"The client does not ask: "Do I have Paper Title to the Land?” He asks: "Do I have good Title to the Land?" The statement that someone has "good Paper Title to the land" is meaningless." — LeBlanc v. DeW itt (1985). 34 R.P.R. 196 (N.B. Q.B.) It appears to be the practice that a lawyer acting for a mortgage company or a real estate agent will call a surveyor and ask the proprietor for a copy o f a plan o f an old survey for a parcel o f land. The term "old survey" is used to define a document which has not been prepared for the current transaction, but was rather prepared previously, either for a real estate transaction or for a mortgage application. In some instances, the surveys may be only months old, and at other times they may be many years old. The question has arisen: What is the liability o f both the surveyor in issuing the plan and the lawyer or real estate agent in re-using the old plan? Although the land surveyor can do little to curtail the person from re-using the plan if he finds a copy elsewhere, the surveyor will not promote the re-use o f the documents. Due to both the liability that he is incurring, as well as his professional responsibility, the recommendation m ust be made to members o f the legal and real estate profession that they not participate in this re-use.
W e have to look at the purposes to which the mortgage company and the lawyer put the survey. The mortgage company is obviously advancing money to a purchaser and the security for that advancement is the property itself. It is, therefore, necessary that good title exists for the property, and that the paper title portrays the property properly. The term "paper title" is that portion o f title to a parcel o f land that is registered in the Registry Office and which is searched and verified by a lawyer and, if it is incorrect, m ay subject the lawyer to a claim in negligence. Paper title does not necessarily show the true physical aspects o f the parcel o f land. As was outlined in the previous paper, The Survey and Real Estate Transaction, misdescription may have always existed from the time the parcel was first described on either a plan or description. Also, many factors may have occurred over the years to physically change the true nature o f the property, - i.e., the erection o f a fence, near or over the property line. W hile paper title may very well show that "A" is the owner o f a parcel o f property, "B" very well may have acquired a legal right to a portion o f the property by the principle o f adverse possession, or the property itself, as owned by "A", may be misdescribed in the deed.
The survey o f the property indicates the actual physical characteristics o f the parcel o f land in relation to the boundaries and extent o f title on the d a te th a t the survey w as p rep ared . A survey, therefore, serves as a comparison between the actual physical characteristics o f the parcel o f land (extent o f title) and the paper title. As long as the two correspond, a purchaser and the mortgage company, which takes the property as security, can be satisfied that they are getting what they believe to be getting. The survey, therefore, is vital to the requirements o f the mortgage company's verification o f the paper title and the The survey is, as well, a "representation" as it represents the physical characteristics, or extent o f title, as o f a certain date. It can be argued that the surveyor preparing the survey makes a representation not only to his client for whom it was first prepared, but also to any other person that the surveyor may provide copies to in the future, or to any person the surveyor must reasonably assume may obtain and rely upon the survey in the future. It is this notion o f representation that must be considered in determining whether or not the surveyor can, as a responsible professional, re-issue old plans or, if the lawyer as a responsible professional, should re-use the plan.
A representation made in a contractual context has always been actionable. A surveyor who contracts with a client to prepare a survey has a duty to exercise reasonable skill and knowledge in its preparation. If the survey is not accurate, the surveyor will be held liable by the Court for breach o f contract. In this context, see MacLaren-Elgin Corp. Ltd. et al vs. Gooch. (1972) 1 O.R. 474. In this decision, the Supreme Court o f Ontario held that a surveyor is under a duty to use reasonable care and a reasonable competent degree o f skill and knowledge. A surveyor is under a duty to supply accurate information which could reasonably be relied upon.
The m ore important issue, however, is the situation where the surveyor has not been contracted with to prepare a new survey, but is merely asked to provide an old survey which may have been prepared many years before. There may be a small fee charged for the copy or no fee at all; however, the situation in law, as will be seen, is the same. The important factor is that a representation is being made by the surveyor when supplying an old survey, whether for payment or gratuitously.
Prior to 1964, Courts had ruled that where there was no contract o f fiduciary relationship, a negligent misrepresentation was not actionable. In 1964, however, the English House o f Lords, in the decision o f Hedley Bvm e & Co. Ltd. and Heller & Partners Ltd. (1964) A.C. 465% In that decision, it was held that despite the lack o f contractual or fiduciary relationship, a negligent though honest misrepresentation, whether verbal or in written form, is actionable. The Court based this decision on the fact that the law will imply a duty o f care when a party seeking -information from a party possessed o f a special skill trusts that party to exercise due care, and that party »knew or ought to have known that reliance was being placed on his skill and judgement. The effect, therefore, is that even ina gratuitous situation, the duty will arise.
Since Hedley Bvm e. the Courts have taken to heart this "duty o f care" and have applied it quite liberally, both in England and in Canada. In Town o f the Pas vs. Porkey Packers Ltd. (1976 65 D.L.R. (3d) 1 (S .C .C .\ the Supreme Court o f Canada upheld the Hedlev Byrne principle. In that case, the Court held that a representation made to a person who does not have expert knowledge o f a judgem ent in the m atter creates a duty on the representor. If the represent is in breach o f that duty, that breach is actionable despite the lack o f any contractual or fiduciary relationship. To put the duty more succinctly, Spence, J. adopted the definition o f the duty in Charlesworth on Negligence, Fifth Edition (1971), and quoted: "The House o f Lords has thus expressed the opinion that if in the ordinary course o f business, including professional affairs, a person seeks advicc or information from another&#


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