THE BOUNDARIES ACT

(R.S.O. 1990, Chapter B.10)

Director of Titles – Ontario (Boundaries Act)

Citation: Austin v. Gilchrist, 2020 ONBAH 1

Date: 2020-02-05

Docket: B-1257

Registry: Manitoulin

Between: Jane Catherine Austin and Norman Robert Barney – Applicants

• and -

Elizabeth Gilchrist and Ian Gilchrist – Objectors

Before: Roxana Niculae, Deputy Director of Titles

Reasons for Decision

Application B-1257

1IN THE MATTER OF an application by Norman Robert Barney and Jane Catherine Austin, the registered owners of the lands designated as PIN 47129-0109(LT), being Lot 21, Concession 6 in the Geographic Township of Sandfield, in the Municipality of Central Manitoulin, District of Manitoulin, for confirmation pursuant to The Boundaries Act of the true location on the ground of the westerly boundary of PIN 47129-0109(LT) being the boundary between Lots 21 and 22, Concession 6, Geographic Township of Sandfield, in the Municipality of Central Manitoulin, District of Manitoulin, in accordance with a draft plan of survey, dated July 6, 2018, with the aforementioned boundary shown by a heavy solid line prepared by the firm of Tulloch Geomatics, and signed by Robert D. Halliday, Ontario Land Surveyor.

2AND IN THE MATTER OF an objection by Elizabeth Gilchrist and Ian Gilchrist, the registered owners of the lands designated as PIN 47129-0108(LT), being Lot 22, Concession 6 in the Geographic Township of Sandfield, in the Municipality of Central Manitoulin, District of Manitoulin, situated immediately to the west of the Applicant's lands. Elizabeth Gilchrist is married to the brother of Ian Gilchrist. John Gilchrist, the husband of Elizabeth Gilchrist and brother of Ian Gilchrist, is the Representative for the Objectors in these proceedings.

REASONS

3This application came before me for a hearing in the Board Room of the York Region Land Registry Office, 50 Bloomington Road West in Aurora, Ontario at 10:00 in the morning, on the 17th day of September 2019 and continued on the 18th and 19th days of September, 2019. At the hearing, the following persons appeared before me:

Jane Catherine Austin Applicant and Witness

Norman Robert Barney Applicant

Robert B. Gray Solicitor for the Applicants

Robert D. Halliday Ontario Land Surveyor and Witness for the Applicants

Izaak de Rijcke Ontario Land Surveyor and Witness for the Applicants

Elizabeth Gilchrist Objector and Witness

John Gilchrist Representative for the Objectors

Adrian Bortolussi Ontario Land Surveyor and Witness for the Objectors

Greg Young Previous owner of Lot 22, Concession 6 and Witness

4During the hearing, 21 Exhibits were filed. After a detailed review of the material filed in support of the application and the evidence provided at the hearing, I asked OLS Halliday, by letter dated November 26, 2019, to provide a copy of a revised version of the plan in support of the application, together with a copy of the abstract of the Road Allowance between Concessions 6 and 7 designated as PIN 47126-0230(LT). The additional items related to my request were entered as Exhibits 22 to 26 (all inclusive). A list of the exhibits is attached as Appendix "A" to these Reasons.

THE ISSUE

5This Application involves the confirmation of the westerly boundary of PIN 47129-0109(LT) being the boundary between Lots 21 and 22, Concession 6, Geographic Township of Sandfield, in the Municipality of Central Manitoulin, District of Manitoulin. G.R. Keatley, OLS was initially retained by Jane Austin and Norman Robert Barney to conduct a boundary survey of the westerly limit of Lots 21, Concession 6. He set the limit between Lots 21 and 22, Concession 6 on the ground but he did not prepare a plan of survey. R.D. Halliday, OLS was later hired to complete the survey and report in support of this application. R.D. Halliday, OLS, using a combination of measurements and found physical evidence, concluded that the proposed limit can be retraced starting at a found standard iron bar (SIB) planted by W.J. Keatley, OLS, at the northeast corner of Lot 22, Concession 6, as illustrated on Plan 31R-2237, filed at Tab 15 of Exhibit 1, thence joining to a SIB set by G.R. Keatley, OLS, in the centre of a stone row located south of an old barn, thence joining to a short standard iron bar (SSIB) set by G.R. Keatley, OLS, at the south end of the stone row labelled on the plan and thence joining to a rock plug set by G.R. Keatley, OLS, marking the purported southwest corner of Lot 21, Concession 6 as illustrated in heavy solid lines on the plan in support of this application.

6R.D. Halliday, OLS, held the centre line of a 4 metre wide old stone row as the best evidence of the location on the ground of part of the boundary between Lots 21 and 22, Concession 6. According to R.D. Halliday, OLS, this row of stones existed in 1946 as illustrated on the aerial photograph filed at Tab 26-1 of Exhibit 1 and on the electronic version of such aerial photography entered as Exhibit 12. R.D. Halliday, OLS, further testifies that this stone row was established at a time when the original wooden posts, set during the 1870 Original Survey of the Township of Sandfield, were still known to the original settlers.

7The northerly and the southerly limits of Lots 21 and 22, Concession 6, as retraced by R.D. Halliday, OLS were not disputed in these proceedings and are not part of this Application.

8By accepting the centre line of the stone row as the best evidence of the location on the ground of this boundary, R.D. Halliday, OLS, did not accept the location of a remnant cut line found on the ground being approximately 12.5 metres to 14.9 metres easterly of the proposed limit. Based on the northerly terminus point of the accepted stone row and the northwest corner of Lot 21, Concession 6 retraced by W.J. Keatley, OLS on Plan 31R- 2337 (and not disputed in these proceedings), the boundary cuts through the easterly 2.0 metres of an existing barn.

9Elizabeth Gilchrist and Ian Gilchrist, the registered owners of the lands lying to the west of the proposed boundary, designated as PIN 47129-0108(LT) and described as Lot 22, Concession 6 in the Geographic Township of Sandfield, have filed an Objection to this application boundary. The objectors did not engage a solicitor to assist them during the hearing and they were represented by John Gilchrist.

10The objectors submitted that the boundary line between the two properties should proceed from the monument (SIB) planted by W.J. Keatley, OLS, at the northeast corner of Lot 22, Concession 6, as illustrated on Plan 31R-2237, filed at Tab 15 of Exhibit 1, to the southern end of the existing line that was cut by Greg Young and illustrated on the Boundaries Act plan as being located approximately 12.5 metres east of the proposed boundary. The boundary suggested by the objectors is illustrated on a sketch prepared by Adrian Bortolussi, OLS and it is filed as page A.1.7.b of Exhibit 3. A boundary line as shown on this sketch would eliminate the problem of having a boundary go through the existing barn to which the objectors are claiming they are entitled to. They also indicate that the version of the line subject to their submission would reflect the best representation of the boundary under application.

THE EVIDENCE

11Title of the property under application designated as PIN 47129-0109 (LT)

1. (1890) The property under application is described as Lot 21, Concession 6, Township of Sandfield. Lot 21 was patented in 1890 to Emily B. Cole. The crown patent is filed at Tab 5 of Exhibit 2 and registered in the land registry office on January 17, 1891.

2. (1894) The lot was sold to Myles Young by Instrument 146, filed at Tab 2-4 of Exhibit 1, and registered on October 31, 1894, along with Lot 21, Concession 7.

3. (1921) Mr. Young died in 1920. Instrument 600 is a Quit Claim, filed at Tab 2-6 of Exhibit 1, from the successors of Myles Young to Mr. Young’s widow, Ann Elizabeth Young, registered on March 24, 1921. The Quit Claim also included Lot 22, Concession 6 and Lot 21, Concession 7.

4. (1922) Instrument 625, filed at Tab 2-7 of Exhibit 1, is a 1922 deed from Ann Elizabeth Young to Ann Elizabeth Young and Digby Young. The described lands include “lots numbers twenty one and twenty two in the sixth concession of the said township of Sandfield and that part of lot number twenty one in the seventh concession of the said township of Sandfield lying south of the creek or river on said lot twenty one in the seventh concession aforesaid which creek or river connects Big Lake with Mud Lake and is situated about midway on said lot”.

5. (1970) Instrument T-13869, filed at Tab 2-9 of Exhibit 1, is a transfer from Digby Miles Young et ux to Kenneth Kepple Young and Marjorie Young of Lots 21 and 22, Concession 6 and part of Lot 21, Concession 7.

6. (1970) Instrument T-13894, filed at Tab 2-10 of Exhibit 1 is a Deposit of the Death Certificate for Mary Ann Young, also known as Ann Elizabeth Young. Mr. Halliday clarified that she had died in 1932 but the Certificate was not registered until 1970.

7. (1992) Instrument 52494, filed at Tab 2-11 of Exhibit 1, is a transfer of a right- of-way over Part 1 and Part 2, Plan 31R-2237 for the benefit of Lot 21, Concession 5, from Kenneth Kepple Young and Marjorie Young to Hendrik Meyer and Pearl Meyer.

8. (2001) Instrument 67145, filed at Tab 2-12 of Exhibit 1, is a transfer of Lot 21, Concession 6 from Kenneth Kepple Young and Marjorie Young to Mark Kennard Young and Bonnie Christine Young.

9. (2010) The property designated as PIN 47129-0109 (LT), filed at Tab 2-2 of Exhibit 1, was converted to land titles on 2010/04/19 and described as “LT 21 CON 6 SANDFIELD S/T RM52494; CENTRAL MANITOULIN”.

10. (2013) Instrument MD7180, filed at Tab 2-14 of Exhibit 1 is a transfer of Lot 21 Concession 6, from Mark Kennard Young and Bonnie Christine Young to Norman Robert Barney and Jane Catherine Austin, subject to right-of-way over Part 1, Plan 31R-2337 as described in RM 52494.

12Title of the property designated as PIN 47129-0108 (LT)

11. (1885) The property to the west is described as Lot 22, Concession 6, Township of Sandfield. Lot 22 was patented in 1885 to David Hilts. A copy of the Crown Patent is filed at Tab 3-3 of Exhibit 1.

12. (1904) R.D. Halliday, OLS, indicates, in his report, that David Hilts sold Lot 22 to Myles Young in 1904. According to the abstract book for Lot 22, Concession 6, this deed was never registered in the Land Registry Office.

13. (1907) R.D. Halliday, OLS, clarifies that there is no entry in the abstract book, which does not start until 1907, when Myles Young is already the owner

14. (1921) Myles Young died in 1920. Instrument 600 is a Quit Claim, filed at Tab 3-6 of Exhibit 1, from the successors of Myles Young to Mr. Young’s widow, Ann Elizabeth Young, registered on March 24, 1921. The Quit Claim also included Lot 21, Concession 6 and Lot 21, Concession 7.

15. (1922) Instrument 625, filed at Tab 3-7 of Exhibit 1, is a 1922 deed from Ann Elizabeth Young to Ann Elizabeth Young and Digby Young. The described lands include Lots 21 and 22 Concession 6 and Part of Lot 21 Concession 7.

16. (1970) Instrument T-13869, filed at Tab 3-9 of Exhibit 1, is a transfer from Digby Miles Young et ux to Kenneth Kepple Young and Marjorie Young of Lots 21 and 22, Concession 6 and part of Lot 21, Concession 7.

17. (1970) Instrument T-13894, filed at Tab 3-10 of Exhibit 1 is a Deposit of the Death Certificate for Mary Ann Young, also known as Ann Elizabeth Young. Mr. Halliday clarified that she had died in 1932 but the Certificate was not registered until 1970.

18. (2001) Instrument 67144, filed at Tab 3-12 of Exhibit 1 is a 2001 transfer of just Lot 22, Concession 6 from Kenneth Kepple Young and Marjorie Young to Greg Young. Izaak de Rijcke, OLS indicates, in his report filed as Exhibit 2, that this transfer had the Manitoulin Planning Board consent decision attached.

19. (2002) Instrument 69560, filed at Tab 3-12 of Exhibit 1, is a transfer of Lot 22 Concession 6 from Greg Young to Greg Young and Jennifer Young as joint tenants.

20. (2010) The property designated as PIN 47129-0108 (LT), filed at Tab 3-2 of Exhibit 1, was converted to land titles on 2010/04/19 and described as “LT 22 CON 6 SANDFIELD; CENTRAL MANITOULIN”.

21. (2013) Instrument MD7379, filed at Tab 3-13 of Exhibit 1, is a transfer of Lot 22, Concession 6 from Greg Young and Jennifer Young to Ian Gilchrist and Elizabeth Gilchrist, the current owners of these lands.

Chain of Title of Lots 22 and 21 in Concession 6

13After the first patent in 1855 of Lot 22, Concession 6, to David Hilts, the boundary between Lots 21 and 22, Concession 6 came into legal existence with a different ownership either sides of the line and it was held as such for at least 19 years.

14R.D. Halliday, OLS, testified, that David Hilts sold Lot 22 to Myles Young in 1904. According to the abstract book for Lot 22, Concession 6, this deed was never registered in the Land Registry Office. R.D. Halliday, OLS, indicated that there is no entry in the abstract book, which does not start until 1907, when Myles Young is already the owner. However, by 1907 both lots were held in the same ownership of Myles Young.

15The evidence indicates that both lots were held in common ownership until February 28, 2001 when Kenneth Kepple and Marjorie Young conveyed Lot 21, Concession 6 to Mark Kennard and Bonnie Christine Young and Lot 22, Concession 6 to Greg Young.

16On September 25, 2002 Greg Young conveyed title to Lot 22, Concession 6 to himself and Jennifer Young. On March 1, 2013 Mark Kennard and Bonnie Christine Young transferred title of Lot 21, Concession 6 to the applicants Norman Robert Barney and Jane Catherine Austin and on April 15, 2013 Greg and Jennifer Young transferred ownership of Lot 22, Concession 6 to the objectors Elizabeth Gilchrist and Ian Gilchrist.

Title of the property to the north designated as PIN 47126-0230 (LT)

17The property designated as PIN 47126-0230 (LT), filed as Exhibit 26, was converted to land titles on 2010/04/19 and described as: Road Allowance between Concessions 6 and 7, Sandfield abutting Lots 21, 22 and 23, Central Manitoulin in the ownership of Public Authority having Jurisdiction.

Title of the property to the south designated as PIN 47129-0118(LT)

18The property designated as PIN 47129-0118(LT), filed at Tab 5-2 of Exhibit 1, was converted to land titles on 2010/04/19 and it is described as East Half of Lot 22, Concession 5, Sandfield, Central Manitoulin, in the ownership of the applicant Jane Catherine Austin. She acquired title to this property in 1997 by Instrument 62587, filed at Tab 5-9 of Exhibit 1.

Title of the property to the southeast designated as PIN 47129-0117(LT)

19The property designated as PIN 47129-0117(LT) filed at Tab 4-2 of Exhibit 1, was converted to land titles on 2010/04/19 and it is described as Lot 21, Concession 5, Sandfield, T/W RM71250, Central Manitoulin, in the ownership of the applicant Norman Robert Barney. He acquired title to this property in 2003 together with a right-of-way over Parts 1 and 2, Plan 31R-2337 by Instrument RM71250, filed at Tab 4-14 of Exhibit 1.

Survey Evidence

201.(1870) The Original Township of Sandfield was surveyed by J.W. Fitzgerald, Provincial Land Surveyor, under Instructions from Deputy Superintendent of Indian Affairs, using a 1000-acre sectional system and the plan is filed at Tab 8 of Exhibit 1. This system of survey laid out a road allowance between every second concession and a road allowance between every 5 lots, and with each lot having an area of 100 acres and each section being bounded on all four sides by a road allowance and containing a total area of 1000 acres. R.D. Halliday, OLS, stated in his survey report dated June 08, 2018 that the usual practice in the original survey was to survey the township boundaries, concession lines and side lines of sections defining the section boundaries and to establish the front corners of the lots and section corners. He concluded that, although the front corners were marked, only the exterior Section boundaries were surveyed and none of the interior lines were physically run and surveyed. He further clarifies that Lots 21, 23 and 25, Concession 6 and Lots 21, 22 and 23, Concession 7, are broken lots, being surrounded by Mud Lake, now known as Dace Lake, Big Lake, Windfall Lake and Pine Lake. The Township Survey Plan illustrates a distance of 9.9 chains (653.4 feet) between the subject boundary and the shore road allowance of Mud Lake, now known as Dace Lake. The distance from the shore road allowance of Big Lake to the subject boundary is also illustrated on the Township Plan as 33 chains (2178 feet). Lot 21, Concession 6 is shown as being 87 acres and Lot 22, Concession 6 is shown as having 100 acres. The Crown Instructions and Survey Report for the Township of Sandfield are filed at Tab 10 of Exhibit 1. R.D. Halliday, OLS, submitted that no useful information could be drawn from the report as it deals primarily with the geology of the Township, existing development patterns and suitability for agriculture. Township survey notes are filed at Tab 9 of Exhibit 1 R.D. Halliday, OLS, summarized the relevance of page 33 of the field notes where there is an indication of balsam posts placed at the northwest corner of Lot 21, Concession 6 and at the southwest corner of Lot 21, Concession 7. None of these posts were discovered during the current survey.

212.(1964) M.T.O. Plan P-2418-3, filed at Tab 22 of Exhibit 1, is an Assumption Plan, registered in the registry office as T-5294. R.D. Halliday, OLS, indicates in his report, that this plan is prepared to illustrate the portion of Highway 542 crossing Lots 20 through 23, Concessions 8 and 9, that it includes the retracement of the Road Allowance between Concessions 8 and 9 as well as 17-foot (5.18 metre) widenings on either side of the Road Allowance. He further clarifies that the plan also includes the retracement for the Road Allowance between Lots 20 and 21, which was based on two fences lying within Concession 9 and that witness monuments were placed for the intersection of the widening for Highway 542 with the Road Allowance between Lots 20 and 21.

223.(1970-1983) Pencil sketch by L.A. Emon, OLS, is filed at Tab 20 of Exhibit 1. The report by G.R. Keatley OLS, filed at Tab 24 of Exhibit 1, indicates that this pencil sketch was located in the records of L.A. Emon, OLS, with no associated field notes. He indicates that “the sketch illustrates the retracement and calculations pertaining to the road allowance between Concession 6 and 7 from Lots 18 to 23. There are also connections to the road allowance between Concessions 4 and 5 on this sketch. As the subsequent plan by Emon, 31R-407 and 31R-1299 show found monuments, it is surmised that the sketch predates both surveys, and was for the purpose of the completion of 31R-407.”

234.(1983) Plan 31R-1299, filed at Tab 13 of Exhibit 1, is a survey by L.A. Emon, OLS, of all of Lot 23 and part of Lot 25, Concession 6. The plan illustrates found survey monuments marked as (1013), which is the Association of Ontario Land Surveyors registration number for L.A. Emon, OLS at both ends of the limit between Lots 22 and 23, Concession 6. The location of the northeast and southeast corners of Lot 23 are of interest to the subject survey. The plan illustrates the southwest corner of Lot 23, Concession 6 to be 115.35 feet east of the shore road allowance along Pine Lake. The plan further illustrates that the southwest corner of Lot 22, Concession 6 is located at a calculated value of 1444.97 feet east of the shore road allowance along Pine Lake. Plan 31R-1299 also illustrates Lot 25 as having an area of (+/-) 25.70 acres, and Lot 23 as having an area of (+/-) 97.18 acres. The title document for the adjacent land being Lot 22, Concession 6, is shown as being Instrument Number T-13869. This instrument represents the title document for Lot 22 current at the time this survey was deposited. The northeast corner of Lot 23 is shown as being 857.13' east of the shore road allowance of Big Lake. R.D. Halliday, OLS, clarified in his report that no field notes are available for this plan. He also submitted that the sketch filed at Tab 20 of Exhibit 1, prepared by L.A. Emon, OLS, in support of Plan 31R-1299 appears to be a pencil version of what was transcribed into the plan.

245.(1991) Plan 31R-2237, filed at Tab 15 of Exhibit 1, is a plan of a survey by W.J. Keatley, OLS, prepared to describe a right-of-way for access across Lot 21, Concession 6 and Lot 21, Concession 7. The right of way is noted as Parts 1 and 2 on this plan. Part 1 is that part of the easement located in Lot 21, Concession 6 and Part 2 is that part of the easement located in Lot 21, Concession 7. R.D. Halliday OLS, indicates, in his report, that this survey retraced the Road Allowance between Concession 6 and 7 across Lots 19 through 22, and planted a Standard Iron Bar for the northwest corner of Lot 21, Concession 6, in a drill hole found in the ground. R.D. Halliday, OLS, further clarifies that he could not find any record of this drill hole having been set on previous surveys but assumes it was done by L.A. Emon OLS, since, according to the field notes, filed at Tab 15 of Exhibit 1, L.A. Emon, OLS was part of the crew that completed this survey. The survey monuments planted to illustrate the northwest corner of Lot 21, Concession 6 and the southwest corner of Lot 21 Concession 7 appear to coincide with points where the road allowance between Concession 6 and 7 bends. The plan also illustrates that the western limit of the right of way, at the point where it intersects with the southerly limit of the road allowance between Concession 6 and 7, is 148.43 feet east of the subject boundary between Lots 21 and 22 Concession 6. The right of way which intersects with the northerly limit of the road allowance between Concession 6 and 7 is illustrated at a distance of 148.73 feet east of the Lot 21/22, Concession 7 boundary, being 0.35 feet greater than the corresponding distance on the opposite side of the road allowance between Concession 6 and 7. R.D. Halliday, OLS, further indicates in his report, that plan 31R-2237 re-established the Road Allowance between Lots 20 and 21, Concession 6, where W.J. Keatley, OLS, used a survey monument by O.L.S. Emon on the centreline of the Road Allowance and set a bearing, and clarified that he could not determine the basis for such mathematical approach or the origin of such bearing. The plan also illustrates instrument T-13869 as the as most recently conveyed title document of Lot 21 Concession 6 from Digby Myles Young et ux, to Kenneth Kepple Young and Marjorie Young, filed at Tab 2-9 of Exhibit 1. The field notes for Plan 31R- 2237, also filed at Tab 15 of Exhibit 1, were reviewed by Izaak de Rijcke, OLS, in his report filed as Exhibit 2. He indicates that field work for this plan started on May 3, 1991 and was completed on June 4, 1991. He also submitted that these notes illustrate a “dirt road" running through Lot 22, Concessions 6 and Lot 22, Concession 7. The notes further illustrate that a “drilled hole in rock” was located at the northwest corner of Lot 21, Concession 6 and a note that the bar at this location was missing. The notes also indicate that an iron bar was found at the most northerly point on the boundary between Lots 21 and 22, in Concession 7. A short standard iron bar was found on the southwest corner of Lot 22, Concession 7, and a rock bar was found on the northwest corner of Lot 22, Concession 6.

256.(1992) Plan 31R-2449, filed at Tab 16 of Exhibit 1, is a plan of a survey by R.D. Halliday, OLS, prepared in support of an Application for First Registration under Land Titles Act of Lot 23 and Part of Lot 22, Concession 7 and Part of Lot 22, Concession 8, Township of Sandfield. R.D. Halliday, OLS, indicates in his report that based on Instrument 560, filed at Tab 7-7 of Exhibit 1, the fence along the east side of Homestead Road being a travelled road within Concession 7 was accepted as being the best evidence for the location of the east limit of the 66 foot (20.12 metre) for Homestead Road, and that the Lot 21/22 line was set 20.12 metres west from the fence. He further clarifies that in the southerly 400 metres of Concession 7, the road bends to the west. R.D. Halliday, OLS, also indicates that he accepted the monument set by W.J. Keatley, OLS on plan 31R-2237 for the SE corner of Lot 22, Concession 7 and concluded that Homestead Road trespassed onto Lot 22.

267.(1997) Plan 31R-2816, filed at Tab 17 of Exhibit 1, is a plan of a survey by W.J. Keatley, OLS, of part of Lot 21, Concession 7. R.D. Halliday, OLS, indicates, in his report, that along the west boundary the survey was based on the 1994 plan 31R- 2449, filed at Tab 16 of Exhibit 1 and that the Road Allowance between Lots 20 and 21 was re-established based on OLS L.A. Emon field notes, being the Pencil Sketch, filed at Tab 20, of Exhibit 1 for the south end. He further clarifies that the alignment for the north end of this Road Allowance was based on witness survey monuments along Highway 542, and dimensions from 1965 highway Plan P-2418- 3, filed at Tab 22 of Exhibit 1.

278.(2001) Plan 31R-3131, filed at Tab 19 of Exhibit 1, is a Plan of Survey by W.J. Keatley, OLS, of part of Lots 22 and 23, Concession 7, Township of Sandfield. R.D. Halliday, OLS, indicated, in his report, that this survey is a retracement of the south and east boundaries of Part 2, Plan 31R-2449, filed at Tab 16 of Exhibit 1, and the southerly and easterly boundaries of Registered Plan 31M-200, filed at Tab 18 of Exhibit 1. Izaak de Rijcke, OLS, indicates, in his report filed as Exhibit 2, that this plan was prepared for the purpose of implementing a severance of Lot 22, Concession 7, into two parts. He also indicates that the western portion of Lot 22 was designated as Part 2 and the remaining portion was designated as Part 3 and that the plan also designated Lot 23 as Part 3. He clarifies that the plan also shows a "Travelled Road" traversing along the eastern limit of Lot 22, being one concession north of the subject boundary and that the road was by then known municipally as Homestead Road and was established by Instrument No. 560. He also explains that beginning from the northeast corner of lot 22, Concession 7, Homestead Road is entirely within Lot 21, but as it travels south, it begins to encroach into Lot 22, Concession 7.

289.(2010) Field notes dated November 26, 2010, by G.R. Keatley, OLS (son of W.J. Keatley, OLS), are filed at Tab 23 of Exhibit 1. R.D. Halliday, OLS, specifies in his report that this field work was not finalized into a plan of survey and it was done for Mark and Bonnie Young, the registered owners at that time of Lot 21, Concession 6, while Greg and Jennifer Young were the registered owners of Lot 22, Concession 6. The Field Notes illustrate several found monuments and indicate that those previously found at the southeast corner of Lot 22, Concession 7 and the one along Homestead Road were both destroyed. R.D. Halliday, OLS, indicates in his report that they also illustrate a stone row with the remains of a snake rail fence lying south of a two storey barn, and that a monument was placed in the stone row and a second was placed along the line from this monument to the one found at the northwest corner of Lot 21, Concession 6. Izaak de Rijcke, OLS, indicates, in his report, that the field notes illustrate a large portion of Lot 21, Concession 6 with many features along the boundary between Lots 21 and 22, Concession 6. He also clarified that a faint line appears in the centre of this page to represent the Lot 21/22 boundary. He then submits that the field notes further depict a two-story timber barn which is shown as mostly being on Lot 22, Concession 6 but has roughly a third of its structure encroaching into Lot 21, Concession 6. He also indicates that remnants of a stone row fence are noted on the field notes as commencing just south of the barn but there is no illustration of its southern terminus point. He also submits that a survey monument, an iron bar, is shown as being found at the northwest corner of Lot 21, Concession 6 and that iron bars were planted along the proposed boundary line, one being planted near the barn on its north side, and a second iron bar was planted in the row of stones south of the barn. He also indicates that a wood and metal pole and a small one storey building are noted in close proximity to one another, in Lot 22, Concession 6 and just north of the barn.

2910.(2014-2016) Field Notes and a survey report by G. R. Keatley OLS, together with a plot of the calculation sketch are filed at Tab 24 of Exhibit 1. R.D. Halliday, OLS, clarified in his report, that this field work was not finalized into a plan of survey and it was done between 2014 and 2016 for Norman Barney and Jane Austin, the current owners of Lot 21, Concession 6. The Field Notes show several of the monuments found or set by G.R. Keatley, OLS, of note being the ones found at the northeast and southwest corners of Lot 22, Concession 6. Several monuments along the Road Allowance between Concessions 4 and 5 were also found and tied in. R.D. Halliday, OLS, indicates that G.R. Keatley OLS, placed two more monuments in the stone row considered by him to be best evidence for the first establishment of the line between Lots 21 and 22, Concession 6. He further clarified that from the south end of the stone row, G.R. Keatley OLS, ran the line “Due South” to an old cut line which he accepted as best evidence for the line between Concessions 5 and 6. R.D. Halliday, OLS, further submits that G.R. Keatley, OLS, in his report filed at Tab 24 of Exhibit 1, asserts that the stone row and remains of fence were an attempt by the early settlers to demarcate the line between Lots 21 and 22, Concession 6. OLS G.R. Keatley’s report also notes that the survey monuments found in the vicinity of the northwest corner of Lot 21, Concession 6, have been relied upon by a number of surveys since Plan 31R-2337, which have all accepted this location. The report further clarified that the line between Lots 21 and 22, Concession 6, only became relevant as a boundary in 2001 when Lots 21 and 22 were severed out of the parent property. OLS G.R. Keatley’s report stated that “The existence of the historical boundary for the northerly 385 metres as following the stone row and fence remains and joining to the accepted lot corner as monumented by the previous surveys, has been accepted as the intent behind the 2001 severance”. R.D. Halliday, OLS stated that G.R. Keatley’s report is relevant and he has accepted it. R.D. Halliday, OLS, further indicated that page 1 of the Field Notes illustrates the establishment of a line between the easterly part and the westerly part of Lot 22, Concession 5. He further clarified that there is no indication on the field notes of the method used to establish this boundary.

3011.(2017) Plan 31R-4100, filed at Tab 25 of Exhibit 1, is plan of a survey by R.D. Halliday, OLS, prepared to sever part of Lot 25, Concession 8. R.D. Halliday, OLS, clarified that its relevance relates only to the coordinate value determined which would be used as part of the basis for georeferencing the proposed survey in support of this application.

31R.D. Halliday, OLS, specified, in his report and testimony that some survey plans have no relevance to the survey of the lands under application, but they were included in Exhibit 1 as part of his survey records search. They can be summarized as follows:

• A 1970 plan by D. Wandabense, OLS, to illustrate descriptions of Part of Lots 23

and 24 Concession 4, Township of Sandfill, filed at Tab 21 of Exhibit 1;

• Plan 31R-407, being a 1975 plan of survey by L.A. Emon, OLS, of part of Lot 18 and all of Lot 19, Concession 4, filed at Tab 11 of Exhibit 1;

• Plan 31R-611, being a 1977 plan of survey by L.A. Emon, OLS, of part of Lot 26, Concession 6, filed at Tab 12 of Exhibit 1;

• Plan 31R-1839, being a 1988 plan of a survey by W.J. Keatley, OLS, of Lots 15, 16, 17 and 18, Concession 5, filed at Tab 14 of Exhibit 1 and

• Plan 31M-200, being a plan of subdivision by R.D. Halliday, OLS, of Part of Lots 22 and 23, Concession 7 and Part of Lot 22, Concession 8, Township of Sandfield, filed at Tab 18 of Exhibit 1.

Survey Reports and Testimony

Jane Catherine Austin - Testimony

32Jane Catherine Austin, the current registered owner of Lot 21, Concession 6, testified that she acquired, together with her husband Norman Robert Barney, the lands of interest to this application from Mark Kennard Young and Bonnie Christine Young in 2013, by conveyance document registered as Instrument MD7180, filed at Tab 2-14 of Exhibit 1.

33Jane Catherine Austin displayed a good understanding of the relationship between the proposed application plan prepared by R.D. Halliday, OLS and her property on the ground by identifying the relative location of physical features shown on the plan and photograph exhibits, and her activities on the property. She testified about the existence of the line of tree stumps and stone row located south of an old barn during her ownership of Lot 21 since 2013. She also testified about the captions of various photographs entered as Exhibits 8, 9, 10 and 11, describing the location, from which each photo was taken, the general direction of the view, and pertinent visible features. Jane Catherine Austin also testified that she observed evidence of remains of cedar rail fencing and posts along or buried under the rocks in different areas of the stone row. She testified that the line of tree stumps and stone row were in place at the time she purchased her property. She stated that the stone row separates her property from Lot 22, Concession 6.

34Jane Catherine Austin also clarified that she is the owner of the lands to the south designated as PIN 47129-0118(LT) and described as East Half of Lot 22, Concession 5, Sandfield, since 1997. She also clarified that her husband Norman Robert Barney is the registered owner of the lands to the south designated as PIN 47129-0117(LT) described as Lot 21, Concession 5, Sandfield, together with a right-of-way over Parts 1 and 2, Plan 31R-2337 by Instrument RM71250, since 2003.

35She also testified on her interaction with Greg Young about having a contractual relationship as suggested in his affidavit submitted in the objector’s binder entered as Exhibit 3. Jane Catherine Austin testified that this interaction took place in 1998 or 1999 when she was the owner of East Half of Lot 22, Concession 5 and Greg Young wanted to mark out the property for hunting purposes. Jane Catherine Austin submitted that there was no contractual relationship and that they had an agreement that she was able to access her property (the East Half of Lot 22, Concession 5), which had no legal access, through his father’s property, being Lot 22 Con 6, in exchange for him to hunt on her property. She testified that there was no money exchanged. She further testified that Greg Young volunteered to demarcate the east boundary of the East Half of Lot 22, Concession 6.

36Jane Catherine Austin also clarified that Greg Young ran the line between Concession 5 and 6 in 1998 or 2002. She also testified that, after she became the owner of Lot 21, Concession 6, she never discussed the location of the cut line by Greg Young related to the limit between Lots 21 and 22 Concession 6.

37Jane Catherine Austin provided clarification on the state of health of Mark Young justifying why she did not ask him to attend the hearing.

38She also testified that she was approached by Ian Gilchrist, around April 15, 2013, with a request to sever a 15-foot strip of land around the barn and purchase such land from her. She did not agree because such severance would interfere with the physical location of the access road found on Lot 21 Concession 6.

Izaak de Rijcke, OLS - Survey Report and Testimony

39Izaak de Rijcke, OLS was recognized as an expert witness and qualified to give opinion evidence concerning the location of the boundaries under application. Mr. de Rijcke is licensed as an Ontario Land Surveyor by the Association of Ontario Land Surveyors and he is also licensed by the Law Society of Upper Canada to practice law in the Province of Ontario. He clarified that the purpose of his report is to provide an analysis of the evidence available regarding the location of the boundary under application and to provide an opinion regarding its location on the ground. Izaak de Rijcke, OLS testified that his conclusions and survey report, filed as Exhibit 2, have been reached in his capacity as an Ontario Land Surveyor.

40Izaak de Rijcke, OLS had not prepared a plan of survey. He did produce a sketch filed at Tab 17 of Exhibit 2. He reviewed the Original Survey of Sandfield Township, filed at Tab 3 of Exhibit 2, and the Field Notes drawn by J.W. Fitzgerald, Provincial Land Surveyor, filed at tab 4 of Exhibit 2. He submitted that page 33 of the field notes show the placement of balsam posts at the northwest corner of Lot 21, Concession 6 and at the southwest corner of Lot 21, Concession 7. Izaak de Rijcke, OLS testified that no balsam post at the northwest corner of Lot 21, Concession 6 was discovered during his visit to the site on August 21, 2015. He further submitted that such post is long since gone and, the surveyor’s task today is to determine what, in fact, is the best evidence of where that post had previously been located. He also stated in his report, filed as Exhibit 2, that “a surveyor is cautioned to make the least reliance on measurements or distances as recorded in the original field notes for the Survey of the Township of Sandfield. Accordingly, any effort to re-establish the subject corner by comparing the distances today to the shorelines of adjoining bodies of water to the east and to the west is flawed for two primary reasons:

41… Measurements recorded enjoy the least reliability in the hierarchy of evidence. Measurements recorded on the basis of field work done well over 100 years ago are not to be considered as "accurate" and accordingly, even an element of proportioning the available distances today may not produce a satisfactory result.

42… Distances to bodies of water that were recorded over a century ago may assume the ability today to locate the point along the shoreline to which these measurements were taken. In and of itself, this is problematic but even more so in light of the fact that there is no evidence in the field notes or on the Township plan as to the feature that was identified as the point to which measurements were made”.

43Izaak de Rijcke, OLS reviewed the Crown Patents and the progression of ownership of Lots 21 and 22, Concession 6, together with prior survey evidence including the survey work done by Keatley Surveying Limited in 2010 and 2014. Based on the chain of title and consideration of the historical progression of ownership of Lots 21 and 22, Concession 6, Izaak de Rijcke, OLS submitted that both lots were patented by the Crown at different points in time and to two different individuals. He concluded that following the issuance of the first Patent to David Hilts in 1885, there was a separation of ownership and surveyors would consider this as the point in time when the limit between Lot 21 and 22, Concession 6 attained the status of a legal boundary. He also submitted that it is highly probable that David Hilts was able to locate the original posts planted along the road allowance between Concessions 6 and 7 and subsequent occupations of David Hilts, listed as farmer, would also confirm that agricultural activity was most probably pursued by him. Izaak de Rijcke, OLS testified that the stone row and tree stump line, illustrated on the proposed plan to this application to the south of the existing barn, in his opinion, represents the best evidence of where the lot line would have been placed and located.

44Izaak de Rijcke, OLS submitted that the common ownership of Lots 21 and 22, Concession 6, since, at least, 1906, is important and must be considered. The significance of the lot line between the two lots as a legal boundary would no longer matter to the common owner because the lots’ ownership merged. He also stated that this is entirely consistent with what subsequently emerged as a farm house, barn structure, and related buildings illustrated on the 1946 aerial photograph, filed as Exhibit 12. Izaak de Rijcke, OLS clarified that the 1946 aerial photograph shows the barn which is still evident today, a house that appears near the barn, just to the east of it and the existence of additional structures located slightly west of the barn. A closer examination of the photograph further reveals a line of trees along part of the subject boundary in 1946 and a thoroughfare being used to the north of the site being the same thoroughfare which is now known as Homestead Road.

45Izaak de Rijcke, OLS testified about the 2001 severance and separation of ownership and title to Lots 21 and 22, Concession 6 with the consent of the Manitoulin Planning Board as being the next significant event which served to reactivate the legal significance of the boundary between Lots 21 and 22, Concession 6. He indicates that the location of the boundary between the two Lots was not surveyed as a result of this severance.

46The boundary illustrated on the proposed plan in support of the application cuts through the easterly 2.0 metres of the barn. Izaak de Rijcke, OLS testified that the barn was built somewhere between 1906 and 1946. He further indicated that, at that time, both Lots were owned by the Young family so the boundary between the lots had no legal significance.

47Izaak de Rijcke, OLS also testified that during his field visit in August 2015 he identified in different areas of the stone row some old cedar stumps (over 100 years old), oak and maple trees (30 to 50 years old) and remains of cedar rail fencing, and posts as marked on his sketch filed at Tab 17 of Exhibit 2.

48Mr. De Rijcke, OLS clarified in his report that “the old stone fence has become not only secondary evidence of the original monument planted during the first survey of the Township of Sandfield, it has itself become the residue or "monument" to where that original post had been placed.”

Robert Halliday, OLS - Survey Report and Testimony

49The Survey Report in support of the application, dated June 08, 2018 and signed by R. D. Halliday, OLS, was filed as Exhibit 1.

50R.D. Halliday, OLS was recognized as an expert witness and qualified to give opinion evidence concerning the location of the boundaries under application. He testified upon the methodology employed in the proposed survey.

51R.D. Halliday, OLS clarified that G.R. Keatley, OLS was initially retained by Jane Catherine Austin and Norman Robert Barney to conduct a boundary survey of the westerly limit of Lot 21, Concession 6. He set the limit between Lots 21 and 22, Concession 6 on the ground but he had not prepared a plan of survey. R.D. Halliday, OLS testified that he was later hired to complete a survey and report in support of this application.

52R.D. Halliday, OLS, testified that he concluded that the proposed limit can be retraced starting at a found standard iron bar (SIB) which marks the northwest corner of Lot 21, Concession 6, thence joining to a SIB set by G.R. Keatley, OLS, in the centre of a stone row located south of an old barn, thence joining to a short standard iron bar (SSIB) set by G.R. Keatley, OLS, at the south end of the stone row and thence joining to a rock plug set by G.R. Keatley, OLS, marking the southwest corner of Lot 21, Concession 6 as illustrated in heavy solid lines on the plan in support of this application. R.D. Halliday, OLS further indicates in his report that “from the southerly end of the stone row, he ran the line Due South (local astronomic) in accordance with Section 34(1) of the Surveys Act (RSO 1990). This portion of the boundary was cut out and six survey monuments planted for this southerly 650m of the boundary.” By accepting the centre line of the row of stones as the best evidence of the location on the ground of this boundary, R.D. Halliday, OLS, testified that he did not accept the location of the remnant line cut by Greg Young found on the ground being approximately 12.5 metres to 14.9 metres easterly of the proposed limit.

53R D. Halliday, OLS testified that the field notes for G. R. Keatley, OLS survey work in 2014-2016 indicates that party chief, Tim Phillips, placed a scribed wood post beside the rock plug set for the southwest corner of Lot 21, Concession 6. He further testified that on his site visit in 2018 he found that this wood post had been moved east to the line cut by Greg Young. He testified that he replaced the scribed post and re-built the stone cairn used to support it in close proximity of the rock plug set by G.R. Keatley, OLS, marking the southwest corner of Lot 21, Concession 6.

54R.D. Halliday, OLS, testified that he was in agreement with the survey work done by G. R. Keatley, OLS and held the centre line of a 4-metre-wide old stone row as the best evidence of the location on the ground of part of this boundary. According to R.D. Halliday, OLS, this row of stones existed in 1946 as illustrated on aerial photographs filed at Tab 26-1 of Exhibit 1 and on the electronic version of such photograph entered as Exhibit 12. He further testified that this row of stones was established at a time when the original wooden posts, set during the 1870 Original Survey of the Township of Sendfield, were still known to the original settlers. He also testified that OLS G.R. Keatley’s field notes, dated November 26, 2010, filed at Tab 23 and 24 of Exhibit 1 and OLS de Rijcke’s sketch, dated August 22, 2015 filed at Tab 17 of Exhibit 2, both illustrate that remains of a snake rail fence were found by both surveyors in the row of stones at the time of their site visits. By 2018, during his two site visits, R.D. Halliday, OLS testified that he did not find any evidence of such remains. He also testified that in an additional site visit, in the spring of 2019, he identified only one piece of what he is convinced to be a remnant of a snake rail fence wedged under some stones in the row.

55R.D. Halliday, OLS testified that on Plan 31R-2337, W.J. Keatley, OLS planted a SIB in a drill hole which he accepted as evidence for the NW corner of Lot 21 (incorrectly shown as SW corner on plan 31R-2337).

56For the southerly limits of the Lots, being the limit between Concessions 5 and 6, not part of this application, R.D. Halliday, OLS testified that he found an old cut line which has been accepted by the owners of Lots 21 and 22 in Concession 5 and 6. He further testified that when he explored this cut line, he found that it extends at least as far west as the SE corner of Lot 23, Concession 6 and as far east as a nail in a stump found 426.92 metres east of the SW corner of Lot 21, Concession 6 as retraced by G.R. Keatley, OLS. He clarified that he could not find documentary proof for this line or the nail’s origin.

57Based on the northerly terminus point of the accepted stone row and the northwest corner of Lot 21, Concession 6 retraced by W.J. Keatley, OLS on Plan 31R-2337 (and not disputed in these proceedings), the boundary cuts through the easterly 2.0 metres of the existing barn. R.D. Halliday OLS testified on the relevance of the 1946 aerial photograph showing Homestead Road in Concession 7, followed to the south, in Concession 6, by a house, a barn and then the stone row. He indicates that the stone row is on an obvious direct southerly production of the road, clearly showing how they could potentially relate to each other. In his opinion, this alignment does not represent an accident or coincidence. OLS R.D. Halliday’s analysis leads him to conclude that evidence of longstanding occupation can be adopted as the best available evidence of the boundary and it can be presumably related back to a time when the original monuments were likely in place and the location of them was well known to the original occupants. R.D. Halliday, OLS submitted that he dismissed the line found on the ground being approximately 12.5 metres to 14.9 metres easterly of the proposed limit and cut by Greg Young, the predecessor in title of Lot 22, Concession 6. He further stated that Greg Young is not licenced in legal surveys and that we have the affidavit of Mark Young, the predecessor in title of Lot 21 Concession 6, filed at Tab 27 of Exhibit 1, stating that he never agreed to the location of the cut line by Greg Young.

Adrian Bortolussi, OLS - Testimony

58Adrian Bortolussi, OLS was recognized as an expert witness and qualified to give opinion evidence concerning the location of the boundaries under application. He testified that he met Ian Gilchrist and John Gilchrist on November 21, 2018 because they had concerns about the preliminary plan prepared by R.D. Halliday, OLS in support of this application.

59He testified that, on November 21, 2018, he walked down the entire length of the stone row and found no remains of fence posts on or near the stone row.

60Adrian Bortolussi, OLS testified that he went to the south east corner of Lot 22 Concession 6 as identified on the proposed plan and indicated that 12.5 metres to the east of this corner, he found a wood post and large stone mound and had no indication of its origin. He further testified that he did not find an iron bar at this location. Adrian Bortolussi, OLS indicated that he saw a cut line going north from this stone mound, as illustrated in dash line on the proposed plan.

61Adrian Bortolussi, OLS testified that along the west limit of Lot 22, Concession 6 there is an old split rail fence running north and that he could not clearly estimate the age of that fence.

62Adrian Bortolussi, OLS clarified that on his sketch, filed as A.1.7.b of Exhibit 3 he calculated a straight line bearing and distance from the stone mound found 12.5 metres to the east of the southeast corner of Lot 22, Concession 6 set by G.R. Keatley, OLS to the northeast corner of Lot 22 Concession 6, both illustrated on the proposed plan, and showing new ties to the barn location.

63On cross-examination Adrian Bortolussi, OLS testified that he did not take any measurements or prepare field notes and that the sketch field as A.1.7.b of Exhibit 3 is unsigned as it was simply calculated using information taken from the preliminary plan at the request of Ian Gilchrist and John Gilchrist. He further testified that he is not contesting the survey opinion of R.D. Halliday, OLS or Izaak de Rijcke, OLS as he was not required to provide a survey opinion on the subject boundary.

Elizabeth Gilchrist Testimony

64Elizabeth Gilchrist, the current registered owner of Lot 22, Concession 6, submitted that she acquired Lot 22, Concession 6, together with her brother in law Ian Gilchrist, from Greg and Jennifer Young. In her letter dated March 14, 2014 filed with Exhibit 3, Elizabeth Gilchrist indicates that no survey documents are required for sales of land on Manitoulin. She also indicates that Ian Gilchrist and John Gilchrist were satisfied that the four corners of Lot 22, Concession 6, as shown to them by Greg Young prior to purchasing the property, were clearly marked, even though they were aware that G. R. Keatley, OLS had offered an opinion of where the boundary between the two lots was.

65She also indicates, in her letter filed with Exhibit 3, that the limit between Lots 21 and 22, Concession 6, if properly surveyed, should proceed from the northeast corner of Lot 22, Concession 6 to the southern end of the existing cut line by Greg Young. She further indicates that this would be a most accurate representation of a I00 acre lot measurement which constitutes the amount of property the objectors purchased in 2013.

66Elizabeth Gilchrist displayed a good understanding of the relationship between the proposed application plan prepared by R.D. Halliday, OLS and her property on the ground and her activities on the property. She referred to an unsigned Agreement of Purchase and Sale, filed as page P.1.2 of Exhibit 3, to indicate that the property described as Lot 22, Concession 6, came with several buildings on it, including a barn and that as owners of this property, she and Ian Gilchrist are entitled to the barn.

67Elizabeth Gilchrist submitted that to consider the stone row as the boundary between the two properties is an assumption that is incorrect because the stones are not placed in any specific way as they would if creating a stone fence, and there is no cement or bonding agent to keep the stones in place. In her opinion there is nothing to indicate that the stone row was designed and built as a fence. She also testified on the location of two other stone rows on Lot 22 Concession 6, one running east to west across the midway point of the property, and another running north to south along the midway point of the property which are not boundaries of any sort. In her opinion the stone row on the eastern side of Lot 22 Concession 6 is the result of clearing land and does not represent evidence of a boundary.

68On cross examination, Elizabeth Gilchrist testified that the Excerpt from Delaware Quarries entered as Exhibit 20 represents procedures on how to build a stone wall from a website in Pennsylvania obtained as a result of searching the internet and these procedures would not be consistent with the stone of row found along the limit under dispute.

69Having a family history on Manitoulin Island, Elizabeth Gilchrist submitted that no one she discussed this with on Manitoulin Island has ever been aware of a stone pile acting as a boundary.

70On cross-examination, Elizabeth Gilchrist was asked to comment on other survey evidence in Lot 21 and 22, Concession 8, Plan 31R-2365, filed as Exhibits 16 and Plan 31R-2624, filed as Exhibit 17 and illustrating the limit between Lots 21 and 22 Concession 8, as re-established by W. J. Keatley, OLS along traces of an old snake rail fence and an old row of field stones and trees. She clarified that she and Ian Gilchrist are the registered owners of Part of Lot 21, Concession 8 located south and east of Part 1, Plan 31R-2365 and east of Part 1, Plan 31R-2624.

71It is clear from Elizabeth Gilchrist’s letter filed with Exhibit 3, that she was aware of the importance of the remains of the cedar rail fencing and posts found along the stone wall.

… “during a site visit by Gordon Keatley on July 25, 2014, there was a question that was brought up by John as to why we should be accepting the stone pile as the dividing line between the 2 properties. Gordon Keatley suggested that there was evidence of a fence along the center of that pile. John and Ian disagreed and said that they had both walked that stone pile and never found any evidence of a fence anywhere on it. Gordon Keatley took us over to the stone pile and picked up what looked like a branch that had fallen from an overhead tree. The piece of wood was somewhere between 14 and 18 inches long. He held it in one hand and said "here is evidence of a rail of a fence". Both John and Ian completely disagreed to the idea that a branch would constitute a rail from a fence. In fact we never spent any more time looking for further evidence of a fence, because there was no evidence to be found that could prove to Ian, John or myself, that there ever was any type of fence along that stone pile”.

72Elizabeth Gilchrest’s letter further indicates at paragraph A.1.8 that:

“There is no evidence of a snake rail fence on this stone pile. There was never any indication of a fence that we were aware of, and subsequent surveyors did not find any evidence of a rail fence.”

73On cross-examination, Elizabeth Gilchrist was asked to comment on the remains of cedar rail fencing and posts, found along the stone wall, by G.R. Keatley, OLS in 2010 and 2014 and by Izaak de Rijcke, OLS in 2015, that appeared to be removed from the site. She testified that she has no knowledge of anyone trying to tamper with such evidence. She also testified that she was not aware that the wood post placed by G.R. Keatley, OLS beside the rock plug set for the southwest corner of Lot 21, Concession 6 had been moved east to the line cut by Greg Young.

Greg Young Testimony

74Greg Young was the registered owner of Lot 22 Concession 6 between 2001 and 2013. He testified that he has knowledge of surveying principles from his previous employers Terraphysics Incorporated of Thunder Bay and Hemlo Gold Development. Greg Young testified that his survey knowledge relates to setting of geophysical lines to coincide with a grid map, working off a pre-surveyed corner stake of a prospector's claim.

75In his affidavit, dated March 4, 2019, filed with Exhibit 3, Greg Young indicates that when he acquired Lot 22 Concession 6, the only lot corner marked by a “steel surveyors’ stake” was the southwest corner of Lot 22, Concession 6. He further clarified that is where he initially started in late 1990s cutting the southerly boundary of Lot 22 Concession 6, being the line between Concession 5 and 6, going from West to East at the request of Jane Catherine Austin and her friend Lise, owners of some properties to the south of Lot 22 Concession 6.

76Greg Young testified that he first acquired a Township of Sandfield Regulation Map with all lots and concessions marked, along with the dimensions of the lots in feet and directional bearings. Such Map was not entered in evidence. The Original Township of Sandfield Plan filed at Tab 8 of Exhibit 1 does not illustrate dimensions of the lots in feet and/or directional bearings.

77Greg Young indicates in his affidavit that he took his first shot with his compass on the top of a four by four cedar post and points to a photo of his daughter, Alison, leaning on a post which touched the “steelstake” at the southwest corner of Lot 22, Concession 6. He further indicates that he continued setting stakes on line, cutting and measuring until he got to the measurement of the width of the lot. He further submitted that as he was measuring the end of the southerly limit of Lot 22, Concession 6, he noticed an old wooden stake sharpened on top and driven in a rotten stump that was within a couple feet from where he read the end of the measurement for the width of the lot. He indicated that he slabbed off another stump right beside the rotten one and carved his initials. He makes reference again to a photo of his daughter, Alison, pointing at his initials, at this location being the southeast corner of Lot 22, Concession 6. Greg Young also testified on the captions of various photographs entered as Exhibits, describing their location and pertinent visible features. However, only one picture of Greg Young’s daughter was filed as A.1.1 of Exhibit 3 and Greg Young’s testimony did not clarify his affidavit in reference to this photo. It was not clear if the photo, filed as A.1.1 of Exhibit 3, was taken at the southwest or southeast corner of Lot 22, Concession 6. Greg Young testified in re-direct that the photo, filed as A.1.1 of Exhibit 3 was taken at the southeast corner of Lot 22 Concession 6.

78Greg Young testified that he cut the line between Lots 21 and 22, Concession 6, between 2001 and 2002 after he acquired the ownership of Lot 22, Concession 6. He also testified that he did not move any survey markers placed by surveyors.

79Greg Young submitted that he is the eldest son of Ken & Marjorie Young and that Digby Young was his grand-father. He also specified that he was never told by his family that Myles Young and David Hilts worked jointly to create the stone row. He also indicated that the dispute over the limit under application started in 2010 when G.R. Keatley, OLS came on the ground. He testified that his brother Mark Young believed that the farm camp and the well house was on Lot 21 Concession 6. He also specified that the farm camp was composed of two buildings the shed and the cabin. He indicated that the cabin and the well house were located on Lot 22 Concession 6 and G.R. Keatley, OLS was hired because his brother, Mark Young, wanted the cabin. He also testified that, at no time, did he agree that the stone row was the boundary between Lot 21 Concession 6 and Lot 22 Concession 6.

80On cross-examination Mr. Young acknowledges the existence survey monuments placed by G. R Keatley, OLS along the disputed boundary in 2010 and he testifies that he did not inform the Gilchrists that there was a dispute over the easterly Limit of Lot 22, Concession 5. He further clarified that the barn was included in the sale according to the severance consent of the Manitoulin Planning Board filed at Tab 15 of Exhibit 2.

81On cross-examination Greg Young was required to identify the cut line by G.R. Keatley, OLS, illustrated on Picture 12 attached to OLS R.D. Halliday’s survey report. He testified that the stake illustrated on this picture appears to be G.R. Keatley’s stake. Greg Young testified that the line illustrated on this picture is his cut line looking south and not OLS G.R. Keatley’s line. He indicated that he made the blazes on the trees shown in this picture and his brother covered those blazes with black paint. When required to identify the location of his cut line on the proposed survey plan, Greg Young testified that he is not a surveyor, but he can only state again that the picture with black blazes on the trees illustrates his cut line.

82Greg Young testified that two other stone piles existed on Lot 22 Concession 6 located west of the stone row adopted as a boundary for the limit under application as illustrated on a sketch prepared by the objectors and filed as page A.1. of Exhibit 3.

83Greg Young identified the parties to the Manitoulin Planning Board Severance application filed at Tab 15 of Exhibit 2, as his parents, Kenneth and Marjorie Young. He also testified that the decision of the board clearly indicates that there are no structures associated with Lot 21, Concession 6.

Submission of Counsel Robert Gray for the Applicants

84Counsel Robert Gray submitted that looking at the totality of evidence we have three expert witnesses, Izaak de Rijcke, OLS and R.D. Halliday, OLS for the applicant and Adrian Bortolussi, OLS for the objectors. Robert Gray indicated that there was no professional evidence provided during the hearing by Adrian Bortolussi, OLS, to refute the expert testimony of R.D. Halliday, OLS, and Izaak de Rijcke, OLS.

85Robert Gray further noted that the objection was not supported by any evidence other than simply relying on the testimony of Greg Young, a predecessor in title of Lot 22, Concession 6 and an amateur surveyor, not licenced in legal surveys, suggesting that the objectors had nothing of benefit to add to the resolution of the boundary under application.

86Robert Gray also made reference to the fact that the objectors were aware of a possible dispute over the barn in question when Ian Gilchrist contacted Jane Catherine Austin before the purchase of Lot 22, Concession 6 and proposed to purchase part of the Austin’s lands to incorporate the entire extent of the barn. He submitted that it is clear that they knew the entire barn was not on Lot 22 Concession 6 and they still chose to purchase the property.

87To the objector’s submission that row stones cannot constitute boundaries in Manitoulin Island, Robert Gray suggested that this is not the case as there is survey evidence of plan 31R-2365 in Concession 8 along the limit between Lots 21 and 22 as re-established by W.J. Keatley, OLS along an existent stone row on another property owned by the objectors.

88Counsel Gray elaborated on the applicable legal principles and methodology applied to re- establish the limit between Lots 21 and 22, Concession 6, found in the Nicholson v. Halliday 2005 CanLII 259 (ON CA) Ontario Court of Appeal decision, all of which, in his opinion, relate to the priority or hierarchy of evidence rule which ranks possessory evidence, that can be related to a time when the location of the boundary was known, ahead of plan dimensions and/or instructions in the Surveys Act, R.S.O. 1990, c.S.30. He submitted that the hierarchy rule for possessory evidence was applied where there was no better evidence, and that the limit between Lots 21 and 22 Concession 6, as illustrated in heavy solid lines on the plan in support of this application was based on the above rule and case law.

89Robert Grey also indicated that the joint ownership of the two lots, between 1904 and 2001, represents a fact that the stone row was not removed but accepted by the Young family. In addition, the existence of the trees, and tree stumps over one hundred years old and the remains of cedar rail fencing and posts along or buried under the rocks in different areas of the stone row, as discovered by G.R Keatley, OLS and Izaak de Rijcke, OLS would allow us to reasonably infer that the row of stones was constructed when the monuments established during the original survey were in place and well known and that the row of stones, now, represents the best available evidence of the location on the ground of part of the original running of the boundary between Lots 21 and 22 Concession 6.

THE LAW AND ANALYSIS

90In the matter before this tribunal, the boundary that is in doubt is the westerly limit of Lot 21, Concession 6, owned by the applicant, being the common limit between Lots 21 and 22, Concession 6, Geographic Township of Sandfield.

91It was acknowledged by the surveyor for the applicant and the applicant’s counsel that evidence of longstanding occupation can be adopted as the best available evidence of a boundary which can be related back to a time when the original monuments were likely in place and the location of them was well known to the occupants.

92This tribunal has no jurisdiction to rule on whether or not satisfactory evidence has been provided to prove that adverse possession has been established pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15. This tribunal only has jurisdiction to determine the location of the boundary under application.

93I have reviewed Counsel Robert Gray’s submission and additional cases and statutes which I considered to be relevant to the circumstances and have determined that there are two items to be determined.

94The first item to be determined is whether the occupation found along part of the common limit between Lots 21 and 22, Concession 6, Township of Sandfield can be related to a time when the original monuments were in existence and well known and qualify as the best available evidence in preference to the instructions in the Surveys Act, R.S.O. 1990, c.S.30. Once the first item is addressed, the second item is to determine and confirm the entire boundary between Lots 21 and 22 Concession 6, based on undisputed evidence and case law.

95Following the issuance of the Patent of Lot 22, Concession 6 to David Hilts in 1885, the limit between Lot 21 and 22 Concession 6 attained the status of a legal boundary. R.D. Halliday, OLS, submitted in his survey report dated June 08, 2018 of Exhibit 1, that the usual practice in the original survey was to survey the township boundaries, concession lines and side lines of sections defining the section boundaries and to establish the front corners of the lots and section corners. He concluded that, although the front corners were marked, only the exterior Section boundaries were surveyed and none of the interior lot lines were physically run and surveyed. R.D. Halliday, OLS, testified that on page 33 of the original field notes there is an indication of balsam posts being placed at the northwest corner of Lot 21, Concession 6 and at the southwest corner of Lot 21, Concession 7. The line between Lots 21 and 22, Concession 6 was not run and only the northerly terminus of this lot line was posted in the original survey.

Applicable statute

96The instructions in the Surveys Act, R.S.O. 1990, c.S.30. that are presently in force with respect to the re-establishment of lost boundaries and corners that were created by Sectional Townships with Double Fronts are as follows:

31 (1) In this Part,

“sectional township with double fronts” means a township divided into sections and lots where the usual practice in the original survey was to survey the township boundaries, concession lines and side lines of sections defining section boundaries and to establish the front corners of the lots and the section corners.

Re-establishment of lost corners, etc.

(2) A surveyor in re-establishing a lost corner or obliterated boundary in a sectional township with double fronts shall obtain the best evidence available respecting the corner or boundary, but if the corner or boundary cannot be re-established in its original position from such evidence, the surveyor shall proceed as follows….

Establishment of side lines

(34) A surveyor in establishing in a concession in a sectional township with double fronts a side line of a lot that was not surveyed in the original survey shall proceed as follows:

1. Where any such township, other than the townships of Eastnor, Lindsay and St. Edmunds in the County of Bruce, was surveyed under the 1,000-acre or 1,800-acre sectional system and in the townships of Cumming, Idington, O’Brien, Owens and Williamson in the Territorial District of Cochrane, and if intended in the original survey, the surveyor shall establish the side line on the astronomic course shown on the original plan and field notes for the side line of the section in which the lot is located that is nearest the end of the section from which the lots are numbered, or, if intended in the original survey, the surveyor shall establish the side line on the astronomic course shown on the original plan and field notes for the side at the other end of the section in which the lot is located.

97It is the duty of a surveyor to obtain and assess the best available evidence with respect to corners or boundaries in a sectional township with double fronts set in the first running of the township lots in order to apply sections 31 and 34 of the Surveys Act. These sections are practically the same as those first enacted by the Surveys Act, 1920.

Priority of evidence and the Role of surveyor

98In Kingston v. Highland (1919) 1919 CanLII 854 (NB SC), 47 N.B.R. 324, Barry J. says:

“… it is quite competent for adjoining proprietors to establish their dividing line where they choose, for the very obvious reason that its location is no-one’s business but their own.”

99He goes on further to say:

“… the duty of the surveyor is to find if possible, the place of the original line, the stakes, marked trees and monuments which determined the boundary line between the proprietors in the first instance. However erroneous may have been the original survey, or even if there was no survey at all, technically speaking, the monuments that were set, the trees that were marked and blazed, must, nevertheless, govern, even though the effect be to give one proprietor a much greater acreage than his deed would seem to entitle him, and give to the adjoining proprietor very much less. “

100He later adds:

“… The general duty of a surveyor in such a case is plain enough. He is not to assume that a line is lost until he has thoroughly sifted the evidence and found himself unable to trace it. Even then he should hesitate long before doing anything to the disturbance of the settled possessions. Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary, when no other is attainable; and the surveyor should enquire when it originated, how and why the lines were then located as they were, and whether the claim of title has always accompanied the possession, and give all the facts due force as evidence.”

101He concludes:

“… the law as well as common sense must declare that a supposed boundary line or a supposed division line, if long acquiesced in, is better evidence of where the real line should be, than any survey made after the original monuments have disappeared. …”

102Stortini D. C. J. describes the duty of the surveyor in Thelland v. Golden Haulage Ltd O.J. No.2303 Action No.759/85 where he states:

"The surveyor witnesses agree that the mandate of a surveyor is to re-establish boundaries. In the re-establishment of a lot line a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in a deed or on a plan. The boundary is the reestablishment on the ground of the original running of the line and this re- establishment of the boundary constitutes the deed line."

103In order to understand this statement, we must clarify what "the best evidence available" means and what constitutes the "original running of the line". Mr. Justice Stortini clarifies this in a later quotation from Thelland v. Golden Haulage Ltd.:

"It is also common ground that a surveyor shall, when re-defining boundaries, rely on the following evidence in the order named:

(a) Natural boundaries;

(b) Original monuments;

(c) Fences or possession which can reasonably be related back to the time of the original survey;

(d) Measurements. (as shown on the plan or as stated in the metes and bounds description)."

104In Thelland v. Golden Haulage Ltd. Justice Stortini takes judicial notice of several other cases including Kingston v. Highland (1919)1919 CanLII 854 (NB SC), 47 N.B.R. 324, Home Bank of Canada v. Might Directories Ltd. (1914), 1914 CanLII 602 (QC CS), 31 O.L.R. 340, Diehl v. Zanger (1878), 39 Mich. 601, Palmer v. Thornbeck (1876), U.C.C.P.291 and an article prepared by Lorraine Petzold OLS, Executive Director of the Association of Ontario Land Surveyors called The Survey and the Real Estate Transaction. He reviews the law in the following manner:

“If original monumentation is found and is undisturbed as to location, it must be accepted erroneous as may have been the original survey: See Kingston v. Highland (1919)1919 CanLII 854 (NB SC), 47 N.B.R. 324.

If no original monumentation is in existence, the next acceptable evidence is evidence regarding the original positions of the monumentation or evidence regarding the original running of the line, including possessory evidence. The first establishment of the line need not have been done by a surveyor. Evidence of possession which relates back to the first survey or first establishment of the line would be the best evidence of where the line was originally located. In her article Petzold gives the example of a fence or hedgerow, which was erected along a surveyed line some 50 years ago. The survey posts have long disappeared however the occupation or possession line is the best evidence relating back to that first survey. The basis of that statement is found in the case of Home Bank of Canada v. Might Directories Ltd. (1914), 31` O.L.R. 340, where the Ontario Court of Appeal stated….the original posts or monuments not being in existence, and there being no direct evidence as to their position, some other mode of ascertaining the boundaries of the lots must be resorted to; and in such a case the best evidence is usually to be found in the practical location of the lines made at a time when the original posts or monuments were presumably in existence and probably well-known.

If the original landmarks are not discoverable, the best evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known. Old boundary fences are considered to be superior to surveys made after the monuments have disappeared as evidence of the lot lines. (See Diehl v. Zanger (1878), 39 Mich. 601).

Once the occupation line has been settled and used the onus of proof rests on the person who seeks to disapprove the line and change the possession. (See Palmer v. Thornbeck (1876), U. C. C.P. 291.

If no evidence exists of either original monuments or original line, then the surveyor must refer to the measurements as contained in the deed or on the plan.”

105In a recent decision of the Prince Edward Island Court of Appeal in MacKenzie v. MacKay, 2016 PECA 16, there is an interesting commentary regarding the duty of land surveyors:

11. A land surveyor is a public officer. In establishing a client's boundaries he does not represent a single client; instead he represents society at large. A surveyor must be fair and impartial to all parties; he cannot give undue consideration to his client's interest and disregard the interests of his client's neighbour and potential adversary. His responsibilities are quite different than those of a doctor, lawyer or accountant each of whom normally only have the interests of one party in mind. As quoted in Survey Law in Canada, at s. 11.03, p. 472:

12. He must preserve in all his work the judicial mind and the impartial attitude of an arbiter, rather than the bias of an advocate.

13. A land surveyor is a gatherer of facts. His duty is to determine the physical and topographic characteristics of a parcel of land and to establish the facts as to the position of the boundaries on the ground. Based on these facts, he must form an opinion as to the location of all boundaries and the extent and shape of the parcel. In searching for evidence of those boundaries he is obligated, firstly, to conduct an exhaustive search for the original location of the boundary monumentation; secondly, to document precisely all evidence and measurements defining those boundaries; and thirdly, to re-monument those boundaries for the benefit of future generations. In exercising these functions a land surveyor is acting in the capacity of an officer of the state.

14. A retracement survey is based on evidence. It is no more or less than an exercise in collection and assessment of evidence and the formulation of opinion based on that evidence.

15. The best evidence to use to determine a boundary line would be that of an expert surveyor. . . .

106The role of the surveyor is also reviewed in the Nicholson v. Halliday 2005 CanLII 259 (ON CA) Ontario Court of Appeal decision:

“The mandate of a surveyor is to re-establish boundaries, and a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. Survey law has developed a hierarchy of evidence from most compelling to least compelling as follows: (1) natural boundaries; (2) original monuments; (3) fences or possession that can be related reasonably back to the time of the original survey; and (4) measurements (as shown on the plan or as stated in the metes and bounds description).

Possessory Evidence

The row of stones

107It is the duty of a surveyor to obtain the best available evidence of the location of the original posts set in the first survey of the township lots and carefully answer the question as to what constitutes the best available evidence of a particular boundary or corner.

108R.D. Halliday, OLS, is of the opinion that the limit under application is a case where the evidence of occupation, specifically the centre line of the stone row, located on part of the limit between Lots 21 and 22, Concession 6, together with the evidence of remains of a snake rail fence found by G.R. Keatley, OLS and Izaak de Rijcke, OLS in the row of stones, at the time of their site visits, are the best available evidence of the location of the original monuments.

109In order to accept the evidence of occupation as the best available evidence of the location of the original monuments along the limit between Lots 21 and 22, Concession 6, direct evidence is preferred to relate the physical evidence of occupation to the creation of or first running of the line. This evidence should show when the occupational line was first established upon the ground, how it was located, whether it was intended to represent a boundary and whether the adjoining owners had always accepted it as a boundary from the time it was first established upon the ground.

110Robert Gray submitted that possessory evidence is applied where there was no better evidence, and this was based on the priority of evidence rule and case law for the limit under application.

111I recognize the following excerpt of a paragraph in the Nicholson v. Halliday 2005 CanLII 259 (ON CA) Ontario Court of Appeal decision:

“…there was no requirement that the parties identify and call direct or clear evidence as to the fence builder's purpose. To hold otherwise would prove fatal to the long-accepted surveyors' hierarchy. The fence itself was the legacy that its builders had left and the fence, its location, and its known history were the only available evidence from which its original purpose could be inferred.”

112The above excerpt should be reviewed in the context of the entire paragraph of that case, where it further clarified the impact of longstanding, peaceful acceptance by owners, as a fact in support of the Deputy Director of Titles’ decision:

“In this case, the Director considered all the evidence, weighed the evidence for and against the fence as a boundary and gave considered reasons which, read as a whole, supported his determination…….

.…..Reading his reasons as a whole, the Director considered the evidence and determined, on the balance of probabilities, that the fence was built, not as a fence of convenience, but to mark the boundary between the lots. It could be said that the Director's inference that the fence represented a first running of the lot line was unreasonable or that it was not supported by evidence. Longstanding peaceful acceptance was a fact from which the Director was entitled to draw an inference in support of the proposition that, since the fence served the purpose of a boundary from at least 1937, it likely also served that purpose when it was built. There was no error in the Director's reliance on the lot owners' acceptance of the fence as informing the question of the fence's purpose, and contrary to the view of the Divisional Court majority, the Director clearly understood the distinction between boundary law and the law of adverse possession. While the significant deviation in the acreage in the lots might call into question the reliability of the fence as marking a boundary, it could not be said that the Director's decision amounted to an unreasonable weighing of the totality of the evidence.”

113I also reviewed the decision in the case of Home Bank of Canada v. Might Directories Ltd. (1914) 1914 CanLII 602 (QC CS), 31 O.L.R. 340, 20 D.L.R. 977 (C.A.). In this case, tried in 1914, the evidence confirms that a wall was built almost immediately after the subdivision was surveyed and the presumption that it was built when the original monuments were in place and well known was a reasonable one.

114With respect to the circumstances before me, the issue relates to the location of the boundary and not to the expectations as to the acreage as submitted by the objectors. In the Nicholson v. Halliday 2005 CanLII 259 (ON CA) Ontario Court of Appeal decision, the location of the boundary affected the resultant areas of the lots involved being 87 and 113 acres rather than being 100 acres each. The confirmation of the boundary did not establish lot areas. In the matter before me, the Objectors, at the time of their property acquisition, if wanting to ensure title to a specific number of acres, could have required a survey. The Objectors did not arrange for such survey.

115Izaak De Rijcke, OLS testified about the existence of old tree stumps, well over one hundred years old, other mature maple and oak trees between thirty to fifty years old, and the remains of cedar rail fencing, and posts, all observed within the row of stones in 2015.

116R.D. Halliday, OLS testified that, at the time of his site visit in 2018, all these remains of cedar rail fencing, and posts had been removed. No one before this Tribunal testified that they either had knowledge of this evidence being removed.

117Based on the rules of evidence set out in Thelland v. Golden Haulage Ltd O.J. No.2303 Action No.759/85 and the evidence presented, I find that it is reasonable to infer that the row of stones was constructed when the monuments established during the original survey were in place and well known. The row of stones was never removed after its installation or during the joint ownership of the two lots. This supports the argument of implied acceptance, in the condition illustrated on the 1946 aerial photo, by the Young family. In addition, no one presented clear evidence that the row of stones was constructed for any purpose other than demarcating the location of the boundary in question.

118Furthermore, the legal principle in Palmer v. Thornbeck (1876), U. C. C.P. 291 is that “the onus of proof rests on the person who seeks to disapprove the line and change the possession”. Looking at the totality of evidence, there was no evidence provided to refute the expert testimony of R.D. Halliday, OLS, and Izaak de Rijcke, OLS. I therefore conclude that the objection was not supported by any evidence.

119I conclude that the row of stones has stood in its current position since at least 1946, as supported by the aerial photo filed as Exhibit 12 and discussed by Izaak de Rijcke, OLS in his testimony. I also find it reasonable to infer that the row of stones has been in its current position for much longer given its condition and the discovery of remains of old cedar rail fencing, and posts embedded in the row of stones and given the absence of testimony regarding any potential reconstruction or relocation. I therefore accept the centre line of the stone row as shown on OLS R.D Halliday’s plan, filed as Exhibit 25 as the best evidence of the location of part of the limit between Lots 21 and 22, Concession 6.

The barn

120The boundary illustrated on the proposed plan in support of the application based on the northerly terminus point of the accepted row of stones and the northwest corner of Lot 21, Concession 6 retraced by W.J. Keatley, OLS on Plan 31R-2337, and not disputed in these proceedings, cuts through the easterly 2.0 metres of the barn. Objectors are claiming that they are entitled to this barn.

121The evidence indicates that the barn was built, by the Young family, somewhere between 1906 and 1946, at a time when the legal boundary between Lots 21 and 22, Concession 6 was no longer important to them. No party before this Tribunal testified that either had knowledge of this barn being built with regard to the legal limit. This is entirely consistent with the illustration of the farm house, barn structure, and related buildings illustrated on the 1946 aerial photograph, filed as Exhibit 12.

122With respect to the circumstances before me, the issue relates to the location of the boundary and not to the expectations of the objectors as being entitled to the subject barn. The Objectors, at the time of their property acquisition, as any concerned owners willing to ensure that specific features, included in an Agreement of Purchase and Sale, are well located within property limits, could have required a survey. The Objectors did not arrange for such survey.

123Having determined that the row of stones found along part of the common limit between Lots 21 and 22, Concession 6, Township of Sandfield can be related to a time when the original monuments were in existence and well known and qualify as the best available evidence of part of the boundary under application, the second item is to determine the remaining part of the boundary based on undisputed evidence and case law.

The boundary between Lots 21 and 22 Concession 6

124The submissions and testimonies by the applicant and the objectors contained a substantial volume of documentation and arguments. I have reviewed all the evidence provided and the arguments presented in support of such evidence. In summary, Elizabeth Gilchrist and Ian Gilchrist objected to the proposed limit. In their view, the property line between the two properties should proceed from the monument planted by W.J. Keatley, OLS, at the northeast corner of Lot 22, Concession 6, as illustrated on Plan 31R-2237, filed at Tab 15 of Exhibit 1, to the southern end of the existing line cut by Greg Young and illustrated on the Boundaries Act plan as being located approximately 12.5 metres east of the proposed boundary. They also disagreed with the interpretation of occupational evidence provided by R.D. Halliday, OLS and Izaak de Rijcke, OLS.

125Although the objectors indicate that the version of the line subject to their submission would reflect the best representation of the boundary under application, they represented themselves and they did not engage Adrian Bortolussi, OLS or another surveyor to provide an alternative professional survey opinion. Adrian Bortolussi, OLS clearly testified that he did not take any measurements or prepare field notes and that the alternative limit put forward by the objectors was simply calculated using information from the proposed plan. He also clarified that he is not contesting the survey opinion of R.D. Halliday, OLS or Izaak de Rijcke, OLS. I conclude that Adrian Bortolussi, OLS did not provide a survey opinion on the subject boundary and he simply illustrated the location of what the objectors believed to be the limit between Lots 21 and 22, Concession 6.

126As the tribunal was not provided with any expert testimony or evidence to support the objectors’ position, their testimonies are of limited assistance in determining this matter.

127Furthermore, the tribunal has no jurisdiction to determine whether any parties have acquired any rights or interests in the land by usage, nor does it have any authority to award any land to the applicants that they do not already own. I am, therefore, of the opinion that this matter must be determined from the evidence on the ground and the applicable survey law.

128I have reviewed the retracement methodology as submitted by R.D. Halliday, OLS, and I conclude that I can rely on the evidence before me as found on the ground and as illustrated on the proposed plan for the retracement of the disputed boundary. The proposed plan indicates that R.D. Halliday, OLS, retraced the disputed limit starting at a found standard iron bar (SIB) which marks the northwest corner of Lot 21, Concession 6, thence joining to a SIB set by G.R. Keatley, OLS, in the centre of a row of stones located south of an old barn, thence joining to a short standard iron bar (SSIB) set by G.R. Keatley, OLS, at the south end of the row of stones and thence joining to a rock plug set by G.R. Keatley, OLS, marking the purported southwest corner of Lot 21, Concession 6.

129R.D. Halliday, OLS clarified in his report and testimony that “from the southerly end of the stone row, he ran the line Due South (local astronomic) in accordance with Section 34(1) of the Surveys Act (RSO 1990). This portion of the boundary was cut out and six survey monuments planted for this southerly 650m of the boundary.”

130I must further conclude that the objectors before me have neither introduced conclusive and supportive evidence to disapprove the proposed line, nor evidence that any statute attempts to supersede any original survey on the ground. The statutory law, found in the “Surveys Act”, affecting Sectional Townships with Double Fronts only dictates instructions to establish the unestablished boundaries of such Lots and not to re-establish the already established boundaries of these Lots.

131I have determined that the row of stones in this case constitutes the best available evidence for part of the limit between Lots 21 and 22, Concession 6. I also accept the retracement methodology employed by R. D. Halliday, OLS running the last portion of the subject boundary Due South (local astronomic) from the southerly end of the stone row and thence joining to the rock plug set by G.R. Keatley, OLS, marking the southwest corner of Lot 21, Concession 6 in accordance with Section 34(1) of the Surveys Act (RSO 1990).

132I accept, in the absence of expert testimony to the contrary, the retracement methodology of the limit between Lots 21 and 22, Concession 6 adopted by R.D. Halliday, OLS and illustrated on the proposed Boundaries Act plan filed as Exhibit 25.

DECISION

133Upon considering all of the evidence presented at the hearing and filed with the application and with the objection, the submission of counsel and the applicable law:

134I DO HEREBY ORDER that the Objection of Elizabeth Gilchrist and Ian Gilchrist is dismissed and the application of Jane Catherine Austin and Norman Robert Barney is allowed, with respect to the limit between Lots 21 and 22, Concession 6, Geographic Township of Sandfield, in the Municipality of Central Manitoulin, District of Manitoulin and I therefore CONFIRM the said limit as shown on the proposed plan filed as Exhibit 25.

135I DO FURTHER ORDER that the confirmed boundaries be monumented by the Applicant’s surveyor, R.D. Halliday, OLS, in accordance with Section 9 of 0.Reg. 525/91, under the Surveyors Act, R.S.O. 1990, c. S.29

136I DO FURTHER ORDER the removal of all monuments conflicting with the confirmed boundaries.

137I DO FURTHER ORDER that a final plan of the confirmed boundaries be prepared by the Applicant's surveyor, to the satisfaction of the Director of Titles, and be registered in the appropriate Land Registry Office as prescribed by Section 16 of the Boundaries Act. The final plan of the confirmed boundaries shall be submitted to the office of the Director of Titles within three months from the date of this order if no appeal is taken, or should an appeal be taken, within two months after the appeal has been disposed of by the court.

COSTS

138Counsel for the applicant argued that Norman Robert Barney and Jane Catherine Austin should be entitled to costs in this matter.

139I conclude that none of the parties advanced a position that was merely vexatious or obstructive. The evaluation of the facts and the law is extremely complex in the subject matter. I therefore conclude that the parties should each be responsible for their own costs.

140I HEREBY ORDER that each party be responsible for its own costs.

DATED at my office in the

Policy and Regulatory Services Branch

Ministry of Government and Consumer Services 50 Bloomington Road,

Aurora ON L4G 0L8

this 5th day of February, 2020.

Roxana Niculae, OLS, O.L.I.P.

Deputy Director of Titles

File: B-1257

APPENDIX A

Schedule of Exhibits

Exhibit 1 Two Binders containing survey report dated June 08, 2018 by Robert D. Halliday, OLS, for the Applicant and supporting documents;

Exhibit 2 Binder containing survey report dated September 30, 2015 by Izaac De Rijcke OLS, for the Applicant and supporting documents;

Exhibit 3 Binder containing letter dated March 14, 2019 by Elizabeth Gilchrist, for the Objectors and supporting documents;

Exhibit 4 Certified Copy of Instrument MD7180 filed for the Applicant;

Exhibit 5 Certified Copy of PIN 47129-0109(LT) filed for the Applicant;

Exhibit 6 Certified Copy of Instrument MD7378 filed for the Applicant;

Exhibit 7 Certified Copy of PIN 47129-0108(LT) filed for the Applicant;

Exhibit 8 Photos dated 2015/07/04 marked A to P filed for the Applicant;

Exhibit 9 Photos dated 2013/09/30 marked A to E filed for the Applicant;

Exhibit 10 Photo dated 2014/09/22 filed for the Applicant;

Exhibit 11 Photo dated 2015/05/30 filed for the Applicant;

Exhibit 12 Data stick 1946 aerial photo

Exhibit 13 Chart illustrating the chronological order of survey records review;

Exhibit 14 Page 13 of the survey report dated June 08, 2018 by Robert D. Halliday, OLS with corrections;

Exhibit 15 Photos marked 1 to 14 filed for the Applicant;

Exhibit 16 Reduced copy of plan 31R-365;

Exhibit 17 Reduced copy of plan 31R-2624;

Exhibit 18 Letter dated March 12, 2019 by Adrian Bortolussi, OLS;

Exhibit 19 Photos marked 2-a-1 to 2-a-6, 2-b-1 to 2-b-4, 2-c-1, 2-d-1, 2-e-1 to 2-e-3, 2-f-1, 2-f-2, 2-g-1 to 2-g-4 and 2-h-1 filed for the Objectors;

Exhibit 20 Excerpt from Delaware Quarries site filed for the Objectors; Exhibit 21 Hand sketch prepared by Mr. Greg Young during his testimony;

Exhibit 22 E-mail from Mr. Halliday received Thursday September 26, 2019 at 2:40 PM;

Exhibit 23 Letter dated November 26, 2019 by the Director of Titles addressed to the parties;

Exhibit 24 E-mail dated November 26, 2019 by the Director of Titles;

Exhibit 25 Amended proposed plan of Survey 17-7554_Plan-Sept 26 attached to e-mail received September 26, 2019 at 2:40 PM;

Exhibit 26 Copy of PIN 47126-0230(LT);