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Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2005 59632 (MB PC)

2005-09-07

Date:  20050907

 

IN THE PROVINCIAL COURT OF MANITOBA

Winnipeg Centre

 

 

B E T W E E N:

 

THE ASSOCIATION OF                       )

PROFESSIONAL ENGINEERS          )   Mr. Doug Abra, Q.C.

and  GEOSCIENTISTS OF                   )   for the Crown

THE PROVINCE OF MANITOBA      )

Informant                                                  )

                                                                 )

                                                                 )

-  and  -                                                     )

                                                                 )

                                                                 )

MICHAEL CULJAK, carrying on            )   Mr. Richard Wolson, Q.C.

business under the firm name and style      )   for the Accused.

of HUND AUTOMATION and hund         )

automation incorporated and the said         )

Hund Automation and hund automation      )

incorporated,                                             )

Defendants                                                )

                                                                 )   Reasons for Decision

                                                                 )   delivered on the 7th day

                                                                 )   of September,  2005.

                                                                 )

 

T. J. LISMER, P.J.

 

INTRODUCTION

 

[1]                          The charge against the defendants is that:

 

Between the 2nd day of October, 2001 and the 27th of January, 2003, at the City of Winnipeg, in the Province of Manitoba, did unlawfully contravene Section 58(2) of The Engineering and Geoscientific Professions Act, S.M. 1998 c.55, by advertising, listing or displaying a description, title, designation or term that inferred that they were engaged in the practice of professional engineering when Michael Culjak was not a member of the Association of Professional Engineers and Geoscientists of the Province of Manitoba and none of Michael Culjak, Hund Automation or hund automation incorporated were the holders of a certificate of authorization from the Association of Professional Engineers and Geoscientists of the Province of Manitoba and did thereby commit an offence contrary to Section 65(1) of The Engineering and Geoscientific Professions Act.

(Hereinafter referred to as EGP Act.)

 

 

[2]                          Section 58(2) of the EGP Act provides inter alia that:

 

No person who is not a member, the holder of a certificate of authorization or a temporary licensee shall

 

(a)  advertise, list, display, or use in any manner, or permit to be used in any manner, any description, title, designation or term referred to in subsection (1) or any other term that may lead anyone to infer that such person is entitled to engage in the practice of professional engineering or professional geoscience;

 

[3]                          Section 58(1) of the EGP Act provides, inter alia:

 

Except as otherwise provided in this Act, no person who is not a member or a temporary licensee shall use, orally or otherwise, any of the following titles:

(a)  professional engineer;

(b)  engineer;

(c)  consulting engineer ;

.  .  .  .  .

 

or any similar designation or any suffix, prefix, word, title or designation, abbreviated or otherwise, implying that the person is a member, holder of a certificate of authorization, temporary licensee, specified scope of practice licensee, engineer-in-training .  .  .  .  .  .  or is engaged in or entitled to engage in the practice of professional engineering .  .  .  .

 

[4]                          Section 1 of the EGP Act provides:

 

“member”  means a natural person who holds a valid and subsisting certificate of registration and whose name is entered on the register of the association of a professional engineer .  .  .  .

 

“practice of professional engineering” means any act of planning, designing, composing, measuring, evaluating, inspecting, advising, reporting, directing or supervising, or managing any of the foregoing, that requires the application of engineering principles and that concerns the safeguarding of life, health, property, economic interests, the public interest or the environment; .  .  .

 

[5]                          Section 66(1)(g) of the EGP Act provides that:

 

Nothing in this Act applies to prevent

(g)  a person who is certified under The Certified Applied Science Technologists Act in an engineering discipline, from engaging in an act that constitutes the occupation of applied science technology;

 

RELEVANT PROVISIONS OF THE CERTIFIED APPLIED SCIENCE TECHNOLOGIES ACT, S.M. 1998 c.56, hereinafter referred to as CAST Act.

 

[6]                          Section 1(1) of the CAST Act provides:

 

“member” means a Certified Engineering Technician, Certified Engineering Technologist, Certified Applied Science Technologist whose name is entered in the register or temporary register;

 

“occupation of applied science technology” means the provision of services by Certified Applied Science Technologists, Certified Applied Science Technicians, Certified Engineering Technologists, or Certified Engineering Technicians

 

      (a) in accordance with their academic qualifications, learning

      and experience,

      (b) in accordance with generally accepted practices and

      procedures within nationally accepted codes and standards,

      and

      (c) in accordance with the Association’s Code of Ethics,

 

but does not include the practice of professional engineering and the practice of professional geoscience, as defined in The Engineering and Geoscientific Professions Act .  .  .  .

 

[7]                          Section 1(2) of the CAST Act refers to titles:

 

The titles, “Certified Engineering Technician”, “Certified Engineering Technologists”, “Certified Applied Science Technician”, “Certified Applied Science Technologists”, and the initials “CET”, “C.E.T.”, “AScT”, “A.Sc.T.”, “CTech” or “C. Tech.” or any like words, initials, or expressions used alone or in combination with other words or expressions connoting a person recognized by law as a Certified Engineering Technician, Certified Applied Science Technician or Certified Applied Science Technologists or connoting a member of the Association in the province, when used in any provision of an Act of the Legislature or any regulation, rule, order or by-law made under an Act of the Legislature enacted or made before or after the commencement of this Act or when used in any public document, shall be read as meaning a natural person whose name is entered in the register or the temporary register..

 

[8]                          Section 66(1) of the CAST Act specifies the activities that are not affected:

 

Nothing in this Act applies to prevent

.  .  . 

(g) a person who is certified under The Certified Technicians and Technologists Act in an engineering discipline, from engaging in an act that constitutes the occupation of applied science technology;

 

[9]                          Section 67(10) of the CAST Act makes reference to the establishment of inter-association relations/joint boards:

 

There is established a joint board, under the name “Engineering, Geosciences and Applied Sciences Inter-Association Relations Joint Board”, whose function is to assist The Certified Technicians and Technologists Association of Manitoba Inc. and the Association of Professional Engineers and Geoscientists of the Province of Manitoba in maintaining the professional relationship between the two associations including

.  .  .  .

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

 

[10]                     Admissions include: (1) that defendant Michael Culjak was not a member at all material times of the EGP Act; (2) that none of the defendants ever held a certificate of registration under the EGP Act; and (3) that defendant Hund Automation Incorporated was never incorporated or registered as a body corporate under the Corporations Act, nor did the defendants contend that either one of them was a temporary licensee.

 

[11]                     This case is not about the defendants’ engaging or acting in the practice of professional engineering, but it is about holding out contrary to section 58(2) of EGP Act in any manner and as therein specified that may lead anyone to infer that they were entitled to engage in the practice of professional engineering.

 

THE FACTS

 

[12]                     Defendant Michael Culjak filed a Request for Business Name Reservation under the Business Name Registration Act (Exhibit 1) on October 21st, 1991, showing the address of 59 Scurfield Boulevard, Unit 8, City of Winnipeg, for the proposed name:  “Hund Automation” (after deleting the word Incorporated with a notation “will incorporate at a later date”.  Describing the main type of business to be carried on as “electric & electronic controls suppliers/engineering consultants”.  Hund Automation of 59 Scurfield Boulevard, Unit 8 was registered on October 19th, 1999 under the Business Name Registration Act by Michael Culjak as registrant, describing the main type of business as: “electric & electronic controls supplier/engineering consultant” (Exhibit 2).

 

[13]                     Renewal of registration under the Business Name Registration Act by Michael Culjak (Exhibit 3) on December 17, 2002 with main type of business then described as “sales and service”.

 

[14]                     Exhibits 5 and 6 establish that:

 

                  1.  To the right of the door of Unit 8 of 59 Scurfield Boulevard are

                        displayed the words “a e c systems”.

 

                  2.  To the left of the door of Unit 9 of 59 Scurfield Boulevard is

                        displayed the words “hund automation incorporated/Control

                        Systems Engineering & Manufacturing.”

 

                  3.  Two white vans parked at the rear of said units 8 and 9

                        displayed on the side of one of the vans are the letters

                        a e c, and at the rear door the letters and word “a e c

                        systems”.

 

[15]                     On or about June 30, 2000, David A. Ennis, P.Eng., Executive Director and Registrar of the Association of Professional Engineers and Geoscientists of the Province of Manitoba (referred to as APEGM) sent a letter addressed to Hund Automation Incorporated, to the attention of Mr. Michael Culjak (Exhibit 7), advising that it has come to the attention of the Association that Hund Automation Incorporated has advertised as providing “Control Systems Engineering & Manufacturing”.  The letter points out the requirement

 

“that the practice of professional engineering must be carried out by or under the supervision of a professional engineer and that corporations providing or offering engineering services do so through a registered professional engineer in the employ of the corporation.”

 

[16]                     APEGM forwarded a registered letter on August 17, 2000 to Mr. Michael Culjak, Hund Automation Incorporated (Exhibit 8) noting no receipt of response to the earlier letter, and asking for written notice of the name of the person or persons taking responsibility for the practice of professional engineering within Hund Automation Incorporated, as well as for the professional engineering services being provided to others by Hund Automation Incorporated.

 

[17]                     On November 8, 2000 APEGM sent by registered letter to Michael Culjak, Hund Automation Incorporated, noted that Hund Automation Incorporated continues to advertise as providing software engineering as well as combined engineering/manufacturing services, and asking for a written undertaking to cease and desist from engaging in such advertising.

 

[18]                     Exhibit 10 consists of two business cards as used:

 

                  1.  Business card with name aec systems limited with name of

                        Mark Culjak, Technical Sales.

 

                  2.  Business card with name hund automation incorporated

                        with the name of Gary Doel, Automatic Specialist.

 

[19]                     Exhibit 11 shows an internet website, dated 10/22/2002, and Exhibit 12 shows an internet website, dated 20/01/2003.  Both of these display the following information:

 

hund automation is a leader in industrial control systems engineering, manufacturing, programming and plant integration.

.  .  .  .  .

.  .  .  .  we have established close alliances with major automation product manufacturers, suppliers and engineering firms.

 

REVIEW OF EVIDENCE

 

[20]                     David A. Ennis, Professional Engineer, the Executive Director and Registrar of the Association of Professional Engineers and Geoscientists of the Province of Manitoba, was the sole witness called by the prosecution.  He made the following points in his testimony:

 

         1.      The defendant Michael Culjak called him on July 5th, 2000

                  in response to the letter of June 30th, 2000 (Exhibit 7) and

                  indicated that he would consult a lawyer who would respond

                  to that letter by the end of July, but there was no response from

                  any lawyer before or after this July 5th.

 

         2.      In respect of the letter of August 17th, 2000 (Exhibit 8), defendant

                  Culjak called and explained that he did not respond by July 30th,

                  2000 because he anticipated, that Mr. Ennis would take action

                  with respect to the Dowhan allegation, but Mr. Ennis informed

                  him that the Dowhan allegation is a separate matter.  Mr. Culjak

                  then promised to respond to the letter, but as there was no response

                  to either letters Exhibit 7 and Exhibit 8, Mr. Ennis sent the letter

                  of November 8th, 2000 (Exhibit 9) asking inter alia to cease and

                  desist.

 

         3.      On December 13th, 2000, Mr. Ennis received a call from Culjak as

                  to why Exhibit 9 was sent to Wardrop Engineering and received

                  the explanation that this was because a person on the joint board

                  was employed at Wardrop Engineering.  In this conversation

                  Michael Culjak represented that there was no practice of engineering

                  by his company and to communicate further about this matter with

                  his lawyer, Mr. Guttman.  However, at no time has Mr. Ennis

                  ever heard from Mr. Guttman.

 

         4.      In cross examination, Mr. Ennis recalled in the conversation of

                  December 13th, 2000 referred to a conflict as to the areas of

                  practice between the provisions of The Certified Applied Science

                  Technology Act and The Engineering and Geoscientific

                  Professions Act, and further said that Culjak was not practicing

                  engineering.

 

[21]                     The testimony of Michael Culjak was the sole witness called by defence.  He is 38 years of age, the principal of Hund Automation that was started in 1999 with his brother Brad Zigmar, who Culjak believed was a professional engineer.  Brad Zigmar left Hund Automation between 1999 and 2000, after October 25th

 

Regarding Exhibits 1 and 2, the engineer consultants therein referred to was Brad Zigmar.

 

Michael Culjak was a member under CAST Act and a member of the Manitoba Society of Certified Engineering Technicians and Technologists.  As of June 21st, 1995 Exhibit 13A certifies Michael Culjak as registered as an engineer technologist for each of the years from 1996 to December 31st, 2004.

 

Exhibit 13B is a certificate from Red River Community College certifying that Michael Culjak is awarded a diploma in instrumentation engineering technology as of June 26th, 1991.

 

Exhibit 13C is a diploma from Red River Community College certifying that Michael Culjak was awarded a diploma in electrical engineering technology as of June 24th, 1992.

 

Michael Culjak is a member under the Certified Applied Science Technologies Act, dated June 29th, 1998, for the purposes of Exhibit 11 – the website.

 

TESTIMONY OF MICHAEL CULJAK UNDER CROSS-EXAMINATION

 

[22]                     Mr. Culjak sent Mr. Ennis’ letters to Certified Technicians and Technologists Association of Manitoba Inc. and to his lawyers for guidance.  CTTAM advised him that the joint board (under Section 67(10) of the CAST Act) would resolve the issues in dispute and that he was advised that there was no violation of the CAST Act.

 

He acknowledged that he received no indication whether he was in violation or not under EGP Act.

 

He received a letter in 2002 that he was in compliance with the CAST Act.

 

As to Mr. Culjak being aware that APEGM were of the opinion that he was in breach of the EGP Act, he testified that the two Acts intertwined and that he asked for guidance.

 

His business cards changed in 2002 by deleting the word “engineering”.

 

He informed Mr. Ennis that he never did professional engineering and believed that by calling Mr. Ennis and his lawyer he was diligent.  He called Mr. Ennis right away and read Section 58(2) and Section 66(1) of the ENGEP Act.  He thought he was following proper steps and his association felt that he did nothing wrong.  He informed APEGM through Mr. Ennis that he never did any professional engineering work ever, and that the word “engineering” is used very commonly and does not describe professional engineering, that Mr. Ennis and his association does not own the word “engineering” and that he does not have copyrights of that word.

 

TESTIMONY OF MICHAEL CULJAK ON THE RE-DIRECT BY MR. WOLSON

 

[23]                     Michael Culjak was told that he falls under the exception Section 66(1) of the Engineering and Geoscientific Professions.  He was told specifically that he fell under this exception section.

 

Nevertheless, in June 2003, he removed the signs as shown in Exhibit 6, because they were continuing to cause problems for him.

 

ANALYSIS AND APPLICABLE LAW

 

[24]                     It is common ground that the Prosecution has the burden of proving the actus reus beyond a reasonable doubt.

 

[25]                     Under Section 58(1) of the EGP Act, the defendants are prohibited from using the specific titles: professional engineer; engineer; consulting engineer.

 

[26]                     When filing the documents under the Business Name Registration Act in October of 1999 and using the words “.  .  .  engineers consultants”, his brother-in-law Brad Zigmar, believed to be a professional engineer, was part of the Hund Automation business until October of 2000.  Thereafter, including between October 2nd, 2001 and January 27th, 2003, there was no professional engineer identified with this business.

 

[27]                     Michael Culjak and Hund Automation when filing a renewal of the business name under the Business Name Registration Act on December 17th, 2002, then described the main type of business as “sales and service”.

 

[28]                     David A. Ennis drove by Units 8 and 9 at 59 Scurfield Boulevard on January 27th, 2003 and found the same information displayed on the doors as in October and December of 2002, Exhibits 5 and 6.

 

[29]                     The defendant Michael Culjak removed these signs in June of 2003, according to his testimony because they continued to cause problems, even though he took the position that the APEGM did not own or have copyrights to the word “engineer”.  As to the websites, Exhibits 11 and 12, are the words “industrial control systems engineers combined engineering manufacturing services”, as suggested by the defendant simply a self-serving statement when talking about being a leader in control systems engineering?  In my opinion, a clear reading of the words without the modifying word technician or applied science technology clearly falls within the prohibition of Section 58(1) of the EGP Act in using the title engineer or consulting engineer.

 

[30]                     The defendant Michael Culjak under Section 61(1)(g) of the EGP Act is not prevented as a person certified under the Certified Appliance Science Technologies Act in an engineering discipline from engaging in an act that constitutes the occupation of applied science technology as defined in Section 1(1) of the CAST Act as long as his services do not include the practice of professional engineering, and provided where the title “engineer or engineering” is used, it be qualified or modified by the words “certified engineering technologist, certified applied science technician, or certified applied science technologist as provided in Section 1(2) of the CAST Act so as not to lead anyone to infer that such person is entitled to engage in the practice of professional engineering.

 

[31]                     As the defendant is not charged with practicing professional engineering under Section 57, but in holding out as a professional engineer, it is clear that had the defendant used the words “engineering technologist” as set out in Section 1(2) of the CAST Act, he would have fallen within the exception section of Section 66(1)(g) of the EGP Act.

 

[32]                     In the case entitled Association of Professional Engineers v. Martin Bucklaschuk (1983) 23 Man.R(2d) 244, a decision of Ferg, C.C.J. then of the County Court of Winnipeg considered the impugned words “I.C.-Concrete Engineering” in paragraph 10 of his decision, as to the use of the word I.C.‑ Concrete Engineering, the name of the business, he said:

 

Certainly, the profession cannot monopolize the use of the word, it can have many other uses, but when a non-professional uses the word in a business title or name and advertises to the public using that name, it seems to me clear that person fully intends to convey to the public that engineering services are available or provided to that public.  .  .  .

 

and accordingly ordered that the registration of the name I.C.-Concrete Engineering shall be cancelled.

 

[33]                     In the case of Association of Professional Engineers, Geologists and Geophysicists of Alberta v. Merhej, a decision of the Alberta Court of Queen’s Bench, reported at [2001] ABQB 1062 and at the Alta C.A. 203 ABCA 3360, the use of the words “system engineer” and designation “system engineer representation” was considered in the context of Information Technology (IT). 

 

At paragaraph 7 of the Court of Queen’s Bench decision, Marshall, J. said:

 

      The term “System Engineer” has been widely used in the IT industry and, while connoting a degree of expertise, does not indicate one is a professional engineer or the practice of engineering is being carried on.  This understanding is particularly clear to those familiar with the IT industry.  Because of the modifier “system”, there is little likelihood that confusion will arise because such engineers are representing themselves improperly.

 

In paragraph 8 he continues:

 

      In addition, the Respondent is not holding himself out to the public in order to solicit work in the field of engineering.  .  .  .

 

In paragraph 9 he concludes with:

 

      Ultimately the public’s safety must be the primary concern.  The Respondent’s situation is such that it cannot be contended that the public is likely to be deceived, confused or jeopardized by his use of the term.

 

The Decision and the Reasons were upheld by the Alberta Court of Appeal

 

[34]                     The final case brought to my attention is Assn. of Professional Engineers of the Province of British Columbia v. Inter-Provincial Power Engineering Assn., a decision of Meredith J. of British Columbia Supreme Court reported at [1977] B.C.J. No. 104.  In this case, the use of the words “Power Engineering” were considered.  In paragraph 7, Meredith, J. said:

 

      .  .  .  the designation “power engineer” no more implies that the person to whom it refers is an electrical engineer, a person qualified to design and oversee construction of power plants, than it suggests that the person is a “stationary” engineer, a person qualified simply to manage or assist in managing certain power plants.  Thus I conclude that the designation “power engineer” does not imply, and certainly it is not calculated to lead anyone to believe, that the engineer to whom it refers is a professional engineer.

 

The action was dismissed.  This decision was upheld by the British Columbia Court of Appeal in [1978] B.C.J. No. 379, which agreed with the conclusion and the reasoning that lead to it.

 

ANAYSIS and CONCLUSION

 

[35]                     The word “incorporated” held out to the public that Hund Automation was a body corporate that would have in its employ a professional engineer in connection with its displayed business of engineers consultants.

 

In fact, Hund Automation was never incorporated and the sole registered owner of the business was Michael Culjak.  The business described was “Control Systems Engineering and Manufacturing”.  Mr. Culjak in his testimony referred to consulting with a lawyer who assured him that he was in the clear, but no legal opinion from any lawyer ever communicated with the association, nor was any such formal legal opinion by any counsel presented to the Court.

 

[36]                     There was no evidence as to the type of business conducted by the defendant.  The defendant at trial and in his communications with David A Ennis, of APEGM, made a blanket denial that he was ever engaged in the practice of professional engineering.  That may be true, but did the words used by the defendant in the description of his business hold out this business as that of professional engineers?

 

[37]                     The words were “electric and electronic controls, suppliers, engineers/consultants

 

[38]                     Furthermore, the website describes the business as a leader in industrial control systems engineering, manufacturing programs, and plant integration, software engineers as well as combined engineering manufacturing services.  The words engineers, manufacturers, consultants are not words suggesting that the defendant business was in the mere distribution of products and services of products engineered elsewhere, but may lead to the inference of defendant entitlement to engage in the practice of engineering.

 

[39]                     In the Merhej case (supra), because of the modifier “system” on the terms “system engineer”, the court there found that there was little likelihood that confusion will arise because of such engineers are not representing themselves improperly.

 

In the case against Inter-Provinical Power Engineering (supra), the Court found that the business name “Power Engineering” does not imply or is calculated to lead anyone to believe that the engineer to whom it refers is a professional engineer.  The statement by Ferg, C.C.J. in the Bucklaschuk case (paragraph 32 herein) has direct application here.

 

[40]                     I am accordingly satisfied beyond a reasonable doubt that the actus reus of the offence has been proved by the Crown beyond a reasonable doubt.

 

[41]                     As set out in R. v. City of Sioux Ste. Marie, 40 C.C.C. (2d) 353, the Supreme Court of Canada on a public welfare offence, such as in the instant case, as conceded to by both counsel, there is open to the accused on a balance of probabilities the defence of due diligence on reasonable and probable grounds.  This involves consideration of what a reasonable man would have done in the circumstances.  The defence to be available if the accused reasonably but mistakenly believed in the set of facts which if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event (see headnote).

 

[42]                     The steps that the defendant said that he took:

 

              1.  He telephoned Mr. Ennis in response to written letters to point

                  that the EGP has no copyright on the word “engineering”, that

                  he consulted with an attorney who advised him that he was not

                  in breach, that he instructed his attorney to communicate with the

                  Association, that he was never carrying on professional

                  engineering, that he was a certified technician and technologist

                  under the Engineering and Geoscientific Professions Act, that

                  the joint board were looking into the apparent overlap in trying

                  to resolve the issue or dispute respecting areas of practice, that

                  he was informed that he was not in breach of any provision under

                  the Certified Applied Science Technologists Act.

 

              2.  The defendant, Mr. Culjak, did not obtain a written opinion of

                  his lawyer as to whether or not he was in breach under the

                  Engineering and Geoscientific Professions Act, nor was his

                  then counsel called as a witness by the defendant, with a waiver

                  by the defendant of the privilege of confidentiality between

                  solicitor and client.

 

              3.  The defendant testified that he never received confirmation

                  from the Association of the Engineering and Geoscientific

                  Professions Act that the joint board resolved the matter in

                  his favor under that Act as well.

 

              4.  The defendant presented no evidence that he ever changed

                  the titles describing his business in compliance with Section

                  1(2) of the Certified Appliance Science Technologists Act,

                  specifically “certified engineering technician”, “certified

                  engineering technologist”, “certified applied science

                  technician”, “certified applied science technologist”, or the

                  corresponding initials or any like words, initials or expressions

                   that would connote a person recognized by law as a certified

                  engineering technician, certified engineering technologist,

                  certified applied science technician, or certified applied

                  science technologist, or connoting a member of the Association

                  in the Province.

 

              5.  The defendant removed the signs as shown in Exhibit 6, photo 3

                  in June of 2003 because of the continuing problems it was

                  creating.  The offence dates are between the 2nd day of October,

                  2001 and the 27th day of January, 2003.

 

              7.  The defendant did not indicate why he did not take the reasonable

                  steps of making these title changes forthwith after the offending

                  description of his business was brought to his attention. 

 

[43]                     The defendant failed to satisfy me on a balance of probabilities that he exercised due diligence and was not negligent in attending to the issues in question.

 

[44]                     Accordingly, I find the defendant guilty as charged.

 

 

 

                                                                 “Original signed by:”        

                                                                 JUDGE T. J. LISMER

 

 


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