It is Council’s directive that all members strictly adhere to Association policy. Should there be an occasion when a policy statement does not provide a member with clear guidance then that member should contact Council for clarification.
This section has been included to assist anyone seeking general knowledge about the rules governing the Association of Newfoundland Land Surveyors. More information is available in the Association By-Laws, Association Regulations, and Association Act.
Table of Contents
- Branch Offices
- Upon Discovery of Errors & Omissions
- Expenses of Councillors
- Deceased/Retired Members Files
- The Survey Reference or Tie-In
- Updating Previously Prepared Survey Documents
- Limitations Act
- ANLS Policy Statement on Budget Preparation
- Mandatory Use of Special Survey Markers
- Policy on Refunds and Cancellations
- Formally Recognizing the Services of Outgoing Councillors and Public members
It has come to the recent attention of Council that some members have attached a distorted interpretation to bylaw 13.1.5 which states:
A Newfoundland Land Surveyor shall assist in preventing the unauthorized practice of this profession by not establishing branch offices unless these offices are under the direction and management of a resident Newfoundland Land Surveyor.
The Council of management interprets this bylaw as meaning all branch offices (main branches or otherwise) are to be under the direction and management of a Newfoundland Land Surveyor that resides or operates primarily from that office on a daily or regular basis and that the term regular basis provides for the adequate guidance, direction and supervision as to ensure that the quality and standard of work leaving that office concurs with the current act, bylaws and regulations.
The Council of management hereby notifies and forewarns its members that disciplinary action can be taken against any Newfoundland Land Surveyor or group of Newfoundland Land Surveyors currently maintaining one or more branch offices under the same name and is found to be in contravention of this bylaw as interpreted by the Council of management.
The author of the survey plan (surveyor) is the owner of the plan which means the client does not have unlimited use of the survey plan in subsequent dealings and also means the client does not have the right to reuse the plan for some other purpose than was originally intended. No other person other than the surveyor has the right to alter the plan and a third party does not have the right to use the plan bearing in mind that the plan was not prepared for his use.
Where the author of a survey plan was, at the time of preparation, an employee of another person under contract of service or apprenticeship and the work was done in the course of employment. Then unless the parties agree to the contrary, the first owner of the copyright is the employer.
The Canadian Copyright Act provides copyright protection to "literary works" which in section 2 of the said Act includes among other works: maps, charts, plans and reports, tables and compilations. It is under the category of "literary works" that maps and plans and reports relating to surveys are protected by the Copyright Act. Section 5 of the said act states the term for which copyright shall subsist shall accept as otherwise expressly provided by this Act be "the life of the author and a period of fifty years after his death".
Section 12 of the Copyright Act defines the author of a work subject to copyright, as being the first owner of the copyright in such work. Section 12(4) of the Copyright Act states "the owner of the copyright in any work may assign the right, either wholly or partially, but no such assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent."
Copyright protection in Canada is automatically acquired upon creation of an original work. It is only necessary to include the universal copyright symbol on works where international protection, in accordance with the provisions of the Berne convention, is desired. Although it is not necessary to include the universal copyright symbol on plans and reports that are intended for use in Canada, the use of this symbol and a cautionary statement provides indisputable notice to those unsuspecting persons who have a tendency to copy or alter someone else's work.
Section 17 (1) of the Copyright Act defines infringement "copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything that, by this act, only the owner of the copyright has the right to do." However, Section 17(2) says that any "fair dealing" with a copyrighted work for the purpose of "private study, research, criticism, review or newspaper summary" does not constitute an infringement of copyright.
Therefore, under fair use, a surveyor has the right to use the information from a plan in the preparation of another plan, a lawyer has the right to use a copy of a plan in order to do title research and to obtain the necessary consents as required in a conveyance of title, a professional Association has the right to critique a surveyor's plan and a client has the right to use the plan for his own private use in accordance with the purpose of the plan without infringing copyright.
Upon Discovery of Errors and Omissions
From time to time in the performance of their duties, surveyors discover errors and/or omissions in the work of other surveyors and sometimes in prior work of their own. With regard to the errors and/or omissions discovered in their own prior work, it is imperative that these be rectified immediately.
With regard to the errors and/or omissions discovered in the work of other surveyors, it is crucial that these too be rectified. However, it would be unfair of Council to expect the member discovering the deficiency to devote any more time and effort to the situation other than to properly identify it to the surveyor responsible for the problem.
These errors and/or omissions may be minor or major in nature, but nevertheless, in contravention of the act, By-Laws and/or regulations in effect at the time of their occurrence. In determining the severity of these errors and/or omissions the Council of Management hereby calls upon the membership to forward all deficiencies, upon discovery or as soon thereafter as feasible, along with all evidence supporting the alleged deficiency, to the Secretary-Treasurer. What any one surveyor may deem to be minor in nature is inconsequential. Scrutiny by the Council of Management, a group elected by their peers to, among other things, uphold and enforce the act, by-laws and regulations regarding the practice of land surveying in this province, and their decision on what direction the matter should take, considered to be fair and just.
Failure to disclose an error and/or omission is not in the best interest of the public of the profession in general.
If a pattern is developing, which may jeopardize the best interest of the public and/or the profession in general, it is essential that the Council of Management for the Association of Newfoundland Land Surveyors be aware of it.
Expenses of Councillors
Keeping in mind that Councillors of the Association of Newfoundland Land Surveyors volunteer their time to carry out the affairs or the Association, they should not be expected to use any of their own funds while carrying out their duties. To this end the following is a breakdown of rates and expenses.
Councillors should attempt to take advantage of seat sales when flying. If a Councillor has a choice of flying or driving and chooses to drive, the least cost of air fare or mileage should be charged. When a Councillor flies, he is entitled to rent a car for the least amount of time the car would be needed in order for the Councillor to attend the meeting.
Mileage is to be charged at $0.40 / km.
Meals may be charged at amount paid by receipts or $12.00 / meal.
Out of town Councillors staying overnight may choose hotel or private lodgings. Attempts should be made to use Hotels under the Association’s Corporate Rate set for the year. Councillors using private lodgings may charge room and board as paid by them or $30.00 / night.
Long distance calls made on Association business are to be charged to the Association number. Any other reasonable expense may be paid provided a receipt is attached.
Deceased/Retired Members’ Files
The files of retired or deceased members of the Association of Newfoundland Land Surveyors should be presented/donated to the Association. The Association will not offer monetary value for these files. These files should be in a digital format but the Association will also take a hard copy format. If these files are presented/donated in a hard copy format the Association will make every effort, at its convenience, to ensure that these files are digitally scanned. These files are to be used for information purposes by members of this Association only. A copy of any such file can be obtained at the Association office upon agreeing in writing that the Association is in no way responsible for the information contained within the file and cannot be held liable for any damages caused by the use of the information. If a Newfoundland Surveyor Files are transferred to another Newfoundland Land Surveyor the Secretary-Treasurer should be notified of this transaction.
The Survey Reference or Tie-In
It has come to the recent attention of Council that apparently some members have not been reading their bylaws with respect to what is considered to be an acceptable tie in. Whereas it may be totally satisfactory by the standards governing the surveying of crown lands to reference your survey to the previously surveyed adjoining property that has not, nor has for some time, if ever, been an acceptable tie-in according to the act, bylaws and regulations governing this Association. Read the by-law pertaining to this matter.
Members are hereby notified that the survey reference or tie-in is to be to the standards defined in the act, bylaws and/or regulations in effect at the time the survey was prepared, stamped and signed by the authoring surveyor. Any surveys prepared contrary to this practice and coming to the attention of the Association will be acted upon forthwith. The authoring surveyor will be required to immediately amend the deficient work, to distribute revised copies of the work wherever necessary and may be subject to disciplinary action depending upon the frequency and circumstances involved.
Updating Previously Prepared Survey Documents
The Law Society Liaison committee have expressed their willingness to respect our copyright by recommending to their members to seek current survey documentation with each and every transaction of land especially where third parties are at risk, provided existing survey documentation can be updated at a reasonable expense to their clients.
Council realizes that some firms already make a practice of doing this. However, the purpose of this policy statement is to make sure all are aware of this option when quoting fees.
Newfoundland Land Surveyors, upon request, are hereby permitted and encouraged to update boundary surveys and real property reports prepared by them.
Remuneration should be based on the time and effort devoted to update the price documents using our suggested hourly rates as opposed to our suggested fees for the specific services of boundary surveys and surveyor's real property reports.
Prior to the Limitations Act, land surveyors were held liable for their surveys for an indefinite period. Survey plans and descriptions produced by land surveyors were used and reused in property transactions, with the surveyors being liable for every transaction.
The Limitations Act assented to December 21, 1995 limits the time period allowed to take legal action, with periods of two years, six years, ten years, and no limit depending on the action. Professional negligence is considered in Section 5, 13, and 14 of this Act Section 5B sets a limitation period of two years to bring action with respect to negligent representation and professional negligence.
Section 13 (ii) sets the commencement of the limitations to begin the date the damage first occurs. Section 14 allows for a postponement of running of time. Running of time is the time at which the limitation period begins. If a person claiming damages can prove that he/she could not have known there was a cause for action at the time the negligent act first occurred, the beginning of the limitation period can be set to when the claimant ought to have known there was cause for action. The maximum period allowed would be 10 years after the date the negligent act occurred. The burden of proof for the postponement of running of time is on the claimant.
Council therefore feels that the majority of liabilities created by errors or omissions would have a limitation period of two years, with a maximum of ten years.
The Association has a duty to the public, as well as to the membership, and should therefore make it known that our members cannot be held liable for surveys older than the limitation period. We feel it would be in the best interest of the public to have surveys updated for any transactions outside of this limitation period. Council recommends that members inform their clients of consequences of the Limitations Act with regard to the use of old surveys in current property transaction.
ANLS Policy Statement on Budget Preparation
The following Policy Statement regarding Budget preparation was put forward:
On an annual basis, prior to the preparation of the draft budget for the coming council year, the President, Vice-President and Past President must prepare a recommendation to assist the Secretary-Treasurer in the preparation of the draft budget. This recommendation will include:
- The budget line item for the "President's Travel"
- A list of meetings planned for attendance by the President and the expected dates thereof.
This recommendation must be provided to the Secretary-Treasurer no later than January 31st.
Mandatory Use of Special Survey Markers
By-Law 19 requires that special markers must be placed at each corner of a survey or re-stake where an iron pin can be placed. Complaints have been received that survey markers are not always being placed as required for a variety of reasons.
Written contracts should be used for all survey work. This is for the protection of NLS members, for the protection of the general public, and to ensure compliance with ANLS By-laws. This is also recommended by the Canadian Council of Land Surveyors. Their Professional Liability Insurance Committee has produced a “Loss Prevention and Practice Management Guide for Canadian Land Surveyors” which details why written contracts should be used and provides templates and samples of contracts. Please go to www.ccls-ccag.ca for more information on this.
Specifically relating to this issue, a written contract should clearly detail when markers will be placed if they cannot be placed at the time of the survey. This could be a specific date or date range or a time period such as within 30 days. It could also be tied to another event such as, once final grading of a site has been done. Contract, if required, should also state that once original markers are placed, it would be the land owner’s responsibility for the cost of replacing any markers subsequently removed or disturbed such as during subdivision construction.
By having a written contract, you are protecting yourself against potential liabilities and complaints. If a complaint is received and no such contract is in place, then the original surveyor may be held responsible for the replacement of, or the costs to replace, any such markers. If there is no written contract and markers are not found to be in place as required, you may have to prove they were placed.
Policy Statement on Refunds and Cancellations
ANLS luncheons, seminars, golf tournaments, AGM’s and President Galas are prepared ahead of time with respect to materials, meeting space and other requirements in anticipation of membership attendance; following are the deadline dates and how these will affect refunds, cancellations and fees:
Luncheons and Seminars
A person who has registered and paid to attend a luncheon or seminar hosted by the Association may cancel and receive a full refund, if the cancellation is made three business days or more prior to the date of the luncheon or seminar.
No refunds will be made less than three business days prior to the date of the luncheon or seminar.
No refund will be made to any person who has registered and paid and who fails to attend the luncheon or seminar.
A member who has registered, but who has not paid, and who fails to attend the luncheon or seminar shall be invoiced for the price of the luncheon, where the Association actually incurs a cost as a result of the member’s failing to pay and attend.
In the event a luncheon or seminar is cancelled, the Association will refund all registration fees that have been paid.
A person who has registered and paid to attend a course and who subsequently cancels and withdraws from the course shall be subject to a cancellation fee, which shall be applied as follows:
- Cancellation 3 days or more before the course shall result in a full refund minus a 10% Administration fee. A person who has registered and paid to attend a course and who subsequently cancels and withdraws from the course may arrange for another person to attend the course in their place. The name and contact information of the replacement person must be provided to the Association. No refund will be provided.
Any person who has registered and paid and who fails to attend a course shall not be entitled to any form of refund.
No refund will be made once a course has commenced.
In the event a course is cancelled, the Association will refund all registration fees that have been paid.
A person or company whose exhibitor application form has been approved and who has paid the exhibitor fee and who subsequently cancels and withdraws as an exhibitor in the AGM shall be subject to a cancellation fee, which shall be applied as follows:
- Cancellation 60 days or more before the AGM shall result in a full refund minus a 10% Administration fee.
- Cancellation 30 to 60 days before the AGM shall result in a 50% refund.
- Cancellation less than 30 days before the AGM shall result in no refund being made.
No refund will be made to any exhibitor who fails to show up and occupy their booth.
In the event the AGM is postponed to a date not suitable to the Exhibitor, the Association will refund all registration fees that have been paid.
A person who has registered and paid to golf/curl in the Association’s golf/curling tournament and who subsequently cancels and withdraws from attending the tournament shall be subject to a cancellation fee, which shall be applied as follows:
- Cancellation 3 days or more before the tournament shall result in a full refund minus a 10% Administration fee.
A person who has registered and paid and who subsequently cancels and withdraws from attending the tournament may arrange for another person to attend in their place. The name and contact information of the replacement must be provided to the Association. No refund will be provided.
A person who has registered and paid and who fails to attend the tournament shall not be entitled to any form of refund.
Any person who has registered and has been invoiced, but who has not paid, and who fails to attend the tournament shall be required to pay the invoiced amount.
In the event the golf/curling tournament is cancelled, the Association will refund all registration fees that have been paid.
A person who has registered and paid to attend the President’s Gala and who subsequently cancels and withdraws from attending the Gala shall be subject to a cancellation fee, which shall be applied as follows:
- Cancellation 3 days or more before the Gala shall result in a full refund minus a 10% Administration fee.
A person who has registered and paid and who subsequently cancels and withdraws from attending the President’s Gala may arrange for another person to attend in their place. The name and contact information of the replacement person must be provided to the Association. No refund will be provided.
Any person who has registered and paid and who fails to attend the President’s Gala shall not be entitled to any form of refund.
A member who has registered and has been invoiced, but who has not paid, and who fails to attend the Gala shall be required to pay the invoiced amount.
In the event the President’s Gala is cancelled, the Association will refund all fees that have been paid.
The ANLS reserves the right to cancel any seminar / tournament, etc. in which the minimum registration is not achieved. If the ANLS cancels a seminar / tournament, etc. each participant will be notified and given a full refund.
Approved by Council June 26, 2015
Formally Recognizing the Services of Outgoing Councillors and Public members
This policy outlines the process to be followed to acknowledge and formally recognize the service and contribution of out-going Councillors and Public Members.
The term of office for each Councillor is two years.
Immediate past Councillors of the Association of Newfoundland Land Surveyors (ANLS) are to be formally recognized for their contribution to the Association at the Annual General Meeting at the end of their two year term. A Councillor’s Plaque of Service shall be presented at the Annual General Meeting with the name of the Councillor, the years of service given to Council and the term served.
The term of office for Public Members on Council is two years. The Public Member will receive an Honorarium as determined by the Annual Budget and will be paid March 31st.
The term of office Secretary-Treasurer is one year.
Immediate past Secretary-Treasurer of the Association of Newfoundland Land Surveyors (ANLS) is formally recognized for his/her contribution to the Association at the Annual General Meeting at the end of his/her one year term. A Secretary-Treasurer’s Plaque of Service shall be presented at the Annual General Meeting with the name of the Secretary-Treasurer, the years of service given to Council and the term served. The Secretary-Treasurer will receive an Honorarium as determined by the Annual Budget and will be paid March 31st.
The term of office for President is one year.
The President of the Association of Newfoundland Land Surveyors (ANLS) will be formally recognized for his/her contribution to the Association at the Annual General Meeting at end of his/her one year term. A President’s Plaque of Service shall be presented at the Annual General Meeting with the name of the President, the years of service given to Council and the term served. A Past President’s Lapel Pin is presented at the Annual General Meeting.
The names of all Councillors and their years of service will be noted in the Annual Report. Council Pictures to be displayed in the ANLS Board Room.
The term of office for Public Members appointed to Committees is two years. The Public Member will receive an Honorarium as determined by the Annual Budget and will be paid March 31st.
Approved by Council June 26, 2015
The Association of Newfoundland Land Surveyors have a limited contribution to "in-memoriams" at a fixed amount of $50.00.
Approved by Council May 26, 2016