G u i d E l i n e
Professional Engineers
Ontario
Professional Engineers
Acting As Independent
Contractors
Prepared by: B. DiStefano P.Eng. / R. Hicks, P.Eng. / L. Mitelman, P.Eng/
Notice: The Professional Standards Committee has a policy of reviewing guidelines every five years to determine if the guideline is still viable and adequate. However, practice bulletins may be issued from time to time
to clarify statements made herein or to add information useful to those professional engineers engaged in
this area of practice. Users of this guideline who have questions, comments or suggestions for future amendments and revisions are invited to submit these to PEO using the form provided in Appendix C.
November, 2001
Contents
Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Engagement Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Scope of Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Reporting and Direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2.1 Relationship with Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2.2 Participation on Teams. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2.3 Certificate of Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2.4 Use of Professional Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 Professional Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Professional Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Professional Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.7Advertising. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.8 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.9 Duration of Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.10Terms of Engagement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Appendix A. Sources of additional information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Appendix B. PEO Professional Practice Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Appendix C. Amendment and Revison Submission Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Forword
Professional engineering in Ontario is regulated under
The Professional Engineers Act, R.S.O. 1990, Chapter
P28, Regulation 941/90 and Regulation 260/08. Professional Engineers Ontario (PEO) is responsible for
regulating the practice of professional engineering and
governing licensed professional engineers, licensees
and Certificate of Authorization holders in order that
the public interest is served and protected. To fulfill
this mandate, PEO publishes professional practice
guidelines. A list of guidelines is provided in Appendix
B. Printed copies of PEO guidelines are available for
purchase from PEO, or guidelines may be printed free
of charge from the PEO website (www.peo.on.ca).
This guideline has been developed by a task group of
the association’s Professional Standards Committee,
and reviewed and approved for publication by the full
Professional Standards Committee, the PEO Executive Committee and finally by Council. It aims to
assist licensed professional engineers and the organizations employing them in dealing with the changing
terms of engagement under which many individuals
now work. The guideline has three primary objectives:
• to clarify the terminology associated with “contract
employment”, which is an increasingly common
experience for professional engineers and employers;
• to provide an overview of the expected roles and
responsibilities of individuals engaged to provide
services through an “arm’s-length” contractual
arrangement;
• to introduce professional engineers who contract
their services to the legal, liability and taxation issues
that they and their employers will face.
This guideline is intended to clarify recommended
professional practices for professional engineers working under retainer. It will also assist their clients in
defining and addressing issues relating to retaining a
professional engineer. Its application will vary, based
on the size, nature and practice of each professional
organization and individual.
It has been created to complement other PEO and
government documents. Readers are referred specifically to the Guideline for Professional Engineers Acting
as Contract Employees.
1. Introduction
Until recently, the employer-employee model was
the predominant model of employment relationship
in our society. Today, however, a wider variety of
commercial relationships is the norm. Such relationships with employers can include an employment
relationship of indefinite duration with permanent
employees, but may also include temporary contract
employees employed for a set period, or independent
contractors retained for specific projects. Independent
contractors may be incorporated entities, individuals
who are registered as businesses, or individuals who
are not incorporated or registered as a business. This
new range of relationships has impacts not only on
the involved parties, but also on tax authorities (taxation issues), the general public, insurers, and the court
(issues of liability and spreading of risk).
An independent contractor is not an employee, but
an independent professional who renders personal services to those who seek them. Independent contractors
may derive certain tax advantages, in that they may be
able to deduct from business earnings some expenses
and other deductions not available to employees.
However, to satisfy the Canada Customs and Revenue
Agency that one is a bona fide independent contractor, one must meet certain criteria established by the
agency. These criteria include being registered as a
corporate entity under the applicable business corporations act; maintaining an office and business phone
and printing business cards and stationery in the name
of the corporate entity; or registering for and having a
GST number. This list is not exhaustive.
“Contract employment” is a term used in businesses
of all types and sizes to refer to the situation of an
individual engaged to provide personal services to
the organization. However, such a relationship is not
actually “contract employment”, and should not be
referred to as such by either independent contractors or their clients. In fact, the relationship is the
P r o f e ssi o n a l E n g i n e e r s O nt ar i o 3
execution of a retainer by an individual who is an
independent contractor, to provide personal services
to an organization. If the Canada Customs and
Revenue Agency chooses to review the status of an
individual executing a retainer, the agency will review
any contracts between the individual and the client
that describe their relationship. If the parties themselves
identify their relationship as “employment”, the agency
might also characterize the relationship that way.
The focus of this guideline is on the independent
contractor and the retainer the professional executes.
Because the relationship between the parties is more at
arm’s length than the traditional employee-employer
relationship, there is the potential for confusion or misunderstanding of each party’s roles and responsibilities.
For example, professionals who accept retainers will
face a range of terms relating to duration, remuneration
structure, liability obligations and termination of retainers, which are likely to be carefully documented in the
retainer. Engaging a professional through a retainer
usually changes the way in which an organization
administers and uses professional services. Professional
engineers must understand these differences to negotiate business and professional terms that will satisfy their
own needs, and the needs of their clients.
Professional engineers who are independent contractors should understand their responsibilities to the
4 Acting as In de pe nda nt Cont r a c t or s
entities that retain them. This includes having clear
descriptions of the scope of services to be provided,
the work to be performed, the extent of their confidentiality obligations, the ownership of intellectual
property they may develop during the course of their
retainer, and their professional liability. In addition,
such items as payroll, taxation, workers’ safety insurance, employer health tax, employment insurance,
liability insurance coverage, nature of supervision
given or received, provision of tools, and independence in choosing analysis and design techniques can
be distinctly different for independent contractors
than they are for employees. Professionals must ensure
that they are aware of these issues, and address them
where appropriate. This guideline outlines the issues
that can have an impact on a professional engineer’s
ability to provide a high quality professional service.
Professional engineers should discuss these issues
with their clients before executing contracts and
commencing work. To fully appreciate these issues,
they should consult the PEO professional practice
guidelines referred to throughout this guideline. They
should also remember that they, not their clients, are
accountable for adhering to PEO’s Guideline to Professional Practice and other practice guidelines, and the
practice requirements of the Professional Engineers Act
and Regulations.
2. Engagement Issues
This section provides a sequential overview of the
important issues to address in developing a clear and
effective relationship between a professional, as an
independent contractor, and the client who retains that
professional. An independent contractor should always
negotiate and enter into an agreement with the client
before commencing a retainer. Enforceable agreements
may be oral or written; however, it is recommended that
any agreement be confirmed in writing to ensure that
the terms of the retainer are clear.
This section also focuses on defining the roles in retainer
relationships, so that both parties to the retainer can
adequately address all issues. Indeed, it has been amply
demonstrated that carefully considering and defining both
parties’ responsibilities and expectations greatly reduces
misunderstanding, and the consequential potential for
professional liability, enabling the parties to focus on
achieving a quality job.
2.1Scope of Services
The scope of services is a list of the specified tasks
within the terms of engagement, and the delivery or
performance expectations associated with these tasks.
Depending on the size and complexity of the client
and/or project, it might also be necessary to define
the required technical knowledge and skills to execute
the commission effectively. PEO’s Guideline to Professional Practice requires that professional engineers
practise within their competence. Failure to do so may
be professional misconduct under section 72(2)(h) of
Regulation 941.
Professional engineers should clearly state the level
of skill they can deliver to meet client and project
requirements. It is detrimental to both parties for
either of them to convey inaccurate expectations or
abilities in the contractual relationship. The scope of
services may also indicate potential or future scope,
based on performance of services or an extension of
project requirements.
In special instances, a client may require a professional engineer to act for the client in supervising or
administering an organization’s employees and/or cli-
ent relationships. It is important that these corporate
responsibilities and authorities be clearly defined, that
a contact person for reporting and approval to act be
identified, and that the vehicle for acting on the client’s
behalf is reviewed for legal and financial implications.
For information on what to include in such an agreement, see PEO’s Guideline on the Use of Agreements
between Clients and Engineers for Professional Engineering Services.
2.2Reporting and Direction
Clarity on reporting and progress reviews is critical to
the flow of work and quality control.
2.2.1 Relationship with Client
When entering into a contract, professional engineers
should determine the nature of relationships with the
client at the outset. Among the issues that should be
clarified are:
• a contact person (single contact person is preferred);
• the person’s non-employee status;
• the process for progress reporting and limits
of stewardship;
• cooperative work on teams; and
• a process for terminating the contract.
Hours or days of work should not be stipulated, nor
should there be a restriction on other sources of income.
An engineer acting as an independent contractor
should expect to provide any required data processing
equipment and software, and should not be restricted
on analysis or design techniques.
2.2.2 Participation on Teams
When professional engineers are to participate on a
team in a client’s organization that may involve staff or
other professionals, they should define the relationships
and their client’s expectations. Contractors should consider defining:
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the contact person for whom they are acting;
their role on the team;
the process for progress reporting and deliverables;
processes for changes in deliverables and schedules;
their responsibility for team leadership;
P r o f e ssi o n a l E n g i n e e r s O nt ar i o 5
• the limit of their authorities for technical and administrative supervision;
• the limit of their assumption of professional responsibility for the work of staff, other professionals and
team members;
• the required use of their professional seal;
• the numbers of people involved;
• the skills of those involved; and
• processes for dispute resolution.
Professional engineers should keep in mind that, when
reviewing the work of other engineers, they are subject
to the provisions of PEO’s Code of Ethics (section
77 of Regulation 941/90), and in particular subsection
77(7). They may find additional guidance in section
4.2 of PEO’s Guideline to Professional Practice.
2.2.3 Certificate of Authorization
When professional engineers are acting as independent
contractors rather than as contract employees they must
hold a Certificate of Authorization under the Professional
Engineers Act, in addition to their P.Eng. licence. PEO’s
information guide on Certificate of Authorization Requirements can assist professional engineers in determining
when they are in this situation.
2.2.4 Use of Professional Seal
The PEO Certificate of Authorization allows individual professional engineers acting as independent
contractors or companies to offer or provide professional engineering services directly to the public.
Certificate of Authorization holders must stamp their
work to indicate their responsibility for the services
provided. PEO’s Guideline to Professional Practice, section 9.2, provides valuable guidance on the proper use
of a professional engineer’s seal.
2.3Professional Responsibilities
Because professional engineers must adhere to PEO’s
Code of Ethics (section 77 of Regulation 941/90) both
during and after the term of the contract, they require
a clear understanding of the required services so as not
to put themselves in compromising positions. If engineers are concerned that required services may be in
conflict with PEO’s Guideline to Professional Practice
or with the Code of Ethics, they should discuss this
with their clients to achieve a satisfactory resolution.
6 Acting as In de pe nda nt Cont r a c t or s
In the absence of a satisfactory resolution, professional
engineers should decline the contract.
To facilitate this process, engineers should be fully conversant with PEO’s Guideline to Professional Practice.
Recognizing that prospective clients might not
normally engage professional engineers, contract professionals should ensure that clients are aware of the
professional obligations of professional engineers. In
this regard, professional engineers should be prepared
to supply to prospective clients summaries of the areas
in which they consider themselves to be competent.
They are also advised to make all clients aware in writing of actual, perceived or potential conflicts of interest.
Once professional engineers enter into a contract, they
are obliged to provide the contracted professional services to the best of their abilities.
2.4 Professional Liability
When accepting an engagement to provide professional services, professional engineers should clearly
understand all issues relating to the assumption of
liability for the work being performed.
Both parties must understand the client’s expectation
for indemnification against loss as a consequence of
work done by a professional engineer. The ability of
the professional engineer to obtain satisfactory professional liability insurance should be addressed.
Providers of professional services should understand
the extent of the liability they are assuming in doing
the work, the acceptable level of risk, and the possible
need and availability of professional liability (sometimes called errors and omissions) insurance.
When negotiating conditions of liability and indemnification, or limitation of liability, professional
engineers should consider:
• fixing the scope of work for which liability will be
assumed, or
• limiting, or fixing, the type of liability (consequential,
direct damages, etc.) that will be assumed.
They should also consider:
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responsibility for defense costs;
extent of consequential damages, if applicable;
post-contract liability;
protection from the actions of third parties;
remedies for negligence, omissions and willful acts
on the part of the employer or third parties;
• responsibility for insurance premiums after completion of the contract, and/or survivability of the
employer organization; and
• indemnification.
Section 10 of PEO’s Guideline to Professional Practice
contains information on contractual liability. A lawyer
should review all contract clauses dealing with liability
before an engineer executes a contract with a client.
2.5 Professional Development
Although training and accumulating experience are
most often associated with the early stages of a professional engineer’s career, all professional engineers in
today’s technology-based society require specialized
knowledge to be effective and competitive. Because
every professional engineer should establish a personal
program of continuing education to maintain and
upgrade his or her knowledge and competence, it is
prudent that professional engineers build into their
fee structures provision for direct and indirect professional development costs. However, contracts should
not oblige clients to provide training to contractors.
situation to their employers and their employment
situation to their clients, in writing, as required by
Regulation 941, subsection 77(5).
2.7 Advertising
For professional engineers seeking employment, the most
common means of advertising is through a personal
résumé. Professional engineers should take care to ensure
that information in their résumés is accurate and does
not contravene confidentiality agreements with previous
employers and clients. They must claim expertise in only
those areas in which they are fully competent.
Professionals who are self-employed, or those providing services on contract, often use such additional
means to advertise as business cards and publication
advertisements. The content of these and all other
forms of advertising should comply with section 11 of
PEO’s Guideline to Professional Practice.
2.8 Intellectual Property
Proprietary knowledge, or intellectual property, can
be a critical ingredient to business performance.
Intellectual property includes patents, trade secrets,
know-how, computer programs, confidential practices,
and other information the client treats as confidential,
such as client lists and project/contract details.
In seeking, obtaining and maintaining employment,
professional engineers are obliged to conduct themselves in an ethical manner. This applies to the manner
in which they compete with others for employment,
and portray their training, skills and experience to
employers. It also applies to how they conduct their
business affairs if they are self-employed independent
contractors. Ethical and professional conduct expectations for professional engineers are described in the
Code of Ethics (section 77, Regulation 941/90) and
PEO’s Guideline to Professional Practice.
A professional engineer’s confidential treatment of
information is fundamental to professional conduct.
It might be unlawful and is contrary to the Code of
Ethics and PEO’s Guideline to Professional Practice to
divulge, misrepresent, or otherwise release, a client’s
propriety information and property without the client’s prior permission. Procedures for identifying and
handling intellectual property should be addressed in
contracts, which may include confidentiality agreements. When the terms of the contract might result
in a copyright, patent or other form of business venture, the agreement should identify the independent
contractor’s ownership of the intellectual property,
participation in the development of the intellectual
property, and remuneration for the transfer of the
intellectual property, if any.
Employee engineers who also act as independent
contractors in their own names must disclose this
If clients require engineers to assign rights to intellectual property, engineers should consider limiting
2.6 Ethics
P r o f e ssi o n a l E n g i n e e r s O nt ar i o 7
the assignment of such rights to only the intellectual
property that is developed in the course of the retainer
or using resources provided by the client. Engineers
should consider retaining rights to intellectual property
they might develop outside the scope of their retainer.
Computer programs are protected under Canada’s
copyright legislation. Section 12 of PEO’s Guideline to
Professional Practice discusses certain exceptions for professional engineers to the copyright of computer programs.
A lawyer should review all contract clauses dealing
with confidentiality and intellectual property.
2.9 Duration of Contract
Contracts may have specified end dates, or be defined
in terms of completion of a project. In both cases, the
contract should specify a scope of services to meet a
client’s requirements. A contract’s duration may be
determined by a client, or be negotiated based on a
contractor’s estimate of completion date. In either
case, both parties should understand that the client is
entitled to receive the contracted services in the specified timeframe, and in return will compensate the
contractor in the agreed manner.
For the protection of both parties, contracts may
contain a clause that enables cancellation by either
party, given agreed notice periods. Such clauses may
also specify an employee’s compensation should the
employer terminate the contract without notice.
If agreed, contracts may be extended for the originally contracted services, or renewed for additional
required services.
8 Acting as In de pe nda nt Cont r a c t or s
Additional clauses might address actions that would
lead to termination without compensation, and would
normally include provisions on agreed measurements
of performance or conduct.
If a client insists on restrictive covenants, such as
non-competition clauses, such restrictions should be
reasonable, with realistic definitions of the time, geography and scope applying to the services provided to
the employer. Monetary compensation to the engineer
may be negotiated for the duration of the business
sector limitation.
Confidentiality clauses can extend after termination,
and address items discussed in the previous section,
including know-how and customer information.
Professional engineers who offer their services to multiple clients should make all clients aware of their time
constraints.
2.10 Terms of Engagement
Professional engineers should be aware of the business and legal aspects of any employment relationship.
They should be knowledgeable on applicable laws,
and seek professional advice from accountants and
lawyers on such matters as liability, taxation, Canada
Customs and Revenue Agency criteria for assessing
the nature of a contractual relationship, statutory
deductions, employment standards, and workplace
health and safety. There should be no provision in the
contract for vacation pay, holiday pay, overtime pay,
healthcare or employee benefits, company cards or
vehicles, or formal company office space.
Appendix A. Sources of Additional Information
Canada Customs and Revenue Agency—income tax;
Employment Insurance; Canada Pension Plan; publications; forms; local addresses, telephone and fax
numbers—www.ccra-adrc.gc.ca
Ontario Ministry of Labour—employment standards;
occupational health and safety; publications; local
addresses, telephone and fax numbers—
www.gov.on.ca/LAB
Workplace Safety and Insurance Board—workers’ compensation; responsibilities; premiums; forms; training; addresses,
telephone and fax numbers—www.wsib.on.ca
Professional Engineers Ontario—engineering practice
guidelines; registration and licensing requirements; forms;
chapters; address, telephone and fax numbers—
www.peo.on.ca/
Appendix B. PEO Professional Practice Guidelines
1. Acting as Contract Employees (2001)
2. Acting as Independent Contractors (2001)
3. Acting Under the Drainage Act (1988)
4. Acoustical Engineering Services in Land-Use Planning (1998)
5. Building Projects Using Manufacturer-Designed Systems & Components (1999)
6. Commissioning Work in Buildings (1992)
7. Communications Services (1993)
8. Engineering Services to Municipalities (1986)
9. Environmental Site Assessment, Remediation and Management (1996)
10. General Review of Construction as Required by the Ontario Building Code (2008)
11. Geotechnical Engineering Services (1993)
12. Guideline to Professional Practice (2009)
13. Human Rights in Professional Practice (2009)
14. Land Development/Redevelopment Engineering Services (1994)
15. Mechanical and Electrical Engineering Services in Buildings (1997)
16. Professional Engineer as an Expert Witness ( 2011)
17. Professional Engineer’s Duty to Report (1991)
18. Project Management Services (1991)
19. Reports for Pre-Start Health and Safety Reviews (2001)
20. Reports on Mineral Properties (2002)
21. Roads, Bridges and Associated Facilities (1995)
22. Selection of Engineering Services (1998)
23. Services for Demolition of Buildings and other Structures (2011)
24. Solid Waste Management (1993)
25. Structural Engineering Services in Buildings (1995)
26. Temporary Works (1993)
27. Transportation and Traffic Engineering (1994)
28. Use of Agreements between Client and Engineer for Professional Engineering Services
(including sample agreement) (2000)
29. Use of Computer Software Tools Affecting Public Safety or Welfare (1993)
30. Use of Professional Engineer’s Seal (2008)
31. Using Software-Based Engineering Tools (2011)
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Appendix C. Amendment and Revision Submission Form
Guideline:
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Statement of proposed amendment or revision:
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Submitted by: __________________________________________________ Date: ______________________________
Mail: Professional Engineers Ontario
101- 40 Sheppard Avenue West
Toronto ON M2N 6K9
Attention: Standards and Guidelines Coordinator
Fax: (416) 224-1579 or (800) 268-0496
Email: practice-standards@ peo.on.ca
10 Actin g as Inde pe nda nt Cont r a c t or s
Published by the Association of Professional Engineers of Ontario