BILL NO. 124
(as passed, with amendments)
2nd Session, 61st General Assembly
59 Elizabeth II, 2010
Land Surveyors ActCHAPTER 38 OF THE ACTS OF 2010
The Honourable John MacDonell
Minister of Natural Resources
First Reading: December 1, 2010 (LINK TO BILL AS INTRODUCED)
Second Reading: December 9, 2010
Third Reading: December 10, 2010 (WITH COMMITTEE AMENDMENTS)
Royal Assent: December 10, 2010
Be it enacted by the Governor and Assembly as follows:
(e) "candidate" means a person who has met the criteria for entry in the candidate roster pursuant to the regulations and who has entered a period of articles with an active member as approved by the Board;
(g) "competence" means the ability to integrate and apply the knowledge, skills and judgement required to practise safely and ethically in a designated role and practice setting and includes both entry-level and continuing competencies;
(p) "hearing" means a process before the Hearing Committee, following the issuance of a notice of hearing, where the parties lead evidence and make submissions to the Hearing Committee, and does not include the consideration by the Hearing Committee of a settlement proposal or an application for consent revocation and does not include any proceeding before the Complaints Committee;
(r) "incapacity" means the status whereby a respondent, at the time of the subject-matter of a complaint, suffered from a medical, physical, mental or emotional condition, disorder or addiction that rendered the respondent unable to practise professional land surveying with reasonable skill or judgement or that may have endangered the safety of clients;
(s) "incompetence" means the display of lack of knowledge, skill or judgement in the respondent's delivery of professional land-surveying services that, having regard to all the circumstances, fall below the expected standard of practice;
(t) "investigator" means a member of the Complaints Committee assigned to conduct an investigation or a person designated by the Complaints Committee to conduct or supervise an investigation into a complaint;
(u) "legal proceeding" means any civil proceeding, discovery, inquiry, proceeding before any tribunal, board or commission or arbitration, in which evidence is or may be given, and includes an action or proceeding for the imposition of punishment by fine, penalty or imprisonment for the violation of a Provincial enactment, but does not include any proceeding or hearing conducted pursuant to this Act or the regulations;
(y) "Nova Scotia Land Surveyor" means a professional land surveyor who is an active member of the Association, or is otherwise authorized pursuant to the by-laws to use the designations set out in Section 20;
(ab) "professional corporation" means one or more land surveyors incorporated pursuant to the laws of the Province for the purpose of engaging in professional land surveying, and includes an association of persons or a partnership engaged in the practice of professional land surveying;
(ac) "professional development program" means a program approved by the Council or its delegate providing credits for the attendance of members at programs and conferences, and participation in other activities of a professional development nature;
(ad) "professional land surveying" means the advising on, the reporting on, the supervising of or the conducting of surveys to determine the horizontal and vertical position of any point and the direction and length of any line required to control, establish, locate, define or describe the extent or limitations of title;
(af) "professional misconduct" includes such conduct or acts relevant to professional land surveying that, having regard to all of the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional including, without limiting the generality of the foregoing,
(iv) engaging or assisting in fraud, misrepresentations, deception or concealment of a material fact when applying for or securing registration to practise professional land surveying or taking any examination provided for in this Act, including using fraudulently procured credentials, and
(v) taking or using the designation "Nova Scotia Land Surveyor", or any derivation or abbreviation thereof, or describing a person's activities as professional land surveying in any advertisement or publication, including business cards, websites, or signage, unless the referenced activity falls within the meaning of professional land surveying under this Act;
(ah) "Register" means the permanent list, documentation or database in which the names of the members of the Association are entered upon being admitted to the Association by the Board and in which all historical facts and records are kept with respect to the members;
(ar) "witness" includes every person who, in the course of a legal proceeding, is examined for discovery or is cross-examined upon an affidavit made by that person, answers any interrogatories or makes an affidavit as to documents or is called upon to answer any questions or produce any document, whether under oath or not, and includes the Association or any representative of the Association.
5 In addition to any other power conferred by this or any other Act, the Association may do such things as it considers appropriate to advance the objects of the Association and, without limiting the generality of the foregoing, may
(h) borrow money for the use of the Association, issue bonds, debentures, debenture stock and other securities on the credit of the Association and pledge or sell such securities for such sums or at such prices as may be deemed expedient;
(i) secure the repayment of money borrowed, in such manner and upon such terms and conditions as it considers fit and, in particular, by the execution and delivery of mortgages of all or any part of the real or personal property of the Association, both present and future; and
9 (1) The Council shall govern the Association and manage its affairs, and may take any action consistent with this Act and the regulations that it considers necessary for the promotion, protection, interest or welfare of the Association, including
(a) the setting of fees, assessments or levies payable by members and those applying for membership in the Association, with the exception of annual fees for membership which must be voted on at the annual meeting or a special meeting of the Association;
(e) creating categories of membership and prescribing the privileges, qualifications and obligations of the persons for those categories, including establishing criteria for entry into the respective membership roster;
(g) setting the requirements for professional liability insurance or other forms of malpractice coverage or liability protection in such amounts as determined by the Council, and establishing any exemptions from such requirement;
(h) respecting the registration sanctions issued pursuant to this Act and the reinstatement of such registration and allowing for conditions, limitations or restrictions to be attached to a reinstated registration;
(j) providing that the registration of a member be suspended without notice or investigation upon contravention of any regulation that requires the member to pay a fee, to file a document or do any other act by a specified or ascertainable date and providing for the reinstatement of a registration so suspended upon payment of such fee as determined by the Board;
(k) respecting the ability of the Complaints Committee and the Hearing Committee to impose a fine if a member has engaged in the practice of professional land surveying while not being an active member;
(3) A regulation must not be forwarded to Governor in Council for approval unless the regulation has been voted on and approved by members entitled to vote at an annual meeting or a special meeting of the Association.
(a) respecting the holding of the annual meeting and special meetings of the Association including the notice for such meetings, the content of such meetings, the quorum, the procedures to be followed and the manner of voting;
(l) respecting the establishment of committees appointed by the Council, and providing for the holding and conduct of meetings of such committees and the process for approving terms of reference for such committees;
15 The Standards of Practice and the Code of Ethics, or revisions to them, do not come into force until they have been voted on and approved by the members entitled to vote at an annual meeting or a special meeting of the Association.
20 No person shall take or use the designation "Nova Scotia Land Surveyor" or "NSLS", or any derivation or abbreviation thereof or any other words, names or designations, to imply that the person is a member of the Association unless such person is an active member in the Association or is otherwise authorized, pursuant to the by-laws, to use such designation.
21 (1) No person shall engage in the practice of professional land surveying or shall describe the person's activities as activities falling within the meaning of "professional land surveying" unless the person
(2) No person shall engage in the practice of professional land surveying for the general public directly or indirectly, whether for or without compensation, unless the person holds the required professional liability insurance as set out in the regulations.
22 No person shall bring an action in any court to collect fees, compensation or other remuneration for services performed in the practice of professional land surveying, unless that person was registered as an active member at the time the services were performed.
23 A statement certified under the hand of the Executive Director respecting the membership and entry in the appropriate roster of a person's name is admissible in evidence as prima facie proof of that person's entry in such roster.
24 Where the authority of a professional land surveyor to be an active member has been limited by the imposition of conditions or restrictions imposed on that professional land surveyor, the conditions or restrictions must be noted in the records of the Association and may be disclosed to the public in accordance with this Act.
(4) In any prosecution by or on behalf of the Association, any information to be laid pursuant to this Act or pursuant to the Summary Proceedings Act must be laid by such person as authorized by the Council.
(5) In a prosecution of an offence contrary to this Act or the regulations, the onus to prove that a person accused of an offence has the right to practise professional land surveying, or that a person comes within any of the exemptions provided by this Act, is on the person accused.
(7) For the purpose of this Act or the regulations, proof of the performance by a non-member of one act of professional land surveying is sufficient to establish that a person has engaged in the practice of professional land surveying.
28 (1) In the event of a threatened or continuing violation of this Act or the regulations, the Association may apply to a judge of the Supreme Court of Nova Scotia for an injunction to restrain the person from continuing or committing the violation and, where the judge considers it to be just, the judge may grant the injunction.
(2) A judge may, on application, grant an interim injunction pending the hearing of an application for an injunction pursuant to subsection (1) if the judge is satisfied that there is reason to believe that a person is likely to commit or is continuing to commit a violation of this Act or the regulations.
29 (1) When an active member has reason to believe that any person, including a member, is possessed of any information touching a corner, boundary or limit, or of any writing, plan or document tending to establish the true position of a corner, boundary or limit and will not willingly produce to the member such writing, plan or document, the member may apply to a judge for an order directing that person to appear before such judge at a time and place mentioned in the order, not earlier than seven days after service of the order, and to bring with the person any writing, plan or document mentioned or referred to therein, and to show the same, and to be orally examined on oath or affirmation before such judge regarding such corner, boundary or limit, or any writing, plan or document in the person's possession.
(2) An order issued under subsection (1) may be served on the person named therein by delivering a copy thereof to them or by leaving a copy for them with some adult person at the person's residence together with the ordinary witness fees as prescribed by the Costs and Fees Act.
30 All active members and their assistants, when engaged in professional land surveying, may enter upon and pass over any land, doing as little damage as possible and, save as hereinafter provided, no action lies against an active member or their assistants for any act done under this Section, but any active member is liable for any unnecessary damage done by the member or by the member's assistants under this Section.
31 An oath, affidavit, affirmation or declaration for use in the Province may be administered, sworn, affirmed or made within the Province before an active member if the subject-matter of the oath, affidavit, affirmation, or declaration relates to the location of land, boundaries, the extent or limitations of title to land, or other matters relevant to professional land surveying.
33 No partnership, association of persons or body corporate shall engage or offer to engage in professional land surveying unless the partnership, association of persons or body corporate holds a corporate permit issued in accordance with the regulations.
34 Notwithstanding Section 33, nothing in this Act shall prohibit a partnership, association of persons or body corporate from having active members in the partnership's, association's or body corporate's employ, or as a partner or consultant, if professional land surveying is incidental to the principal business or objects of the partnership, association of persons or body corporate, and the services of the active members are not made available to the public.
35 An active member's position as a partner, shareholder, director, officer or employee of a partnership, association of persons or body corporate does not affect, modify or diminish the application of this Act and regulations to the member.
36 All persons who carry on the practice of professional land surveying by, through or on behalf of a partnership, association of persons or body corporate are, for purpose of this Act and the regulations, responsible for acts or omissions done or omitted to be done by them in the course of the practice of professional land surveying to the same extent and in the same manner as if such practice were carried on by them as active members.
37 All shareholders, directors, officers, employees or partners of a partnership, association of persons or body corporate engaged in the practice of professional land surveying are compellable witnesses in any proceedings pursuant to this Act.
38 (1) Where the conduct of a Nova Scotia Land Surveyor is the subject of a complaint, investigation or a hearing and the Nova Scotia Land Surveyor was a partner, officer, director, shareholder or employee of a partnership, association of persons or body corporate at the time the conduct occurred, any power of inspection, investigation or inquiry that may be exercised in respect of the Nova Scotia Land Surveyor or his or her records may be exercised in respect of the partnership, association of persons or body corporate or its records.
39 (1) Every partnership, association of persons or body corporate engaged in the practice of professional land surveying that contravenes this Act or the regulations is guilty of an offence and is liable to the same penalties as any person who is guilty of an offence under this Act.
40 Where a partnership, an association of persons or a body corporate is convicted of an offence contrary to this Act or the regulations, its corporate permit is, in default of paying any fine ordered to be paid, suspended until such time as the fine is paid.
41 Where a person ceases to be registered as a member for any reason, that person remains subject to the jurisdiction of the Association for the purposes of the professional conduct process if the subject-matter of the professional conduct process arose out of the person's conduct while registered.
(4) Whenever for any reason neither the Chair nor the Vice-chair is available for the purpose of subsections (5), (6) and (7), the Committee may, for such purpose, appoint a member of the Complaints Committee as chair of the Complaints Committee.
(6) Failure of one or more Complaints Committee members to receive any notice of a meeting does not invalidate the proceedings at the meeting, and nothing herein precludes the members from waiving notice of meetings.
(8) Where a proceeding is commenced before the Complaints Committee, and the term of office of any person sitting on the Complaints Committee has expired, such person may remain part of the Complaints Committee until the proceeding is concluded.
44 Each person on the Complaints Committee and each investigator has all the powers conferred by this Act and the regulations in the discharge of their functions, including all the rights, powers, privileges, and immunities of commissioners under the Public Inquiries Act.
47 With respect to any decision issued by the Complaints Committee that is available to the public pursuant to the Act or the regulations, the Complaints Committee may impose a publication ban on such portions of its decision as deemed necessary by the Committee.
(2) When a complaint is forwarded to the Complaints Committee for disposition, the Complaints Committee shall give its decision in writing and shall send a copy of the written decision, by registered mail or personal service, to the respondent and the complainant and may send some or all of the written decision to such other persons as the Complaints Committee determines.
(a) has been charged with, pled guilty to, been convicted or found to be guilty of any offence in or outside of Canada that is inconsistent with the proper professional behaviour of a member, including a conviction under
(2) The Executive Director shall refer any information disclosed pursuant to subsection (1) to the Complaints Committee, which may, by such notice as it prescribes, require the person to attend a hearing before the Complaints Committee to fully disclose the facts and circumstances of the matter so disclosed.
(4) For the purpose of subsection (1), a certificate of conviction of a member is conclusive evidence that the member has committed the offence stated therein, unless it is proven that the conviction has been quashed or set aside.
51 (1) All complaints received or under investigation, all information gathered in the course of the professional conduct process and all proceedings and decisions of the Complaints Committee, and the Hearing Committee that are not open to or available to the public in accordance with this Act or regulations must be kept confidential by any person who possesses such information.
(a) the Complaints Committee or the Hearing Committee may direct the Executive Director to disclose to law enforcement authorities any information about possible criminal activity on the part of a member that is obtained during an investigation pursuant to this Act;
(c) the Complaints Committee or the Hearing Committee may direct the Executive Director to disclose information with respect to the complaint to a land-surveying regulatory body in another jurisdiction if it is relevant and concerns the fitness of the member for membership in the extra-provincial land-surveying regulatory body; and
(3) Where information sought to be disclosed under subsection (2) includes a member's personal health information, or treatment provided by any health provider, such information must not be disclosed.
(4) A witness in any legal proceeding, whether a party thereto or not, is excused from answering any question as to any proceedings of the Complaints Committee, the Hearing Committee or the Reinstatement Committee, and is excused from producing any report, statement, memorandum, recommendation, document or information prepared for purposes of the Association, including any information gathered in the course of an investigation, or produced for the Complaints Committee, the Hearing Committee or the Reinstatement Committee.
(6) Unless otherwise determined by a court of competent jurisdiction, a decision of the Complaints Committee or the Hearing Committee is not admissible in a civil proceeding other than an appeal or review pursuant to this Act.
(7) The Complaints Committee, the Hearing Committee or the Reinstatement Committee may impose a publication ban on any or all parts of proceedings conducted by the committee, or decisions rendered by the committee, if the committee deems it appropriate.
(7) Failure of one or more Hearing Committee members to receive any notice of a meeting does not invalidate the proceedings thereat, and nothing herein precludes Committee members from waiving notice of meetings.
(9) Where a proceeding is commenced before the Hearing Committee, and the term of office of any person sitting on the Hearing Committee has expired, such person may remain part of the Hearing Committee until the proceeding is concluded.
53 (1) Where the Complaints Committee refers a matter to the Hearing Committee, the Executive Director shall, within thirty days from the date of the referral, fix a date, time and place for holding a hearing, which must commence not later than ninety days from the date of the referral by the Complaints Committee, or such later date as the respondent and the Association may agree or the Hearing Committee may order following an opportunity for submissions from both parties as to such date.
(2) A notice of hearing, containing such information as required by the regulations, must be forwarded by the Executive Director to the respondent and the complainant at least thirty days before the hearing.
55 Where the Complaints Committee refers a matter to the Hearing Committee, the Association, before the commencement of a hearing by the Hearing Committee, may enter into a settlement proposal with the respondent, which proposal must be dealt with in accordance with the regulations.
56 Each person on the Hearing Committee has all the powers conferred by this Act and the regulations in the discharge of the person's functions, including all the rights, powers, privileges and immunities of a commissioner appointed pursuant to the Public Inquiries Act.
(3) Notwithstanding subsection (2), the Hearing Committee may, in its discretion, allow the introduction of evidence that would be otherwise inadmissible under subsection (2) and may make directions it considers necessary to ensure that a party is not prejudiced.
59 (1) Where the Hearing Committee finds professional misconduct, conduct unbecoming, incompetence or incapacity, the Hearing Committee shall process the matter or matters in accordance with the regulations.
(2) Where a Hearing Committee has revoked the registration of a member, the Hearing Committee shall determine whether the member is entitled to apply for reinstatement of registration, or whether the revocation is final.
(3) Where the Hearing Committee determines that a member whose registration has been revoked may apply for reinstatement, the Hearing Committee shall determine the time when the member may apply for reinstatement, which cannot be earlier than two years from the date of the Hearing Committee's decision.
(3) The Reinstatement Committee shall, in the circumstances set out in the Act and regulations, review applications for reinstatement of registration, and shall perform such other duties as set out in the Act and regulations.
(6) Where a member's registration has been reinstated pursuant to this Section, the Reinstatement Committee, in its discretion, shall determine whether publication of the reinstatement is required in the interest of the public.
(7) The Reinstatement Committee has all the powers conferred by this Act and the regulations in the discharge of its functions, including the powers, privileges, and immunities of commissioners under the Public Inquiries Act.
(9) Notwithstanding subsection (8), the Reinstatement Committee may, in its discretion, allow the introduction of evidence that is otherwise inadmissible under subsection (8) and may make directions it considers necessary to ensure that a party is not prejudiced.
63 (1) Where the period of suspension of a member has expired, or the conditions imposed on the member have been satisfied, or the restrictions imposed on the member have been removed, the Executive Director shall restore the membership of the respondent in the form it existed before the imposition of the suspension, conditions or restrictions if the member otherwise meets the criteria for membership and entry on the relevant roster, including the payment of any prescribed fees for renewal.
(b) where registering bodies in other Canadian professional land-surveying jurisdictions had previously been informed of the suspension, conditions or restrictions, the Executive Director shall notify such registering bodies of the lifting of such suspension, conditions or restrictions; and
64 (1) For the purpose of the execution of its duties under this Act, the Association or any committee of the Association may retain such legal or other assistance as the Association or the committee, as the case may be, may think necessary or proper.
(3) The record on appeal from the findings of the Hearing Committee consists of a copy of the transcript of the proceedings, the decision of the Committee and the evidence before the Hearing Committee certified by the Chair of the Hearing Committee.
(4) The Civil Procedure Rules, governing appeals from the Supreme Court of Nova Scotia to the Court of Appeal, that are not inconsistent with this Act, apply mutatis mutandis to appeals to the Court of Appeal pursuant to this Section.
(5) Where a matter is appealed to the Court of Appeal pursuant to this Section, the decision of the Hearing Committee takes effect immediately unless the Court of Appeal grants a stay of any order made pursuant to this Act if, in its discretion, it deems fit.
67 Any fine or cost ordered to be paid pursuant to the Act or regulations is a debt due to the Association recoverable by civil action, in addition to any other remedy available to the Association for non-payment of a fine or cost.
68 No person shall, without the prior written consent of the member who prepared the same, alter or make additions to or deletions from or make an obliteration on a member's plan or on a copy or reproduction thereof, and any person who contravenes this Section is guilty of an offence pursuant to this Act.
69 (1) No action for damages or other relief lies against the Association, the Council, the Board, the persons on the Council or Board, committees, subcommittees of the Council or Board, the persons on the committees or subcommittees, persons or groups conducting practice reviews, or the Executive Director, officers, agents or employees of the Association
(2) No member of the Association, the Council, committees or subcommittees of the Association or the Council, or any officer, agent, or employee thereof, is personally liable for any of the debts or liabilities of the Association unless such person expressly agrees to be liable.
70 Whenever for any reason a quorum of members of any committee is not available for a meeting or hearing, the Council may, for the purpose of such meeting or hearing, appoint to the committee such additional members as are needed for a quorum.
71 (1) Upon the coming into force of this Act, any matter pending before a discipline committee appointed pursuant to the former Act, where not set down for a hearing to commence within sixty days of the coming into force of this Act, must be transferred to the committee appointed pursuant to this Act for hearing and determination, but otherwise must be heard and determined by a discipline committee appointed pursuant to the former Act.
(4) A discipline committee appointed pursuant to the former Act must be continued until all matters pending before it at the coming into force of this Act and not transferred to the committee appointed pursuant to this Act has been finally decided, and a complaints committee appointed pursuant to the former Act must be continued until all matters pending before the coming into force of this Act have been concluded by the complaints committee.
(6) Upon the coming into force of this Act, the members of the Council and the Board under the former Act continue in those positions until the election or appointment of a new Council and Board as set out in the by-laws.
73 Any applications for registration or for entry into a roster that are outstanding at the coming into force of this Act, must be processed in accordance with this Act as nearly as circumstances permit.
74 Notwithstanding anything in this Act or the regulations, a person who is a current practising member of the Association under the former Act at the time of the coming into force of this Act, shall be registered as an active member under this Act, and such active membership continues until the expiration of the registration year immediately following the coming into force of this Act.
75 In the event any conditions or restrictions apply to a person who is registered under the former Act at the time of the coming into force of this Act, such conditions or restrictions apply to the member's registration under this Act.
76 Subject to Sections 33 to 40, and the regulations, this Act does not apply to a professional engineer or partnership, association of persons or body corporate entitled under the Engineering Profession Act to practise or undertake the application of engineering, or a person employed by and acting under the supervision and direction of such professional engineer or such partnership, association or body corporate while practising or applying engineering within the meaning of the Engineering Profession Act.
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