Engineering Law (5th Edition) 9781487582852

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ENGINEERING LAW

Engineering Law R. E. LAIDLAW B.A.Sc. Justice of the Court of Appeal for Ontario and ex-officio a Judge of the High Court of Justice for Ontario

C. R. YOUNG B.A.Sc., C.E., D.Eng., D.esSc.A., LL.D. Dean Emeritus of the Faculty of Applied Science and Engineering, University of Toronto

A. R. DICK B.A. Barrister-at-Law, Osgoode Hall

FIFTH EDITION

UNIVERSITY OF TORONTO PRESS TORONTO, CANADA 1958

First Published November 1937 Revised and reprinted November 1941 Revised and reprinted November 1946 Fourth Edition September 1951 Fifth Edition October 1958

Reprinted in 2018 ISBN 978-1-4875-8157-2 (paper)

Copyright ©, Canada, 1951, 1958, by University of Toronto Press Printed in Canada London: Oxford University Press

PREFACE TO THE FIFTH EDITION changes in legislation, and a mounting number of I MPORTANT court decisions relevant to the topics here discussed, have made a revision and expansion of the fourth edition necessary. The objective of the book still remains essentially as it was twenty-one years ago, when the first edition appeared. That aim is to present to engineers and engineering students a simple treatment of the legal aspects of engineering undertakings and responsibilities, using a minimum of technical legal terms and avoiding the subtler distinctions and conflicts. As legal problems now arise in a wide range of engineering activities, it has been thought well to add three more chapters. These concern "Mines, Oil and Gas Wells, and Pipe Lines"; "Public Utilities"; and "Public Health." Revisions of the text of the fourth edition have been numerous. "Professional Engineering" is given priority in position as Chapter I and has been enlarged by adding many citations of recent judgments of concern to an engineering practitioner. Duties and liabilities of the engineer are now considered in one chapter, instead of two. Reference is made therein to many new cases. The chapters on "General Conditions of Contract," "Workmen's Compensation" and "Highways" have been expanded, that on "Trade Marks, Industrial Designs and Copyright" has been completely rewritten. Although occasional references are made to the Civil Code of Quebec, the judgments in the cases cited were based almost wholly upon the common law. The authors again point out to engineers the necessity of seeking professional legal advice on any questions involving important matters of law.

R. E. C.R. A. R. Toronto June, 1958

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LAIDLAw YOUNG

DICK

TABLE OF CONTENTS PREFACE. .... ... .. .... . . . . .. .... ........ . .. . .. ........

V

CHAPTER

I. II. II I. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII.

Professional Engineering . . . . . . . . . . . . . . . . . . . . . . . . 1 21 Duties and Liabilities of the Engineer. . . . . . . . . . . . Con tracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 General Conditions of Contract . .. ..... . . . . . . .. . . 101 Engineering Agreements ....... . . .. . . . ..... .. . .. 126 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Expert Evidence ...... .. . ..... .. ......... .. . . . 165 Labour Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Workmen's Compensation. . . . . . . . . . . . . . . . . . . . . . 196 Patents and Inventions . ...... . . . .. . ... . .. . . .. . 205 Trade Marks, Industrial Designs and Copyrights.. 225 Promotion of Companies.... . ... .. . . ......... . . 252 Organization of Companies...... .. . .. . . ... .... . 264 Building Trades, Factories, Shops, and Public Buildings . . .. .... . . . . . . . .. .. . . . ... .. . ... .. . 277 Railways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Highways. . . . . . . .. . . . ... .. . . .. . .. . . .... .. . .. . . 307 Boundaries.and Surveys.. .. .. . . . . . .. .. .. . ... . .. 325 Easements .. . . ... .. ..... .. ... .. .. .. . .. ... . .... 338 Drainage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356 Mines, Oil and Gas Wells, Pipe Lines . .. . ........ 371 Public Utilities.. . ... . ............. . . . ......... 392 Public Health . . .. . .. . .... .... .. . . . . . .... .. ... . 408

APPENDIX

I. II. III. IV. V. VI. VII.

Agreement for the Employment of an Engineer . ... Typical Advertisements and Instructions to Bidders Typical Form of Tender...... . .............. . . . Construction Agreement. . . . . . . . . . . . . . . . . . . . . . . . Form of Guarantee Bond. . . . . . . . . . . . . . . . . . . . . . . Applications for Registration of Copyright. . . . . . . . Certificate of Surveyor in Expropriation Proceedings

419 426 429 432 443 445 447

INDEX . • . . . . . . . . . . . • • • . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

449

vii

INTERPRETATION OF ABBREVIATIONS USED IN REFERENCES

Illustrations: L.R. 2 C.P.D. 572 refers to Law Reports, Volume 2, Common Pleas Division, page 572; 31 Q.L.R. 397 (S.C.) refers to Volume 31, Quebec Law Reports, page 397 (Superior Court). Abbreviation

A.C. All E.R. B. B. and C. B.C.R. B. and S. C. C.A. Camp. C.B. Car. and P. Cass.S.C.Dig.

c.c. c.c.c.

C.E.D. Ch. Ch. App. C.J. C.L.J. C.L.T. (0.N.) C. and M. C. and P. C.P.D. C.P.R. C.R. D.L.R. Doug. E. and B. E.B. and E. E.D.C. E.L.R. E.R. Ex. Ex. Ch. Ex.C.R. Ex. D. F. F. and F. Fox's P.C.

Interpretation

Country or Province

Appeal Cases England All England Law Reports England Baron England Barnewall and Cresswell's Reports England British Columbia Reports Best and Smith's Reports England Commissioner, Board of Transport Canada Commissioners Court of Appeal England Campbell's Reports England Common Bench, or Chief Baron Carrington and Payne's Reports England Cassell's Supreme Court Digest Canada Chief Commissioner (Transport Commr's) Canada Canadian Criminal Cases Canada Canadian Encyclopedic Digest Chancery England Chancery Appeals England Chief Justice Canada Law Journal Canadian Law Times (Occasional Notes) Crompton and Meeson's Reports England Craig and Phillips' Reports England Law Reports, Common Pleas Division England Canadian Patent Reporter Criminal Reports Canada Dominion Law Reports Canada Douglas' Reports England Ellis and Blackburn's Reports England Ellis, Blackburn and Ellis' Reports England South Africa Eastern Districts Court Eastern Law Reporter Maritime Provinces England English Reports Exchequer England Exchequer Chamber Exchequer Court Reports Canada Exchequer Division England Fraser, Court of Session Cases Scotland England Foster and Finlason's Reports Fox's Patent, Trade Mark, Design Canada and Copyright Cases viii

AbbreviaUon Gr. Han. H. and C. H.B.C. H.C.D. H.L.C. H. and N. I.L.R.

J. Jo. and Lat. J.P. J.R. Jur. K.B. K.B.D. K. and J. L.C.R. L.J. Ch. L.J.C.P. L.J. Ex. L.J.K.B. L.J.P.C. L.J .Q.B. L.R. Ch.D. L.R.C.P. L.R.C.P.D. L.R.Eq. L.R. Ex. L.R.H.L. L.R.Ir. L.R.K.B.D. L.R.P.C. L.R.Q.B.D. L.T. M. and Gr. Man. L.R. M.and W. M.P.R. N.B.R. N.C. N.P. N.S. N.S.L.R. N.S.R. N.Z.L.R. N.Z.S.C.R. O.A.R. O.L.R. Ont. Dig.

Interpretation Upper Canada, Chancery (Grant) New Brunswick Reports (Hannay) Hurlstone and Coltman's Reports Hudson's Building Contracts, Seventh Edition High Court Division House of Lords Cases Hurlstone and Norman's Reports Irish Law Reports Justice Jones and La Touche's Reports Justice of the Peace Jurist Reports Jurist Reports King's Bench King's Bench Division Kay and Johnson's Reports, Chancery Lower Canada Reports Law Journal, Chancery Law Journal, Common Pleas Law Journal, Exchequer Law Journal, King's Bench Law Journal, Privy Council Law Journal, Queen's Bench Law Reports, Chancery Division Law Reports, Common Pleas Law Reports, Common Pleas Division Law Reports, Equity Law Reports, Exchequer Law Reports, House of Lords Law Reports (Ireland) Law Reports, King's Bench Division Law Reports, Privy Council Law Reports, Queen's Bench Division Law Times Reports Manning and Granger's Reports Manitoba Law Reports Meeson and Welsby's Reports Maritime Provinces Reports New Brunswick Reports New Cases Nisi Prius New Series Nova Scotia Law Reports Nova Scotia Reports New Zealand Law Reports New Zealand Supreme Court Reports Ontario Appeal Reports Ontario Law Reports Digest of Ontario Case Law

ix

Country or Proflince

Englanci

England England Ireland New Zealand England England England England England England England England England England England England England England England England Ireland England England England England England England Canada England

A bbreoialion

O.R. O.W.N. O.W.R. P.R. Q.B.D. Q.L.R. (S.C.) Q.P.R. R.deL. R.P.C. Sask. L.R. S.C.R. Terr. L.R. T.R. T.L.R. Trueman U.C.C.P. U.C.L.J. U.C.Q.B. W.L.R. W.L.R.(Eng.) W.N. W.P.C. W.R. W.W.R. Y. and J .

Interprelation

Country or PrOflince

Ontario Reports Ontario Weekly Notes Ontario Weekly Reporter Ontario Practice Reports Queen's Bench Division England Quebec Law Reports, Superior Court Quebec Practice Reports Revue de Ugislation et de Jurisprudence Canada Reports of Patent Cases England Saskatchewan Law Reports Supreme Court Reports Canada Territories Law Reports North West Territories Term Reports England Times Law Reports Great Britain New Brunswick Reports (Trueman) Upper Canada, Common Pleas Upper Canada Law Journal Upper Canada, Queen's Bench Western Law Reporter Western Canada Weekly Law Reports England Weekly Notes England Webster's Patent Cases England Weekly Reporter England Western Weekly Reports Western Canada Younge and Jervis' Reports England

ENGINEERING LAW

CHAPTER I

PROFESSIONAL ENGINEERING

I.I-General Purpose of Acts Regulating Professio~al Engineering. Apart from legislation, the law does not prohibit

any person from engaging in the practice of engineering. While there are no federal enactments in the matter, Acts governing the practice of professional engineering now exist in all of the Provinces of Canada and an Engineering Profession Ordinance was assented to in the Yukon Territory in 1955. The general purpose of these Acts is, with due regard to the public interest, to differentiate between, on the one hand, the person who undertakes work requiring for the proper doing of it sound technical knowledge and the ability to make skilful applications of the fundamental principles of engineering science and, on the other hand, those not possessing that knowledge and skill. Such Acts undertake to ensure that professional engineering shall be practised only by properly qualified persons. They seek to ensure also that the professional conduct, integrity and diligence exhibited by the professional engineer in practice is in accordance with the traditionally high standards of a learned profession. To the end that these objects may be attained, all provincial Acts provide that, with certain exceptions, only members of the provincial association or corporation of professional engineers, or those licensed or permitted by them to practise, are to do so. Certain of the Acts endeavour to prescribe a system of training and examination for those who wish to enter the profession and who cannot attend a university or engineering college. Except for the Act regulating the profession in the Province of Quebec, which is the earliest of the regulatory Acts pertaining to engineering in Canada, the legislation is substantially similar in the various Provinces. In what follows, a comparison of the more important provisions of these Acts will be made from the point of view of the ordinary practising member of the profession rather than from that of the officers of a provincial association to whom powers are entrusted under the Act.

1.2-What Constitutes Professional Engineering. There is no standard definition of professional engineering but the definitions adopted by Alberta, British Columbia, Manitoba, New 1

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ENGINEERING LAW

Brunswick, Ontario and Saskatchewan present a concept of much the same kinds of activity. Illustrative of such a definition is that of the Professional Engineers' Act of Ontario, which provides as follows: "Professional engineering," save as hereinafter mentioned, shall mean the advising on, reporting on, the designing of, the supervising of the construction of, all public utilities, industrial works, railways, tramways, bridges, tunnels, highways, roads, canals, harbour works,'lighthouses, river imp.rovements, wet docks, dry docks, floating docks, dredges, cranes, drainage works irrigation works, waterworks, water purification plants, sewerage works, sewage disposal works, incinerators, hydraulic works, power transmission systems, steel, concrete and reinforced concrete structures, electric lighting systems, electric power plants, electric machinery, electric apparatus, electrical communication systems and equipment, mineral property, mining machinery, mining development, mining operations; gas and oil developments, smelters, refineries, metallurgical machinery, and equipment and apparatus for carrying out such operations, machinery, boilers and their auxiliaries, steam engines, hydraulic turbines, pumps, internal combustion engines and other mechanical structures, chemical and metallurgical machinery, apparatus and processes, and aircraft and generally all other engineering works including the engineering works and installations relating to airports, airfields and landing strips and relating to town and community planning.

The Alberta Act introduces the additional idea that the works or processes to be carried out in professional engineering require

a'

particular kind of learning or skill, namely, "the skilled and professional application of the principles of mathematics, chemistry, physics or geology or any related applied subjects including, but without limiting the generality of the foregoing, properties of materials, mechanics of solids and fluids, thermodynamics, electronics and the like." , Under the British Columbia law a correspondingly lengthy definition of professional engineering is introduced as follows: "Practice of professional engineering" means the carrying-on of any branch of chemical, civil, electrical, forest, geological; mechanical, metallurgical, mining, or structural engineering, including the reporting on, designing, or directing the construction of any works which require for their design, or the supervision of their construction, or the supervision of their maintenance such experience and technical knowledge as are required by or under this Act for the admission by examination to membership in the Association, and, without restricting the generality of the foregoing, shall be deemed to include reporting on, designing, or directing the construction of public utilities, etc. [Here follows a lengthy enumeration.)

Manitoba defines the "practice of professional engineering" or "practice of engineering" as the carrying on for hire, gain, or hope

PROFESSIONAL ENGINEERING

3

of reward, either directly or indirectly, of one or more of the following branches of the science of engineering, etc. The Nova Scotia Act defines professional engineering as merely "the application of engineering for gain, hire, or hope of reward, either directly or indirectly." Engineering is described thus: "Engineering" means the science and art of designing; investigating; supervising the construction, maintenance or operation of; making specifications, inventories or appraisals of, and consultations or reports on: machinery, structures, works, plants, mines, mineral deposits, processes, transportation systems, transmission systems and communication systems or any part thereof.

In the Newfoundland and Prince Edward Island Acts, "professional engineering" is declared to mean "the application of engineering for gain, hire or hope of reward, either directly or indirectly." In both Acts, the definition of "engineering" is The science and art of designing; investigating; supervising the construction, maintenance or operation of; making specifications, inventories or appraisals of, and consultations or reports on: machinery, structures, works, plants, mines, mineral deposits, processes, transportation systems, transmission systems, communication systems, or any part thereof, and generally on aU other engineering works including those relating to town and community planning.

According to the Yukon Ordinance, the "practice of professional engineering" involves "professional service or creative work requiring engineering education, training and experience, or the application of special knowledge of any of the mathematical or physical sciences to such professional services or creative work as consultation, investigation, evaluation, planning, designing and engineering supervision of construction or operations in connection with any public or private utilities, structures, machines, equipment, processes, works or projects." While the law governing engineering practice in Quebec is contained in the Professional Engineers' Act, the work to which it refers is that of the civil engineer, it being interpreted in the traditionally broad manner, that is, as including everything nonmilitary in character. The definition of professional engineering is consequently contained in the definition of a civil engineer, which is as follows: The expression "civil engineer" means one who acts or practises as an engineer in advising on. in making measurements for, or in laying out, designing or supervising the construction of railways, metallic bridges, wooden bridges, the cost of which exceeds six hundred dollars, public high-

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ENGINEERING LAW

ways requiring engineering knowledge and experience, roads, canals, har-

bours, river improvements. light-houses, and hydraulic. electrical, mechanical, municipal, or other engineering works, not including government colonization roads or ordinary roads in rural municipalities; but does not apply to a mere skilled artisan or workman.

It is a question in each case for the Court to say whether it e work under consideration is within the meaning of the statu\e, "proper and sufficient", or "to the satisfaction of the engineer", or "as the engineer may direct". While these blanket provisions are useful they, if unsupported by detail, make it necessary for the contractor to become in a measure a mind reader. Characterfstic examples of indefiniteness are in such matters as specifying that cement mortar is to be used for a plaster coat without mentiorf'of • the mix; that concrete shall not be dropped from a height, leaving it to the contractor to interpret what is meant by a height; that particles of stone for aggregate must be as nearly cubical as possible; and that timber must be free from knots, when probably what is meant is the best commercial grade obtainable in the locality.

3.14--Accuracy. Not only are errors in contracts annoyi.ng, but they are very likely to promote litigation, with accompanying · delay and expense. Discrepancy in the different copies of the contract document may involve a lawsuit. 62 Such a situation arose when a contractor discovered that a page was missing from his copy of the specifications. 68 One of the most frequent sources of contention is the lack of accuracy in the estimated quantities submitted by the engineer for the use of bidders. Even where the work is on the unit price basis,. large errors in quantities may result in a substantial loss to the contractor. For example, the unit price that might be applicable for one quantity of earth excavation would be wholly inapplicable to a widely different quantity. 3.15-Cleamess. Ambiguities may not void a contract but may cause a great deal of trouble· and expense. In the event of repugnant stipulations being found, certain rules for overcoming the difficulty may be invoked by the Courts. For example, an earlier clause in a contract document takes precedence over a later one that is repugnant to it. 64 Where the agreement and the specifi· cation clash the agreement takes precedence.66 3.t