Case Report: Chisholm v. Watson [2011] ONSC 3600
Introduction
Professional Land Surveyors are bounded to adhere to the regulations put forth by law under the Surveyors Act (R.S.O. 1990, S.29). However, humans are prone to error and surveyors are of no exception. The question in place is then, how may a surveyor’s “error” affect his clients and other stakeholders of the property in question. Furthermore, how may a surveyor’s “error” be defined not as a mere mistake but rather negligence in the context of professional liability. This report will analysis in detail the following, regarding the Chisholm v. Watson case:
1. What is a surveyor’s duty or standard of care to a surveyor’s client’s neighbouring property owner? How is it different from a surveyor’s own client?
2. What defines the duty or standard of care? Why did the court in this decision not simply look to the Standards of Practice in Ontario Regulation 43/96 (passed under the Registry Act) and/or Ontario Regulation 216/10 (passed under the Surveyors Act) as defining such duty or standard of care?
3. Can a land surveyor whose opinion turns out to be “incorrect” in a Boundaries Act proceeding form a basis of finding liability to a client’s neighbour? Why or why not? Does it change if the question is asked in relation to a land surveyor’s own client? Why or why not?
Case Analysis
A land surveyor owes a duty or standard of care to his/her client from the moment the survey work is undertaken. A gratuitous promise is not held as a basis for the imposing of a surveyor’s standard of care, but through the rules of the law of tort, the surveyor can be held liable due to negligence. This implies directly between a surveyor and his/her client. In addition, a surveyor may also be held liable to a third person despite no existence of a contract between them such as with their own client.
A third person may hold a surveyor liable of losses caused by misrepresentation. Misrepresentation can be defined as founded upon one of three bases: Intent, Negligence, and Strict Liability (Prosser, 1966). Examples include, a surveyor intentionally performing false representation (intent), a surveyor not providing the standard of care or duty to the client thus impacting a third person (negligence), and strict liability when a surveyor believes a false statement to be true. In all three cases, the professional land surveyor can be held liable to a third person if negatively impacted in any way.
The standard of care referred to through the Ontario Regulation which states:
“When undertaking a project, a professional member shall ensure that the project meets all project requirements and specifications and that it complies with this Regulation.” O. Reg. 216/10, s. 2
Furthermore, the components of undertaking such survey project is clearly defined in Ontario Regulation 42/96 as:
“When undertaking a survey, a licensed member shall,
(a) refer to the documentary evidence related to the land under survey and the land adjoining the land under survey;
(b) carry out a thorough field investigation for the best available evidence of all lines, boundaries, and corners of the land under survey; and
(c) give priority to the evidence in accordance with common law and statute law.” O. Reg. 42/96, s. 3.
Two expert witnesses testified in this case proceeding, both with different opinions on whether Mr. Keith Watson failed to exercise the standard of care required of him. Izaak De Rijcke identified several deficiencies on the face of the survey performed by Mr. Watson, directly impeding Ontario Regulations mentioned above. In his expert opinion, Izaak stated that any one error individually could have been labelled as a ‘drafting’ error of little significance, however due to the numerous deficiencies found these errors collectively increased the severity and showed unacceptable professional surveyor competency. On the contrary, the expert witness presented by the Defendant, Dr. Lorraine Petzold who reviewed the statements provided by Mr. De Rijcke stated in her opinion that Mr. Watson did in fact meet the standard of care required. This is because Dr. Petzold testified that in her expert opinion despite the number of deficiencies found in Mr. Watson’s plan, it did not impact the decision on the location of the boundary.
Obtaining survey experts as witnesses in this case helped defend both the plaintiff as well as the defendant. It is important to note that the role of a surveyor as an expert witness is not to answer the question presented to the court, but rather his/her task is to comment on the manner in which another surveyor prepared a survey. Such concludes, that both expert witnesses in this case stated their expert opinion in whether the prepared survey was inadequate and the court used these testimonies to decide if injustice occurred.
Portraying a legal boundary on a survey correctly or incorrectly is different from the liability consequences of being found to be right or wrong. This is because the correctness of the survey may fall under making an error without being negligent, whereas liability consequences occur only when the surveyor is found to have made an error because of negligence. Liability consequences that resulted from making a negligent error usually involve paying for any damages and increased insurance premiums. An interesting decision made by the Supreme Court of Canada in Parrot v. Thompson & Monty, stated that without damages due to a surveyor’s negligent error, there could be no negligence (O’Hara, 2007).
A client’s neighbour may hold a land surveyor liable for an opinion decided to be ‘incorrect’ from a Boundaries Act proceeding. Land surveyors provide opinions on where the location of property boundaries exist and if a client’s neighbour (a third party) disputes this opinion in court, the only means of settling such a dispute is for the court to determine where the property boundary lies. If the court finds for the third party then the surveyor can in fact be held liable. This situation is handled differently when a land surveyor is held liable for incorrect opinions by their own client. In such a case, the surveyor owes a duty to his/her client through contract therefore, inaccurate surveys whether intentional or not can be a means for liability consequences.
