DATE: 20040129

DOCKET: C38845

COURT OF APPEAL FOR ONTARIO

MORDEN, GILLESE and ARMSTRONG JJ.A.

B E T W E E N:

ASSOCIATION OF ONTARIO LAND SURVEYORS

Robert J. Fenn and Izaak De Rijcke for the appellant

Applicant (Appellant)

• and -

WILLIAM VAN LOON and VAN LOON CONSTRUCTION SURVEYS & LAYOUT INC.

James Branoff for the respondents

Respondents (Respondents)

Heard: October 23, 2003

On appeal from the judgment of Justice T.L.J. Patterson of the Superior Court of Justice dated September 4, 2002.

ARMSTRONG J.A.:

[1] The issue raised in this appeal is whether the applications judge, Justice Patterson of the Superior Court of Justice, erred in failing to find that the respondents had engaged in the practice of cadastral surveying contrary to the Surveyors Act, R.S.O. 1990, c. S. 29 (the “Act”).

[2] The appellant, the Association of Ontario Land Surveyors (the “Association”) had sought an order prohibiting the respondents from engaging in the practice of cadastral surveying and restraining them from holding themselves out to the public as engaging in the practice of cadastral surveying on the basis that neither of the respondents is licensed nor authorized pursuant to the provisions of the Act to engage in the practice of cadastal surveying.

[3] The applications judge dismissed the application on September 4, 2002. For the reasons which follow, I have concluded that the applications judge was in error and I would allow the appeal.

The Governing Legislation

[4] The Association is the regulator of professional land surveyors in Ontario pursuant to s. 2(2) of the Act which provides:

The principal object of the Association is to regulate the practice of professional land surveying and to govern its members and holders of certificates of authorization in accordance with this Act, the regulations and the by-laws in order that the public interest may be served and protected.

[5] The Association, through its Registrar, issues licences to individuals who meet the qualifications provided in s. 12(1) of the Act:

12.—(1) The Registrar shall issue a licence to a natural person who applies therefor in accordance with the regulations and,

(a) is a citizen of Canada or has the status of a permanent resident of Canada;

(b) is not less than eighteen years of age;

(c) has complied with the academic requirements specified in the regulations for the issuance of the licence and has passed such examinations as the Council has set or approved in accordance with the regulations or is exempted therefrom by the Council;

(d) has complied with the experience requirements specified in the regulations for the issuance of the licence; and

(e) is of good character.

[6] Pursuant to s. 11(1), only persons who are licensed under the Act are entitled to engage in the practice of cadastral surveying or hold himself, herself or itself out as engaging in the practice of cadastral surveying. Section 11(3) provides that proof of one act in the practice of cadastral surveying on one occasion is sufficient to establish engaging in the practice of cadastral surveying.

[7] The practice of cadastral surveying is defined in s. 1 of the Act:

“practice of cadastral surveying” means advising on, reporting on, conducting or supervising the conducting of surveys to establish, locate, define or describe lines, boundaries or corners of parcels of land or land covered with water;

[8] The Act does not provide for the licensing of corporations. However, pursuant to s. 13 of the Act, a corporation is permitted to provide services that are within the practice of cadastral surveying if it holds a certificate of authorization. Section 14(2) of the Act provides as follows:

14.—(2) The Registrar shall issue a certificate of authorization to a corporation that applies therefor in accordance with the regulations and meets the following requirements:

1. The primary function of the corporation must be to engage in the business of providing services that are within the practice of cadastral surveying.

2. At least one director or full-time employee of the corporation must be a licensed member of the Association who holds a certificate of authorization and who agrees to personally supervise and direct the practice of cadastral surveying for the corporation.

3. At least 50 per cent of the members of the board of directors of the corporation shall be members of the Association.

[9] It is common ground that the respondent, William Van Loon, is not licensed under the Act and that the corporate respondent does not hold a certificate of authorization.

[10] Section 38 of the Act enables the Association to make application to the court to prohibit the continuation or repetition of activities which contravene the Act:

38. Where any provision of this Act or the regulations is contravened, despite any other remedy or any penalty imposed, the Association may apply to a judge of the Ontario Court (General Division) for an order prohibiting the continuation or repetition of the contravention or the carrying on of any activity specified in the order that, in the opinion of the court, will result or will likely result in the continuation or repetition of the contravention by the person committing the contravention, and the judge may make the order and it may be enforced in the same manner as any other order or judgment of the Ontario Court (General Division). S.O. 1987, c. 6, s. 38, revised.

The Background

[11] In February 2000, Curtis Reid and Michelle MacLellan purchased a house in a new subdivision in Windsor, Ontario. In the spring of 2001, they decided to fence in their backyard. In order to construct the fence within the property line of their land and not encroach on their neighbours’ property, they retained the services of the respondents.

[12] The initial contact with the respondents was made by Ms. MacLellan. She obtained the corporate respondent’s name and telephone number in the Windsor telephone directory. She spoke to a man whom she assumed was the respondent, William Van Loon. Ms. MacLellan testified in cross-examination by counsel for the respondents as follows:

I explained to him that we wanted to put a fence up and that we needed to find our four corner posts and our property line.

[13] Mr. Reid, also under cross-examination by the respondents’ counsel, testified that he wanted Mr. Van Loon to “stake out where my property line was”.

[14] Mr. Van Loon in an affidavit filed in response to the application stated:

10. My business received a telephone call from an individual who identified “herself” as Michelle MacLellan of 10400 Little River Blvd. She wished to erect a fence and was unable to locate the iron bars which would depict her lot lines and property boundaries.

11. Two members of my staff and crew attended the site. I never met Michelle MacLellan or a Curtis Reid.

12. I am advised by the crew and I verily believe that they were successful in locating existing iron bars which would depict the lot lines and property boundaries. They did not set any bars or locate any lot lines that were not already identifiable by existing iron bars.

[15] Mr. Van Loon is the president, sole director and sole shareholder of the respondent corporation.

[16] A two-man field crew was dispatched to the MacLellan/Reid property to carry out the requested work. The crew chief, Philip Somr, testified that he took his instructions from Mr. Van Loon.

[17] Mr. Van Loon testified in cross-examination that his crews use typical survey field equipment such as an instrument, a tripod, a shovel, a hammer and a device to locate buried iron monuments. His crews measure angles and distances between survey monuments. Mr. Van Loon reviewed the field notes prepared by a member of the field crew who did the work on the MacLellan/Reid property. He concluded that the field notes depicted the lot lines and property boundaries.

[18] Ms. MacLellan testified that the work crew put wooden stakes along “our property line”.

[19] The appellant filed affidavits of Brian Coad, O.L.S. who practises professional land surveying and William Buck, O.L.S. who is the Registrar of the Association. It was Mr. Coad’s opinion that placing a pin or a marker at the corners of the property, previously marked by an Ontario Land Surveyor, is tantamount to giving an opinion as to the location of a corner of the property. Mr. Buck reviewed the field notes prepared by the respondents’ crew. It was his opinion that the notes indicated that the crew had carried out cadastral surveying on the MacLellan/Reid property.

The Applications Judge’s Endorsement of his Reasons

[20] The following is the entire judge’s endorsement of the applications judge’s reasons:

• Application denied.
• Van Loon merely located existing installed O.L.S. iron bars
• Van Loon did not hold himself out as an O.L.S.
• Van Loon gave no opinion as to the lot line.

[21] The applications judge made no reference to any of the evidence of the seven witnesses who testified in this case.

The Position of the Parties

[22] The appellant submits that the activities of Mr. Van Loon and his corporation in respect to the MacLellan/Reid property constituted cadastral surveying. In particular, the appellant submits that the respondents:

i) took measurements of distance between found legal survey monuments and compared these measurements with the expected distances shown on a plan of subdivision;

ii) took measurements of angles between them and compared these measurements with the expected angles derived from bearings shown on a plan of subdivision;

iii) adjusted and restored the position of the monuments which were found bent or disturbed;

iv) marked the location of buried monuments on the surface of the ground;

v) trespassed onto lands which neighboured the Respondents’ customers’ property to locate other iron bars and to then also measure angles and distances to them;

vi) marked the lot line of the customers’ property on the ground with painted wooden markers to guide the placement and location of new fencing;

vii) collected money from the customer for work performed; and

viii) ensured that surveying evidence and monuments were correct because the customer was relying on it and the accuracy of their work.

[23] The respondents submit that the appellant seeks to argue the case de novo without demonstrating that the applications judge committed any error which would justify appellate interference. The respondents further submit that the appellant is attempting to take advantage of the applications judge’s reasons which are bereft of any reference to the evidence. The respondents argue that the appellants should have joined the respondents in a request to the applications judge to provide more fulsome reasons for the purposes of the appeal. The appellant declined the suggestion and no such request was made to the applications judge.

[24] The respondents also deny that they were engaged in the practice of cadastral surveying. The respondents argue that cadastral surveying refers to using reference points to locate and mark boundaries that have not been previously established. Finding existing iron bars and marking their location does not constitute cadastral surveying. They further submit that the respondents only located existing iron bars and marked them so as to show the apparent boundary lines of the MacLellan/Reid property. They did not locate any corners that were not already established by iron bars and they did not give any opinion as to the accuracy of the apparent boundary.

[25] Finally, the respondents submit that the burden of proof which should apply to a proceeding to enforce compliance with the Act should be the criminal standard. It is argued that these proceedings are quasi-criminal in nature and therefore ought to attract the criminal standard of proof. The respondents rely upon Canada Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2) (1975), 1975 475 (ON CA), 8 O.R. (2d) 375 (C.A.).

ANALYSIS

[26] I will deal first with the respondents’ contention that the appellant should have accepted the respondents’ suggestion that they jointly request the applications judge to provide expanded reasons to enable this court to engage in meaningful appellate review. The respondents rely upon Bacon v. Stonehouse (1990), 1990 12217 (ON SCDC), 25 R.F.L. (3d) 71 (Ont. Div. Ct.). In that case, the judge of first instance gave no reasons at all. Justice Reid in the Divisional Court held that if no reasons are given then counsel for the appellant should request the judge to give reasons to facilitate the appeal. While the approach of Reid J. was appropriate in that case, I am not persuaded that there is any general rule or practice in this respect. In the case at bar, although the reasons are extremely sparse and it would have been preferable for the judge to have related his conclusions to the evidence, I do not agree that there was any obligation on counsel for the appellant to accept the suggestion made by counsel for the respondents to re-attend upon the applications judge and request him to expand his reasons.

[27] With respect to the respondents’ argument that the criminal standard of proof should apply in this case, I disagree. This is neither a criminal proceeding nor a quasi-criminal proceeding. This is a civil proceeding in which the appellant seeks a statutory prohibition order. The only case relied on by the respondent, Canada Metal Company, is a contempt case in which it was sought to commit the appellant to jail. Understandably, in Canada Metal Company the court held that the matter was a quasi-criminal proceeding. The case at bar is not such a case.

[28] I now turn to the real issue in this appeal: did the applications judge err in failing to find that the respondents had engaged in the practice of cadastral surveying?

[29] For convenience I refer again to the findings of the applications judge:

(i) Van Loon merely located the existing installed O.L.S. iron bars;

(ii) Van Loon did not hold himself out as an O.L.S.; and

(ii) Van Loon gave no opinion as to the lot line.

[30] The field notes indicate that the Van Loon crew did much more than simply locate the existing iron bars. They measured distances and angles and compared them to a plan of subdivision. They marked the corners of the property and placed wooden stakes along the property line. In my view, the marking of the corners and the staking of the property line was tantamount to offering an opinion to Ms. MacLellan and Mr. Reid as to the location of the corners of their property and the boundary with their neighbours’ property. I am satisfied that the respondents were engaged in the practice of cadastral surveying as defined in s. 1 of the Act. This they were not entitled to do by reason of the fact that Mr. Van Loon was not licensed under the Act and the corporation did not hold a certificate of authorization under the Act. Needless to say, I do not accept the respondents’ submission that cadastral surveying is limited to using reference points to locate and mark boundaries that had not been previously established.

[31] I am also satisfied that when Mr. Van Loon accepted the retainer in this matter and agreed to provide the services requested by Ms. MacLellan, it constituted a holding out by him and his corporation to a member of the public that they were engaged in the practice of cadastral surveying. The evidence indicated that while this kind of activity did not constitute a major part of the respondents’ business, they did undertake such activities from time to time for other customers. It would appear certain that the respondents would accept such retainers in the future when the opportunity to do so is presented unless otherwise prohibited. There was nothing in the evidence of Mr. Van Loon to suggest the contrary.

[32] In conclusion, it is my view that the briefly stated endorsement of the trial judge is simply contrary to the evidence and he erred in dismissing the application.

[33] There is a further issue which was not raised by either counsel. Neither counsel made any distinction between the conduct of Mr. Van Loon in his personal capacity and the conduct of his corporation. No effort was made to analyse whether Mr. Van Loon personally or the corporation were engaged in the activities related to the MacLellan/ Reid property. The argument before us proceeded on the basis that Mr. Van Loon and his corporation, of which he was the sole officer, director and shareholder, were engaged in the same enterprise. The evidence of Mr. Van Loon reflects that approach when he referred to the enterprise as “my business”. In view of the way the case was presented to the court, I do not regard it as either necessary or appropriate to make any distinction, particularly when we were not asked to do so.

DISPOSITION

[34] In the result, I would allow the appeal, set aside the order of the applications judge, and make an order, under s. 38 of the Act, prohibiting both respondents from the continuation or repetition of engaging in the practice of cadastral surveying and from holding themselves out to the public as engaging in the practice of cadastral surveying.

COSTS

[35] I would award costs of the proceeding before the applications judge to the appellant on a partial indemnity basis in the amount of $4,500 including disbursements and Goods and Services Tax. I would award the costs of the appeal to the appellant on a partial indemnity basis fixed at $7,500 including disbursements and Goods and Services Tax.

RELEASED:

“JAN 29 2004” “Robert P. Armstrong J.A.”

“JWM” “I agree: J.W. Morden J.A.”

“I agree E.E. Gillese J.A.”