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2nd Session, 40th Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 29

THE LAND SURVEYORS AND RELATED AMENDMENTS ACT


Table of Contents Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTERPRETATION

Definitions

1(1)        The following definitions apply in this Act.

"association" means the Association of Manitoba Land Surveyors continued by section 6. (« Ordre »)

"boundary" includes any line, arc, circle, spiral or series of lines, arcs, circles or spirals, or other geometrically or naturally defined or described figures, which are used to reference, describe or delineate

(a) land;

(b) land covered by water;

(c) air space;

(d) a condominium unit or common element described in a plan registered under The Condominium Act; or

(e) a right or interest in any of clauses (a) to (d). (« limite »)

"by-law" means a by-law of the association approved under subsection 9(3). (« règlement administratif »)

"Canada Lands Surveyor" means a Canada Lands Surveyor as defined in the Canada Lands Surveys Act. (« arpenteur des terres du Canada »)

"certify" means to give an opinion — which may be given electronically — in writing or by using maps, plans or other diagrams, about the location of any point, position, structure or thing on or under the ground, or in air space, relative to a boundary. (« certifier »)

"council" means the council of the association established under section 7. (« conseil »)

"court" means the Court of Queen's Bench of Manitoba. (« tribunal »)

"former Act" means The Land Surveyors Act, R.S.M. 1987, c. L60. (« loi antérieure »)

"land" means land as defined in The Real Property Act. (« bien-fonds »)

"land surveyor in training" means an individual enrolled by the association as a land surveyor in training. (« arpenteur-géomètre en formation »)

"licence" means a licence of any category issued to an individual, authorizing the individual to practise land surveying. (« licence »)

"limited liability partnership" means a "Manitoba limited liability partnership" or an "extra-provincial limited liability partnership", as those terms are defined in The Partnership Act. (« société à responsabilité limitée »)

"Manitoba land surveyor" means an individual who holds a licence to practise land surveying. (« arpenteur-géomètre du Manitoba »)

"member" means a member of the association as described in subsection 6(3). (« membre »)

"monument" means a post, stake, peg, mound, pit, trench or any other thing placed by a Manitoba land surveyor, Canada Lands Surveyor or Dominion land surveyor to mark a boundary, and includes evidence of such a thing having been so placed. (« borne »)

"permit" means a document issued by the registration committee under subsection 21(1) certifying that the corporation named in the permit is authorized to provide professional services in Manitoba for the period specified in the permit. (« permis »)

"prescribed" means prescribed by the by-laws approved under this Act.

"professional corporation" means a corporation holding a valid permit. (« société professionnelle »)

"professional services" means the activities described in section 2. (« services professionnels »)

"public representative" means an individual who

(a) is a resident of Manitoba; and

(b) is not and has never been a member of the association. (« représentant du public »)

"register" means a register established under subsection 11(1). (« registre »)

"registrar" means the registrar appointed under subsection 8(1). (« registraire »)

"Registrar-General" means the Registrar-General appointed under The Real Property Act. (« registraire général »)

"registration committee" means the registration committee appointed under subsection 8(2). (« comité d'inscription »)

"voting share", in relation to a professional corporation, means a share of its capital stock that entitles the holder to vote in any election of the corporation's directors. (« action avec droit de vote »)

"voting shareholder", in relation to a professional corporation, means a person who owns a voting share of the corporation or is a voting shareholder of another corporation that owns a voting share of the corporation. (« actionnaire avec droit de vote »)

Reference to "Act" includes by-laws

1(2)        In this Act, a reference to "this Act" includes the by-laws approved under this Act.

PART 2

PRACTICE OF LAND SURVEYING

Practice of land surveying

2           The practice of land surveying consists of the following:

(a) the determination, establishment, location, demarcation or definition of a boundary;

(b) the determination of the location of anything relative to a boundary for the purpose of certifying the location of the thing;

(c) the determination, establishment, location, demarcation or definition of a riparian boundary, for the purpose of certifying a boundary;

(d) establishing and maintaining a network of geodetic points and certifying spatial values in relation to them, for the purposes of work described in clauses (a) to (c);

(e) establishing photogrammetric mapping or remotely sensed data control for the purposes of work described in clauses (a) to (d);

(f) advising, reporting or taking any other action, including the preparation of maps, plans and documents, in respect of any matter described in clauses (a) to (e).

Exclusive right to practise

3(1)        Subject to subsections (2) and (3), no person other than a Manitoba land surveyor or a professional corporation shall engage in the practice of land surveying.

Exceptions

3(2)        Subsection (1) does not apply to the survey of Canada Lands as defined in Part II of the Canada Lands Surveys Act.

Permitted practices

3(3)        Nothing in this Act prevents or affects

(a) the practice of architecture by an architect practising under the authority of The Architects Act, or by any other person under the supervision, or the direction and control, of an architect;

(b) the practice of engineering or geoscience by a professional engineer or professional geoscientist practising under the authority of The Engineering and Geoscientific Professions Act, or by any other person under the supervision, or the direction and control, of a professional engineer or professional geoscientist;

(c) the practice of law by a lawyer practising under the authority of The Legal Profession Act, or by any other person under the supervision, or the direction and control, of a lawyer;

(d) a person, including a land surveyor in training, from engaging in the practice of land surveying while under the supervision, or the direction and control, of a Manitoba land surveyor; or

(e) the carrying out of any other prescribed activity, by a prescribed person or a member of a class of prescribed persons, subject to any conditions that may be prescribed.

Use of stamp

3(4)        No Manitoba land surveyor shall sign, affix his or her stamp, or permit his or her stamp to be affixed to any plan or document prepared in the practice of land surveying, unless the plan or document is prepared by the Manitoba land surveyor or under his or her supervision, or direction and control.

Use of name

3(5)        No Manitoba land surveyor shall do any act or thing, or permit his or her name to be used by any person such that

(a) a person who is neither licensed under this Act to engage in the practice of land surveying or a professional corporation engages or may engage in the practice of land surveying; or

(b) it is implied to the public or any person that a person who is neither licensed under this Act to engage in the practice of land surveying or a professional corporation is entitled to practise land surveying.

Plans to be certified by a Manitoba land surveyor

4           A plan that affects a boundary must be certified by a Manitoba land surveyor under oath in a form satisfactory to the Registrar-General.

Prohibition on holding out or use of title

5           Except as provided in this Act, no person other than a Manitoba land surveyor or a professional corporation shall

(a) publicly or privately, whether or not for hire, gain or hope of reward, hold himself or herself out in any way as being a Manitoba land surveyor or entitled to provide professional services; or

(b) use any of the following designations or abbreviated designations, a variation of any such designation that implies that the person is entitled to provide professional services, or an equivalent in another language:

(i) "Manitoba Land Surveyor",

(ii) "Land Surveyor",

(iii) "Land Surveys",

(iv) "Land Surveying",

(v) "M.L.S.", in circumstances where the public is likely to believe that the person is holding himself or herself out as being entitled to provide professional services.

PART 3

ASSOCIATION OF MANITOBA

LAND SURVEYORS

Association continued

6(1)        The Association of Manitoba Land Surveyors is continued as a body corporate.

Powers

6(2)        The association has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.

Membership

6(3)        The membership of the association consists of the individuals whose names are entered in a register and who have paid the prescribed fees.

Purpose

6(4)        The purpose of the association is to

(a) uphold and protect the public interest in the delivery of land surveying services by ensuring the competence, integrity and independence of its members; and

(b) act in the public interest in matters affecting the protection, viability and security of the land tenure system in Manitoba.

Duties

6(5)        In pursuing its purpose, the association must

(a) establish standards for the education, professional responsibility and competence of persons practising or seeking the right to practise land surveying in Manitoba; and

(b) regulate the practice of land surveying in Manitoba.

Annual general meetings

6(6)        A general meeting of the association must be held at least once a year, as determined by the council in accordance with the by-laws.

Special general meetings

6(7)        The association must hold a special general meeting as follows:

(a) when the association receives a request signed by at least 10% of the members of the association entitled to vote, for the purpose specified in the request;

(b) at any other time for any purpose the council considers advisable.

Notice of meetings

6(8)        Notice of the time and place of a meeting referred to in subsection (6) or (7) must be given to members in accordance with the by-laws. Despite The Corporations Act, a by-law in this respect must provide that, except in emergency or extenuating circumstances, notice is to be given to members at least 14 days before the meeting.

Establishment of the council

7(1)        There is hereby established a governing body of the association called the council.

Council to manage affairs

7(2)        The council

(a) must manage and conduct the business affairs of the association; and

(b) may exercise the rights, powers and privileges of the association in the name of and on behalf of the association.

Composition of council

7(3)        The council is to consist of at least nine persons who are either members or public representatives.

Public representatives

7(4)        At least 1/3 of the members of the council must be public representatives.

By-laws for election or appointment of members

7(5)        Members of the council are to be appointed or elected in accordance with the by-laws.

Council appointments

8(1)        The council must appoint a registrar, and may appoint any other officers or staff that it considers necessary to perform the work of the association, in the manner and on the terms specified in the by-laws.

Appointment of registration committee

8(2)        The council must

(a) appoint and maintain a registration committee consisting of the registrar and a minimum of three members of the association, plus such other persons as the council may from time to time select; and

(b) establish a by-law for the governance of the committee.

PART 4

BY-LAWS

By-laws

9(1)        The council may make, amend or repeal by-laws, not inconsistent with this Act or The Corporations Act,

(a) for the government of the association and the management and conduct of its affairs;

(b) respecting the registration, licensing, suspension, removal, discipline and reinstatement of members;

(c) respecting the registration and licensing, as temporary members, of persons entitled to practise land surveying in a jurisdiction outside of Manitoba, and the suspension, removal, discipline and reinstatement of such members;

(d) establishing one or more categories of registration, including, without limitation, land surveyors and temporary members, and determining the rights, privileges and obligations associated with each category;

(e) prescribing the educational and other qualifications, and any competency or practising requirements, for registration as a land surveyor, or for any other category of registration;

(f) respecting the establishment, form, content and maintenance of registers, including specifying additional information that must be kept in a register;

(g) establishing one or more categories of licences, and determining the rights, privileges and obligations associated with each category;

(h) respecting the requirements for a license to practise as a Manitoba land surveyor — including, without limitation, requirements to serve a period of internship or to practise for a required number of hours — or for any other category of licence;

(i) respecting the issuing, duration, renewal, suspension, cancellation and reinstatement of licences, including the imposing of terms or conditions on any licence;

(j) respecting continuing competency or professional development requirements for licensing or the renewal of licences;

(k) respecting land surveyors in training, including, without limitation, prescribing the educational and other qualifications for enrolment as a land surveyor in training, prescribing any required examinations, and governing the overall process and activities for training land surveyors;

(l) prescribing the fees payable to the association by applicants for enrolment as a land surveyor in training, registration, licensing or the renewal of a licence, or determining the method of setting fees, and providing for the collection of fees;

(m) fixing and regulating the quorum, time, place, calling, giving of notice, conduct and business of general and special general meetings of the association, meetings of the council and meetings of committees of the association or the council;

(n) establishing the method of voting, including voting by mail, proxy voting, delegate voting or other means, and establishing the qualifications of persons entitled to vote at meetings;

(o) respecting the nomination, election, appointment or number of council members or officers of the association, the filling of vacancies on the council, and prescribing the term of office and the duties and functions of those members or officers;

(p) providing for the division of the province into districts and prescribing the number of council members to be elected from each district;

(q) respecting the appointment of a registrar and any staff that it considers necessary to perform the work of the association;

(r) respecting the governance of the registration committee;

(s) establishing other committees for carrying out the business and affairs of the association, and governing the operation of those committees;

(t) setting remuneration, fees and expenses payable to members of the council, or of committees established under this Act;

(u) prescribing fees or fines, payable to the association, for any service, matter, or thing provided or done by the association for which no other fee or fine is prescribed under this Act;

(v) delegating to officers, officials, employees or committees any of the duties, powers and privileges of the council;

(w) prescribing the form of a certificate of registration, licence, permit or any other form or document under this Act;

(x) prescribing notices, orders or other documents, or classes of notices, orders or other documents, that cannot be given or served by e-mail or other method of electronic communication;

(y) determining the place where the head office of the association must be located and the place or places where other offices of the association must be located;

(z) authorizing the making of cooperative or affiliation arrangements with any institution, organization or professional body in any jurisdiction;

(aa) establishing standards of practice for members and professional corporations;

(bb) respecting the practice of land surveying by Manitoba land surveyors through professional corporations, including by-laws respecting

(i) the application for and the issuance, expiry and renewal of permits, including conditions that must be met before a permit may be issued or renewed,

(ii) the fees payable on application for a permit or renewal of a permit,

(iii) the notification of changes required under section 24,

(iv) conditions or restrictions that may be imposed on permits,

(v) the suspension or cancellation of permits, and

(vi) the names by which professional corporations or partnerships referred to in section 20 may be known or under which they may provide professional services;

(cc) respecting professional liability insurance requirements for members and professional corporations, including requiring members and professional corporations that practise in limited liability partnerships to maintain a minimum amount of liability insurance pursuant to Part III of The Partnership Act;

(dd) for the purpose of clause 3(3)(e), prescribing any activity, a person or class of persons, and any conditions;

(ee) respecting anything to deal with the transition from the former Act to this Act;

(ff) defining any word or phrase used but not defined in this Act;

(gg) prescribing anything referred to in this Act as being prescribed;

(hh) generally for the carrying out of the purposes of this Act.

Code of ethics

9(2)        In addition to any by-law made under subsection (1), the council must, by by-law, establish a code of ethics governing the conduct of members and professional corporations.

Approval of by-laws

9(3)        A by-law made under this section, including a by-law that amends or repeals a by-law, does not come into force until it is approved at a general or special general meeting of members.

By-laws are public documents

10          By-laws of the association are public documents, and a member of the public

(a) may inspect the by-laws at the head office of the association during regular business hours; and

(b) is entitled to be given a copy of a by-law by the association, on request and at reasonable cost.

By-laws may also be made available to the public electronically.

PART 5

REGISTRATION AND LICENSING

REGISTERS

Establishing registers

11(1)       The registrar must establish and maintain

(a) a general register in a form set out in the by-laws identifying every individual who is registered under subsection 13(1);

(b) an annual register in a form set out in the by-laws identifying

(i) every individual who holds a licence and is authorized to practise land surveying pursuant to this Act, and

(ii) every professional corporation that holds a permit and is authorized to practise land surveying pursuant to this Act; and

(c) any other registers required by the by-laws.

Entry in the general register

11(2)       An entry in the general register under clause (1)(a) must include

(a) the person's name and business address;

(b) the person's category of registration;

(c) the person's standing;

(d) any practice restrictions or other conditions imposed on the person's registration; and

(e) any other information that the by-laws require to be kept in the register.

Entry in annual register — Manitoba land surveyors

11(3)       An entry in the annual register under subclause (1)(b)(i) for an individual holding a licence must include

(a) the person's name and business address;

(b) the person's category of licence;

(c) if applicable, the name and registered address of a professional corporation through which the individual practices;

(d) a notation of each suspension or cancellation of the person's licence;

(e) any practice restrictions or other conditions imposed on the person's licence; and

(f) any other information that the by-laws require to be kept in the register.

Entry in annual register — professional corporations

11(4)       An entry in the annual register under subclause (1)(b)(ii) for a professional corporation must include

(a) the name and business address of the corporation;

(b) the names of the voting shareholders, the directors and the president of the corporation;

(c) a notation of each suspension or cancellation of the corporation's permit;

(d) any practice restrictions or other conditions imposed on the corporation's permit; and

(e) any other information that the by-laws require to be kept in the register.

Registers are open to the public

11(5)       Each register under this section is open to inspection by members of the public at the head office of the association during regular business hours, free of charge. A register may also be made available electronically.

Removal from annual register

12(1)       The registrar must remove or cause the removal from the annual register of the following:

(a) the name of any individual who fails to meet or maintain the requirements for entry in the register, whose registration has been cancelled or surrendered, or whose licence has been cancelled, surrendered or not renewed;

(b) the name of any professional corporation that fails to meet or maintain the requirements for entry in the register or whose permit has been cancelled, surrendered or not renewed.

Effect of removal from annual register

12(2)       An individual's licence or a professional corporation's permit terminates and ceases to have effect when the name of the individual or corporation, as the case may be, is removed from the annual register.

REGISTRATION

Registration as a member

13(1)       The registration committee must, upon application by an individual in accordance with the by-laws including payment of the prescribed fees, register the individual as a member, with or without conditions, if the committee is satisfied that the individual

(a) meets, for a particular category of registration, the educational and other qualifications, and any competency or practising requirements, set out in the by-laws; or

(b) is entitled to be granted membership in a particular category of registration by virtue of The Labour Mobility Act.

Name to be entered in the general register

13(2)       Upon an individual being registered under subsection (1), the registrar must enter the individual's name in the general register under the appropriate category of registration.

Certificate of registration to be issued

13(3)       Upon entering a person's name in the general register under subsection (2), the registrar must issue a certificate of registration to the person.

Application for registration not approved

13(4)       If the registration committee does not approve an application for registration or approves an application subject to conditions, it must give written notice to the applicant, with reasons for its decision, and advise the applicant of the right to appeal the decision of the registration committee to the council.

Appeal to council

13(5)       A person whose application for registration is not approved by the registration committee or whose application is approved by the registration committee subject to conditions may, by notice in writing within 30 days after receiving notice of the decision, appeal the decision of the registration committee to the council, specifying the reasons for the appeal.

Hearing

13(6)       On receiving a notice of appeal under this section, the council must

(a) schedule a hearing to be held within 60 days after receiving the notice of appeal, unless the applicant consents in writing to a later date; and

(b) give the applicant written notice of the date, place and time of the hearing.

Right to appear and make representations

13(7)       An applicant who appeals a decision of the registration committee is entitled to appear at the hearing, with or without counsel, and make representations.

Participation by registration committee

13(8)       Any member of the registration committee who is also a member of the council may participate in the appeal but must not vote on a decision under subsection (9).

Decision by the council

13(9)       The council must decide the appeal within 30 days after the hearing and may make any decision the registration committee could have made.

Notice of decision on appeal

13(10)      Within 30 days after deciding the appeal, the council must give the applicant written notice of its decision, with reasons.

Appeal to court

13(11)      A person whose application for registration is refused by the council or whose application is approved by the council subject to conditions may appeal the decision to the court by filing a notice of application in the court within 30 days after the date on which the applicant is notified of the decision.

Powers of court on appeal

13(12)      The court, on hearing an appeal, may

(a) dismiss the appeal;

(b) make any decision that in its opinion should have been made; or

(c) refer the matter back to the council for further consideration in accordance with any direction of the court.

LICENSING

Manitoba land surveyor licence application

14(1)       An individual who wishes to apply for a licence to practise as a Manitoba land surveyor, or the renewal of such a licence, must

(a) be named in an appropriate category of registration in the general register, as specified in the by-laws;

(b) provide to the registrar an application, in the prescribed form, for a category of licence that is appropriate for the applicant's practice intentions;

(c) provide an undertaking that his or her practice of land surveying will be conducted in accordance with this Act and the by-laws;

(d) pay to the association the prescribed fees for the appropriate category of licence; and

(e) meet any other requirements set out in the by-laws.

Additional requirements

14(2)       In addition to the requirements of subsection (1), an applicant for a licence to practise as a Manitoba land surveyor, or a renewal of such a licence, must satisfy the registrar

(a) that he or she

(i) has served a period of internship, or practised the required number of hours, as required by the by-laws, and

(ii) has met any continuing competency or professional development requirements set out in the by-laws; or

(b) is entitled to be granted a licence, or the renewal of a licence, by virtue of The Labour Mobility Act.

Issuance or renewal of a Manitoba land surveyor licence

14(3)       Upon fulfilment of the requirements of subsections (1) and (2), the registrar must

(a) issue to the applicant a licence of the appropriate category, in the prescribed form, or the renewal of such a licence, authorizing the applicant to practise land surveying; and

(b) enter the person's name in the annual register.

Licence terms or conditions

14(4)       The registrar may issue or renew a licence subject to any terms or conditions he or she considers advisable.

Entitlement to practise

15          A licence entitles a member to engage in the practice of land surveying during the duration of the licence.

Duration of licence

16          A licence remains in force for the prescribed time, unless it is earlier surrendered, suspended or cancelled.

Reinstatement of licence

17(1)       Upon application by a person whose licence has been surrendered, suspended, cancelled or not renewed, the council may

(a) direct the registrar to reinstate the person's licence, subject to any conditions the council may impose; and

(b) order the person to pay any costs arising from those conditions.

Reinstatement in annual register

17(2)       Upon reinstating the person's licence, the registrar must also reinstate the person's name in the annual register.

Application for renewal of a licence

18(1)       A Manitoba land surveyor may apply for renewal of a licence before the date the licence expires or such other time as may be acceptable to the registrar, by filing an application with the registrar, and providing evidence that the requirements of subsections 14(1) and (2) have been satisfied.

Licence continues

18(2)       If a renewal application is received by the registrar within the prescribed time, the licence continues in force until a decision on the application has been made.

Appeal

19          If the registrar refuses to issue or renew a licence, or issues or renews a licence subject to terms or conditions, the applicant may appeal the registrar's decision, and subsections 13(4) to (12) apply with the necessary changes.

PART 6

PROFESSIONAL CORPORATIONS

Professional corporation may practise

20          A professional corporation may, through one or more Manitoba land surveyors, provide professional services

(a) under its own name; or

(b) as a member of a general or limited liability partnership of professional corporations or of professional corporations and Manitoba land surveyors, under a name approved by the registration committee in accordance with the by-laws.

Corporate permit

21(1)       Subject to subsection (4), the registration committee must issue a permit or a renewal of a permit, with or without conditions, to a corporation that wishes to provide professional services, if the committee is satisfied that

(a) the corporation is

(i) incorporated, formed by amalgamation or continued under The Corporations Act, or

(ii) incorporated, amalgamated or continued under an Act of the Parliament of Canada or of the legislature of any province or territory of Canada, and is registered to carry on business under The Corporations Act,

and is in good standing under The Corporations Act;

(b) the name of the corporation includes the words "Manitoba Land Surveyor", "Manitoba Land Surveyors", "Manitoba Land Surveying" or the initials "M.L.S.", and is approved by the registrar in accordance with the by-laws;

(c) each voting share of the corporation is legally and beneficially owned by a Manitoba land surveyor or a professional corporation;

(d) each other share in the capital stock of the corporation is both legally and beneficially owned by a person who is

(i) a voting shareholder of the corporation,

(ii) a spouse, common-law partner or child, within the meaning of the Income Tax Act (Canada), of a voting shareholder of the corporation, or

(iii) a corporation each share of the capital stock of which is legally and beneficially owned by a person referred to in subclause (i) or (ii);

(e) each director of the corporation is a Manitoba land surveyor;

(f) the president of the corporation is a Manitoba land surveyor;

(g) each person through whom the corporation will be providing professional services is

(i) a Manitoba land surveyor, or

(ii) an employee of the corporation, but only if the employee is acting under the supervision of a Manitoba land surveyor through whom the corporation will be providing professional services;

(h) the corporation has filed an application in the prescribed form, and paid the prescribed fee, for the permit or its renewal; and

(i) all other prescribed requirements for the issuance or renewal of the permit have been satisfied.

Validity during consideration of renewal application

21(2)       If an application for renewal is received by the registrar by the date set out in the by-laws, the permit continues in force until a decision on the application has been made.

Validity of permit

21(3)       Unless it is cancelled, surrendered or under suspension, a permit is valid for the period specified in the permit.

Refusal to issue or renew permit

21(4)       The registration committee

(a) must refuse to issue a permit to, or to renew the permit of, a corporation if the committee is not satisfied by proper evidence that the corporation meets the requirements of subsection (1); and

(b) may refuse to issue a permit to, or renew the permit of, a corporation if

(i) a permit previously issued to the corporation under this Act has been cancelled or surrendered, or

(ii) a director, officer or shareholder of the corporation is or has been a director, officer or shareholder of a corporation whose permit under this Act has been cancelled or surrendered.

Notice of decision

21(5)       If the registration committee refuses to issue or renew a permit under subsection (4), or issues or renews a permit subject to conditions, the committee must inform the corporation in writing of the decision and the reasons for it, and of the corporation's right to appeal the decision.

Appeal to council

21(6)       A corporation that is refused a permit or renewal of a permit under subsection (4), or whose permit is issued or renewed subject to conditions, may appeal the committee's decision to the council.

How to appeal

21(7)       The appeal must be made by filing a written notice of appeal with the council within 30 days after the corporation receives notice of the decision. The notice of the appeal must specify the reasons for the appeal.

Decision by council

21(8)       The council must either dismiss the appeal or make any decision the registrar could have made. The council must give the corporation written notice of its decision and the reasons for it.

Appeal to court

21(9)       A corporation may appeal the decision of the council to the court by filing a notice of application within 30 days after receiving notice of the council's decision under subsection (8). Subsection 27(3) applies to an appeal under this subsection.

Business without permit prohibited

22(1)       A corporation whose name contains

(a) the words "Manitoba Land Surveyor";

(b) the words "Land Surveyor";

(c) the words "Land Surveys";

(d) the words "Land Surveying"; or

(e) the initials "M.L.S.", in circumstances where the public is likely to believe that the corporation is holding itself out as carrying on the business of providing professional services;

must not carry on any business in Manitoba unless it holds a valid permit.

Restriction on business of professional corporation

22(2)       A professional corporation must not carry on any business or activity other than the providing of professional services authorized by the permit and directly associated services.

Interpretation of business restriction

22(3)       Subsections (1) and (2) must not be construed so as to prohibit a professional corporation from investing its own funds in real property, other than for development purposes, or in stocks, mutual funds, debt obligations, insurance, term deposits or similar investments.

Validity of corporate act

22(4)       No act of a professional corporation, including a transfer of property to or by the corporation, is invalid merely because it contravenes subsection (1) or (2).

Voting agreements void

23(1)       An agreement or proxy that vests in a person who is not a Manitoba land surveyor the authority to exercise any voting right attached to a share of a professional corporation is void.

Unanimous shareholders' agreements void

23(2)       A unanimous shareholders' agreement within the meaning of subsection 140(2) of The Corporations Act in respect of a professional corporation is void unless each shareholder of the corporation is a Manitoba land surveyor or a professional corporation.

Notice of changes

24          A professional corporation must notify the registration committee, within the time and in the prescribed form and manner, of any change in the voting shareholders, the other shareholders, the directors or the officers of the corporation.

Application of Act

25(1)       This Act applies to a Manitoba land surveyor despite any relationship he or she may have with a professional corporation.

Obligations to clients not diminished

25(2)       The fiduciary and ethical obligations of a Manitoba land surveyor, and the obligations of a Manitoba land surveyor respecting confidentiality, to a person receiving professional services

(a) are not diminished by the fact that the services are provided on behalf of a professional corporation; and

(b) apply equally to a professional corporation on whose behalf the services are provided and to its directors, officers and shareholders.

Liability of member

25(3)       The liability of a Manitoba land surveyor for a professional liability claim is not affected by the fact that the Manitoba land surveyor is providing professional services on behalf of a corporation.

Liability of voting shareholders

25(4)       A person is jointly and severally liable with a professional corporation for all professional liability claims made against the corporation in respect of errors or omissions that were made or occurred while the person was a voting shareholder of the corporation.

Effect of Manitoba land surveyor's conduct on professional corporation

25(5)       If the conduct of a Manitoba land surveyor through whom a professional corporation was providing professional services at the time the conduct occurred is the subject of an investigation or inquiry,

(a) any power that may be exercised in respect of the Manitoba land surveyor may be exercised in respect of the corporation; and

(b) the corporation is jointly and severally liable with the Manitoba land surveyor for all fines and costs that he or she is ordered to pay.

Manitoba land surveyor's conditions apply to corporation

25(6)       Any condition imposed on the registration or licence of a Manitoba land surveyor through whom a professional corporation provides professional services applies to the permit of the corporation in relation to its provision of professional services through that Manitoba land surveyor.

Grounds for suspension or cancellation of permit

26(1)       Subject to subsection (2), a professional corporation's permit may be cancelled or suspended by the registration committee if

(a) the corporation ceases to meet any of the requirements of eligibility for a permit set out or referred to in subsection 21(1);

(b) the corporation contravenes any provision of this Act or the by-laws of the association, or any condition of the corporation's permit; or

(c) a Manitoba land surveyor, in the course of providing professional services on behalf of the corporation, does or fails to do anything as a result of which his or her registration or licence is cancelled or suspended.

Limitation

26(2)       A professional corporation's permit must not be cancelled or suspended by reason only of the fact that

(a) one or more shares of the corporation have vested in

(i) an executor or administrator of the estate of an individual as a consequence of the death of the individual, or

(ii) a trustee in bankruptcy on the bankruptcy of the owner of the shares,

unless the corporation is not providing professional services through any other Manitoba land surveyor or the shares continue to be vested in the executor, administrator or trustee for a period of 180 days or any longer period allowed by the council;

(b) the former spouse or common-law partner of a voting shareholder continues to own a share of the corporation after the end of their marriage or common-law relationship;

(c) a Manitoba land surveyor's registration or licence has been suspended, unless

(i) the Manitoba land surveyor remains a director or officer of the corporation more than 14 days after the commencement of the suspension, or

(ii) the corporation is not providing professional services through any other Manitoba land surveyor; or

(d) an individual has ceased to be a Manitoba land surveyor, for any reason other than the death or bankruptcy of the individual, unless

(i) the individual remains a director or officer of the corporation more than 14 days after ceasing to be a Manitoba land surveyor,

(ii) the individual remains a voting shareholder of the corporation for more than 90 days after ceasing to be a Manitoba land surveyor, or for any longer period allowed by the council, or

(iii) the corporation is not providing professional services through any other Manitoba land surveyor.

Surrender of permit

26(3)       When a professional corporation's permit is cancelled, it must promptly surrender the permit to the registrar.

Written notice of cancellation required

27(1)       The council must

(a) give notice to the professional corporation in writing with the reasons for the council's decision to suspend or cancel its permit or take any action under section 28; and

(b) advise the professional corporation of the right to appeal the decision to the court.

Appeal to court

27(2)       A professional corporation may appeal the decision of the council to the court by filing a notice of application within 30 days after receiving notice of the council's decision.

Powers of court on appeal

27(3)       Upon hearing an appeal, the court may

(a) dismiss the appeal;

(b) make any decision that in its opinion should have been made; or

(c) refer the matter back to the council for further consideration in accordance with any direction of the court.

Alternative to cancellation or suspension

28          Instead of suspending or cancelling the permit of a professional corporation, the council may do one or more of the following:

(a) reprimand the corporation or one or more directors or voting shareholders of the corporation;

(b) impose restrictions on the permit;

(c) impose a fine on the corporation, payable to the association, in an amount not exceeding $30,000.

PART 7

COMPLAINTS

Definitions

29          The following definitions apply in this Part.

"complaint" includes a matter referred under clause 32(1)(b). (« plainte »)

"conduct" includes an act or omission. (« conduite »)

"investigated member" means a member or former member who is the subject of an investigation or whose conduct is the subject of a hearing under this Part. (« membre faisant l'objet de l'enquête »)

COMPLAINTS COMMITTEE

Complaints committee

30(1)       The council must appoint a complaints committee consisting of

(a) a Manitoba land surveyor who is to be the chair of the committee;

(b) one or more other members of the association; and

(c) one or more public representatives.

Public representatives

30(2)       At least 1/3 of the persons appointed to the complaints committee must be public representatives.

Complaints against members

31(1)       Any person may make a complaint in writing to the registrar about the conduct of a member, and the complaint must be dealt with in accordance with this Part.

Complaints against former members

31(2)       If, within five years after a member's registration is cancelled or suspended under this Act,

(a) a complaint, or a referral under clause 32(1)(b), is made about the former member; and

(b) the complaint or referral relates to conduct occurring before the cancellation or suspension;

the complaint or referral may, despite the cancellation or suspension, be dealt with as if the former member's registration were still in effect.

Referral to complaints committee

32(1)       The registrar must refer to the complaints committee

(a) a complaint made under section 31; and

(b) any other matter that the registrar considers appropriate.

Notice of referral

32(2)       On referring a matter to the complaints committee, the registrar must give notice of the referral to the investigated member and the complainant.

Informal resolution

33(1)       On receiving a referral of a complaint or other matter, the complaints committee may attempt to resolve it informally if the committee considers it appropriate.

Investigation

33(2)       If informal resolution of a complaint is attempted and the complaint is not resolved to the complainant's satisfaction, the complaints committee must direct that an investigation into the conduct of the member be held and must appoint an investigator to conduct the investigation. In addition, the committee may direct an investigation and appoint an investigator in respect of any complaint or other matter that is referred to it, if the committee considers it appropriate to do so.

Persons eligible to be an investigator

33(3)       Any person, including a member of the complaints committee but not including the registrar, is eligible for appointment as an investigator.

Records and information

33(4)       An investigator appointed under subsection (2) may do one or more of the following:

(a) require the investigated member or any other member to produce to the investigator any records in his or her possession or under his or her control that may be relevant to the investigation;

(b) require the investigated member or any other member to be interviewed for the purpose of the investigation;

(c) direct that an inspection or audit of the investigated member's practice be conducted.

Failure to produce records

33(5)       The association may apply to the court for an order

(a) directing any member to produce to the investigator any records in his or her possession or under his or her control, if it is shown that the member failed to produce them when required to do so by the investigator; or

(b) directing any person to produce to the investigator any records in his or her possession or under his or her control that are or may be relevant to the complaint being investigated.

Investigation of other matters

33(6)       The investigator may investigate any other matter related to the professional conduct or the skill in practice of the investigated member that arises in the course of the investigation.

Report to the complaints committee and investigated member

33(7)       On concluding the investigation, the investigator must report his or her findings to the complaints committee, which must give a copy of the report to the investigated member.

DECISION OF COMPLAINTS COMMITTEE

Decision of complaints committee

34(1)       The complaints committee may, after a review or investigation,

(a) direct that the matter be referred, in whole or in part, to the inquiry committee;

(b) direct that the matter not be referred to the inquiry committee;

(c) accept the voluntary surrender of the investigated member's registration;

(d) censure the investigated member if

(i) at least one member of the committee has met with the investigated member and the investigated member has agreed to accept the censure, and

(ii) the committee has determined that no action is to be taken against the investigated member other than censure;

(e) refer the matter to mediation if the committee determines that the complaint is strictly a matter of concern to the complainant and the investigated member and both parties agree to mediation; or

(f) enter into an agreement with the investigated member that provides for one or more of the following:

(i) assessing the member's capacity or fitness to practise land surveying,

(ii) counselling or treatment of the member,

(iii) monitoring or supervising the member's practise of land surveying,

(iv) the member's completion of a specified course of studies by way of remedial training,

(v) placing conditions on the member's right to practise land surveying.

Matter not resolved by mediation

34(2)       If a matter referred for mediation under clause (1)(e) cannot be resolved, it must be referred back to the complaints committee, which may make any other decision under subsection (1) that it considers appropriate.

Decision served on member and complainant

34(3)       The complaints committee must serve a written notice setting out its decision and the reasons for the decision on the investigated member and the complainant.

Hearing not required

34(4)       The complaints committee is not required to hold a hearing or give any person an opportunity to appear or to make formal submissions before making a decision under this section.

Conditions on right to practise

35(1)       If the complaints committee enters into an agreement with an investigated member for conditions on the member's right to practise land surveying under subclause 34(1)(f)(v), those conditions may include one or more of the conditions described in section 38.

Costs

35(2)       The complaints committee may order the investigated member to pay all or part of the costs incurred by the association in monitoring compliance with conditions imposed on his or her right to practise land surveying under an agreement entered into under subclause 34(1)(f)(v). It may also order the member to pay all or part of the costs of the investigation.

CENSURE

Personal appearance

36(1)       The complaints committee may require an investigated member who is censured under clause 34(1)(d) to appear personally before the committee to be censured.

Publication of censure

36(2)       The complaints committee may publish the fact that an investigated member has been censured, and publication may include the member's name and a description of the circumstances that led to the censure.

Order for costs

36(3)       The complaints committee may order an investigated member who is censured to pay all or part of the costs of the investigation.

VOLUNTARY SURRENDER OF REGISTRATION

Voluntary surrender of registration

37(1)       If the complaints committee accepts a voluntary surrender of an investigated member's registration under clause 34(1)(c), it may direct the member to do one or more of the following, to the satisfaction of any person or committee that the complaints committee may determine, before the member's right to practise land surveying may be reinstated:

(a) obtain counselling or treatment;

(b) complete a specified course of studies;

(c) obtain supervised experience.

Order for costs

37(2)       The complaints committee may direct the investigated member to pay any costs incurred by the association in monitoring compliance with a direction given under subsection (1), and to pay all or part of the costs of the investigation up to the time that the voluntary surrender takes effect.

Conditions on reinstatement

38          A voluntary surrender remains in effect until the complaints committee is satisfied that the conduct or complaint that was the subject of the investigation has been resolved, at which time the committee may impose conditions on the investigated member's ability to practise land surveying, including conditions that the member do one or more of the following:

(a) limit his or her practice;

(b) practise under supervision;

(c) report to the committee or the registrar on specific matters;

(d) comply with any other conditions that the committee considers appropriate in the circumstances;

and may order the member to pay all or any part of the costs incurred by the association in monitoring compliance with those conditions.

APPEAL BY COMPLAINANT

Appeal by complainant to council

39(1)       If the complaints committee makes a decision under clause 34(1)(b), (d) or (f), the complainant may appeal the decision to the council.

Notice

39(2)       An appeal is to be made by giving a written notice of appeal to the registrar within 30 days after the date the complainant is served with notice of the complaints committee decision under subsection 34(3). The notice must state the grounds for the appeal.

Power on appeal

39(3)       On an appeal under this section, the council must do one or more of the following:

(a) make any decision that in its opinion ought to have been made by the complaints committee;

(b) quash, vary or confirm the decision of the complaints committee;

(c) refer the matter back to the complaints committee for further consideration in accordance with any direction that the council may make.

Notice of decision

39(4)       The council must give the investigated member and the complainant a written notice setting out its decision and the reasons for the decision.

Hearing not required

39(5)       The council is not required to hold a hearing or to give any person an opportunity to appear or to make oral submissions before making a decision under this section, but it must give the investigated member and the complainant an opportunity to make written submissions.

SUSPENSION OF REGISTRATION PENDING DECISION

Suspension of registration pending decision

40(1)       Despite anything in this Act, the complaints committee may, when there is a question that an investigated member's conduct exposes or is likely to expose the public to serious risk, direct the registrar to suspend the member's registration or licence, or place conditions on his or her practice of land surveying, pending the outcome of proceedings under this Part.

Notice of suspension or conditions

40(2)       On receiving a direction under subsection (1), the registrar must promptly serve notice of the suspension or conditions of practice on the investigated member and, where applicable, the member's employer.

Application for stay

41          The investigated member may, by filing an application with the court and serving a copy on the registrar, apply for an order of the court staying a decision of the complaints committee to suspend the member's registration or licence or to place conditions on his or her practice under section 40 pending the outcome of proceedings under this Part. MISCELLANEOUS

Referral to inquiry committee

42          Despite any other action it may have taken, with the exception of a censure, the complaints committee may at any time refer the conduct or complaint that was the subject of an investigation to the inquiry committee.

Disclosure of information to authorities

43          Despite any other provision of this Act, the complaints committee may disclose to a law enforcement authority any information respecting possible criminal activity on the part of a member that is obtained during an investigation under this Part.

INQUIRY COMMITTEE

Inquiry committee

44(1)       The council must appoint an inquiry committee consisting of

(a) a Manitoba land surveyor, who is to be the chair;

(b) one or more other members of the association; and

(c) one or more public representatives.

Public representatives

44(2)       At least 1/3 of the persons appointed to the inquiry committee must be public representatives.

Selection of panel

45(1)       Within 30 days after a matter is referred to the inquiry committee, the chair must select a panel from among the members of the inquiry committee to hold a hearing.

Composition

45(2)       A panel is to be composed of at least three members of the inquiry committee, and must include at least one Manitoba land surveyor and at least one public representative.

Exclusion from panel

45(3)       No person may be selected for a panel who has taken part in the review or investigation of what is to be the subject matter of the panel's hearing.

Effect of member being unable to continue

45(4)       If a hearing has begun and a member of the panel is unable to continue to sit as a member, the panel may complete the hearing if at least three members remain and the remaining members include at least one Manitoba land surveyor and at least one public representative.

HEARINGS

Hearing

46(1)       When a panel is selected, it must hold a hearing.

Date of hearing

46(2)       A hearing must begin within 90 days after the date on which the matter is referred to the inquiry committee, unless the investigated member consents in writing to a later date.

Notice of hearing

46(3)       At least 30 days before the date of the hearing, the registrar must serve a notice of hearing on the investigated member and the complainant stating the date, time and place of the hearing and identifying in general terms the complaint or matter about which the hearing will be held.

Public notice of hearing

46(4)       The registrar may issue a public notice of the hearing in any manner he or she considers appropriate, but the notice must not include the name of the investigated member.

Procedure

47(1)       Subject to any procedural rules established for the inquiry committee in the by-laws, the inquiry committee may determine its own practice and procedure.

Rules of evidence do not apply

47(2)       A panel is not bound by the rules of evidence that apply to judicial proceedings.

Right to appear and be represented

47(3)       The association and the investigated member may appear and be represented by counsel at a hearing, and the panel may have counsel to assist it.

Adjournments

47(4)       The chair of the panel may adjourn a hearing from time to time.

Recording of evidence

47(5)       The oral evidence given at a hearing must be recorded.

Member may examine documentary evidence

48(1)       At least three days before the hearing, the investigated member must be given opportunity to examine any written or documentary evidence that will be produced and any report the contents of which will be given in evidence at the hearing.

Member to provide documentary evidence

48(2)       If the investigated member intends to rely on any written or documentary evidence or any report at the hearing, he or she must provide a copy of that evidence or report to the association at least three days before the hearing.

Evidence of expert without report

48(3)       If either the investigated member or the association intends to call an expert as a witness at the hearing and there is no report from the expert, a summary of the expert's intended evidence, including his or her findings, opinions and conclusions, must be provided to the other party at least three days before the hearing.

Failure to comply — documentary evidence or summary

48(4)       If

(a) the requirements of subsection (1) or (2) respecting written or documentary evidence or a report are not complied with; or

(b) a summary is not provided in accordance with subsection (3);

the written or documentary evidence or report may not be produced as evidence, or the expert may not testify, as the case may be, unless the panel gives leave.

Investigation of other matters

49          The panel may investigate and hear any other matter concerning the conduct of the investigated member that arises in the course of its proceedings. In that event, the panel must declare its intentions to investigate the further matter and must permit the member sufficient opportunity to prepare a response.

Hearing open to public

50(1)       Except as otherwise provided in this section, a hearing of the panel must be open to the public, but there must be no reporting in the media of anything that would identify the investigated member, including the member's name, the business name of the member's practice or corporation, or the location of practice, unless and until the panel makes a finding under section 54.

Request for private hearing

50(2)       The investigated member or the association may request that the hearing or any part of it be held in private.

When private hearing may be held

50(3)       When a request is made under subsection (2), the panel may make an order excluding the public from the hearing or any part of it or directing that the investigated member, the complainant, or any witness be identified only by initials, if the panel is satisfied that

(a) matters involving public security may be disclosed;

(b) financial or personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public;

(c) a person involved in a criminal proceeding or a civil suit or proceeding may be prejudiced; or

(d) the safety of a person may be jeopardized.

Reasons for excluding the public to be available

50(4)       The panel must ensure that an order it makes under subsection (3) and its reasons are either given orally at the hearing or made available to the public in writing.

Evidence

51(1)       At a hearing, the oral evidence of witnesses must be taken on oath, and the parties have the right to cross-examine witnesses and call evidence in defence and reply.

Power to administer oaths

51(2)       For the purpose of an investigation or hearing under this Act, the registrar and the chair of the panel have the power to administer oaths.

Witnesses

52(1)       Any person, other than the investigated member, who in the opinion of the panel has knowledge of the complaint or matter being heard is a compellable witness in any proceeding before the panel.

Notice to attend and produce records

52(2)       The attendance of witnesses before the panel and the production of records may be enforced by a notice issued by the registrar requiring the witness to attend and stating the date, time and place at which the witness is to attend and the records, if any, that the witness is required to produce.

Registrar to provide notices

52(3)       On the written request of the investigated member or his or her counsel or agent, the registrar must provide any notices that the member requires for the attendance of witnesses or the production of records.

Witness fees

52(4)       A witness, other than the investigated member, who has been served with a notice to attend or a notice for production under this section is entitled to be paid the same fees in the same manner as a witness in an action in court.

Failure to attend or give evidence

52(5)       Proceedings for civil contempt of court may be brought against a witness

(a) who fails to attend before the panel as required by a notice to attend;

(b) who fails to produce any records as required by a notice to produce them; or

(c) who refuses to be sworn or to affirm, or to answer any questions he or she is directed to answer by the panel.

Hearing in absence of member

53          The panel, on proof of service on the investigated member of the notice of hearing, may

(a) proceed with the hearing in the absence of the member or his or her agent; and

(b) act, decide or report on the matter being heard in the same way as if the member were in attendance.

DECISION OF PANEL

Decision of the panel

54(1)       At the conclusion of a hearing, the panel may decide that no further action is to be taken against the investigated member, or it may make any finding described in subsection (2).

Findings of panel

54(2)       If, at the conclusion of a hearing, the panel finds that the investigated member

(a) is guilty of professional misconduct;

(b) has contravened this Act or the by-laws, or the standards of practice or code of ethics of the association;

(c) has been found guilty of an offence that is relevant to the member's suitability to practise;

(d) has displayed a lack of knowledge or lack of skill or judgment in the practice of land surveying;

(e) has demonstrated an incapacity or unfitness to practise land surveying;

(f) is suffering from an ailment, emotional disturbance or addiction that impairs his or her ability to practise land surveying; or

(g) is guilty of conduct unbecoming a member;

the panel may make an order against the investigated member under this Part.

Orders of panel

55(1)       If the panel makes any of the findings described in subsection 54(2), it may make one or more of the following orders against the investigated member:

(a) reprimanding the member;

(b) suspending the member's registration or licence for a stated period;

(c) suspending the member's registration or licence until he or she has completed a specified course of studies or supervised practical experience, or both, to the satisfaction of any person or committee that the panel may determine;

(d) suspending the investigated member's registration or licence until he or she satisfies a person or committee specified by the panel that the ailment, emotional disturbance or addiction no longer impairs his or her ability to practice land surveying;

(e) accepting, in place of suspending the member's registration or licence, the member's undertaking to limit his or her practice;

(f) imposing conditions on the member's ability to practise land surveying, including conditions that he or she

(i) practise under supervision, or

(ii) report on specified matters to any person or committee that the panel may determine;

(g) requiring the member to take counselling or treatment;

(h) cancelling the member's registration or licence.

Panel may consider past censure

55(2)       To assist the panel in making an order under this section, the panel may be advised of any censure or order previously issued to the investigated member and the circumstances under which it was issued.

Ancillary orders

55(3)       The panel may make any ancillary order that is appropriate or required in connection with an order made under subsection (1), or may make any other order that it considers appropriate in the circumstances, including an order that

(a) a further or new investigation be held into any matter; or

(b) a panel be convened to hear a complaint without an investigation.

Costs when conditions imposed

55(4)       If the panel imposes conditions on an investigated member's ability to practise land surveying under clause (1)(f), it may also order the member to pay all or any part of the costs incurred by the association in monitoring compliance with those conditions.

Contravention of order

55(5)       If the council is satisfied that an investigated member has contravened an order made under subsection (1), it may, without a further hearing, cancel the member's registration or licence.

Costs and fines

56(1)       The panel may, in addition to or instead of dealing with the investigated member's conduct in accordance with section 55, order that the member pay to the association, within the time set by the order,

(a) all or part of the costs of the investigation, hearing and panel;

(b) a fine not exceeding $30,000; or

(c) both the costs under clause (a) and the fine under clause (b).

Nature of costs

56(2)       The costs referred to in subsection (1) may include, but are not limited to,

(a) all disbursements incurred by the association, including

(i) fees and expenses for experts, investigators and auditors whose reports or attendance were reasonably necessary for the investigation or hearing,

(ii) fees, travel costs and reasonable expenses of any witnesses required to appear at the hearing,

(iii) fees for retaining a reporter and preparing transcripts of the proceedings, and

(iv) costs of service of documents, long distance telephone and fax charges, courier delivery charges and similar miscellaneous expenses;

(b) payments of remuneration and reasonable expenses made to members of the panel or the complaints committee; and

(c) costs incurred by the association in providing counsel for the association and the panel, whether or not counsel is employed by the association.

Failure to pay costs and fines by time ordered

56(3)       If the investigated member is ordered to pay a fine or costs or both under subsection (1), or costs under subsection 55(4), and fails to pay within the time ordered, the registrar may suspend his or her registration or licence until payment is made.

Filing of order

56(4)       The association may file an order under subsection (1) in the court, and on the order being filed it may be enforced in the same manner as a judgment of the court.

THE DECISION

Written decision

57(1)       Within 30 days after the completion of a hearing, the panel must make a written decision on the matter, consisting of its findings, any order made by it and the reasons for the decision.

Decision forwarded to registrar

57(2)       The panel must promptly forward to the registrar

(a) the written decision; and

(b) any record of the proceedings and all exhibits and documents.

Service of decision

57(3)       Upon receiving the decision, the registrar must serve a copy of it on the investigated member and the complainant.

Copies of transcript

57(4)       The investigated member may examine the record of proceedings before the panel, and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the panel.

Publication of decision

58          Despite the fact that any proceeding or part of a proceeding under this Part may have been held in private, the association may, after the decision has been served on the member and the complainant, publish the circumstances relevant to the findings and any order of the panel. If the panel makes an order against the member under section 55 or 56, the association may also publish the member's name.

APPEAL TO COURT OF APPEAL

Appeal to Court of Appeal

59(1)       The investigated member may appeal the following decisions of a panel to the Court of Appeal:

(a) a finding made under subsection 54(2);

(b) an order made under section 55 or 56.

Commencement of appeal

59(2)       An appeal may be commenced by

(a) filing a notice of appeal; and

(b) giving a copy of the notice of appeal to the registrar;

within 30 days after the date on which the decision of the panel is served on the investigated member.

Appeal on the record

59(3)       An appeal must be based on the record of the hearing before the panel and the decision of the panel.

Powers of Court on appeal

60          Upon hearing the appeal, the Court of Appeal may

(a) make any finding or order that in its opinion ought to have been made;

(b) quash, vary or confirm the decision of the panel or any part of it; or

(c) refer the matter back to the panel for further consideration in accordance with any direction of the Court.

Stay pending appeal

61          The decision and any order of the panel remains in effect pending an appeal unless the Court of Appeal, on application, stays the decision and any order pending the appeal.

REINSTATEMENT

Reinstatement

62          The council may, on application by a person whose registration or licence has been cancelled, direct the registrar to reinstate the person's registration or licence, subject to any conditions that the council may impose, and may order the person to pay any costs arising from those conditions.

PART 8

RIGHTS AND POWERS OF

LAND SURVEYORS

Right of entry for purpose of making survey

63(1)       A

(a) Manitoba land surveyor;

(b) person, including a land surveyor in training, practising land surveying under the supervision, or the direction and control, of a Manitoba land surveyor; or

(c) duly authorized assistant of a Manitoba land surveyor;

may, for the purpose of satisfactorily performing his or her duties,

(d) enter onto and pass over any land to

(i) uncover, locate, relocate, set survey instruments over or upon, install or replace a monument,

(ii) locate a boundary,

(iii) determine a geodetic position, or

(iv) obtain any necessary measurement; or

(e) enter any building, other than a dwelling, for any purpose, including for the purpose of obtaining any necessary measurement, at any reasonable time.

Entry into dwelling with consent

63(2)       Despite clause (1)(e), a person described in clauses (1)(a) to (c) may enter a dwelling with the consent of the owner or occupant and take any action described in subsection (1).

Warrant for entry and inspection

63(3)       A justice who is satisfied by information on oath that there are reasonable grounds to believe that

(a) entry into premises is necessary for the purpose of administering or determining compliance with this Act; and

(b) in the case of a dwelling,

(i) entry has been or will be refused, or

(ii) the occupant is temporarily absent;

may issue a warrant authorizing a Manitoba land surveyor and any other person named in the warrant, with such peace officers as are required to assist, to enter and inspect the premises and to use such force as is necessary.

Abandoned building not a dwelling

63(4)       In this section, "dwelling" does not include a building that a Manitoba land surveyor reasonably believes to have been abandoned.

Conditions

63(5)       A warrant may be made subject to any conditions that may be specified in it.

Obtaining assistance

63(6)       In exercising a power under this section, a Manitoba land surveyor may obtain such assistance from a peace officer or other person as he or she reasonably considers necessary.

Compelling attendance before surveyor

64(1)       If a Manitoba land surveyor, in the performance of his or her duties, is in doubt as to the true corner, boundary or limit of any township, section, lot or tract of land, and another person whom the Manitoba land surveyor reasonably believes has information about the matter does not, on request by the Manitoba land surveyor, willingly

(a) appear before, and submit to examination by, the Manitoba land surveyor; or

(b) produce to the Manitoba land surveyor any plan or other document that relates to the matter;

the Manitoba land surveyor may apply to a justice for a subpoena.

Justice may issue subpoena

64(2)       A justice who is satisfied under oath that

a person refuses to willingly appear before, submit to examination by, or produce documents for, a Manitoba land surveyor in the circumstances described in subsection (1), may issue a subpoena requiring the person to appear before the Manitoba land surveyor at the time and place specified in the subpoena and submit to an examination or produce documents relating to the matter.

Failure to comply with a subpoena is an offence

64(3)       A person named in a subpoena issued under subsection (2) must comply with it.

PART 9

PROHIBITIONS

Obstruction of Manitoba land surveyor

65(1)       No person shall obstruct

(a) a Manitoba land surveyor;

(b) a person, including a land surveyor in training, practising land surveying under the supervision, or the direction and control, of a Manitoba land surveyor;

(c) the duly authorized assistant of a Manitoba land surveyor;

(d) an investigator appointed under subsection 33(2); or

(e) an inspector appointed under subsection 69(1);

who is in the performance of his or her duties.

Disturbance of monument

65(2)       No person shall wilfully deface, alter or remove a monument placed by, or under the instructions of, a Manitoba land surveyor, Canada Lands Surveyor or Dominion land surveyor.

Civil remedy not prejudiced

66          Subsections 65(1) and (2) do not prejudice or affect any civil remedy that a Manitoba land surveyor or any other person may have against an offender for damage or loss occasioned by the offence.

Temporary removal of monuments

67          Despite subsection 65(2) or any other provision of this Act, a Manitoba land surveyor or a Canada Lands Surveyor, or their duly authorized assistant, may, as necessary to perform their duties, temporarily remove a monument, so long as he or she subsequently returns it to its correct location.

False or misleading information

68          No person shall knowingly provide false or misleading information in, or in respect of,

(a) an application made under this Act; or

(b) a statement, document or other information given or provided under this Act.

PART 10

COMPLIANCE

INSPECTORS

Appointment of inspectors

69(1)       The council may appoint one or more persons as inspectors for the purpose of this Act.

Review of a practice

69(2)       An inspector may review the practice of a Manitoba land surveyor or professional corporation, and must report his or her findings to the registrar on the conclusion of each review.

Entry of premises and inspection of records

70(1)       For the purpose of administering or determining compliance with this Act, an inspector may, at any reasonable time, and if requested upon presentation of an identification card issued by the association, do one or more of the following:

(a) without a warrant, enter the office of a Manitoba land surveyor or professional corporation, or any other building or place other than a dwelling, and make any inspections that are reasonably required to administer or determine compliance with this Act;

(b) during an inspection of premises under clause (a), and, upon giving a receipt, remove a record, document or other thing relevant to the inspection for the purpose of making copies or extracts, or for examination purposes;

(c) require a Manitoba land surveyor or professional corporation to produce any record, document or other thing that the inspector reasonably considers necessary for the purpose of administering or determining compliance with this Act.

Entry of dwelling with consent

70(2)       Despite clause (1)(a), an inspector may enter a dwelling with the consent of the owner or occupant and take any action described in subsection (1).

Admissibility of copies

70(3)       A copy of a record or document made under clause (1)(b) and certified to be a true copy by the inspector is, in the absence of evidence to the contrary, admissible in evidence in any proceeding or prosecution as proof of the original record or document and its contents.

Warrant for entry and inspection

70(4)       A justice who is satisfied by information on oath that there are reasonable grounds to believe that

(a) entry into premises is necessary for the purpose of administering or determining compliance with this Act; and

(b) in the case of a dwelling,

(i) entry has been or will be refused, or

(ii) the occupant is temporarily absent;

may issue a warrant authorizing an inspector and any other person named in the warrant, with such peace officers as are required to assist, to enter and inspect the premises and to use such force as is necessary.

Abandoned building not a dwelling

70(5)       In this section, "dwelling" does not include a building that an inspector reasonably believes to have been abandoned.

Conditions

70(6)       A warrant may be made subject to any conditions that may be specified in it.

Obtaining assistance

70(7)       In exercising a power under this section, an inspector may obtain such assistance from a peace officer or other person as he or she reasonably considers necessary.

Concealing, etc., records from an inspector

70(8)       No person shall conceal, destroy, or withhold from an inspector, any record, document or other thing that may be relevant to an inspection.

OFFENCES

Offence

71(1)       A person who contravenes a provision of this Act, other than section 77, is guilty of an offence and liable on summary conviction

(a) for a first offence, to a fine of not more than $15,000; and

(b) for a second or subsequent offence, to a fine of not more than $30,000.

Offence re confidentiality of information

71(2)       A person who contravenes section 77 is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000.

Officers, directors and employees

71(3)       If a corporation commits an offence under this Act, a director, officer or employee of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted, and is liable, on summary conviction, to a fine described in subsection (1) or (2), as the case may be.

Limitation on prosecution

71(4)       A prosecution under this Act may be commenced within two years after the date of the commission of the alleged offence, or within six months after the date on which evidence sufficient to justify prosecution for the offence came to the knowledge of the registrar, whichever is later.

Fines payable to the government

71(5)       Any fines recovered under this section are first paid to the convicting court and then paid to the government.

Prosecution of offence

71(6)       Any person may be a prosecutor in the prosecution of an offence under this Act, and the government may pay to the prosecutor a portion of any fine recovered, in an amount that it considers appropriate, toward the costs of the prosecution.

Stay of proceedings

71(7)       When the association is the prosecutor of an offence under this Act, it may apply for a stay of proceedings in the prosecution, and the court must grant the stay.

Single act of unauthorized practice

72          In any prosecution under this Act, it is sufficient to prove that the accused has committed on one occasion any of the acts prohibited by this Act.

INJUNCTION

Injunction

73          The court may, on application by the association, grant an injunction enjoining any person from doing any act that contravenes any provision of this Act, despite any penalty that may be provided by this Act in respect of that contravention.

PART 11

GENERAL PROVISIONS

SERVICE OF DOCUMENTS

Service of documents

74(1)       A notice, order or other document under this Act is sufficiently given or served if it is

(a) delivered personally;

(b) sent by registered mail, or by another service that provides the sender with proof of delivery, to the intended recipient at that person's last address appearing in the records of the association; or

(c) sent by email or other method of electronic communication, but only if

(i) the by-laws do not provide that the document — or documents of that class — cannot be given or served in that manner, and

(ii) the intended recipient has agreed in writing that the document — or documents of that class — may be given or served by email or other method of electronic communication.

Deemed receipt

74(2)       A notice, order or other document sent by registered mail is deemed to be given or served five days after the day it was sent.

REGISTRAR'S CERTIFICATE

Registrar's certificate

75          A certificate purporting to be signed by the registrar and stating

(a) that a named person was or was not, on a specified day or during a specified period,

(i) a member of the association,

(ii) licensed by the association,

(iii) an inspector appointed by the association, or

(iv) an officer or investigator of the association, or a member of the council or of a committee established by or under this Act; or

(b) that a copy of a by-law is a true copy of a by-law of the association that was in force on a specified day or during a specified period;

is, in the absence of evidence to the contrary, admissible in evidence in any proceeding as proof of the facts stated. Proof of the registrar's appointment or signature is not required.

PROTECTION FROM LIABILITY

Protection from liability

76          No action or proceeding may be brought against the association, the council, the registrar, a person conducting an investigation, an inspector, a member of a committee established under this Act, or any employee, officer or person acting on the instructions of any of them, for anything done or omitted to be done by the person or entity in good faith in the exercise or intended exercise of any duty or power under this Act.

CONFIDENTIALITY OF INFORMATION

Confidentiality of information

77          Every person employed, appointed or retained for the purpose of administering or determining compliance with this Act, and every member of the council or a committee of the council, must maintain as confidential all information that comes to his or her knowledge in the course of his or her duties, and must not disclose this information to any other person, except

(a) to the extent the information is available to the public or is required to be disclosed under this Act;

(b) as necessary to administer or determine compliance with this Act, including, but not limited to, the registration or licensing of members, complaints about members, allegations of members' incapacity, unfitness, incompetence or acts of professional misconduct, or the governing of the profession;

(c) to the Registrar-General, to the extent the information is required for the proper administration of this Act; or

(d) to a body that governs the practice of land surveying in a jurisdiction other than Manitoba.

LIMITED LIABILITY PARTNERSHIPS

Limited liability partnerships

78          For the purpose of clause 69(1)(b) of The Partnership Act, Manitoba land surveyors and professional corporations are authorized to form limited liability partnerships to practise land surveying.

EMPLOYER'S RESPONSIBILITY

Employer's responsibility to ensure licensing

79(1)       A person who is an employer of a Manitoba land surveyor must ensure that the person is licensed under this Act during the period of employment.

Responsibility to report misconduct

79(2)       If a person who is an employer of a Manitoba land surveyor terminates the employment for misconduct, incompetence or incapacity, the employer must promptly report the termination to the registrar and give the Manitoba land surveyor a copy of the report.

ANNUAL REPORT

Annual report

80(1)       The association must submit an annual report within four months after the end of each fiscal year to the Registrar-General.

Contents of report

80(2)       The report must include the following information for the year for which the report is submitted:

(a) a description of the structure of the association, including any committees established by the council and their functions;

(b) the names of the members of the council and committees;

(c) a copy of the by-laws or amendments to by-laws that were made;

(d) the number of applications for registration and licensing that were received, and their disposition;

(e) the number of complaints that were received and their disposition;

(f) the number of members disciplined, the reasons for the discipline and the sanctions imposed;

(g) the number of practice inspections conducted and the results of the inspections;

(h) the methods used to ensure the continuing competence of members;

(i) a financial report on the operation of the association;

(j) any other information the Registrar-General requires.

Annual report is public document

80(3)       An annual report that has been submitted to the Registrar-General is a public document, and a member of the public

(a) may inspect the annual report at the head office of the association during regular business hours; and

(b) is entitled to be given a copy of the annual report by the association, on request and at reasonable cost.

The annual report may also be made available to the public electronically.

PART 12

JOINT BOARD ON

INTER-PROFESSIONAL ISSUES

Joint board with Association of Professional Engineers and Geoscientists of Manitoba

81(1)       There is hereby established a joint board, under the name "AMLS – APEGM Joint Board on Inter-Professional Issues", whose function is to assist the Association of Manitoba Land Surveyors and the Association of Professional Engineers and Geoscientists of the Province of Manitoba in maintaining the professional relationship between the two associations, including

(a) developing and recommending processes for cooperation by the two associations in carrying out their respective areas of responsibility in the public interest;

(b) making joint representations to third parties on matters affecting the two associations; and

(c) resolution of issues or disputes respecting areas of practice.

Composition of board

81(2)       The joint board must consist of not fewer than seven persons as follows:

(a) a chair, who is appointed by the minister responsible for the administration of The Labour Relations Act, and who is not registered with or licensed by either the Association of Manitoba Land Surveyors or the Association of Professional Engineers and Geoscientists of the Province of Manitoba;

(b) equal numbers of persons appointed by the Association of Manitoba Land Surveyors and the Association of Professional Engineers and Geoscientists of the Province of Manitoba.

Rules of procedure

81(3)       The joint board must establish its own rules of procedure.

Disputes

81(4)       Where any dispute arises as to

(a) the jurisdiction of either of the associations referred to in subsection (1) in respect of the regulation of persons registered or licensed under their respective enactments;

(b) the right of any person registered with or licensed by either of those associations to perform any function or type of work; or

(c) any matter respecting relations between those associations or any persons registered with or licensed by them;

the registrar must refer the dispute to the joint board, which must consider it in a timely manner and, if possible, make a joint recommendation about how to resolve the dispute and give it to the council of the Association of Manitoba Land Surveyors and the council of the Association of Professional Engineers and Geoscientists of the Province of Manitoba.

PART 13

RELATED AND CONSEQUENTIAL AMENDMENTS

C.C.S.M. c. R30 amended

82(1)       The Real Property Act is amended by this section.

82(2)       Subsection 128(1) is replaced with the following:

Plans to be certified by a Manitoba land surveyor

128(1)      A plan that affects a boundary must be certified by a Manitoba land surveyor under oath in a form satisfactory to the Registrar-General.

C.C.S.M. c. R50 amended

83(1)       The Registry Act is amended by this section.

83(2)       Subsection 52(1) is replaced with the following:

Plans to be certified by a Manitoba land surveyor

52(1)       A plan that affects a boundary must be certified by a Manitoba land surveyor under oath in a form satisfactory to the Registrar-General.

83(3)       Schedule C is repealed.

Consequential amendment, S.M. 2011, c. 30 (unproclaimed)

84           The definition "land surveyor" in section 5 of The Condominium Act, as enacted by S.M. 2011, c. 30, Schedule A, is amended by striking out "registered under The Land Surveyors Act" and substituting "licensed under The Land Surveyors Act".

PART 14

TRANSITIONAL, REPEAL, C.C.S.M.

REFERENCE AND COMING INTO FORCE

Registration continued

85(1)        An individual who is a member of the association under the former Act on the day this Act comes into force is deemed to be registered as a member under this Act, and, upon payment of any outstanding fees, the registrar must enter his or her name in the appropriate category of registration in the general register.

Commission continued as a licence

85(2)       An individual who holds a commission to practise as a surveyor of lands under the former Act on the day this Act comes into force is deemed to hold a licence under this Act, and, upon payment of any outstanding fees, the registrar must enter his or her name in the annual register.

Powers of executive council under this Act

85(3)        After this Act receives royal assent but before it comes into force, the executive council under the former Act and its staff and committees may do anything that is necessary or advisable to bring this Act into force, including the making of by-laws, and may perform any activities that the council and its staff and committees could do under this Act if it were in force.

Council continued

85(4)        The members and officers of the executive council under the former Act are deemed to be members and officers of the council under this Act, elected or appointed for the same period and holding the same offices, until a council is constituted in accordance with section 7 of this Act.

Complaints re past conduct

86           A complaint made after this Act comes into force that relates to conduct that occurred in whole or in part before this Act came into force shall be dealt with under this Act.

Repeal

87          The Land Surveyors Act, R.S.M. 1987, c. L60, is repealed.

C.C.S.M. reference

88          This Act may be cited as The Land Surveyors Act and referred to as chapter L60 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

89          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill replaces the existing Land Surveyors Act to provide updated legislation for the governance of the land surveying profession.

It includes provisions:

  • continuing the Association of Manitoba Land Surveyors as a self-governing profession;
  • establishing a governing council with public representatives;
  • allowing members to provide land surveying services through professional corporations;
  • requiring the registration of members and professional corporations; and
  • creating processes for complaints and discipline.

The Bill contains a consequential amendment to The Condominium Act, and related amendments to The Real Property Act and The Registry Act.