, or confidential business proposals.

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4. Clause (e): Fair and Reasonable Compensation

Clause (e) addresses the economic integrity of professional practice:

Clause (e): uphold the principle of appropriate and adequate compensation for the performance of their work

The Danger of Fee Undercutting

While competitive pricing is a normal feature of a market economy, clause (e) addresses the specific danger of predatory undercutting in professional technical services. Professional services differ fundamentally from mass-produced retail commodities; technical fees directly fund the labor, testing, verification, and inspection time necessary to safeguard human life and structural reliability.

When a practitioner or firm drastically undercuts prevailing fee levels to win a contract, economic reality inevitably forces dangerous operational compromises:

• Truncating geotechnical or material testing regimens (e.g., performing 2 soil compaction tests instead of 10);
• Rushing calculation reviews and omitting secondary quality control checks;
• Utilizing unqualified or unsupervised junior staff to perform complex field inspections;
• Eliminating site visits during critical construction phases.

Undercutting that compromises the thoroughness or safety of professional work is unethical and exposes the practitioner to severe civil liability for professional negligence. Adequate compensation ensures that practitioners can devote the time, analytical rigor, and resources necessary to meet the professional standard of care.

Prohibited Contingency Arrangements

Fee arrangements must never compromise technical objectivity. While contingency fees (where compensation depends upon a specific financial outcome) are common in civil litigation, they are strictly unethical for engineering technologists in roles requiring impartial measurement, regulatory compliance testing, building condition assessments, or expert witness testimony. A technician retained to conduct concrete compressive strength tests or environmental site assessments cannot agree to a fee that increases if the concrete passes or if the soil is declared uncontaminated. Such arrangements create an inherent conflict of interest that destroys professional impartiality.

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5. Clause (g): Relations with Colleagues and Peers

Clause (g) establishes the ethical baseline for peer interactions within the profession:

Clause (g): conduct themselves with fairness, courtesy and good faith toward clients, colleagues and others, give credit where it is due and accept, as well as give, honest and fair professional comment

Professional Courtesy and Fair Dealing

Certified members must treat colleagues, subordinates, contractors, and allied professionals (such as architects, land surveyors, and professional engineers) with mutual respect. Unprofessional conduct, harassment, discriminatory behavior, or bad faith negotiations degrade the entire profession and can breach clause (g) of the Code, Rule 3.10, and the Ontario Human Rights Code.

Giving Proper Credit and Avoiding Plagiarism

Engineering technology is collaborative, but individual contributions must be honestly acknowledged:

• Attribution: Practitioners must give explicit credit to colleagues, employees, or sub-consultants who performed calculations, developed software routines, or authored technical reports.
• Prohibition on Plagiarism: Presenting another person's technical drawings, design concepts, specifications, or academic research as one's own work constitutes professional plagiarism and dishonesty.
• Patent and Innovation Attribution: When patent applications or technical papers are prepared, all true technical contributors must be named.

Professional Criticism vs. Malicious Disparagement

Clause (g) explicitly expects practitioners to accept, as well as give, honest and fair professional comment, while ruling out malicious disparagement:

• Permissible Professional Critique: Conducting rigorous peer reviews, auditing shop drawings, identifying calculation errors during design checking, or testifying as an objective expert witness in legal proceedings. Professional critique must focus objectively on the technical data, calculations, code compliance, and engineering facts.
• Impermissible Malicious Disparagement: Making false, misleading, or derogatory statements about a competitor's competence, character, or business practices to win a project or damage their standing. Spreading unfounded rumors about a competing firm's financial stability or engineering qualifications constitutes both an actionable common law tort (defamation/injurious falsehood) and professional misconduct.

Conducting Independent Peer Reviews

When an engineering technologist is retained by a client to review the work of another practitioner, good professional practice consistent with clause (g) calls for:

1. Informing the original designer of the review where practical and appropriate (unless precluded by legal privilege or ongoing litigation);
2. Reviewing the complete documentation, background criteria, and site constraints before forming an opinion;
3. Confining criticism strictly to objective technical discrepancies, code non-compliance, and safety concerns;
4. Giving the original practitioner an opportunity to explain their technical rationale or clarify apparent anomalies.

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6. Clauses (j) and (k): Representing the Profession in Public and Online

Two further clauses govern how members speak for, and about, the profession:

• Clause (j) requires members to "promote public knowledge and appreciation of engineering and applied science technology and protect the Association from misrepresentation and misunderstanding." In practice, this means describing your designation accurately (a C.E.T. is not a P.Eng.), not implying that OACETT endorses a product or opinion, and correcting public misstatements about the profession when you are in a position to do so.
• Clause (k), added in the March 2025 update of the Code, states that members "using social media in a professional context, where they are easily identified as a member of the association, are expected to maintain professionalism, respect, and integrity in all social media activity, ensuring accuracy (of the information), and protecting confidentiality to prevent misrepresentation of the association."

The test for clause (k) is whether readers can identify you as an OACETT member. Once they can, your online statements reflect on the association, and confidentiality, accuracy, and respect apply just as they do in a written report.

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7. Summary Comparison: Duties Under Clauses (d), (e), and (g)