COURT FILE NO.: 13-CV-456891

DATE: 20140814

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ONTARIO PROFESSIONAL FORESTERS ASSOCIATION

Applicant

– and –

PAUL ROBERTSON, Personally, and PAUL ROBERTSON, Carrying on Business as Trees Unlimited or Trees Unlimited Forestry Consultant

Respondents

Lisa S. Braverman, for the Applicant

Monique D. Atherton and Shannon McHugh, for the Respondents

HEARD: August 7-8, 2014

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] This is an application brought by the Ontario Professional Foresters Association (“OPFA”), for an order directing the Respondents, Paul Robertson, personally, and Paul Robertson, carrying on business as Trees Unlimited or Trees Unlimited Forestry Consultant, to comply with ss. 13 and 14 of the Professional Foresters Act, 2000, S.O. 2000, c. 18. and, in particular, that Paul Robertson refrain from:

(a) using the designation “Registered Professional Forester” or the initials “R.P.F.”, or any name, title, abbreviation or description in any language implying or which may lead to the belief that he is a registered member of the Ontario Professional Foresters Association, including the term “Professional Forester” or the initials “P. For.”;

(b) holding himself out as able to engage in the practice of professional forestry, and

(c) engaging in the practice of professional forestry.

[2] The OPFA also brings a motion to amend the Notice of Application, and in the proposed Amended Notice of Application, the OPFA seeks an order directing Paul Robertson, who has become a provisional member of the OPFA, to comply with Article 11 of the OPFA by-law, and, in particular, that Paul Robertson refrain from:

(a) using the designations “Registered Professional Forester”, “R.P.F.”, “Professional Forester” or the equivalent in another language;

(b) using the designation in any way that could lead a member of the public to believe that he is qualified to engage in the practice of professional forestry in Ontario;

(c) using any other designation, name, title, abbreviation or description, which pertains to the practice of professional forestry or to the other categories of Membership in the Association, unless he receives prior approval by the Registrar, or if disputed, by the Executive Committee, before it can be used; and

(d) carrying out activities that would otherwise be professional forestry, unless under the supervision of a Full or suitably qualified Associate Member or as part of a formal course of study.

[3] In very large part, the OPFA makes its case against Mr. Robertson by relying on the opinion evidence of Laird Van Damme, an expert witness who reviewed the evidence prepared for the application, including: (1) the evidence of the complainant, Terry Schwan; (2) the evidence of several others engaged in forestry; i.e., Dan Drennan, Scott McPherson, and Robert Spence; and (3) the evidence of Amy Shillington, a private investigator. Based on this review, Mr. Van Damme opined that Mr. Robertson did not comply with s. 13 (unauthorized practice) and s. 14 (prohibited designation) of the Professional Foresters Act, 2000.

[4] In response to the application, the Respondents (who in reality are a single Respondent – Paul Robertson) deny that: (1) he has used prohibited language or designations; (2) engaged in the practice of professional forestry; or (3) held himself out as able to engage in the practice of professional forestry. To defend the application, the Respondents argue that their services fall within the exceptions to the scope of practice of professional forestry provided for in the Professional Foresters Act, 2000. They rely on the exceptions for: (1) work performed as a certified tree marker; (2) work performed as a Managed Forest Plan Approver (“MFPA”); or (3) work performed under the supervision of a member of the OPFA.

[5] Mr. Robertson attempted to rebut the expert evidence of Mr. Van Damme with the expert evidence of Albert Hovingh, another Registered Professional Forester.

[6] The OPFA’s application was before the court on May 16, 2014, and, at that time, I was concerned that the factual determinations that would have to be made to decide the application would require a trial. Among other concerns, I was particularly concerned that a fundamental element of the OPFA’s case against Mr. Robertson was that he could not rely on having been supervised in his work by a Registered Professional Forester, which would provide him with a defence to a breach of s. 13 of the Act. Through Mr. Van Damme’s opinion, the OPFA was taking the position that James Steele, who is a Registered Professional Forester, was either incapable of or in breach of OPFA’s rules in supervising Mr. Robertson, thus disqualifying Mr. Robertson from an exception under the Act. At the court attendance in May, I did not think it fair or appropriate for an application procedure to determine whether both Mr. Robertson and also Mr. Steele had violated the Professional Foresters Act, 2000.

[7] I told the parties that I was going to order a trial, but when they both indicated reluctance to proceed in that way, because they both had already made a considerable expenditure of legal resources and because it is common for matters of this nature to proceed by application, I decided instead to direct the parties to focus their attention on several issues that could fairly be dealt with by application. Depending on the outcome of those issues, it might not be necessary to have a trial or the trial would be more manageable. I, therefore, adjourned the application to a fixed date, and I directed the parties to return to argue four focal point issues; namely: (1) Is the evidence of Mr. Van Damme admissible? (2) Is the evidence of Mr. Hovingh admissible? (3) Did Mr. Robertson use inappropriate titles? (i.e., Did Mr. Robertson contravene s. 14 of the Act?) and (4) Is the competency and adequacy of supervision of the Registered Professional Forester(s) that supervised Mr. Robertson a factor in determining whether Mr. Robertson engaged in unauthorized practice?

[8] The application now returns to the Court, and since Mr. Robertson no longer relies on Mr. Hovingh’s opinion evidence, I need only decide three issues plus the OPFA’s motion to amend its Notice of Application. I may also decide the matter of remedies, which was an issue also argued during the hearing of the application.

[9] For the reasons set out below, I grant the motion to amend the Notice of Application.

[10] For the application, for the reasons set out below, in my opinion: (1) Mr. Van Damme’s opinion evidence is not admissible; (2) the competency and adequacy of supervision is not a factor in determining whether Mr. Robertson engaged in unauthorized practice; and (3) Mr. Robertson did not contravene s. 14 of the Act.

[11] It is further my opinion, that for the reasons set out below, it can now be determined that: (1) the Respondents did not breach s. 13 of the Act, save possibly with respect to three unsupervised silviculture (i.e. the branch of forestry associated with managing the growth and quality of forests) prescriptions for which prosecutions under the Act would be statute-barred; and (2) it is, moreover, arguable that the Respondents have exceptions for the three unsupervised prescriptions, but it is not necessary to decide the point, because if there were breaches of the Act, the breaches would not justify any injunctive order against the Respondents. Similarly, any non-compliance with OPFA by-laws would not justify the injunctive relief being sought of the OPFA.

[12] With no sanctionable breach of s. 13 and with no breach of s. 14 of the Act by Mr. Robertson, the OPFA’s application is dismissed.

B. OVERVIEW

[13] By way of summary of my Reasons for Decision, Mr. Van Damme’s opinion evidence that both sections of the Act were breached by the Respondents is not admissible because: (1) although well qualified to be an expert about the practice of professional forestry, he was not an independent and unbiased expert; and (2) he was opining about a legal matter (i.e., the interpretation and application of ss. 13 and 14 of the Professional Foresters Act, 2000), and his opinion does not meet the test for admissibility for opinion evidence.

[14] Assuming that Mr. Van Damme was an independent and unbiased expert, his opinion about the non-availability of the exceptions found in the Act was not admissible because this was a matter of law or mixed fact and law for the court to determine. His expert evidence on the issue of exceptions did not meet the test for the admission of opinion evidence.

[15] Assuming that Mr. Van Damme was an independent and unbiased expert, his opinion would have been admissible to establish that some of the work performed by the Respondents; i.e., “the designing, specifying or approving of silvicultural prescriptions and treatments” was work within the scope of practice of a professional forester. That finding, however, was confirmed by the evidence of the other witnesses, and indeed that finding was not denied, nor could it be denied, by the Respondents, whose defence was that they were entitled to rely on the exceptions found in the Act to what otherwise would be practicing professional forestry.

[16] The evidence that I shall describe in more detail below, establishes that save perhaps for three unsupervised silviculture prescriptions, the Respondents have not breached s. 13 of the Act, and, it is at least arguable that there is no breach with respect to the three unsupervised prescriptions, but in any event, those breaches would not justify an injunction order.

[17] In my opinion, as a legal and factual matter, the Respondents were entitled to the exemptions in the Act. In particular, in my opinion, if Mr. Steele’s supervision of Mr. Robertson was inadequate or improper, that was a matter between the OPFA and Mr. Steele, and Mr. Steele’s alleged inadequate supervision does not disqualify the Respondents from the exception found in the Professional Foresters Act, 2000.

[18] Further the evidence establishes Mr. Robertson has not breached s. 14 (prohibited designations) of the Act. In my opinion, the OPFA’s interpretation of the section was not correct, and the evidence did not establish that Mr. Robertson used the designation “Registered Professional Forester,” “Professional Forester” or the initials “R.P.F.” or “P.For.” Further, there was no evidence that Mr. Robertson had used a name, title, abbreviation or description implying or which might lead to the belief that he was a member of the OPFA or a Registered Professional Forester.

[19] Based on the above holdings, Mr. Robertson is entitled to move for a judgment dismissing the application, and it is not necessary for a trial.

C. PRELIMINARY MATTERS

[20] After I adjourned the matter in May, the OPFA asked the Respondents to consent to the filing of an Amended Notice of Application.

[21] The Respondents were prepared to consent to most of the amendments to the Notice of Application, but they objected to the delivery of a new affidavit from Mary Stack dated April 4, 2014, unless they could deliver a reply affidavit from Mr. Robertson dated April 24, 2014.

[22] The Respondents’ consent to the delivery of Ms. Stack’s affidavit was also conditional on the application being adjourned with respect to the new factual matters and issues raised by Ms. Stack’s affidavit. Those factual matters and issues are largely associated with the significance of the OPFA’s 2012 by-laws to the complaint against Mr. Robertson, who had become a provisional member of the OPFA in January 2014.

[23] The parties could not come to an agreement, and the OPFA brought a motion for leave to amend the Notice of Application.

[24] At the hearing of the application, the OPFA agreed that both affidavits could be filed, and that removed an obstacle to the motion to amend being unopposed. The last obstacle was the matter of whether the determination of the new facts and the new issues should be adjourned.

[25] At the time of hearing, having reviewed the proposed amendments and the affidavits of Ms. Stack and Mr. Robertson, it was my opinion that the appropriate and fair ruling was: (a) to grant the motion to amend the Notice of Application, most of which amendments were not opposed or which could not reasonably be opposed; (2) to accept the delivery of Ms. Stack’s and Mr. Robertson’s affidavits; and (3) not to adjourn any aspect of the application.

[26] At the time of the hearing, I saw no need to adjourn the application. Mr. Robertson had put his defence before the court, and that defence appeared to apply to the additional allegations of contraventions of the Act made by the OPFA, and his defence was independent of any need to cross-examine Ms. Stack.

[27] In any event, at the time of hearing, I assured Mr. Robertson that if, after hearing, it was necessary to adjourn the matter to provide him with an opportunity to answer new issues associated with the OPFA’s by-law, I would adjourn that aspect of the application.

[28] The result was that the OPFA’s motion was largely on consent or unopposed. In any event, I would have and did grant the motion to amend the Notice of Application on its merits.

D. EVIDENTIARY BACKGROUND

[29] The OPFA’s application was supported by the following evidentiary record:

• Affidavit dated July 5, 2013 from Terry Schwan, who is a Registered Professional Forester. He is the District Forester in the Guelph District with the Ministry of Natural Resources (“MNR”). Mr. Schwan was cross-examined.

• Affidavit dated July 9, 2013 from Dan Drennan, who is a Registered Professional Forester. Since 2010, he has been the Forester in the Land Management Department of the Niagara Peninsula Conservation Authority. Mr. Drennan was cross-examined.

• Affidavit dated July 19, 2013 from Scott McPherson, who is a Registered Professional Forester. He is employed as a Forest Productivity Specialist in the Southern Science & Information Section of the MNR in North Bay, Ontario. He is the chair of the Provincial Tree Marking Committee that administers the Ontario Tree Marking Certification Program.

• Affidavit dated August 1, 2013 from Robert Spence, who is a Registered Professional Forester. He is the Administrator of the Managed Forest Tax Incentive Program (“MFTIP”) operated by the MNR in Peterborough, Ontario.

• Affidavit dated August 9, 2013 from Amy Shillington, who is a licensed private investigator who has worked as an investigator for several regulatory bodies in Ontario. She was retained by the OPFA to investigate Mr. Robertson. She interviewed 15 clients of Mr. Robertson.

• Affidavit dated October 17, 2013 from Laird Van Damme, who is a Registered Professional Forester and an adjunct professor in forestry. He was asked by the OPFA to provide an opinion about the conduct of Mr. Robertson. Mr. Van Damme is a former president of the OPFA (1994). Mr. Van Damme was cross-examined.

• Affidavit dated April 4, 2014 from Mary Stack. Ms. Stack is the Supervisor, Marketing and Community Relations/Privacy Officer at the Niagara Peninsula Conservation Authority.

• Affidavit dated July 3, 2014 from Stacie-Marie Gayle, a legal assistant for counsel to the OPFA in support of the motion to amend the Notice of Application.

[30] The Respondents resisted the application with the following evidentiary record:

• Affidavits of Paul Robertson dated February 10, 2014 and April 25, 2014. Mr. Robertson was cross-examined.

• Affidavit dated February 7, 2014 from James Steele, who is a Registered Professional Forester. Mr. Steele is currently employed by the MNR as the Manager of Evaluation and Standards Section, which is part of the Forests Branch of the MNR. Mr. Steele was cross-examined.

• Affidavit dated February 6, 2014 from Spencer Ray, who was a client of the Respondents.

• Transcript of the examination of James Parker, Enforcement Coordinator for the OPFA, who was summonsed as a witness.

• Transcript of the examination of Albert Hovingh, who is a Registered Professional Forester, who was summonsed as a witness.

E. STATUTORY BACKGROUND

[31] The OPFA is the governing body authorized by the Professional Foresters Act, 2000 to regulate the practice of professional forestry in the province of Ontario in the public interest.

[32] The relevant statutory provisions from the Professional Foresters Act, 2000 and its regulations are set out in Schedules “A” and “B” of these Reasons for Decision.

[33] By way of summary of the statutory background, s. 3(1) of the Act defines the practice of professional forestry, and s. 3(2) excludes certain acts performed in relation to the management or manipulation of forests from the practicing of professional forestry. (Mr. Robertson relies on these exceptions.)

[34] For present purposes, the relevant portions of s. 3 are set out below:

Scope of Practice

3.(1) The practice of professional forestry is the provision of services in relation to the development, management, conservation and sustainability of forests and urban forests where those services require knowledge, training and experience equivalent to that required to become a member under this Act and includes,

(a) the designing, specifying or approving of silvicultural prescriptions and treatments, including timber harvesting; ….

Exclusions

(2) The practice of professional forestry does not include acts performed in relation to the management or manipulation of forests if they are performed, …

(b) by a person acting within the scope of practice of a profession, trade or occupation that is listed in the regulations; … [see O. Reg. 145/01]

(d) by persons acting under the supervision of a member;

[35] Ontario Regulation 145/01 lists the professions, trades or occupations for the purposes of the exception found in s. 3(2)(b) of the Act. Section 4 of the Regulation states:

Excluded acts

4. For the purposes of clause 3 (2) (b) of the Act, a person who performs an act in relation to the management or manipulation of forests that is within the generally accepted scope of any of the following professions, trades or occupations is not practising professional forestry when so acting, unless the person is a registered professional forester:

5. …

6. Forest management plan approver certified under the “Managed Forest Tax Improvement Program”.

7. Certified tree marker. ….

[36] The reference in paragraph 2 of s. 4 of the Regulation to a “forest management plan approver” is a reference to the Managed Forest Tax Incentive Program (“MFTIP”), which is managed by the MNR. The MFTIP offers a reduction in property taxes to landowners of forested land who prepare a plan and who agree to be good stewards of their property. Landowners must prepare or have prepared a management plan for a 20 year period. The plan must be approved by a “managed forest plan approver,” who is a person certified by the MNR to be a plan approver.

[37] The reference in paragraph 3 to a “certified tree marker” is a reference to a person who has passed a course offered by several community colleges who are authorized by the MNR to certify a person as a tree marker. A tree marker identifies trees in a forest that can be partially harvested.

[38] Section 4 of the Act continues the OPFA as a body corporate without share capital with objects and powers defined in s. 5. Sections 6 to 16 concern the governance of the OPFA.

[39] Section 13 provides that no person shall engage in or hold himself, herself or itself out as able to engage in the practice of professional forestry, unless the person holds a certificate of registration issued by the OPFA. Section 13 states:

13. No person shall engage in or hold himself, herself or itself out as able to engage in the practice of professional forestry unless the person holds a certificate of registration issued by the Association.

[40] Section 14 deals with membership in the OPFA and s. 14(7) (prohibited designation) provides that no person, other than a member, shall use the designation “Registered Professional Forester” or the initials “R.P.F.”, or any name, title, abbreviation or description in any language implying or which may lead to the belief that the person is a registered member of the OPFA, including the term “Professional Forester” or the initials “P. For.” Section 14 states:

Membership

14. (1) Every person who holds a certificate of registration issued by the Association is a member, subject to the conditions or limitations to which the certificate is subject.

Designation

(6) Every member of the Association shall have the right to use the designation “Registered Professional Forester” and may use the initials “R.P.F.” indicating that he or she is a registered professional forester unless the by-laws provide otherwise.

Same, prohibition

(7) No person, other than a member, shall use the designation “Registered Professional Forester” or the initials “R.P.F.”, or any name, title, abbreviation or description in any language implying or which may lead to the belief that the person is a registered member of the Association, including the term “Professional Forester” or the initials “P.For.”.

[41] Part III of the Act (ss. 17-24) addresses how a person applies for registration. Section 19 provides that the Registration Committee shall instruct the Registrar to issue a certificate to any person who submits an application in accordance with the by-laws and who meets the qualifications and requirements set out in the by-laws.

[42] Part IV of the Act (ss. 25-26) establishes a Complaints Committee to investigate complaints regarding the conduct or actions of a member of the OPFA.

[43] Part V (ss. 27-46) establishes a Discipline Committee to hold a hearing and determine any allegation of incapacity, professional misconduct or unskilled practice of forestry on the part of a member of the OPFA.

[44] Part VI (s. 47) provides for appeals to court.

[45] Part VII (ss. 48-51) provides for Registrar’s Investigations.

[46] Part VIII (ss. 52-54) provides for the enactment of regulations and by-laws.

[47] Part IX (ss. 55-63) contains miscellaneous provisions including a provision for offences under the Act.

[48] Pursuant to s. 62(1), every person who contravenes s. 13 is guilty of an offence and liable to a fine of not more than $15,000 for the first offence and not more than $30,000 for each subsequent offence. Pursuant to s. 62(2), every person who contravenes s. 14(7) is guilty of an offence and liable to a fine of not more than $5,000 for the first offence and not more than $15,000 for each subsequent offence. Pursuant to s. 62(6), proceedings shall not be commenced in respect of an offence under s. 13 or s. 14(7) after two years after the date on which the offence was, or is alleged to have been, committed.

[49] Pursuant to s. 59 of the Act, the OPFA may apply to a judge of the Superior Court for an order directing a person to comply with any provision of the Act, its regulations and the by-laws under the Act, and upon the application, the judge may make the order or such other order as the judge thinks fit.

F. FACTUAL AND PROCEDURAL BACKGROUND

1. Introduction

[50] To understand the issues to be resolved on this application, it is necessary: to learn something about the history of the regulation of professional forestry in Ontario; to describe Mr. Robertson’s career and work in forestry including the involvement of Mr. Steele; to describe the complaint made against the Respondents; to describe the prosecution of the application now before the court; and to review the evidence advanced to prove or to rebut the alleged violations of ss. 13 and 14 of the Professional Forester Act, 2000, including the opinion evidence of Mr. Van Damme and the observation evidence of Messrs. and Mesdames Schwan, Drennan, McPherson, Shillington, Stack, Gayle, Robertson, Steele, Ray, Parker, and Hovingh. I will describe these factual matters in this section of my Reasons for Decision.

[51] To understand the issues to be resolved on this application, it is helpful in this introduction to summarize immediately and then detail later: (a) how it came about that the OPFA decided to bring an authorized practice application against Mr. Robertson, whose forestry business the OPFA has known about for 24 years; (b) how the OPFA went about making its case that Mr. Robertson was breaching ss. 13 and 14 of Professional Foresters Act, 2000; and (c) how it has prosecuted that case.

[52] By way of that summary, in 1988, Mr. Robertson graduated from the Forest Resource Management Program at the University of New Brunswick. After graduation, he became a certified tree marker and a forest management plan approver. In 1990, Mr. Robertson started his own business, Trees Unlimited Forestry Consultant, and although not a Registered Professional Forester, Mr. Robertson had no problems with the OPFA until 2013.

[53] In October 2013, Mr. Robertson was served with this application and he discovered that about a year earlier, in December 2012, Mr. Schwan, who had supervised some of his silviculture prescriptions back in 2008, had made an authorized practice complaint about him to the OPFA.

[54] As a result of Mr. Schwan’s complaint, the OPFA made an access to information request to the Niagara Conservation Authority and hired a private investigator, Ms. Shillington, to investigate Mr. Robertson. Among other things, Ms. Shillington interviewed 15 clients of Mr. Robertson.

[55] As a result of these investigations, the OPFA learned that Mr. Robertson used the titles or designations: “Sr. Forester,” “Sr. Forester/Principal Consultant,” “Forester” and “Professional Forester providing the Forest Management Plan or Prescription.” Based on this information, Mr. Van Damme opined that Mr. Robertson had breached s. 14 of the Professional Foresters Act.

[56] The OPFA also learned that Mr. Robertson had prepared silviculture prescriptions, which meant that unless an exception applied, it appeared that he had contravened s. 13 of the Act.

[57] For all but three of the silviculture prescriptions, Mr. Robertson could claim the exemption of having been supervised because his brother-in-law, Mr. Steele, a Registered Professional Forester, had supervised his work. The OPFA’s position, however, backed by Mr. Van Damme’s opinion, was that Mr. Robertson could not take the cover of the exception because Mr. Steele was not competent to supervise or because his supervision was inadequate or because Mr. Steele had not complied with the OPFA’s requirements for supervision.

[58] For the three unsupervised siliviculture prescriptions, Mr. Robertson relied on the exception for managed forest plan approver or for a certified tree marker. However, the OPFA obtained the testimony of Mr. McPherson, who is the chair of the committee that administers the Ontario Tree Marking Certification Program, and of Mr. Spence, who is the administrator of MFTIP, who deposed respectively that these exceptions were not available to Mr. Robertson.

[59] The OPFA commenced its application against the Respondents in October 2013, and the application came before the court in January, May, and August 2014.

[60] After the application was commenced, Mr. Robertson applied and became a provisional member of the OPFA. The OPFA then took the position that he had breached its by-law and sought an amendment of its Notice of Application to allege that Mr. Robertson had breached the by-law.

2. History of the Ontario Professional Foresters Association

[61] The predecessor to the Professional Foresters Act, 2000 was the Ontario Professional Foresters Act, 1957, S.O. 1957, c. 49, which established the OPFA as the licencing body for professional foresters in Ontario.

[62] In 2001, the Professional Foresters Act, 2000, came into force and continued the OPFA as the licencing body for professional foresters in Ontario. The OPFA is the governing body authorized by the Act to regulate the practice of professional forestry in the province of Ontario in the public interest.

[63] Neither the 1957 Act nor the 2000 Act require that all persons practicing forestry become Registered Professional Foresters. In other words, the Act envisions that persons may make a living practicing aspects of forestry without having to become a member of the OPFA.

[64] The Professional Foresters Act, 2000 includes a definition of the practice of forestry, which would include some of the activities of Mr. Robertson and his business. Section 3(1) of the Act includes the designing, specifying or approving of silvicultural prescriptions and treatments, including timber harvesting within the practice of professional forestry. As further discussed below, Mr. Robertson had prepared prescriptions under the supervision of Registered Professional Foresters and relies on the exceptions in the Act about practicing professional forestry.

[65] OPFA membership has declined from 1,000 to 550 members, and the OPFA is actively involved in efforts to reverse the trend, expand its membership, to include other occupations, and to raise public confidence in the forestry profession through effective regulation, including pursuing unauthorized practice complaints.

3. Mr. Robertson’s Career in Forestry

[66] In 1988, Mr. Robertson graduated from the Forest Resource Management Program at the University of New Brunswick. He has a B.Sc.F (Bachelor of Science – Forestry).

[67] For a few years after graduation, Mr. Robertson was employed by the Ontario Ministry of Natural Resources, the Niagara Peninsula Conservation Authority, and the Niagara Region.

[68] In 1990, Mr. Robertson started his own business, Trees Unlimited Forestry Consultant. The company profile indicates that it employs a team of foresters, forest technicians, botanists, and zoologists and specializes in complete forestry services on behalf of landowners.

[69] At the time when Mr. Robertson started his business, the practice of forestry in Ontario was governed by the Ontario Professional Foresters Act, 1957. This Act did not require foresters to become members of the OPFA, and the Act did not include a definition of the practice of forestry.

[70] In 1994, Mr. Robertson applied for membership in the OPFA. The OPFA accepted the application, subject to Mr. Robertson successfully completing the examination in Ontario Forest Policy. However, Mr. Robertson did not pursue the application, and instead, he joined the American Forestry Association, as well as the Ontario Woodlot Chapter.

[71] As part of his business activities, Mr. Robertson had dealings with, amongst others, the Niagara Peninsula Conservation Authority. On behalf of clients, he applied for permits under the Regional Municipality’s Tree and Forest Conservation By-law.

[72] Mr. Robertson provided forestry consulting services in the Region of Waterloo on the Chaplin and Langdon Hall properties. Where supervision was required, this work was supervised and approved by Mr. Hovingh, a Registered Professional Forester, who is Environmental and Stewardship Planner for the Region of Waterloo.

[73] Mr. Robertson testified that the Respondents’ work that falls outside of that of a Certified Tree Marker and a Managed Forest Plan Approver and that requires supervision is a very small part of what he does. He said, however, that the preparation of Managed Forest Plans under MFTIP accounts for a significant portion of the overall work of the Respondents and he submitted that this work does not require supervision from a Registered Professional Forester.

[74] In 2008, the provincial tree funding program, “Trees Ontario”, implemented a requirement that all planting prescriptions for funded projects be approved by a Registered Professional Forester. The Respondents’ prepared prescriptions, and Mr. Robertson’s planting prescriptions were supervised by Mr. Schwan, who is a Registered Professional Forester.

[75] At the end of 2008, Mr. Schwan no longer supervised Mr. Robertson’s work, and beginning in 2009, when necessary, Mr. Steele, another Registered Professional Forester, began to supervise Mr. Robertson’s work.

[76] Mr. Steele and Mr. Robertson became acquainted at university, and Mr. Steele is married to Mr. Robertson’s sister. I will return to the matter of Mr. Steele’s supervision of Mr. Robertson again later in these Reasons for Decision.

[77] There is no evidence that Mr. Robertson ever used the designation “Registered Professional Forester” or the initials “RPF.” With the additional evidence provided by Ms. Stark, the evidence establishes that Mr. Robertson used: (a) the title “Sr. Forester” 31 times; (b) the title “Sr. Forester/Principal Consultant” eight times; (c) the title “Forester” two times; and (d) the title “Professional Forester providing the Forest Management Plan or Prescription” two times. The details of his designations are set out in Schedule “C.”

[78] During argument, the OPFA indicated that the use of the words “principal consultant” standing alone was not objectionable and thus the evidence was that Mr. Robertson used the title Sr. Forester, 39 times.

[79] On October 30, 2013, Mr. Robertson was served with the Application now before the Court informing him of Mr. Schwan’s complaint and alleging that the Respondents were contravening the Professional Foresters Act, 2000.

[80] In January 2014, Mr. Robertson submitted an application for membership in the OPFA. He has been approved as a provisional member of the OPFA.

[81] In May 2014, the OPFA moved to have its Notice of Application amended to allege that as a provisional member, Mr. Robertson had breached the by-laws of the OPFA.

4. The Complaint Against the Respondents

[82] On December 3, 2012, Mr. Schwan wrote to Tony Jennings, Registrar of the OPFA, to complain that Mr. Robertson of Trees Unlimited was engaging in professional forestry while not a member of the OPFA. As evidence, Mr. Schwan enclosed a photograph of a posted Trees Unlimited sign and four documents showing that the Respondents had prepared prescriptions, including a prescription for Jennison Construction.

[83] In his affidavit later delivered for the application, Mr. Schwan explained that he learned about the silviculture prescriptions for Jennison Construction because he was the person at MNR involved in the forestry aspect of Jennison Construction’s application for an aggregate licence to operate a gravel pit. In his affidavit, Mr. Schwan provided other examples of the Respondents having prepared prescriptions.

[84] In the context of this application, Mr. Steele testified that he had supervised Mr. Robertson’s work on the Jennison project. Following the approval of the Restoration Plan by the OMB, Mr. Steele applied his professional seal to the Restoration Plan.

[85] In his complaint letter, Mr. Schwan asked the Registrar to present the complaint to Council and that they act as quickly as possible to stop the unauthorized practice.

[86] Before filing his complaint, Mr. Schwan had spoken to Mr. Jennings, and they agreed that Mr. Robertson should become a member of the OPFA. Mr. Schwan admitted that his purpose in filing the complaint was to pressure Mr. Robertson into becoming an OPFA member.

[87] The OPFA guidelines for handling complaints recommend that the first step is to contact the person involved and send a “cease and desist” letter. However, in this instance, the OPFA did not contact Mr. Robertson to attempt to resolve the issue. It did not send a cease and desist letter. It did not attempt to arrange mediation. It did not contact the Certified Tree Markers or the MFPA associations. Rather, the OPFA set about to sue the Respondents.

[88] On June 17, 2013, the OPFA retained Amy Shillington to investigate the conduct of Mr. Robertson to determine whether: (a) he was using the titles “Professional Forester” or “Registered Professional Forester”; (b) he was engaging in the practice of professional forestry; or (c) he was holding himself out as able to engage in the practice of professional forestry. Ms. Shillington was provided with copies of prescriptions prepared by Mr. Robertson that the OPFA had obtained from the Niagara Peninsula Conservation Authority pursuant to the Municipal Freedom of Information and Protection of Privacy Act.

[89] Ms. Shillington interviewed 15 landowners who had received tree planning services from Mr. Robertson that included the preparation of silviculture prescriptions. The interviewees did not recognize the name J.D. Steele and said that they were not aware whether Mr. Robertson’s work had been supervised by anyone. Some of the interviewees believed that Mr. Robertson was a professional forester because he appeared very knowledgeable, detailed, and thorough.

[90] In July and August 2013, the OPFA obtained affidavits from Mr. Schwan, Mr. Drennan, Mr. McPherson, Mr. Spence, and Ms. Shillington.

[91] Mr. Drennan was a forester at the Niagara Peninsula Conservation Authority and was responsible for enforcing the Regional Municipality’s Tree and Forest Conservation By-law. Amongst other things, the by-law provided for the issuance of Good Forestry Practice Permits to permit the harvesting of trees. Permit applications required prescriptions from Registered Professional Foresters, although Mr. Drennan admitted that before he joined the Conservation Authority, it was common practice to approve Good Forestry Practice Permits without a prescription prepared by a Registered Professional Forester.

[92] Mr. Drennan deposed that the Respondents had applied for permits on behalf of various clients and that the applications included prescriptions apparently prepared by Mr. Robertson as a professional forester. In other applications to the Conservation Authority there were prescriptions stamped with the words "ONTARIO" and "REGISTERED PROFESSIONAL FORESTER", and the name of J.D. STEELE, the registration number 1503, and a signature, but no date. There was, however, no indication that Mr. Steele prepared the prescription or supervised its preparation. In any event, Mr. Drennan approved all the permit applications with prescriptions supervised and stamped by Mr. Steele.

[93] In his affidavit, Mr. McPherson deposed that tree markers are trained to implement silviculture prescriptions but not to create them. He deposed that Mr. Robertson was a Level I tree marker and that the Level I Tree Marking Course only trains students to understand, evaluate and follow a silvicultural or tree marking prescription, not to create one. Mr. McPherson deposed that the designing, specifying or approving of prescriptions is outside the scope of practice of a certified tree marker, unless the person is also a Registered Professional Forester or an associate member of the OPFA with the appropriate expertise and scope of practice.

[94] In his affidavit, Mr. Spence, deposed that Mr. Robertson was a plan approver under the MFTIP. Mr. Spence deposed that managed forest plans under the MFTIP would not include a prescription, unless the person who prepares the plan is both a plan approver and a Registered Professional Forester or an associate member of the OPFA with the appropriate expertise and scope of practice. Further, he deposed that a person who is certified under the MFTIP cannot prepare a prescription unless the person is also a Registered Professional Forester or an associate member of the OPFA with the appropriate expertise and scope of practice. He said that it is not within the scope of practice of a certified MFPA under the MFTIP to prepare forest management prescriptions, unless the person is also a Registered Professional Forester or an associate member of the OPFA with the appropriate expertise and scope of practice.

[95] The OPFA retained Mr. Van Damme for a report, and he swore his affidavit on October 17, 2013. He attached his report. He based his opinion on the affidavits of Mr. Schwan, Mr. Drennan, Mr. McPherson, Mr. Spence, and Ms. Shillington. Mr. Van Damme’s opinion was formed without the benefit of having evidence from Mr. Robertson or Mr. Steele.

[96] On October 30, 2013, Mr. Robertson was served with this application containing the complaint of Terry Schwan. In his complaint, Mr. Schwan stated that Mr. Robertson had been involved in unauthorized practice. Mr. Schwan did not complain about the use of inappropriate titles or designations.

[97] Notwithstanding that Mr. Robertson’s activities had been ongoing for 23 years, the OPFA’s application was the first notice of a problem, and it came without the prior consultation recommended by the OPFA’s guidelines.

[98] The Application was returnable on January 9, 2014, and on that day, the application came on before me. Mr. Robertson asked the OPFA for a consent adjournment so that he could complete arrangements to retain counsel and to file responding material. This request was opposed unless Mr. Robertson agreed to a consent interim interlocutory injunction, which Mr. Robertson was not prepared to do.

[99] I granted the adjournment request without terms and scheduled the application to return before me on May 16, 2014.

[100] As explained above, on May 16, 2014, I adjourned the application again. I froze the evidentiary record and directed the parties to return on August 7-8, 2014 to argue four discrete issues, the most significant of which concerned the use to be made of Mr. Van Damme’s evidence that Mr. Robertson had breached ss. 13 and 14 of the Professional Foresters Act, 2000.

5. Mr. Steele’s Supervision of the Respondents

[101] Since his graduation in 1986 from Lakehead University, James Steele has been engaged in forestry. He became a Registered Professional Forester in 1987, and he became an employee of the MNR, where he continues to be employed. He currently is Manager of Evaluation and Standards Section of the Forests Branch of the MNR, where he supervises a group of 21 employees, approximately half of whom are Registered Professional Foresters.

[102] In the late 1980's and early 1990's, Mr. Steele was an Area Forester at the MNR office in Dryden, Ontario, where he supervised foresters and forest technicians. He also approved forest prescriptions.

[103] Mr. Steele deposed that for over 24 years, his work at the MNR has included supervising, among others, Registered Professional Foresters, foresters, forest technicians, geographic information system specialists, and biologists.

[104] In his current position, Mr. Steele prepares the province-wide report “The State of Ontario’s Forests”, which is tabled every five years in the Legislature and available on the OPFA website.

[105] In 2009, Mr. Robertson, who, as noted above, is Mr. Steele’s brother-in-law, asked him to supervise his work designing silviculture prescriptions. Since that time, Mr. Steele has supervised and approved approximately 25 prescriptions per year, the majority of which were for planting and landscape restoration. Mr. Steele testified that Mr. Robertson’s work was detailed and well prepared.

[106] Mr. Steele deposed that to supervise Mr. Robertson, early each year, he was informed of the projects requiring supervision, and from the beginning of each project, he was copied with the correspondence between Mr. Robertson and the landowner. Mr. Steele asked questions and made recommendations. Mr. Steele was provided with the photographs from site visits and he was sent the plans for review.

[107] Mr. Steele deposed that he thoroughly reviews the plans and photographs and any other material provided, makes revisions where necessary, and, following consultation with Mr. Robertson, applies his professional seal to the plan approving its contents.

[108] Mr. Steele deposed that he followed up by reviewing post-plan survival assessments to which he would affix his seal. Approximately twice a year, he visits the Niagara Peninsula and conducts site visits to some of the projects that he supervised.

[109] Mr. Steele deposed that he did not approve any prescriptions without thorough review and consultation with Mr. Robertson.

[110] Mr. Steele says that he has never received a complaint with respect to the work from a landowner, the OPFA, the Niagara Peninsula Conservation Authority, the MNR or any other local authority or agency with respect to a prescription he supervised or any other work undertaken by the Respondents.

6. Mr. Van Damme’s Evidence

[111] Mr. Van Damme deposed that he was a Registered Professional Forester with 29 years of experience as a professional forester. He explained that he had been asked by Mr. Parker, the Coordinator of Enforcement for the OPFA, to provide an opinion on the conduct of Mr. Robertson.

[112] Mr. Van Damme has a degree Master of Science in Forestry. He has been an adjunct professor at the Faculty of Forestry at Lakehead University for the past 20 years, including teaching silviculture about southern forests. Mr. Van Damme was the Director of the Ontario Advanced Forestry Program at Lakehead University/University of Toronto from 1991-1996.

[113] Mr. Van Damme was president of the OPFA in 1994 and he has been a participant in its committees. He has lobbied for an expansive definition of the scope of practice of Registered Professional Foresters, a diminishment of exceptions to registration, and an expansion of the membership of the OPFA.

[114] As noted above, after Mr. Van Damme was retained to give an opinion in the case at bar, he reviewed: (a) the Notice of Application; (b) the Certificate of the Registrar of the OPFA; (c) the affidavit of Mr. Schwan; (d) the affidavit of Mr. Drennan; (e) the affidavit of Ms. Shillington; (f) the affidavit of Mr. McPherson, and (g) the affidavit of Mr. Spence.

[115] It was Mr. Van Damme’s opinion, that if the evidence was accurate that: (a) Mr. Robertson used the designation "Registered Professional Forester" or the initials "R.P.F.", or any name, title, abbreviation or description in any language implying or which may lead to the belief that he is a registered member of the OPFA, including the term "Professional Forester" or the initials "P.For;" (b) held himself out as able to engage in the practice of professional forestry; and (c) engaged in the practice of professional forestry.

[116] Mr. Van Damme attached to his affidavit his expert report dated October 16, 2013, and he deposed that he believed that the content of his report was true and accurate. Mr. Van Damme’s report has eight headings; namely:

(1) Education and training that professional foresters receive;

(2) Overview of what professional foresters do in the course of their typical practice and the importance of these activities;

(3) Scope of practice of a professional forester;

(4) Describe the act of designing, specifying or approving of silvicultural treatments, including timber harvesting;

(5) Opinion related on whether Paul Robertson: …;

(6) What are the required elements of supervision in order to fit within the exclusion in para. 3(2)(d) of the Professional Foresters Act 2000 (the practice of professional forestry does not include acts performed in relation to the management or manipulation of forests if they are performed by persons acting under the supervision of a member)?;

(7) Opinion on whether Paul Robertson fits within the exclusion in paragraph 3(2)(d) of the Professional Foresters Act 2000 – …;

(8) Describe the risks, if any, associated with an untrained unregistered person engaging in the practice of professional forestry/acting as a professional forester.

[117] Mr. Van Damme’s opinion about the scope of the practice of a professional forester are set out in part (3) of his report where he states:

3. Scope of practice of a professional forester

Over the last fifty years the scope of forestry has expanded in terms of forest values, time frames and spatial scales. The diagram below is from one of my publications and illustrates this point where society's values associated with the forest have expanded well beyond timber in the short term to many values and longer time horizons.

While the scope of practice has expanded in practical terms under these new policies, the OPFA legislation is rather narrow in scope. The following excerpts are from the Professional Foresters Act, 2000:

Scope of practice

The practice of professional forestry is the provision of services in relation to the development, management, conservation and sustainability of forests and urban forests where those services require knowledge, training and experience equivalent to that required to become a member under this Act and includes,

(a) the designing, specifying or approving of silvicultural prescriptions and treatments, including timber harvesting; …

The legislation's scope of practice is limited to the above tasks and features exclusions for forest technicians, tree markers, and forest biologists. This was necessary to allow the legislation to pass in 2000 after an earlier OPFA private member's billed failed due in large part to fears by many civil servants that the new Act might threaten their jobs.

Although the OPFA is wisely pursuing an inclusivity policy and competency-based qualifications to allow allied disciplines such as forest ecologists to become members of the association, these innovations were late in coming. Hence there is dwindling membership in the OPFA and forestry school enrolment has declined, despite an expanded practice space and increasing demands upon the forests from society.

This expanded practice space is being filled by allied disciplines from new university and college programs devoted to conservation and environmental sciences. This failure of the OPFA and foresters to adapt also allowed the engineering profession to dominate the field of environmental assessment (EA) emerging in the 1970s, when most of the required skills for EAs are possessed by foresters.

As a result, institutional and legislative forces have led to a more narrow definition of the scope of practice than that which I advocate. Nonetheless, this case is in a realm of practice consistent with the legislative definition of scope of practice and operates well within what would be considered traditional forestry practice.

[118] Mr. Van Damme’s opinion with respect to the conduct of Mr. Robertson and of Mr. Steele are set out in parts (5), (6), and (7) of his report, as follows:

5. Opinion related on whether Paul Robertson:

a. Used the designation "Registered Professional Forester" or the initials R.P.F., or any name, title, abbreviation or description in any language implying or which may lead to the belief that he is a registered member of the Ontario Professional Foresters Association, including the term "Professional Forester" or the initials "P.For" ["R.P.F.]

i. Yes

b. Held himself out as able to engage in the practice of professional forestry, and

i. Yes

c. Engaged in the practice of professional forestry.

i. Yes.

6. What are the required elements of supervision in order to fit within the exclusion in para 3(2)(d) of the Professional Foresters Act 2000 (the practice of professional forestry does not include acts performed in relation to the management or manipulation of forests if they are performed by persons acting under the supervision of a member)?

The supervisor must supervise practices for which they are qualified by virtue of experience or training. Often the supervisor's position is defined within an organizational body responsible for managing a forest. For example, a forester may have several forest technicians working under their direct supervision in a forest management company. In other forms of practice, the supervisor may be an expert or peer at arms-length with the necessary knowledge of both the subject matter and the actual operations to allow them "ownership" of successful outcomes or errors and omissions.

The OPFA provides guidance to members on supervision as follows:

"A member can delegate responsibilities to a non-member but it must be reasonable delegation, subject to proper supervision and control. The test to be applied is whether the proximity of supervision is such that the member can reasonably monitor and accept responsibility for work of eth person being supervised."

Furthermore under the OPFA Code of Ethics state:

"3. Credibility - A member shall undertake only work that he or she is competent to perform by virtue of training and experience and, where advisable, shall retain and co-operate with other professional foresters and specialists and, further, shall endorse only those plans, reports, maps and specifications that he or she produces or directly supervises."

7. Opinion on whether Paul Robertson fits within the exclusion in paragraph 3(2)(d) of the Professional Foresters Act 2000 - did Paul Robertson perform acts management or manipulation of forests if they are performed by persons acting under the supervision of a member)

The supervising RPF, James Steele, in this case is not a certified tree marker or trained under the MFTIP, yet he signed and sealed prescriptions prepared by Paul Robertson that requires these skills and training certifications. The supervising R.P.F. did not date his certification of the plans and prescriptions in breach of OPFA use of seal policy. The supervisor lives in Sault Ste. Marie (500 km north of the forests in this case) and is a senior civil servant engaged in forest information management and hence likely not to have much experience in southern hardwood silviculture. In my opinion, these observations fails the test of proximity of supervision is such the member can reasonably monitor and accept responsibility for work of the person being supervised. In addition, it appears that the supervisor is supervising work that he may not be qualified to do and if so is in breach of the OPFA Code of Ethics. For these reasons, it is my opinion that Paul Robertson does not fit within the exclusions allowed by the OPFA Act (2000) paragraph 3(2)(d).

[119] Mr. Van Damme was cross-examined. Mr. Van Damme testified that a professional forester endorses a plan by signing, sealing and dating the plan. Accountability was the purpose for applying the seal. He said that a professional forester shall apply his or her seal, sign and date only those plans, reports, maps and specifications that he or she produces or directly supervises. Mr. Van Damme said that if a professional forester is not competent by virtue of training and experience to undertake work, that professional forester is also not competent to supervise that work.

[120] Mr. Van Damme testified that if Mr. Steele was competent to supervise Mr. Robertson in the preparation of prescriptions, then the exclusion in s. 3(2)(d) of the Professional Foresters Act, 2000 would apply.

[121] However, in Mr. Van Damme’s opinion, Mr. Steele was not competent to supervise Mr. Robertson in the preparation of prescriptions. It was Mr. Van Damme’s view that given that Mr. Steele was a senior civil servant engaged in forest information management and hence unlikely to have much experience in southern hardwood silviculture, he could not reasonably monitor and accept responsibility for the work of Mr. Robertson, who was working in Southern Ontario. Mr. Van Damme did not think that Mr. Steele had the practice competency to qualify as Mr. Robertson’s supervisor and that he did not directly supervise Mr. Robertson. Mr. Van Damme testified that Mr. Steele either did not date his certification of the plans and prescriptions prepared by Mr. Robertson or when he did sign Mr. Steele’s seal was on the progress reports after the work had been done, not on the prescriptions.

[122] Mr. Van Damme testified that as a supervising Registered Professional Forester supervising work that he may not be qualified to do, Mr. Steele was supervising work that he was not competent to perform. Mr. Van Damme testified that Mr. Steele lacked the experience to be a credible supervisor.

[123] Mr. Van Damme testified that after he reviewed the affidavits of Mr. Robertson, Mr. Steele, and Mr. Ray, these affidavits did not change his opinion about unauthorized practice by Mr. Robertson.

G. DISCUSSION AND ANALYSIS

Introduction

[124] As noted at the outset of these Reasons for Decision, the parties to this application were directed to focus their attention on three focal issues that might be determinative of the OPFA’s application. In the discussion and analysis that follows, I shall discuss these three focal point issues and the matter of remedies and in light of the analysis, I come to the conclusion that it is not necessary to have a trial and that the OPFA’s application should be dismissed.

[125] The discussion and analysis can be organized under five headings: (1) Principles of Statutory Interpretation; (2) The Evidence of Mr. Van Damme; (3) The Competency and Adequacy of Mr. Steele’s Supervision; (4) Did Mr. Robertson Breach s. 13 of the Act? and (5) Did Mr. Robertson Breach s. 14 of the Act?

[126] Before getting underway, I note that it is necessary first to discuss the principles of statutory interpretation that apply to the interpretation of a statute regulating a profession in the public interest. That background in statutory interpretation is necessary in order to decide the focal point issues.

1. Principles of Statutory Interpretation

[127] The application before the court raises several issues of statutory interpretation about the Professional Foresters Act, 2000. To frame and to understand the analysis below, it is necessary at the outset to describe some general principles and also some special principles of statutory interpretation.

[128] When a court is called upon to interpret a statute, its task is to discover the intention of the legislator as expressed in the language of the statute: R. v. Dubois, [1935] S.C.R. 378 at p. 381; Goldman v. The Queen, [1980] 1 S.C.R. 976. An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects: Legislation Act, S.O. 2006, c. 21, Sched. F, s. 64 (1).

[129] The approach to interpretation is teleological or purposeful and to interpret a statute, the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislator: Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paras. 18-23; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.

[130] To interpret a statute, the words of the stature are interpreted in their ordinary grammatical sense unless there is something to show that the Legislature intended to use the words in a special sense: Victoria City v. Bishop of Vancouver Island (1921), 59 D.L.R. 399 at p. 402 (P.C.); Xerox of Canada Ltd. v. Regional Assessment Commissioner, Region No. 10, [1981] 2 S.C.R. 137.

[131] Where the purpose of the Act is to regulate a particular trade, business, or profession, and the words of the Act employ language that has a particular or special meaning to the practitioners of the trade, business, or profession, then the words are interpreted to have that particular meaning where it differs from the common or ordinary meaning of the words: R. ex rel. Doughty v. Manuel (1982), 38 O.R. (2d) 321 (C.A.); College of Physicians and Surgeons of Ontario v. Larsen (1987), 62 O.R. (2d) 545 (H.C.J.); Unwin v. Hanson, [1891] 2 Q.B. 115 at p. 119.

[132] Where a statute creates a professional monopoly, its provisions that protect the professional from completion must be strictly interpreted and activities that are not expressly prohibited are permitted: Pauze v. Gauvin, [1954] S.C.R. 15 at p. 18; Laporte v. College des Pharmaciens de la Province de Québec (1974), 58 D.L.R. (3d) 555 (S.C.C.); Alberta Veterinary Medical Assn. v. Pequin, 2002 ABQB 848.

[133] The court’s role is to interpret the statute not enact it; if the sense of the words of the statute is clear and unambiguous, the court must interpret the words literally and in accordance with their plain meaning even if the consequences are absurd or unjust: R. v. McIntosh, [1995] 1 S.C.R. 686 at p. 704; R. v. Huggins, 2010 ONCA 746 at paras. 17-18; Victoria (City) v. Bishop of Vancouver Island, [1921] A.C. 384 (P.C.); R. v. The Judge of the City of London Court, [1892] 1 Q.B. 273 (C.A.) at p. 290.

[134] It is presumed that the legislator does not intend absurd consequences and an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or it is incompatible with other provisions or with the object of the legislative enactment. Where there are competing plausible constructions, a statute should be interpreted in a way that avoids absurd results. Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at para. 27; Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 at para. 43.

2. The Evidence of Mr. Van Damme

(a) The Position of the Parties

[135] In the case at bar, the Respondents submitted that Mr. Van Damme was not qualified to be an expert because he wanted for independence and because his opinion was not necessary to assist the trier of fact to come to a conclusion.

[136] They submitted that Mr. Van Damme’s testimony and the evidence of his connection with the OPFA and his advocacy for a narrowing of exceptions that would allow foresters to be outside the governance of the OPFA showed that Mr. Van Damme had crossed the line to become an advocate for the OPFA and that he had lost the necessary objectivity to opine about whether Mr. Robertson’s activities came within the scope of practice of a professional forester.

[137] As some evidence of his want of objectivity and independence, the Respondents pointed out that Mr. Van Damme was not familiar with the requirements of the Rules of Civil Procedure about the duty of an expert and that he had not delivered the expert’s certificate required by the Rules.

[138] The Respondents submitted further that Mr. Van Damme’s opinion was inadmissible because Mr. Van Damme’s opinion about the meaning of supervision in the Act was not necessary to assist the court, which could form its own opinion about this issue of law or of mixed fact and law.

[139] In rebuttal, the OPFA submitted that expert evidence from professionals is routinely admitted in unauthorized practices cases. See: King Optical Group Inc. v. College of Opticians of Ontario, [2001] O.J. No. 4779 (C.A.); Assn. of Professional Engineers, Geologists and Geophysicists of the Northwest Territories v. Treminco Resources Ltd., [1995] N.W.T.J. No. 60 (S.C.); College of Dental Hygienists of Ontario v. Tota, [2008] O.J. No. 694 (S.C.J.).

[140] The OPFA submitted that in a proceeding by application, it is not necessary for Mr. Van Damme to be independent or to comply with the rules about expert reports, but, in any event, the OPFA submitted that he was independent, qualified to give opinion evidence, and his evidence was necessary and helpful to the court.

[141] Further, the OPFA submitted that any frailties in the independence of Mr. Van Damme went to the weight to be given to his evidence and not to its admissibility.

[142] The OPFA submitted that on an application, it is neither necessary nor required to file an acknowledgement of an expert’s duty (Form 53), as set out in Rule 53.03(2.1)7 of the Rules of Civil Procedure. It submitted that on an application, there is also no requirement to include the matters set out in Rule 53.03(2.1), which is a rule about expert’s reports at a trial, in the expert’s report tendered for use on the application.

(b) The Admission of Opinion Evidence

[143] Unless qualified as an expert or testifying about a matter of everyday human experience, a witness’s opinion about the facts is inadmissible; the general rule is that a witness does not opine but testifies as to facts he or she perceived: R. v. Graat, [1982] 2 S.C.R. 919. A witness that is qualified by education or experience to provide the trier of fact with an opinion that is outside the trier of facts’ knowledge and experience may provide an opinion to assist the trier of fact to come to his or her own conclusion: R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Abbey, [1982] 2 S.C.R. 24. For a witness to be qualified as an expert, his or her opinion must be relevant and necessary to assist the trier of fact and not precluded by an exclusionary rule.

[144] The four criteria for the admissibility of expert evidence are: (1) relevance; (2) the trier of fact needs assistance to determine the truth of the facts; (3) the witness is qualified to express an opinion by virtue of study, training, or experience; and (4) the absence of an exclusionary rule: R. v. Mohan, supra.

[145] The purpose of expert evidence is to assist the trier of fact to understand evidence outside of his or her range of experience and in order to provide this assistance, the expert must demonstrate objectivity and independence: Frazer v. Haukioja, [2008] O.J. No. 3277 (S.C.J.); Eastern Power Ltd. v. Ontario Electricity Financial Corp., [2008] O.J. No. 3722 (S.C.J.); Gutbir (Litigation guardian of) v. University Health Network, 2010 ONSC 6394.

[146] To be qualified as an expert witness, the witness must be independent, objective, and unbiased, and the witness should not be or become the advocate for the party who retained and called him or her to testify: Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297, [2012] O.J. No. 2042 (C.A.); Frazer v. Haukioja, [2008] O.J. No. 3277 at para. 139 (S.C.J.); Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600; Bank of Montreal v. Citak, [2001] O.J. No. 1096 (S.C.J).

[147] The issue of whether an experts lacks independence is typically addressed as a matter of weight with the evidence being admitted and then evaluated in the context of all the evidence: Abbott and Haliburton Co. Ltd. v. White Burgess Langille Inman (c.o.b. WBLI Chartered Accountants), 2013 NSCA 66; Henderson v. Risi, 2012 ONSC 3459; Andersen v. St. Jude Medical Inc., 2010 ONSC 5768.

[148] However, the court has the discretion not to admit expert evidence if satisfied that the evidence is so tainted by bias or partiality as to be of no assistance to the court: Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297 at paras. 105-113; Gutbir (Litigation quardian of) v. University Health Network, 2010 ONSC 6394; R. v. Docherty, 2010 ONSC 3628; Dulong v. Merrill Lynch Canada Inc. (2006), 80 O.R. (3d) 378 (S.C.J.); Royal Trust Corp of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (S.C.J.).

[149] Rule 4.1 of the Rules of Civil Procedure specifies the duty of an expert; the rule states:

Duty of Expert

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

[150] It may be noted that rule 4.1.01 governs “in relation to a proceeding”; i.e., it governs in relation to both actions and applications, which are the modes of a proceeding. Rule 4.1.01 does not impose higher or new obligations than existed at common law, and the purpose of the rule is to remind experts of their existing obligations: Henderson v. Risi, 2012 ONSC 3459 at para. 19.

[151] Rule 53.03 (1) govern the exchange of experts’ reports for trial. The rule states:

EXPERT WITNESSES

Experts’ Reports

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert.

[152] In Williams v. Canon Canada Inc., 2011 ONSC 6571 at paras. 117-121, Justice Strathy, as he then was, stated that although it was good practice to include the matters set out in rule 53.03(2.1) or that the Rules of Civil Procedure should be amended to require it, there was no express requirement in the current rules to provide the information for motions (or applications).

(c) Analysis

[153] Mr. Van Damme is very well qualified as an expert in terms of experience and expertise but, in my opinion, in the case at bar, he has been shown not to be objective and independent and I would not admit his opinion evidence.

[154] For what may be very good reasons, Mr. Van Damme is an advocate for an expansive definition of the scope for the regulation of professional foresters, but that advocacy and his loyalty to the OPFA belies his testimony that he can objectively speak about whether Mr. Robertson is entitled to the exemption for supervised work or the exemptions for his professional work as a tree marker or a plan approver.

[155] I accept that it may be appropriate for the leaders, former leaders, and current and former employees of a profession’s regulator to provide expert opinion evidence in an unauthorized practice application, and it is not that Mr. Van Damme has a strong connection to the OPFA that disqualifies him. He is entitled to be loyal to the OPFA, but he cannot lose his objectivity and become a partisan. His duty to the court overrides whatever duty or loyalty he has to the OPFA.

[156] I also accept that there is no express requirement under the Mohan test for the witness to manifest his objectivity and that objectivity is rather presumed, and I accept that on an application, while it may be a matter of good practice to provide the information set out in rule 53.03(2.1), it is not technically necessary to do so, but the problem remains that in the case at bar, Mr. Van Damme has manifested his absence of independence and objectivity.

[157] Mr. Van Damme’s lack of independence and objectivity was demonstrated by the haste of his reaching the conclusion that Mr. Steele was incompetent to supervise Mr. Robertson and that Mr. Steele had not provided adequate supervision. It is typical that an expert’s opinion is built upon hypothetical facts, but Mr. Van Damme builds his opinion just on the speculation that Mr. Steele is supervising work that he may not be qualified to do. Mr. Van Damme’s conclusions about Mr. Steele’s incompetence to supervise were reached with negligible information, without any analysis of whether the prescriptions prepared by Mr. Robertson were defective in any material way, and without hearing from Mr. Steele. Mr. Van Damme’s argument that because Mr. Steele is not a certified tree marker or trained under the MFTIP, he could not supervise sealed prescriptions that requires these skills and training certifications makes no sense and confounds the exemptions in the Act. In his rush to impugn Mr. Steele, Mr. Van Damme would require the supervisor to supervise acts performed in relation to the management or manipulation of forests performed by a person acting within the scope of a practice of a profession that is excluded from the practice of forestry.

[158] Mr. Van Damme’s report was prepared with only a vague understanding of the duties of an expert witness in how to assist the court. Mr. Van Damme appears to have closed his mind to the additional information provided by reviewing Mr. Steele’s evidence.

[159] As discussed in the next section of these reasons, it is in any event, a legal issue about how the supervision exception in the Professional Foresters Act, 2000 should be interpreted and the court does not require Mr. Van Damme’s assistance to determine how the word “supervision” should be interpreted.

[160] I, therefore, conclude that Mr. Van Damme’s opinion evidence is not admissible.

[161] One consequence of this conclusion is that from an evidentiary perspective, it undermines the OPFA’s case that Mr. Robertson cannot rely on the supervision exception available under s. 3(2)(d) of the Act.

3. The Competency and Adequacy of Mr. Steele’s Supervision of Mr. Robertson

[162] I move on to address the issue of the competency and adequacy of Mr. Steele’s supervision of Mr. Robertson as a factor in determining whether the Respondents are entitled to rely on the exceptions to practicing professional forestry found in the Professional Foresters Act, 2000. In other words, assuming that Mr. Van Damme’s opinion evidence was admissible, I will consider whether it is helpful and consider what weight should be given to it.

[163] It may be noted from the discussion immediately above that the issue of the significance of Mr. Steele’s role involves the interpretation of the Professional Foresters Act, 2000. I can immediately say that Mr. Van Damme’s opinion evidence is not necessary for the court to interpret the meaning of the exceptions in the Act. I do not need Mr. Van Damme’s assistance to interpret s. 3(2)(d) of the Act.

[164] In my opinion, as a matter of statutory interpretation, the quality of supervision is not a relevant consideration in determining whether Mr. Robertson is entitled to the supervision exception.

[165] The word “supervision” is not a term of art special for the forestry profession, and there is nothing in the Act that indicates that the word “supervision” should be given other than its everyday and well understood meaning.

[166] Mr. Van Damme’s and the OPFA’s interpretation of s. 3(2)(d) of the Act reads the paragraph as if it said that the person being supervised by a member of the OPFA must be a member “who is qualified and competent to provide supervision in accordance with the standards of supervision prescribed by the OPFA and who actually supervises in accordance with the standards of supervision prescribed by the OPFA.” With respect, this is an absurd interpretation of s. 3(2)(d) of the Professional Foresters Act 2000.

[167] Using the circumstances of the present case to demonstrate the absurdity of an interpretation that connects supervision to the competence of the supervisor, it would seem that if Mr. Van Damme’s speculation about Mr. Steele’s competence and inadequate supervision is wrong, then the Respondents would be entitled to the exception. It seems that had Mr. Robertson continued to employ Mr. Drennan as his supervisor, then the Respondents would be entitled to the exception, unless the OPFA were to decide that Mr. Drennan was not competent or not compliant with his supervisory duties. It would likely require a trial or a discipline proceeding by the OPFA to determine if Mr. Steele could provide and did provide adequate supervision, but why should Mr. Robertson’s entitlement to an exception depend upon an after-the-fact matter between the OPFA and one or more of its members?

[168] During the argument, to demonstrate the absurdity, I used the analogy of a driver of an automobile with a learner’s permit that authorizes driving in the company of a licenced person having his licence revoked because the companion was an incompetent driver who ought to have his or her own driver’s licence revoked.

[169] To further illustrate the absurdity, if it is in fact the case that Mr. Steele is an excellent supervisor, then the Respondents would still not be entitled to the exception if Mr. Steele slipped up, not in his supervision, but in such matters as properly dating and affixing his professional seal. It makes little sense that technical violations by the supervisor should disqualify the person being supervised.

[170] All that the legislation requires is that person claiming the exception have been supervised, and the Act does not require the person claiming the exception demonstrate that he or she was competently supervised which, of course, the person being supervised would be unable to do because it would require him or her to appraise the supervisor about the supervision, which is absurd.

[171] My interpretation of the Act is not a matter of strictly interpreting the provisions of an Act creating a professional monopoly. It is a matter of interpreting the plain meaning of the Act. And my interpretation is consistent with the principle that a statute passed to further the public interest should be liberally interpreted.

[172] My interpretation gives “supervision” its plain meaning in the context of an Act that is designed to permit numerous exceptions to the scope of what counts as practicing professional forestry, including exceptions for engineers, landscape architects, and professional planners, amongst others, in addition to tree markers and forest management plan approvers.

[173] Mr. Van Damme may be right that the Legislature ought to have narrowed the exceptions and made the Professional Foresters Act, 2000 a more robust and true monopoly for those practicing professional forestry, but Mr. Van Damme’s advocacy that there should be a more expansive definition of the scope of practice makes the point that this is a matter for the Legislature to change and that the current Act cannot be interpreted to require the person claiming an exception for supervision by a Registered Professional Forester to prove anything more than they were supervised by a Registered Professional Forester.

[174] It follows from the above analysis that Mr. Robertson was entitled to the exception provided for under the Act for the silvicultural prescriptions that he prepared under the supervision of Messrs. Drennan, Steele, and Hovingh.

4. Did Mr. Robertson Breach s. 13 of the Act?

[175] It was not disputed that during the time of the impugned activities that Mr. Robertson was not a Registered Professional Forester, and that during that time, the Respondents prepared silviculture prescriptions, which activity is included within the scope of practice of professional forestry. Thus, unless Mr. Robertson is entitled to an exception, the Respondents breached s. 13 of the Professional Foresters Act, 2000.

[176] The evidence and the analysis, described above, establishes that save for three silviculture prescriptions, the prescriptions were prepared by Mr. Robertson under the supervision of Mr. Steele or other Registered Professional Foresters. It is my conclusion above that Mr. Robertson is entitled to the exception for supervised silviculture prescriptions. Mr. Van Damme’s opinion to the contrary is not admissible nor is the opinion correct.

[177] It is my conclusion that the OPFA has not established a breach of s. 13 of the Act for any of the prescriptions supervised by Mr. Steele.

[178] There are, however, three unsupervised prescriptions. However, it is, at least, arguable that Mr. Robertson is entitled to an exception for these prescriptions, because he was a forest management plan approver certified under MFTIP or a certified tree marker.

[179] For present purposes, it is, at least, arguable that Mr. McPherson and Mr. Spence are wrong in their interpretation of the other exceptions that might be available to Mr. Robertson as a tree marker or a plan approver. There is a catch-22 quality to their interpretation of the Act that makes the exceptions unavailable in the circumstances where they might be necessary and available in circumstances where they are not needed. However, it is not necessary to decide the point because an injunctive remedy would, in any event, not be warranted for these possible breaches of s. 13 of the Act.

[180] An injunction is an equitable remedy, and in my opinion it would not be just or fair to impose an injunction for these violations of the Act where Mr. Robertson had a reasonable belief that he was certified or qualified to do the forestry work in question. It is worth noting that a prosecution for a breach of s. 13 of the Act would be statute-barred after two years and that the OPFA seems to have waited more than a decade before it decided to enforce the Professional Foresters Act, 2000 and that its enforcement went forward without following the OPFA’s more humane and sensible policy of communicating with the forester before commencing litigation.

[181] I conclude that either Mr. Robertson’s activities as a forester did not contravene s. 13 of the Act or if they did contravene the Act, no remedy is required other than perhaps a warning that in the future, he should not rely on the tree marker or plan approver exceptions if a silviculture prescription is involved in his work.

5. Did Mr. Robertson Breach s. 14 of the Act?

[182] The last issue to consider is whether Mr. Robertson breached s. 14 of the Professional Foresters Act, 2000.

[183] Subsections 14(6) and (7) state:

Designation

(6) Every member of the Association shall have the right to use the designation “Registered Professional Forester” and may use the initials “R.P.F.” indicating that he or she is a registered professional forester unless the by-laws provide otherwise.

Same, prohibition

(7) No person, other than a member, shall use the designation “Registered Professional Forester” or the initials “R.P.F.”, or any name, title, abbreviation or description in any language implying or which may lead to the belief that the person is a registered member of the Association, including the term “Professional Forester” or the initials “P. For.”.

[184] There is no evidence that Mr. Robertson used the designation “Registered Professional Forester.”

[185] There is no evidence that Mr. Robertson used the initials “R.P.F.” or the initials “P. For.”

[186] Through inadvertence, in two or three Good Forestry Permit applications prepared by Mr. Robertson’s staff, he was identified as the “professional forester having prepared the plan.” Thus, by the inaccurate filling out of a form, the OPFA submits that Mr. Robertson identified himself as a “professional forester,” which would be a contravention of s. 14.

[187] It should be noted, however, that the impugned permit applications were provided only to the Niagara Peninsula Conservation Authority to the attention of Mr. Drennan, who did not draw the error to the attention of Mr. Robertson at the time. Mr. Drennan’s evidence was that he was not in fact misled by this error in completing the form. In these circumstances, I would conclude that filling out the form would not lead to the belief that Mr. Robertson was a member of the OPFA, which Mr. Drennan in fact knew not to be the case.

[188] In any event, for reasons similar to those expressed above about s. 13 of the Act, there is nothing here that would merit granting injunctive relief.

[189] There is evidence that Mr. Robertson used the designation “Sr. Forester” approximately 40 times and the designation “Forester” two times.

[190] As a matter of statutory interpretation, in my opinion, it is not the case that the use of the words “Sr. Forester” or “Forester” may lead to the belief that the person using those words is a registered member of the OPFA. Using the designation forester or senior forester does not lead to the belief that the person is registered as a forester and using the designation forester or senior forester does not lead to the belief that the person is a member of a professional association of foresters.

[191] In my opinion using these designations implies no more than the person self-designating has some form of accreditation, training, or experience that may but may not include also being a member of a professional association of foresters.

[192] In my opinion, Mr. Robertson did not breach s. 14 of the Professional Foresters Act, 2000.

H. CONCLUSION

[193] It follows from the above analysis that there are no actionable breaches of s. 13 or s. 14 of the Professional Foresters Act, 2000. It also follows that the OPFA has no complaint that Mr. Robertson, as a provisional member, has breached the by-law of the OPFA.

[194] For the above reasons, the OPFA’s motion to amend its Notice of Application should be granted, but its Application should be dismissed.

[195] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Respondents’ submissions within 20 days of the release of these Reasons for Decision followed by the OPFA’s submissions within a further 20 days.

Perell, J.

Released: August 14, 2014

Schedule “A”

Professional Foresters Act, 2000

Definitions

1. In this Act,

“Association” means the Ontario Professional Foresters Association;

“by-laws” means the by-laws made under this Act;

“Council” means the Council of the Association;

“member” means a member of the Association;

“Minister” means the Minister of Natural Resources;

“Registrar” means the Registrar of the Association;

“Regulations” mean the regulations made under this Act.

Scope of Practice

3. (1) The practice of professional forestry is the provision of services in relation to the development, management, conservation and sustainability of forests and urban forests where those services require knowledge, training and experience equivalent to that required to become a member under this Act and includes,

(a) the designing, specifying or approving of silvicultural prescriptions and treatments, including timber harvesting;

(b) the appraisal, evaluation and certification of forests and urban forests;

(c) the auditing of forest management practices;

(d) the assessment of impacts from planned activities on forests and urban forests;

(e) the classification, inventory and mapping of forests and urban forests; and

(f) the planning and locating of forest transportation systems, including forest roads.

Exclusions

(2) The practice of professional forestry does not include acts performed in relation to the management or manipulation of forests if they are performed,

(a) personally by individuals on land which they own;

(b) by a person acting within the scope of practice of a profession, trade or occupation that is listed in the regulations;

(c) by persons responding to an emergency situation such as a forest fire;

(d) by persons acting under the supervision of a member;

(e) by students enrolled in a forestry education program and under the supervision of the course instructor in the program;

(f) by a member of the armed forces while on duty; or

(g) by a person engaged in scientific research.

Definition

(3) In this section,

“urban forest” means tree-dominated vegetation and related features found within an urban area and includes woodlots, plantations, shade trees, fields in various stages of succession, wetland and riparian areas.

Association continued

4. (1) The Association is continued under the name Ontario Professional Foresters Association in English and Association des forestiers professionels de l’Ontario in French.

Body corporate

(2) The Association is a body corporate without share capital.

Non-application

(3) The Corporations Act and the Corporations Information Act do not apply to the Association, except as specifically made applicable by the regulations. .

Objects

5. (1) The principal object of the Association is to regulate the practice of professional forestry and to govern its members in accordance with this Act, the regulations and the by-laws in order that the public interest may be served and protected. .

Same

(2) For the purpose of carrying out its principal object, the Association has the following additional objects:

1. To promote and increase the knowledge, skill and proficiency of its members in all things relating to forestry.

2. To establish, maintain and develop standards of knowledge and skill for members.

3. To establish, maintain, develop and enforce standards of qualification and standards of practice for the practice of professional forestry.

4. To issue, renew, amend, suspend, cancel, revoke and reinstate certificates of qualification and registration.

5. To establish, maintain, develop and enforce standards of professional ethics for members.

6. To receive and investigate complaints and allegations against members and to deal with issues regarding discipline, incapacity and unskilled practice.

7. To promote public awareness of the role of the Association and to communicate with the public on behalf of its members.

8. To provide vocational guidance to persons wishing to enter the forestry profession.

9. To perform any other duties and exercise any other powers as are imposed or conferred upon the Association under any Act.

10. To perform such additional functions relating to the practice of professional forestry that the Council considers desirable and that do not conflict with the intent or purpose of this Act, the regulations, or the by-laws. .

Powers

(3) For the purpose of carrying out its objects, the Association has the capacity and the powers of a natural person. .

13. No person shall engage in or hold himself, herself or itself out as able to engage in the practice of professional forestry unless the person holds a certificate of registration issued by the Association.

Membership

14. (1) Every person who holds a certificate of registration issued by the Association is a member, subject to the conditions or limitations to which the certificate is subject.

Designation

(6) Every member of the Association shall have the right to use the designation “Registered Professional Forester” and may use the initials “R.P.F.” indicating that he or she is a registered professional forester unless the by-laws provide otherwise.

Same, prohibition

(7) No person, other than a member, shall use the designation “Registered Professional Forester” or the initials “R.P.F.”, or any name, title, abbreviation or description in any language implying or which may lead to the belief

that the person is a registered member of the Association, including the term “Professional Forester” or the initials “P.For.”.

PART III REGISTRATION

Application for registration

17. (1) A person shall send an application for a certificate of registration to the Registrar in accordance with the by-laws. .

Referral to Registration Committee

(2) The Registrar shall refer all applications to the Registration Committee.

Composition of Registration Committee

18. (1) The Registration Committee shall be composed of a minimum of five and a maximum of 10 persons of whom,

(a) at least one is a member of the Council elected to the Council by the members of the Association;

(b) one is a member of the Council appointed to the Council by the Lieutenant Governor in Council; and

(c) the remainder may be members of the Association who are not members of the Council.

Quorum

(2) Three members of the Registration Committee constitute a quorum.

Registration

19. (1) The Registration Committee shall instruct the Registrar to issue a certificate to any person who submits an application in accordance with the by-laws and who meets the qualifications and requirements set out in the by-laws.

Grounds for refusal

(2) The Registration Committee shall instruct the Registrar not to issue a certificate of registration where, in the opinion of the Committee,

(a) the applicant does not meet the qualifications and requirements for the issuance of the certificate set out in the by-laws;

(b) the past conduct of the applicant affords reasonable grounds for believing that the applicant will not engage in the practice of professional forestry with honesty and integrity or in accordance with the law; or

(c) the applicant previously held a certificate that was revoked as a result of a decision of the Discipline Committee.

Terms, etc., attached

(3) Where the Registration Committee is of the opinion that a certificate of registration should be issued to an applicant with terms, conditions or limitations imposed,

(a) the Committee may instruct the Registrar to do so if the applicant consents to the imposition of the terms, conditions or limitation; and

(b) if the applicant does not give his or her consent, the Committee shall not instruct the Registrar to impose terms, conditions or limitations on the certificate unless notice is given to the applicant in accordance with subsection 20 (1). …..

Offence

62. (1) Every person who contravenes section 13 is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $15,000 and for each subsequent offence to a fine of not more than $30,000.

Same

(2) Every person who contravenes subsection 14 (7) is guilty of an offence and on conviction is liable for the first offence to a fine of not more than $5,000 and for each subsequent offence to a fine of not more than $15,000.

Same

(3) Every person who contravenes an order under subsection 32 (4) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 and for each subsequent offence to a fine of not more than $20,000.

Same

(4) Every person who contravenes subsection 48 (5) or (6) is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Corporation

(5) Where a corporation is convicted of an offence under subsection (1), (2), (3) or (4), the maximum fine that may be imposed is $25,000 on a first conviction and $50,000 on each subsequent conviction and not as provided in subsection (1), (2) or (3). .

Limitation period

(6) Proceedings shall not be commenced in respect of an offence under subsection (1), (2), (3) or (4) after two years after the date on which the offence was, or is alleged to have been, committed.

Schedule “B”

O. Reg. 145/01 under the Professional Foresters Act, 2000

PART I CODE OF ETHICS

Code of ethics

1. (1) A professional forester shall be governed by the Code of Ethics set out in this section in carrying out his or her professional duties.

(2) A member of the Ontario Professional Foresters Association observes the duties of the profession and honours his or her duties to citizens, employers and clients, fellow members and Ontario’s forests by embracing the following values:

1. Fidelity — A member works in the interest of and with fidelity to citizens, employers, clients and fellow members and provides services that are specifically related to the objectives and requirements of the employer or client.

2. Integrity — A member is obligated to disclose fully any direct or indirect pecuniary interests related to the work undertaken in his or her professional capacity and to take active measures to prevent the perception of any conflict of interest.

3. Credibility — A member shall undertake only work that he or she is competent to perform by virtue of training and experience and, where advisable, shall retain and co-operate with other professional foresters and specialists and, further, shall endorse only those plans, reports, maps and specifications that he or she produces or directly supervises.

4. Confidentiality — A member shall hold as confidential information concerning the business affairs, technical methods, processes or practices of employers or clients and shall only disclose such information with the consent of the employer or client or where required to do so by law.

5. Diligence — A member shall disclose to his or her employer or client the consequences of any action that may be harmful to their interests or the interests of any other party.

6. Respect — A member shall maintain the honour and integrity of the profession and act at all times with responsibility and dignity. A member is respectful of other professional foresters and behaves with courtesy and good faith toward them and celebrates the accomplishments of other professional foresters.

7. Commitment to learning — A member shall dedicate himself or herself to continuous improvement of his or her forestry science skills and use their knowledge and skills to aid public awareness of forestry in Ontario.

PART II PROFESSIONAL MISCONDUCT

Interpretation

2. In this Part and in Part I,

“conflict of interest” has the same meaning as is set out in the by-laws.

Acts of professional misconduct

3. For the purposes of the Act, professional misconduct includes the following:

4. An act or omission inconsistent with or contravening the Act, the regulations or the by-laws.

5. Failing to maintain a standard of practice of the profession or contravening a standard of practice of the profession as set out in the by-laws.

6. Practising the profession while the member’s ability to do so is impaired by any substance.

7. Failing to fulfil the terms of an agreement with a client or employer.

8. Revealing information concerning any professional service or any property which is the subject of a professional service to a person, other than the client or employer or another member engaged by the client or employer, except with the consent of the client or employer or when authorized or required to do so by law.

9. Providing, or attempting or offering to provide, services that are not reasonably useful or needed unless specifically requested by the client or employer, and failing to advise the client or employer that the services are not reasonably useful or needed.

10. Making a misrepresentation to a client or employer, or a prospective client or employer or, in a professional capacity, to a third party.

11. Abusing a client or employer, or a client or employer’s agent, verbally, physically or emotionally.

12. Misappropriating property from a client, employer or workplace.

13. Making a claim respecting the utility of services other than a claim that can reasonably be supported as professional opinion.

14. Guaranteeing a result or making a statement that a client or employer would reasonably understand as a guarantee of a result.

15. Charging a fee that is excessive in relation to the services performed.

16. Charging a fee for an unperformed service, except a fee for an appointment missed without at least 24 hours notice.

17. Adding a charge to a disbursement.

18. Knowingly submitting a false or misleading account or charge for professional services.

19. Failing to issue a statement or receipt when a statement or receipt is requested by a client or employer.

20. Failing to itemize the services provided, the fees for them and the disbursements charged when an itemized account is requested by a client or employer.

21. Reducing, or offering to reduce, an account for prompt payment without notifying the client of the terms of reduction before providing the pertinent service.

22. Charging interest on an account without notifying the client of the terms of the interest before providing the pertinent service, except where interest has been granted by a court.

23. Discontinuing professional services unless,

i. the client requests the discontinuation,

ii. alternative or replacement services are arranged with the concurrence of the client, or

iii. the client is given a reasonable opportunity to arrange alternative or replacement services or agrees with the discontinuation.

21. Selling or assigning any debt owed to the member for professional services. This does not include the use of credit cards to pay for professional services.

22. Having a conflict of interest.

23. Influencing a client or employer to change his or her will or other testamentary instrument.

24. Inappropriately using a term, title or designation in respect of the member’s practice.

25. Using a name other than the member’s name, as set out in the register, in the course of providing or offering to provide services within the scope of practice of the profession, except where the use of another name is necessary for personal safety, the employer and the Association have been made aware of the other name and that name is distinctive.

26. Failing to make or maintain records required by the Act, the regulations or the by-laws or that are appropriate to professional services offered.

27. Falsifying a record regarding professional services or relating to the member’s practice.

28. Failing to abide by a term, condition or limitation of a certificate of registration.

29. Failing to direct or supervise, or inadequately directing or supervising, an unregistered person.

30. Permitting, directing, counselling or assisting any person, other than a qualified member, to perform any act or function that should properly be performed by a qualified member.

31. Permitting, directing, counselling or assisting a member, student or other management team member to perform professional forestry or other functions for which he or she is not adequately trained or that he or she is not competent to perform.

32. Failing to inform the member’s client or employer of the member’s inability to accept responsibility in areas where special training is required or where the member is not competent to function without supervision.

33. Failing to advise a client or employer to obtain services from another forestry professional where a member knew or ought to have known that the client or employer required services that were outside the member’s scope of practice or within the member’s scope of practice but outside the member’s competency to perform.

34. Directly or by implication representing any person to be a member who is not a member.

35. Signing a report, plan or other document that contains a statement that the member knows or ought to know is false, misleading or otherwise improper.

36. Signing a report, plan or other document without ascertaining, or taking reasonable measures to determine, the accuracy or its contents.

37. Permitting a report, plan or other document to be issued in the member’s name, or without his or her concurrence, without personally signing it.

38. For any purpose related to the practice of professional forestry,

i. retaining or using the services of,

ii. employing or being employed by,

iii. maintaining a partnership or association with,

iv. directly or indirectly receiving, making or conferring any remuneration or benefit from or to, or

v. sharing or occupying space with a person whose registration is suspended or has been revoked or cancelled, except with the prior written consent of the Executive Committee and subject to the terms of that consent.

39. Failing to reply appropriately or within a reasonable time to a written inquiry received from the Association.

40. Failing to take reasonable steps to ensure that the requested information is provided in a complete and accurate manner where a member is required to provide information to the Association pursuant to the Act, the regulations or the by-laws.

41. Failing to appear before the Complaints Committee to be cautioned or admonished or failing to comply with an order of the Complaints Committee.

42. Failing to comply with an order of a panel of the Discipline Committee.

43. Failing to co-operate in an Association investigation.

44. Failing to abide by a written undertaking given by the member to the Association or to carry out an agreement entered into with the Association.

45. Failing to report an incident of professional misconduct, unskilled practice of forestry or unethical conduct of a member to the Association.

46. Making any statement, orally or in writing, calculated to belittle or injure the professional reputation of another member or unnecessarily commenting adversely upon any professional act of another member.

47. Touting or, except as permitted by this Regulation, soliciting professional business.

48. An act or omission relevant to the practice of professional forestry that, having regard to the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional conduct.

49. Failing to be responsible for the conduct of the member’s employees or agents and for the suitability and quality of their acts.

50. An act done or omission made by an employee or agent of the member that, if done or made by the member, would constitute professional misconduct.

PART III ACTS NOT CONSTITUTING PROFESSIONAL FORESTRY

Excluded acts

4. For the purposes of clause 3 (2) (b) of the Act, a person who performs an act in relation to the management or manipulation of forests that is within the generally accepted scope of any of the following professions, trades or occupations is not practising professional forestry when so acting, unless the person is a registered professional forester:

5. Natural resource technician and technologist.

6. Forest management plan approver certified under the “Managed Forest Tax Improvement Program”.

7. Certified tree marker.

8. Biologist.

9. Certified arborist.

10. Landscape architect.

11. Professional planner.

12. Certified Ontario or Canadian land surveyor.

13. Botanist.

14. Zoologist.

15. Professional engineer.

16. Certified property appraisers.

17. Agronomist.

Schedule “C”

Mr. Robertson’s Designations

Sr. Forester

Sr. Forester/Principal Consultant

Forester

Professional Forester providing the Forest Management Plan or Prescription

Jennison Construction Ltd. Clinton Pit: 2013 Borrow Pit Enhancement Area Restoration Plan

Reforestation Prescription.

February 11, 2013 letter to NPCA, enclosing a Firewood Harvest Plan.

in a Good Forestry Practices Permit Application dated December 11, 2012 submitted to NPCA.

in a Good Forestry Practices Permit Application dated December 11, 2012 submitted to NPCA.

Jennison Construction Ltd. Clinton Pit:

2012 Enhancement Area Restoration Plan

Reforestation Prescription.

January 11, 2013 letter to NPCA, enclosing a Good Forestry Practices Permit Application.

in a Good Forestry Practices Permit Application dated February 5, 2010 submitted to NPCA.

in a Good Forestry Practices Permit Application dated February 5, 2010 which he submitted to NPCA.

White Farm

2012 Reforestation Field Prescription

Stewart & Bureau Forest – Firewood Harvest Plan dated December 28, 2012, including a Silvicultural Prescription.

Martin Farm

2012 Reforestation Field Prescription

March 3, 2010 letter to NPCA, enclosing a Good Forestry Practices Permit Application.

Daly Farm

2012 Reforestation Field Prescription

in Firewood Harvest Plan dated February 9, 2010 including a Forest Management Prescription.

Cole/Dutrisac Farm,

2012 Reforestation Field Prescription

February 8, 2010 letter to NPCA, enclosing a Good Forestry Practices Permit Application.

Creek Haven Ranch

2012 Reforestation Field Prescription

in his February 8, 2010 letter to NPCA, enclosing a Good Forestry Practices Permit Application.

McDonald Farm

2012 Reforestation Field Prescription

Heartland Forest Harvest Plan dated February 2, 2010 including a Silvicultural Prescription.

Nelson Farm

2012 Reforestation Field Prescription

Lipianu Farm

2012 Reforestation Field Prescription

DeWit

2011 Reforestation Field Prescription

Mungrue

2011 Reforestation Field Prescription

Moore

2011 Reforestation Field Prescription

Fedyczko

2011 Reforestation Field Prescription

Poltavets

2011 Reforestation Field Prescription

Burke

2010 Reforestation Field Prescription

Crosby

2010 Reforestation Field Prescription

Rodrigues

2010 Reforestation Field Prescription

Harber Property

Reforestation Plan and Reforestation Prescription.

Czartowski Farm

2013 Reforestation Field Prescription

Hartsell Farm

2013 Reforestation Field Prescription

Beau Farm

2013 Reforestation Field Prescription

Bergsma Farm

2013 Reforestation Field Prescription.

Brunning Farm

2013 Reforestation Field Prescription

Bryson Farm

2013 Reforestation Field Prescription

Perreault Farm

2013 Reforestation Field Prescription

Potestio Farm

2013 Reforestation Field Prescription

Curik Farm

2013 Reforestation Field Prescription

Kerrio Farm

2013 Reforestation Field Prescription

Niagara Parks Commission

2014 Reforestation Field Prescription

Patricia and Chris Beau

2013 Reforestation Field Prescription

COURT FILE NO.: 13-CV-456891

DATE: 20140814

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ONTARIO PROFESSIONAL FORESTERS ASSOCIATION

Applicant

‑ and ‑

PAUL ROBERTSON, Personally, and PAUL ROBERTSON, Carrying on Business as Trees Unlimited or Trees Unlimited Forestry Consultant

Respondents

REASONS FOR DECISION

Perell, J.

Released: August 14, 2014