Ray v. Goldhar, 2021 ONBAH 2

THE BOUNDARIES ACT

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

Director of Titles – Ontario (Boundaries Act)

Citation: Ray v. Goldhar 2021 ONBAH 2

Date: 2021-11-01

Docket: B-1259

Registry: Essex

Between: Glen David Ray – Applicant

• and -

Mark Goldhar – Objector

Before: Roxana Niculae, Deputy Director of Titles

1IN THE MATTER OF an application by Glen David Ray, one of the property owners who has an interest in the land designated as PIN 01052-0020(R), described as Rossini Park, being Private Park, Plan 813, in the City of Windsor, County of Essex for confirmation pursuant to The Boundaries Act of the true location on the ground of the boundaries of PIN 01052-0020(R) in accordance with a draft plan of survey, dated October 9, 2019, with the aforementioned boundaries shown by heavy solid lines prepared by the firm Verhaegen, Stubberfield, Hartley, Brewer, Bezaire Inc. (VSHBB), a division of J.D. Barnes Ltd., and signed by Andrew Mantha, Ontario Land Surveyor.

2AND IN THE MATTER OF an objection by Mark Goldhar, the registered owner of the abutting lands to the north designated as PIN 01052-0246(LT), described as Part of the Water Lot in front of Part of Lot 106, Concession 1, Sandwich East, designated as Part 1 on Plan 12R-22283, and the registered owner of the lands to the east designated as PIN 01052-0002(LT) described as Lot 2, Plan 813, and Part of the Water Lot in front of Lot 2, Plan 813, all in the City of Windsor, County of Essex. Mark Goldhar is also a property owner who has an interest in the land designated as PIN 01052-0020(R), described as Rossini Park, being Private Park, Plan 813.

3All interested parties to the application, were served by prepaid registered mail with a copy of the Notice of Application, together with a copy of the draft plan of survey.

4As a result of the Notice of Application, Mark Goldhar filed an objection.

5A notice of hearing was accordingly forwarded to all interested parties.

6This application came before me for an electronic hearing at 10:00 in the morning, on the 2nd day of February 2021 and continued the 3rd day of February 2021. At the hearing, the following persons appeared before me:

Glen David Ray Applicant

Deborah Ann Buckner Witness

Michael Wills Solicitor for the Applicant

Andrew Mantha Ontario Land Surveyor and Witness for the Applicant

Mark Goldhar Objector and Witness

Janice Busch Solicitor for the Objector

Ross Clarke Ontario Land Surveyor and Witness for the Objector

Tom O’Dwyer Licensed Professional Engineer in the Province of Ontario and Witness

Richard Taylor, William Ma, David Morgan, Gerard Smith, Jason Hill, Kevin Brownlee, Chris Oyler; Observer

7During the hearing, 12 Exhibits were filed. After a detailed review of the material filed in support of the application and the evidence provided at the hearing, I invited the parties, by letter dated March 05, 2021, filed as Exhibit 13, to provide a list of additional items I was interested in reviewing. The additional items related to my request were entered as Exhibits 14 to 23 (all inclusive). A list of the exhibits is attached as Appendix ‘A’ to the Reasons.

8This application involves the confirmation of all the boundaries of Private Park, Plan 813, in the City of Windsor, County of Essex. The Detroit River flows from Lake St. Clair west and south to Lake Erie as part of the Great Lakes system and forms the border between the Canadian City of Windsor, Ontario and the American City of Detroit, Michigan. Although the Westerly, Easterly and the Southerly limits of the Private Park appear to be in agreement with all local surveyors and are the same limits as the ones illustrated on Plans 12R-22269, 12R-22283 and 12R-27463, the northerly extent of the Private Park involving a water boundary as retraced on the draft Boundaries Act plan is disputed in these proceedings. The written objection only refers to disputing the water boundary and therefore, the northerly extent of the Private Park has a direct impact on the lengths of the Westerly and Easterly boundaries of the Park beyond the last ascertainable points of Plan 813 as illustrated and retraced on plans 12R-22269 and 12R-22283.

9The Applicant through his surveyor, at the hearing, claimed ownership to the disputed land and alleged that such land is the result of accretion. His surveyor, submitted that the northerly boundary of Private Park, Registered Plan 813, is the water’s edge of the Detroit River and established this boundary in two sections, the first section following a 0.4 foot wide break wall and the edge of rocks illustrated on the proposed plan in front of an area marked as “fill” and the second section following a beach area both being the water’s edge of the Detroit River. The applicant submitted that the boundaries under application be confirmed in accordance with the plan of survey, filed at Tab A of Exhibit 1, prepared by VSHBB and signed by Andrew Mantha, Ontario Land Surveyor.

10The Objector, through his surveyor submitted that the appropriate boundary separating the Water Lot from the Park is the northerly limit of the Park as depicted on Plan 813 and illustrated as the boundary between Parts 1 and 2 on Plan 12R-22283 dated October 19, 2005 and signed by Ross Clarke, Ontario Land Surveyor.

11A sketch for illustration purposes showing the confirmed boundaries is attached to the Reasons as Appendix ‘B’.

REASONS

THE ISSUE

12A Crown Patent to the parent Lot 106, Concession 1, Geographic Township of Sandwich East was granted to Francois Meloche on November 23, 1803, describing the property to the water’s edge of the Detroit River. Lot 106, Concession 1, lies to the south of the Detroit River which flows east to west at this location. The northerly 40 acres of Lot 106, Concession 1, Sandwich East were transferred to Charles Janisse in 1866.

13A Crown patent for the Water Lot in front of Lot 106, Concession 1, Sandwich East was granted to Charles Janisse in 1878 describing the southerly limit of the Water Lot extending to the high-water mark of the Detroit River.

14Charles Janisse left to his eldest son, Stanislas Janisse, the Water Lot and the northerly 40 acres of Lot 106, Concession 1, Sandwich East adjacent to the river.

15Plan 813 dated August 10, 1916, being a plan of subdivision of the northerly 40 acres of Lot 106, Concession 1, Sandwich East, defined the boundaries of the Private Park which are the lands subject to this application. This land has become commonly referred to as "Rossini Park". Plan 813 was registered by Stanislas Janisse. Purchasers of the 48 numbered lots illustrated on Plan 813 also received a 1/48th interest in the lot labelled as Private Park. The Private Park has therefore been coowned by multiple owners, including the Applicant and the Objector herein and their predecessors in title.

16After the registration of Plan 813, the Water Lot in Front of Lot 106, Concession 1, Sandwich East, was severed and conveyed as portions lying in front of Plan 813 Lots and re-described as Water Lots in front of specific Lots on Plan 813. There were no transactions registered for that part of the 1878 patent to Charles Janisse, being part of the Water Lot in Front of Lot 106, Concession 1, Sandwich East located in front of the Private Park, Plan 813 until December of 2005 when the descendants of Charles Janisse obtained a Court Order to transfer the remaining interests of the estate of Stanislas Janisse into specified proportional ownership shares of named individuals.

17The Applicant’s surveyor initially submitted that the subdivision is inconclusive as to exactly what physical feature the Park extends as its northerly boundary. He testified that the northerly limit of the Park is shown on Plan 813 as a meandering line implying that the measurements are to a natural feature. Andrew Mantha, OLS finally concluded that the upland limit of the plan was the actual water's edge of the river existent at the date of the 1916 subdivision survey, having a movable character and being a boundary of riparian lands.

18The Objector’s surveyor asserted that the appropriate boundary separating the Water Lot from the Park is the northerly limit of the Park as depicted on Plan 813 and illustrated as the boundary between Parts 1 and 2 on Plan 12R-22283. Counsel for the Objector claimed that prior to creation of the lot labelled "Private Park" on Plan 813, the land no longer had riparian rights since the Water Lot and the Private Park were in common ownership. Further she claimed that the land owned by the developer was not bounded by a water limit at the time that Plan 813 was registered.

19Outside soil material was added to this area sometime between 1931 and 1944 and possibly later around the 1960s. The Applicant’s surveyor argued that this fill material was added to the dry land of the Private Park and not placed into the Water Lot and claims that there is no indication that the actual location of the water's edge was altered by the filling or that such filling extended past the water's edge. Counsel for the Objector contended that fill material was added to both the Private Park and to the Water Lot in front of the Private Park sometime between 1931 and 1944. The Objector claimed that the Water Lot was filled without the consent of the owners of the Water Lot and therefore it is not accretion. The Objector claimed that the increase by accretion must result from the action of the water in the ordinary course of operation of nature and not from some action by which a considerable quantity of soil is suddenly swept from the land of one man and deposited onto the land of another. The Objector submitted that the filling on the Water Lot was sudden and substantial and perceptible and was therefore not accretion.

The boundaries under this application break down as follows:

The Northerly Boundary of Private Park, Plan 813

20The northerly boundary of the Private Park as illustrated on the draft Boundaries Act plan is disputed in these proceedings.

21In his analysis, Andrew Mantha, OLS, determined that the northerly boundary of Private Park, Plan 813, is the water’s edge of the Detroit River and established this boundary in two sections, the first section following a 0.4 foot wide break wall and the edge of rocks illustrated on the draft Boundaries Act plan in front of an area marked as “fill” and the second section following a beach area both being the water’s edge of the Detroit River at the time of his survey.

22Adopting this limit, as illustrated on the draft Boundaries Act plan, Andrew Mantha, OLS, rejected the retracement methodologies used in 2005 on Plans 12R-22269 and 12R-22283 by Ross Clarke, OLS, filed at Tab E of Exhibit 1, which both established the limit between the Park on Plan 813 and that part of the Water Lot lying in front of Lot 106, Concession 1 at the north limit of Plan 813 according to the side line dimensions shown on Plan 813 and not at the limit of the 2005 water’s edge also illustrated on the face of these plans.

23This variance lead to the objection of Mark Goldhar. Counsel for the Objector submitted that the boundary between the Water Lot in front of Lot 106, Concession 1 and the Park is correctly illustrated as the boundary between Parts 1 and 2 on Plan 12R-22283.

The Westerly, Easterly and Southerly Boundaries of Private Park on Plan 813

24The Westerly boundary under application is the limit between the lands designated as PIN 01052-0001(LT) described as Lot 1, Plan 813, and Part of the Water Lot in Front of Lot 1, Plan 813 and the Private Park on Plan 813 designated as PIN 01052-0020(R).

25The Easterly boundary under application is the limit between the lands designated as PIN 01052-0002(LT) described as Lot 2, Plan 813, Ford City and Part of the Water Lot in Front of Lot 2, Plan 813, and the Private Park on Plan 813 designated as PIN 01052-0020(R).

26The Southerly boundary under application is the limit between the lands designated as PIN 01052-0168(LT), illustrated on the draft Boundaries Act plan as Riverside Drive East and the Private Park on Plan 813 designated as PIN 01052-0020(R). Andrew Mantha, OLS submitted, in his report, filed as Exhibit 1, that this limit is defined by the northern limit of Riverside Drive East (shown as Sandwich Street on Plan 813) and that the land is owned and maintained by the Corporation of the City of Windsor.

27Both surveyors testified that the Westerly, Easterly and the Southerly limits of the Private Park are in agreement with all local surveyors and are the same limits as the ones illustrated on Plans 12R22269, 12R-22283 and 12R-27463. However, the northerly extent of the Private Park involving a water boundary as retraced on the draft Boundaries Act plan is disputed in these proceedings and has therefore a direct impact on the lengths of the Westerly and Easterly boundaries of the Park beyond the last ascertainable points of Plan 813 as illustrated and retraced on plans 12R-22269 and 12R-22283.

THE EVIDENCE

Title of the property under application designated as PIN 01052-0020(R)

281. [1803] The Crown Patent to the parent Lot 106, Concession 1, Sandwich East, filed at Tab D of Exhibit 1, was granted to Francois Meloche on November 23, 1803. The 1803 patent to Francois Meloche describes the parent lands as: “Commencing in front upon the River Detroit at the North West Angle of the said Lot, Then South Twenty Eight Degrees East, one Hundred and Sixteen Chains fifty Links more or less to the Allowance for Road in rear of said Concession; Then North Seventy four Degrees East, Six Chains and Twenty six Links more or less to the limit between Lots Number One Hundred and Seven and One Hundred and Six; Then North Twenty Eight Degrees West to the River Detroit Then Westerly along the Water's Edge to the place of beginning.”

292. [1809] According to the abstract for Lot 106, Concession 1, Sandwich East, filed at Tab C of Exhibit 1 the lot was transferred to Jacques Parent by Instrument 432, registered on January 20, 1809. Andrew Mantha, OLS, indicated in his survey report that this document is lost, and he resorted to the descriptions on the abstract book to reconstruct the chain of title.

303. [1866] The abstract for Lot 106, Concession 1, Sandwich East, filed at Tab C of Exhibit 1 further indicates that the northerly 40 acres of the property were transferred to Charles Janisse in September of 1866 by Instrument 571. Andrew Mantha, OLS, submitted that this document is also lost, and he resorted to the descriptions on the abstract book to reconstruct the chain of title.

314. [1908] Charles Janisse died on or about January 22, 1905. Pursuant to his Last Will and Testament, Charles Janisse left to his eldest son, Stanislas Janisse "All that part of the front part or half of lot number one hundred and six, in the first concession of said Township of Sandwich East, in the County and Province aforesaid containing forty acres more or less, together with the lands in front covered with water". Stanislas Janisse inherited The Water Lot and the land included in Plan 813 from Charles Janisse. The Letters Probate for the Last Will and Testament of Charles Janisse were registered as Instrument SE 8480 on May 20, 1908 and are filed at Tab C.6 of Exhibit 1.

325. [1916] Stanislas Janisse developed part of Lot 106, Concession 1, Sandwich East and Plan 813, filed at Tab B of Exhibit 1, was registered on title in 1916. Purchasers of the 48 numbered lots described in Plan 813 also received a 1/48th interest in the lot labelled as "Private Park", the intention being that the owners of the numbered lots would share the ownership of the "Private Park".

336. [2000] The property under application was automated on 2000/11/27, it was designated as PIN 01052-0020(R) and left in the registry system. A copy of the abstract was filed at Tab C of Exhibit 1. The "Private Park" has been co-owned by multiple owners, including the Applicant and Objector herein and their predecessors in title.

Title of the property to the north designated as PIN 01052-0246 (LT)

347. [1878] The Crown Patent of the parent property to the north described as the Water Lot in Front of Lot 106, Concession 1, Sandwich East, filed at Tab D of Exhibit 1, was issued to Charles Janisse in 1878 and registered as Instrument 851. The Water Lot is described as follows:

“Commencing at high water mark on the southerly shore of the River Detroit in the limit between lots one hundred and five and one hundred and six in the first Concession of the said Township of Sandwich East thence North twenty five degrees fifty five minutes West magnetically in the last mentioned limit produced two hundred and eighty nine feet to the Channel Bank of the Detroit River thence South twenty seven degrees thirty minutes East along said Channel Bank thence three hundred and ninety eight feet more or less to the limit between Lots one hundred and six and one hundred and seven produced thence South twenty five degrees fifty five minutes East along said limit produced three hundred and six feet to high water mark on the shore of the Detroit River, Thence Westerly along said high Water mark to the point of commencement.”

358. [1908] Charles Janisse died on or about January 22, 1905. Pursuant to his Last Will and Testament, Charles Janisse left to his eldest son, Stanislas Janisse "All that part of the front part or half of lot number one hundred and six, in the first concession of said Township of Sandwich East, in the County and Province aforesaid containing forty acres more or less, together with the lands in front covered with water". The Letters Probate for the Last Will and Testament of Charles Janisse were registered as Instrument SE 8480 on May 20, 1908 and are filed at Tab C.6 of Exhibit 1.

369. [after 1916] After the registration of Plan 813, the Water Lot was severed by conveying those portions abutting Lots 1, 2 and 3, Plan 813 to the owners of those Lots. The portion of the Water Lot abutting the Private Park on Plan 813, remained a remnant of the Crown Patent Lands.

3710. [2005] The remnant of the Water Lot in front of the Private Park, Plan 813 was automated on 2005/04/28 and designated as PIN 01052-0258(R). The abstract is filed at Tab C.2 of Exhibit 1. It was left in the registry system as a remnant of the 1878 Crown Patent of the Water Lot Registered as Instrument 851.

3811. [2006] That part of the 1878 patent to Charles Janisse, being the Water Lot remnant lands in front of the Private Park, Plan 813 was not dealt with until December of 2005 when the descendants of Charles Janisse obtained a Court Order to transfer the remaining interests of the estate of Stanislas Janisse described as “part of the Water Lot in front of Lot 106, Concession 1, in the City of Windsor, County of Essex, Province of Ontario designated as Part 1 on Reference Plan 12R-22283” into specified proportional ownership shares of named individuals. The Court Order was registered in 2006 as Instrument R1544905, and it is filed at Tab C.2 of Exhibit 1.

3912. [2006] By Instrument R1544906, filed at Tab C.2 of Exhibit 1, the Water Lot remnant lands in front of Lot 106, Concession 1, in the City of Windsor, County of Essex, Province of Ontario were transferred in 2006 to Sally Bernice Goldhar.

4013. [2006] Instrument R1545212, filed at Tab C.2 of Exhibit 1, is a 2006 deed from Sally Bernice Goldhar to the current owner, Mark Goldhar. The described lands include “Part of the Water Lot in front of Lot 106, Concession 1, designated as Part 1, Plan 12R-22283, in the City of Windsor, County of Essex, Province of Ontario”.

4114. [2011] The property was converted to land titles on 2011/03/28. It was designated as PIN 01052-0246 (LT), filed at Tab C.2 of Exhibit 1, and described as “PT WATER LOT IN FRONT OF PT LT 106 CON 1 SANDWICH EAST PT 1, 12R-22283; WINDSOR” currently in the ownership of Mark Goldhar.

Title of the property to the east designated as PIN 01052-0002 (LT)

4215. [1991] Instrument R1171285, filed at Tab C.4 of Exhibit 1, is a 1991 deed from Patrick John Pope and Sarah Georgina Pope to the current owner, Mark Goldhar. The described lands include “Lot 2 Registered Plan 813 and the Water Lot. Containing by admeasurement onehalf (0.50 acre), in front of Lot 2 Registered Plan 813, in the City of Windsor, County of Essex, Province of Ontario”.

4316. [2010] The property designated as PIN 01052-0002 (LT), filed at Tab C.4 of Exhibit 1, was converted to land titles on 2000/11/27 and described as “LT 2 PL 813 FORD CITY; PT WATER LT IN FRONT OF LT 2 PL 813 FORD CITY AS IN R1171285; S/T INTEREST OF THE CROWN; WINDSOR”, currently in the ownership of Mark Goldhar.

Title of the property to the west designated as PIN 01052-0001(LT)

4417. [2000] The property designated as PIN 01052-0001 (LT), filed at Tab C.3 of Exhibit 1, was converted to land titles on 2000/11/27 and it is described as “LT 1 PL 813 FORD CITY; PT WATER LT IN FRONT OF LT 1 PL 813 FORD CITY AS IN R565450; S/T INTEREST OF THE CROWN; DESCRIPTION MAY NOT BE ACCEPTABLE IN FUTURE AS IN R565450; WINDSOR”, currently in the ownership of Gaudreault, Mary Elizabeth and Gaudreault, Evans Joseph Richard.

Title of the property to the south designated as PIN 01052-0168(LT)

4518. [2000] The property to the south designated as PIN 01052-0168(LT), filed at Tab C.5 of Exhibit 1, is illustrated on the draft Boundaries Act plan as Riverside Drive East. This property was converted to land titles on 2000/11/27 and it is described as PT LT 97 CON 1 SANDWICH EAST; PT LT 98 CON 1 SANDWICH EAST; PT LT 99 CON 1 SANDWICH EAST; PT LT 100 CON 1 SANDWICH EAST; PT LT 101 CON 1 SANDWICH EAST; PT LT 102 CON 1 SANDWICH EAST; PT LT 103 CON 1 SANDWICH EAST; PT LT 104 CON 1 SANDWICH EAST; PT LT 105 CON 1 SANDWICH EAST; PT LT 106 CON 1 SANDWICH EAST; PT LT 107 CON 1 SANDWICH EAST; PT LT 108 CON 1 SANDWICH EAST; PT LT 109 CON 1 SANDWICH EAST; PT LT 110 CON 1 SANDWICH EAST; PT LT 111 CON 1 SANDWICH EAST; PT LT 112 CON 1 SANDWICH EAST; PT LT 113 CON 1 SANDWICH EAST; PT LT 114 CON 1 SANDWICH EAST; PT LT 115 CON 1 SANDWICH EAST; PT LT 116 CON 1 SANDWICH EAST; PT LT 117 CON 1 SANDWICH EAST (FORCED RD) BEING RIVERSIDE DR E BTN W LIMIT OF PL 255 & JEFFERSON BLVD; WINDSOR, currently in the ownership of Public Authority having Jurisdiction.

Survey Evidence

4619. [1792-1797] A copy of the Original Township Plan of Sandwich East is filed at Tab D of Exhibit 1. Andrew Mantha, OLS, indicated in his survey report that the local convention is to always refer to the 1792 McNiff's lot numbering, as the 1797 Iredell's plan had a counting error; (where McNiff and Iredell are Provincial Land Surveyors). He also testified that both of those surveyors were not establishing new boundaries but were, in fact, recording the occupation of the original French settlers who had laid out the lots in a seigneurial system of land configuration. McNiff’s and Iredell’s surveys were not entered as Evidence. Ross Clarke, OLS did not provide evidence of the Original Township Plan of Sandwich East.

4720. [1878] A written description and plan of the Water Lot on front of Lot 106, Concession 1, Original Township of Sandwich East, is filed at Tab D of Exhibit 1. The plan is dated May 14, 1878 and it is signed by Fred Foster, Provincial Land Surveyor. Andrew Mantha, OLS, testified that the plan shows bearings and distances to define the high-water mark limit along the shore of the Detroit River described in the 1878 patent of the Water Lot. He also submitted that while the 1878 Water Lot patent defines a limit running along the high-water mark with fixed bearing and distance limits, it should be interpreted as abutting the upland 1803 patent to Lot 106, Concession 1, which extended to the water's edge of Detroit River. He testified that the first patent must govern and concluded that the limits between the two patents must be the natural limit of the water's edge of the Detroit River. Ross Clarke, OLS made reference to the Water Lot in his report filed as Exhibit 5 but he did not provide a different interpretation of this evidence.

4821. [1916] Plan 813, filed at Tab B of Exhibit 1, is a Plan of Subdivision of a portion of Lot 106 (McNiff’s survey), Concession 1, Original Township of Sandwich East, dated May 25, 1916 and prepared by Owen McKay, OLS. Andrew Mantha, OLS, submitted that the depth of the Private Park shown on Registered Plan 813 is the cause of this application under the Boundaries Act. He reiterated that the 1803 Crown Patent to Lot 106, Concession 1, filed at Tab D of Exhibit 1, is described to extend to the water's edge of the River Detroit. Andrew Mantha, OLS, further testified that the plan shows a distance of 147 feet along the easterly limit of the Private Park and a distance of 105 feet along the westerly limit of the Private Park. The plan also illustrates planted stakes at 100 feet from Sandwich Street along the side lines of the Park. Andrew Mantha submitted that Plan 813 is inconclusive as to exactly what feature is being measured to from the road. He testified that the northerly limit of the Private Park and of Lots 1 to 3 (inclusive) are shown as a meandering line implying that the measurements are to a natural feature and that this limit of the plan should be considered the actual water's edge of the Detroit River at the date of the 1916 subdivision survey. Ross Clarke, OLS made reference to Plan 813 in his report filed as Exhibit 5 but he did not provide a different interpretation of this evidence.

4922. [1944] Plan of Survey dated May 15, 1944, filed at Tab L of Exhibit 1, is a survey by Orville Rolfson, OLS, of Lot 1, Plan 813. Andrew Mantha, OLS, testified that this survey appears to show that Lot 1 was extended north between 60 to 70 feet to a timber wall marking the limit of Detroit River as of 1944. The plan also illustrates the location of the Former Water Edge of Detroit River and oak stakes along the rear and side lines of Lot 1, Plan 813. He also testified that there is no additional evidence to indicate the timber wall illustrated on this survey as being constructed past the limits of Lot 1 and into that part of the Water Lot in front of Lot 1, Plan 813. Ross Clarke, OLS did not provide evidence in this respect.

5023. [1945] Ross Clarke, OLS, in his report, filed as Exhibit 5, indicated that CGR Armstrong, OLS, surveyed Lot 3, Plan 813, titled “Plan of Survey showing Lot 3, Plan 813 and fill in front thereof in the Town of Riverside”. This plan, filed as Exhibit 14, is dated July 6, 1945 and extends to a timber retaining wall. The plan expresses Mr. Armstrong’s opinion that the lands between the water’s edge and the northerly limit of Lot 3, Plan 813 were filled lands, not accreted lands. Andrew Mantha, OLS did not provide a different interpretation of this evidence.

5124. [1983] Plan dated Oct 11, 1983 (including field notes), filed at Tab M of Exhibit 1, is a survey by John Smeeton, OLS, of Lot 2, Plan 813 and Part of the Water Lot in front of Lot 106, Concession 1. The plan illustrates found and set survey monuments along Riverside Drive East and shows the extent of Instrument 859496 with 1/48^th interest in Private Park. The plan also illustrates the limit between Lot 2, Plan 813 and the Water Lot described in Instrument 859496 as the Water’s edge according to Plan 813 dated 1916 and the Northern limit of Lot 106 (McNiff) Concession 1. The survey also illustrates physical features in the form of fences and concrete block walls along the side lines together with a boat lift with roof and a 0.67foot concrete wall located within the extent of the Water Lot. A water’s edge dated 11/10/83 is also illustrated on the lands to the west identified as Private Park. Ross Clarke, OLS did not provide evidence in this respect.

5225. [1991] A Surveyor’s Real Property Report of Lot 2, Plan 813 and Part of the bed of the Detroit River in Front of Lot 106, McNiff’s Survey, Concession 1, by VSHBB dated August 12, 1991 is filed at Tab M of Exhibit 1. The plan illustrates Instrument No. 892250 with a 1/48 interest in Private Park as the current document controlling the extent of this survey. Although the title of the survey refers to Part of the Bed of the Detroit River in front of Lot 106 Concession 1, a note along the northerly limit of the property indicates that this represents the “Northerly Limit of the Water Lot and Channel Bank according to Instrument No. 892250. While the approximate water’s edge according to Plan 813 dated 1916 and the north limit of Lot 106, McNiff’s Survey, Concession 1 is illustrated on this survey, there is no clear indication if this limit is one and the same as the limit between Lot 2 and that part of the Water Lot located in front of Lot 2, Plan 813. The plan further illustrates the present water’s edge along a new 0.7 foot wide steel break wall and around a boat lift with roof and an approximate location of an old break wall confirming that the dry land included in this property was further extended between the 1983 survey by John Smeeton, OLS, and the current survey of 1991 discussed here. Ross Clarke, OLS did not provide evidence in this respect.

5326. [1991] Plan of Survey by VSHBB dated Oct 22, 1991 (Field Notes included) filed at Tab K of Exhibit 1, is a Surveyor’s Real Property Report of Private Park, Plan 813 and Part of the Bed of the Detroit River in front of Lot 106, Concession 1, signed by J.P. Verhaegen, OLS. Andrew Mantha, OLS, submitted that this survey was prepared to illustrate encroachments and mark the property on the ground. Although Andrew Mantha, OLS, testified that this survey implies that the Park’s dimensions are those shown on Plan 813, there was no attempt made to establish the northerly limit of the Park as there is no heavy line showing any opinion. The survey clearly illustrates the approximative water’s edge according to Plan 813 dated 1916 and the north limit of Lot 106, McNiff’s Survey, Concession 1, and the location of the water’s edge of October 11, 1991, together with the location of a 0.42 foot break wall at the northwest corner of the dry land. Although the title of the survey refers to Part of the Bed of the Detroit River in front of Lot 106 Concession 1, a note along the northerly limit of the property indicates that this represents the “Northerly Limit of the Water Lot and Channel Bank according to Instrument No. 892250”. Ross Clarke, OLS did not provide evidence in this respect.

5427. [2001] Plan of Survey by VSHBB dated July 23, 2001 (Field notes included), filed at Tab K of Exhibit 1, is a Surveyor’s Real Property Report of Private Park, Plan 813. Andrew Mantha, OLS, specified in his report that John Verhaegen, OLS, held the northerly limit of the park as being defined by the water's edge at the time of the survey, this being the same interpretation as illustrated on the proposed current plan prepared in support of this application. No heavy line showing the clear extent of the Private Park is illustrated on this survey, however the field notes appear to support the assertion made by Andrew Mantha, OLS. The survey also illustrates the location of a sand and stone beach approximately 20 feet wide and the location of the 0.42-foot steel break wall at the northwest corner of the dry land. Although notes such as “Water Lot Patented” are illustrated in front of Lot 1 and Lot 2, Plan 813, no reference to a Water Lot in front of the Private Park is illustrated on this survey. However, this survey includes the following note: “The limit of the Detroit River as shown on this plan has been established by survey and by identifying the present water’s edge as being the best available evidence of this limit. Any change in the position of this limit as shown on R.P. (Registered Plan) 813 appears to be the result of accretion.”

5528. [2005] Plan 12R-22269, filed at Tab E of Exhibit 1, is a survey by Ross Clarke, OLS, of Private Park, Plan 813 and Part of the Water Lot Lying in Front of Lot 106, Concession 1, dated September 30, 2005. The plan illustrates the north limit of Plan 813, as well as the location of the water’s edge as of January 31, 2005. The plan creates two Parts: Part 1 to illustrate the entire extent of that part of the Water Lot lying in front of Lot 106, Concession 1 designated as PIN 01052-0246(R) and Part 2 to illustrate the extent of the Private Park, Plan 813, designated as PIN 01052-0020(R). The plan disagrees with the draft Boundaries Act plan prepared in support of this application as to the location of the common boundary between the Private Park on Plan 813 and the adjacent remnant of the Water Lot parcel.

5629. [2005] Plan 12R-22283, filed at Tab E of Exhibit 1, is a survey by Ross Clarke, OLS, of Private Park, Plan 813 and Part of the Water Lot Lying in Front of Lot 106, Concession 1, dated October 19, 2005. The plan illustrates the North limit of Plan 813 and the location of the water’s edge as of January 31, 2005. The plan creates two Parts: Part 1 to illustrate the entire extent of that part of the Water Lot lying in front of Lot 106, Concession 1 designated as PIN 01052-0246(R) and Part 2 to illustrate the extent of the Private Park, Plan 813, designated as PIN 01052-0020(R). This plan is also in disagreement with the draft Boundaries Act plan prepared in support of this application as to the location of the common boundary between the Private Park on Plan 813 and the adjacent remnant of the Water Lot parcel.

5730. [2011] Plan of survey by VSHBB dated April 1, 2011, filed at Tab M of Exhibit 1, is a Surveyor’s Real Property Report of Lot 2, Plan 813 and Part of the Bed of the Detroit River in Front of Lot 106 Concession 1, McNiff’s Survey, signed by Brian Coad, OLS. The survey illustrates the extent of PINs 01052-0002 and 01052-0246. Although there is reference to the “Water Lot Patent 851” on the face of the plan, the title of this survey refers to Part of the Bed of the Detroit River in front of Lot 106 Concession 1.

5831. [2015] Plan of Survey by Ross Clarke, OLS, filed with Exhibit 5, is a Surveyor’s Real Property Report of Lot 2, Plan 813, Part of the Water Lot in Front of Lot 2, Plan 813 and Part of the Water Lot in Front of Lot 106, Concession 1 (designated as Part 1, 12R-22283) signed by Ross Clarke on January 27, 2015. The plan illustrates the extent of lands designated as PINs 01052-0002(LT) and 01052-0246(LT) now owned by the Objector, Mark Goldhar.

5932. [2018] Plan 12R-27463 by VSHBB dated August 8, 2018, filed at Tab F of Exhibit 1, is a plan of survey of All of Rossini Park (shown as Private Park on Plan 813) signed by Andrew Mantha, OLS. He testified that this plan reflects the same opinion as to the Park limits illustrated by a heavy line on the proposed Boundaries Act Plan. Andrew Mantha, OLS, further indicated in his report that the plan shows a snow fence erected by the owner of Lot 2 along the northerly limit of the Park as established by Ross Clarke, OLS, to restrict access to the northerly portion of the Park. He further testified that the fence was removed by one of the landowners but has since been replaced.

6033. [2019] Plan to show borehole locations on the Private Park, dated 29/Jan/2019 prepared by Clarke Surveyors Inc. is filed with Exhibit 5. The plan illustrates the location of 21 boreholes and provides a table of coordinates and elevations for each borehole illustrated on the plan. It is not clear to which Datum these elevations are referenced.

6134. [2019] Plan to show site features of Municipal Numbers 4220, 4240 and 4290 Riverside Drive together with topographic information on adjoining Riverside Drive, Rossini Boulevard and Jos Janisse Avenue, File Date 25/Jun/2019, prepared by Clarke Surveyors Inc. is filed with Exhibit 5. The Benchmark Note on this plan indicates that elevations shown on this plan are based on the Canadian Geodetic Datum. There is no indication as to how the municipal numbers relate to the Registered Plan lots. No elevations on the water’s edge are shown.

6235. [2019] Plan by VSHBB dated July 11, 2019, filed at Tab P of Exhibit 1, is a Surveyor’s Real Property Report and a Topographic plan signed by Andrew Mantha, OLS. Although the Elevation note on this plan stating that the elevations are referenced to the Canadian Geodetic Datum, the Site Benchmark note indicates that elevations on this plan are referenced to an assumed elevation of 100.00 (implying a local vertical datum). Andrew Mantha, OLS, indicated in his report that this plan was prepared to show the elevation drop off from Riverside Drive to the water's edge providing the following statement in his report:

“While the linear extension of the park by accretion would appear to be about 50', the depth or thickness of the added land is minor compared to the land that Clarke's plans 12R-22269 and 12R-22283 show as the original park. The slope would seem to support the assertion that this is natural accretion as there is no evidence of artificial structures extending the use of the park out into the water lot. In fact, there is no evidence of artificial fill except that done by the adjoining owners. The current water's edge is the result of construction on either side of the park which has caused the area immediately north of the park to fill in over time. The fact that the Park has benefited from accretion caused by works done by the neighbours should not remove the Riparian status of the property.”

Survey Reports and Testimony

Andrew Mantha, OLS - Survey Report and Testimony

63The Survey Report in support of the application, dated July 28, 2019 and prepared by Andrew Mantha, OLS, was filed as Exhibit 1. After reviewing the objection and the geological report, Andrew Mantha, OLS, prepared an additional submission, filed as Exhibit 2.

64Andrew Mantha, OLS, was recognized as an expert witness and qualified to give opinion evidence concerning the location of the boundaries under application.

65Andrew Mantha, OLS, clarified that he was retained by the Applicant Glen David Ray to conduct a boundary survey of the lands designated as PIN 01152-0020(R) and illustrated as Private Park on Plan 813. He testified that Glen David Ray is a member of the Rossini Park Association, an unincorporated group made up of volunteers who work on and contribute to the cost of maintenance of the Park and one of the property owners who have an interest in the land designated as PIN 01052-0020(R), described as Rossini Park.

66Andrew Mantha, OLS, testified that the northerly boundary of Private Park, known as Rossini Park, represents the disputed line for the parcel of land in question. He further testified that the northerly boundary of Private Park, Plan 813, is the water’s edge of the Detroit River. Andrew Mantha, OLS, submitted in his report that he established this boundary in two sections, the first section following a 0.4 foot wide break wall and the edge of rocks illustrated on the draft Boundaries Act plan in front of an area marked as “fill” for which he provides an explanation on the face of the plan marked as Note 2 stating that “The limit of the Detroit River as shown on this plan has been established by survey and by identifying the present water’s edge as being the best available evidence of this limit. Any change in the position of this limit as shown on Registered Plan 813 appears to be the result of artificial fill.” The second section of this boundary is following a Beach area for which Andrew Mantha, OLS, provides an explanation on the face of the draft Boundaries Act plan marked as Note 1 stating that “The limit of the Detroit River as shown on this plan has been established by survey and by identifying the present water’s edge as being the best available evidence of this limit. Any change in the position of this limit as shown on Registered Plan 813 appears to be the result of normal and gradual fluctuations in this limit.”

67Andrew Mantha, OLS, testified that the Westerly, Easterly and the Southerly limits of the Private Park agree with all local surveyors and are the same limits as the ones illustrated on Plans 12R-22269, 12R-22283 and 12R-27463.

68Andrew Mantha, OLS, reviewed the Crown Patent of the subject property, filed at Tab D of Exhibit 1, granted to Francois Meloche on November 23, 1803. He testified that he confirmed with the Crown Patent Office of the Ministry of Natural Resources (now the Ministry of Northern Development, Mines, Natural Resources and Forestry) that even though it is a patent to Lot 105, the patent is the true patent to Lot 106, Concession 1, Francois Meloche being also listed as the original patentee according to the Essex County Land Registry Office abstract. Andrew Mantha, OLS, testified that the property is described along the Water’s edge of the Detroit River and that there are no reservations related to this patent.

69Andrew Mantha, OLS, reviewed the Crown patent of the parent property to the north described as the Water Lot in Front of Lot 106, Concession 1, Sandwich East, filed at Tab D of Exhibit 1, issued to Charles Janisse in 1878 and registered as Instrument 851. He testified that the plan of the Water Lot in front of Lot 106, Concession 1, Original Township of Sandwich East is dated May 14, 1878 and is signed by Fred Foster, Provincial Land Surveyor. Andrew Mantha, OLS, also submitted that while the description of the 1878 Water Lot patent defines a limit running along the high-water mark with fixed bearing and distance limits it should be interpreted as abutting the upland 1803 patent to Lot 106, Concession 1, which extended to the water's edge of Detroit River. He testified that successive titles to severed shore properties or water lots have often been described and shown on survey plans as being bounded by a "high water mark". The term "high water mark" was not in use at the time Plan 813 was prepared. Andrew Mantha, OLS, testified that the erroneous notion of "high water mark" was actively pursued by the Department of Lands and Forests as demonstrated by historical surveys produced by surveyors under Instructions from the Department, distinguishing "water's edge" from "high water mark". He clarified that that work was done in preparation for the 1940 amendments to the Bed of Navigable Waters Act implemented by the omnibus Statute Law Amendment Act, S.O. 1940, c.28. Those amendments were perceived to be confiscatory and were therefore repealed in 1951. Based on this notion, he testified that beaches were considered by Crown officers as part of the adjoining water body and therefore, unalienated Crown lands, except where a Water Lot had been granted. Andrew Mantha, OLS, testified that regardless of the Crown's assertions, the courts have consistently applied the common law rule placing the boundaries of nontidal riparian properties at the water's lowest mark and indicated that this rule is only exempted if there are reservations in the original patent.

70Andrew Mantha, OLS, testified that the part of the Water Lot located immediately in front of Rossini Park was basically abandoned until December of 2005, when the descendants of Charles and Stanislas Janisse went to the Superior Court of Justice to have the remaining interests of the estate of Charles and Stanislas Janisse, designated as Part 1 on Reference Plan 12R-22283 transferred to them by Court Order registered as Inst. No. R1544905, filed at Tab C.2 of Exhibit 1. This parcel is currently owned by the Objector, Mark Goldhar. Andrew Mantha, OLS, testified that the Court Action involved title to Part of the Water Lot in front of Lot 106, Concession 1 and did not involve land described as part of Plan 813. He also submitted that the Court Action was made to define the quality of title to that part of the Water Lot and not the quantity of it.

71Andrew Mantha, OLS, analysed the progression of ownership of Lot 106, Concession 1 Sandwich East, together with the 1916 Plan 813, filed at Tab B of Exhibit 1, and prior survey evidence including the survey work done by Ross Clarke, OLS. Based on the chain of title and consideration of the historical progression of ownership of the subject property and of the bed of Detroit River, Andrew Mantha, OLS, submitted that both were patented by the Crown at different points in time and were held under the same ownership of Charles Janisse, following the issuance of the Water Lot Patent in 1878. He also clarified that he considered the idea that title to the two parcels have merged, at the time that Plan 813 was registered, but concluded as being irrelevant because the actual geographic names of the two properties would not merge.

72Andrew Mantha, OLS, submitted that the first patent must govern and his interpretation, therefore, is that the limit between the two patents must be the natural limit of the water's edge of the Detroit River.

73Andrew Mantha, OLS, reviewed the Original Plan of the Township of Sandwich East, filed at Tab D of Exhibit 1 and the Subdivision Plan 813, filed at Tab B of Exhibit 1. His reviews are already included in the Survey Evidence previously discussed.

74Andrew Mantha, OLS, indicated in his survey report that the original deeds to various lots issued and signed by Stanislas Janisse are clear in defining the limits of the Park as "Rossini Park lying between Sandwich Street and the Detroit River as indicated on said Plan of Subdivision and that "the purchaser" shall not pledge or in any way dispose or incumber his interest in the said Rossini Park separately from the lands heretofore conveyed". He clarified that same wording appears in the deeds for Lot 1, Plan 813, registered as Instrument FC1163, filed at Tab C3 of Exhibit 1, and for Lot 2, Plan 813, registered as Instrument FC8860, filed at Tab C4 of Exhibit 1, as well as in other original deeds signed and issued by Stanislas Janisse such as Instrument FC1234, filed at Tab C1 of Exhibit 1.

75Andrew Mantha testified that title to Rossini Park is currently split with an undivided interest between all the owners of lots in Plan 813. He also submitted that the Park is not used consistently with some local owners never making use of the Park, while others regularly attend the site. He also clarified that the grass is cut, and land maintained by the Rossini Park Association. He further submitted that a bench on a concrete pad and the sand beach running along the Detroit River being regularly used by bathers and kayakers is evidence of local use. Andrew Mantha, OLS, testified that he found no evidence of any other use except as a Park since its creation in 1916. He submitted that in 1987, the Rossini Park Association petitioned the City of Windsor to allow for the rezoning of the Park from Residential to Open Space with the purpose of lowering the land tax paid by each owner. Andrew Mantha, OLS, testified that Mr. Braun, a previous owner of Lot 1, Plan 813, signed a letter dated May 13, 1960, filed at Tab J of Exhibit 1, claiming that “any work done or material supplied by me to the park lot should not be construed as an effort on my part to assert any interest or right in the said park lot other than that disclosed in the Deed of my property to me". He also clarified that this document was prepared at the request of the Rossini Park Beach Association to refute any future claims by the owner of Lot 1 over occupation in the Park. Andrew Mantha, OLS, submitted that Donald Jeffrey, the current owner of Lot 1, Plan 813, through the Power of Attorney assigned to his daughter, Janice Gagne, has signed a Consent and Waiver of Notice to this application under the Boundaries Act.

76Andrew Mantha testified that all written submissions, filed at Tab N of Exhibit 1, from the residents of Rossini Park outlining their long-standing use of the beach portion of the Park were obtained by Deborah Ann Buckner, a member of the Rossini Park Association and owner, together with the Applicant Glen David Ray.

77Andrew Mantha, OLS, reviewed the plan of Survey by VSHBB dated Oct 22, 1991 and plan dated July 23, 2001, both filed at Tab K of Exhibit 1, as well as plans 12R-22269, 12R-22283, both filed at Tab E of Exhibit 1, and plan 12R-27463, filed at Tab F of Exhibit 1. His reviews are included in the Survey Evidence previously discussed.

78Andrew Mantha, OLS, testified that plans 12R-22269 and 12R-22283 are surveys by Ross Clarke, OLS, of Private Park, Plan 813 and Part of the Water Lot lying in front of Lot 106, Concession 1. He testified that both plans disagree with the draft Boundaries Act plan prepared in support of this application, by limiting the extent of the Park at the north limit according to the side line dimensions shown on Plan 813.

79Andrew Mantha, OLS, reviewed the Plan of Survey dated May 15, 1944, filed at Tab L of Exhibit 1. He testified that this is a survey by Orville Rolfson, OLS, of Lot 1, Plan 813, which appears to show that Lot 1 was extended between 60 to 70 feet to a timber wall marking the limit of Detroit River. He also testified that there is no additional evidence to indicate the timber wall illustrated on this survey was constructed past the limits of Lot 1, Plan 813 and into that part of the Water Lot in Front of Lot 1, Plan 813. Andrew Mantha, OLS, submitted that he found no record or evidence showing that the Park owners were involved in the construction of the timber wall or in the construction of the current steel wall in front of their land or in the placing of stones to prevent erosion. He also clarified that he believes that all these improvements were part of the work undertaken by the owners of Lot 1, Plan 813 and this is reflected in the letter signed by Mr. Braun, a predecessor in title of Lot 1, Plan 813, filed at Tab J of Exhibit 1, where it is acknowledged that Mr. Braun is the party who orchestrated the ‘work and material supplied’ to create the area illustrated as ‘fill’ on the draft Boundaries Act plan prepared in support of this application. On cross-examination Andrew Mantha, OLS, clarified that the letter is focused on a statement that Mr. Braun would not make any possessory claims in the interest of the Park and not necessarily as a statement of construction on behalf of the Park. He clarified that probably the fill material was not placed by the Park Association but by the owner of Lot 1 in his efforts to extend his upland parcel. On cross-examination he also agreed that the Park Association is not the owner of the Park and Mr. Braun, the owner of Lot 1, Plan 813, was, in fact, a co-owner of the Park at that time.

80Andrew Mantha, OLS, testified that any property bounded by the natural limits of water is, by definition, a riparian parcel. He also indicated that accretion is the doctrine of the increasing of land through the slow and imperceptible action of natural forces.

81Andrew Mantha, OLS, submitted in his report, that “If the water line moves because of artificial events, the doctrine continues to apply so long as the movement has not been deliberately arranged upon the claimant's own land; and providing an intention to gain, by way of objection to the claim of extended land, is inherently difficult to achieve.“ and makes reference to “Attorney-General v. Chambers (1859), 4 De G. & J. 55, at 69”.

82Andrew Mantha, OLS, submitted in his survey report that the only possible exception for not holding the current water's edge as best evidence of the Park limit would be if the limit could be identified as an area of artificial fill jointly put in by the title holders of the Park. In the initial report he indicated that he found no evidence of any fill material being added to the Park by the Park Association and while steel retaining walls are evidenced on the properties on either sides of the Park, the rear limit of the Park itself is marked mostly by a sand beach listed on the draft Boundaries Act plan in support of this application as being an area of natural accretion.

83After reviewing the objection and the geological report, Andrew Mantha, OLS, clarified in the additional submission, filed as Exhibit 2, that he agrees that the evidence produced by the Objector overwhelmingly shows that fill material was added to the site but maintains that this fill material was added to the sand beach which comprises part of the Park and was not placed out into the Water Lot. He agreed that up to 2.05 metres of fill material may have been added to the beach but, in his opinion, not beyond the limit shown as water's edge.

84Andrew Mantha, OLS, testified that the beach was always intended to be included with the original upland patent and was not part of the Water Lot and that the Park and adjoining Lots shown on Plan 813 should be considered as riparian parcels.

Deborah Ann Buckner - Testimony

85Deborah Ann Buckner is one of the registered owners of Lot 44, Plan 813. She owns these lands together with the Applicant Glen David Ray as joint tenants. She testified that she resides at 266 Rossini Boulevard and her title includes a 1/48-part ownership in the Private Park.

86As a member of the Rossini Park Association, Deborah Ann Buckner testified that she obtained all written submissions, filed at Tab N of Exhibit 1, from the residents of Rossini Park outlining their longstanding use of the beach portion of the Park. They include letters from Emily Johnston (owner of Lot 39, Plan 813) describing her use of the Park since 1959, Bob and Beverly Searcy (owners of Lot 15, Plan 813) and their son Tim describing their use of the Park since 1972, Ursula Veselka (owner of Lot 34, Plan 813) describing her use of the Park since 1986 and Cecile Mascaro-Thibert (a former resident) documenting her use of the Park between 1935 and 2008. She also testified that she obtained signed consents and waivers of notice filed at Tab O of Exhibit 1.

Tom O’Dwyer Geological Reports and Testimony

87Tom O’Dwyer was recognized as an expert witness and Licensed Professional Engineer (P.Eng.) in the Province of Ontario, qualified to give opinion evidence concerning the geological report, filed as Exhibit 4.

88Tom O’Dwyer, P.Eng. testified that he was hired by the Objector, Mark Goldhar, to complete a Geological Investigation Report in order to define the historical location of the shoreline of the Detroit River at Rossini Park. He clarified that the scope of work was to carry out a geological exploration to define the depth and location of anthropogenic fills and to detect the natural beach sand deposit that may be buried beneath the man-placed fill.

89Tom O’Dwyer, P.Eng., testified that the field work, part of the geological exploration, consisted of twenty-two test holes completed within a 5 metre by 5 metre grid-frame along lines B, D, and F as illustrated in Drawings 1 through 5 of Exhibit 4. He further clarified that the test hole information from the geotechnical investigation is presented in graphical form in the log of test holes being drawings 6 through 27 of Exhibit 4 and that their locations were surveyed by Clarke Surveyors Inc., who also determined the geodetic ground surface level at each test hole location.

90Tom O’Dwyer, P.Eng., submitted that Drawings 1 and 2 of Exhibit 4, present an overview condition of the general area in 2019 (Drawing 1) and 1931 (Drawing 2). He further clarified that Drawings 3 and 4 are similar to Drawings 1 and 2, except the drawing scale was adjusted to accommodate the entire Rossini Park property at a more illustrative scale and that Drawing 5 presents the survey information in relation to the test hole locations without the presence of the background air photos.

91Tom O’Dwyer, P.Eng., testified that the majority of the test holes encountered fill material or black organic clay topsoil at the ground surface. He further testified that the fill deposit was placed through anthropogenic in-filling rather than a natural process associated with the Detroit River dynamics and that the depth of the fill material and topsoil material varies between 0.0 metres and 2.05 metres.

92Tom O’Dwyer, P.Eng., indicated in his report that the test holes identify the depth location where the top of the beach deposit interface with the overlying man-placed fill materials. The test holes also identify the location of the bottom of the beach sand deposit. He testified that Drawings 28, 29, and 30 of Exhibit 4 present north-south profiles along Lines B, D, and F, respectively. The profiles reveal the distinct pattern of fill material over the natural regional silty clay deposit and fill material over natural beach sand and beach sand on the natural regional silty clay deposit. He clarified that the test hole results were used to develop the soil profiles presented on Drawings 28, 29, and 30 and that with this information, the leading edge of the buried natural beach sand deposit was determined through linear interpolation and drawn on Drawings 31 through 34 of Exhibit 4. Tom O’Dwyer, P.Eng., testified that Drawings 31 through 34 of Exhibit 4 represent the geo-interpolated shoreline, marked as a blue dashed line, with the definitive theoretical minimum north location of the beach deposit, marked as a cyan dashed line, and the definitive theoretical maximum south location of the beach deposit, marked as a magenta dashed line. He specified that the maximum/minimum limits are not past locations of the northern and southern extent of the natural beach deposit and indicated that the term “minimum” refers to the borehole connecting line that found substantial evidence of the buried beach with a distinct thickness. He further clarified that the term “maximum” refers to the borehole connecting line that did not find any natural beach deposit.

93Tom O’Dwyer, P.Eng., testified that the historical water levels entered as Exhibit 8 and 9 can be related to his geological data but his review was limited only to a general idea of the large fluctuations of the Detroit River. He also testified that he cannot conclusively state if the fill material was placed in the water or on dry land as this task was outside his mandate. He was only required to determine if fill material was present on the site and determine the geological composition of the samples taken.

94The Geological Investigation Report, filed as Exhibit 4, shows that the entire property under application (including the land south of the northern limit as set by Clarke) was subject to an artificial process of filling. The report did not conclusively prove if the fill material was placed in the water or on dry land or when the fill material was placed.

95The Supplementary Information Related to the Geologic Investigation for Historic Detroit River Shoreline at Rossini Park, Windsor, Ontario, prepared by Tom O’Dwyer, P.Eng., was provided on behalf of the Objector in response to my post-hearing request and filed as Exhibit 22. This Report related the borehole data to a common International Great Lakes Datum (IGLD 1985), consistent with the Canadian Hydrographic Services water level records and provided interpolated IGLD 1985 water level records specific to the site for the period 1931 to 1944. This report indicated that the water level elevations relating to the site of the survey were determined based on monthly and yearly means of observations published by the Canadian Hydrographic Service, Department of Fisheries and Oceans, Ottawa (2020) using the coordinated gage network, consisting of:

i. Lake St. Clair (Chart Datum = El.174.40 metres IGLD1985): St. Clair Shores Michigan and Belle River, Ontario. The Belle River, Ontario Station (#11965) has a Chart Datum = El.174.400 metres IGLD1985. The Amherstburg, Ontario Station (#11995) has a Chart Datum of 173.870 metres IGLD1985.

ii. Lake Erie: Toledo and Cleveland Ohio, and Port Stanley and Port Colborne, Ontario. The Port Stanley, Ontario Station (#12400) and Port Colborne, Ontario Station (#12865) have a Chart Datum = El.173.500 metres IGLD1985. Closer to the western edge of Lake Erie, the Bar Point Station (#12005) also has a Chart Datum of El.173.500 metres IGLD1985.”

96Exhibit 22 further clarified that the Detroit River is not a uniform channel and, therefore, the water level from Lake St. Clair to Lake Erie fluctuates as the width, depth, and curvature changes. The report also indicated that the Chart Datum assigned at Lake St. Clair (as published in chart) was chosen as the start point for interpolation purposes and the Chart Datum at the Amherstburg Station was chosen as the endpoint for interpolation purposes. The report concluded that:

“the Chart Datum at Rossini Park will be between El.174.400 metres and El.173.870 meters; this is a water height difference of 0.530 metres. The distance from the Amherstburg Station to Lake St. Clair is 40.4 km and the distance from the Amherstburg Station to Rossini Park is 32.52 km, or 80.5% of the way between the Amherstburg Station and Lake St. Clair, along the path of the Detroit River. Based on these considerations, the effective Chart Datum at Rossini Park is El.174.400 – 0.805x0.530 = El.173.973 metres IGLD1985. As a result, the estimated elevation or the water level at Rossini Park can be estimated by interpolation as the water level at Lake St. Clair minus 0.805x0.530 = 0.427 metres.

97The Supplementary Information Related to the Geologic Investigation for Historic Detroit River Shoreline at Rossini Park, Windsor, Ontario also concluded that between the years 1931 and 1944, at the location of Rossini Park, the IGDL 1985 water elevations ranged between a maximum of 175.54 metres and a minimum of 174.41 metres. The supplementary report also concluded that between the years of 1955 and 1965, at the location of Rossini Park, the IGDL 1985 water elevations ranged between a maximum of 175.96 metres and a minimum of 174.67 metres and provided a list of elevations at the bottom of the fill for all 22 borehole locations on the Private Park, converted to IGLD 1985.

Ross Clarke Report and Testimony

98Ross Clarke, OLS, was recognized as an expert witness and qualified to give opinion evidence concerning the location of the disputed boundary. His Survey Report, in support of the objection, was filed as Exhibit 5.

99Ross Clarke, OLS, testified that the appropriate boundary separating the Water Lot from the Park is the northerly limit of the Park as depicted on Plan 813. He testified that fill material was added to this area sometime between 1931 and 1944 claiming that the Water Lot was filled without the consent of the owner of the Water Lot and therefore, accretion is not applicable to the Private Park. Ross Clarke, OLS, submitted in his report, reference to a Plan of Survey showing Lot 3, Plan 813 and fill in front thereof, by CGR Armstrong, OLS, dated July 6, 1945 and filed as Exhibit 14. He clarified that this is the evidence when the altered northerly limit of Plan 813 was recognized as fill, and not produced by accretion.

100He stated that the increase must also result from the action of the water in the ordinary course of operation of nature and not from some action by which a considerable quantity of soil is deposited onto the land of one party. Ross Clarke, OLS, testified that the filling on the Water Lot in front of Rossini Park was sudden and substantial and perceptible and was therefore, not accretion.

101Ross Clarke, OLS, testified that his 2005 plans 12R-22269 and 12R-22283, both filed at Tab E of Exhibit 1, correctly illustrate the extent of the Private Park, Plan 813 and the extent of that part of the Water Lot lying in front of Lot 106, Concession 1 and both plans are in disagreement with the draft Boundaries Act plan prepared in support of this application.

Mark Goldhar Testimony

102Mark Goldhar testified that he is the owner of Lot 2, Plan 813 and the Water Lot in front of Lot 2 designated as PIN01052-0002(LT). He testified that he acquired this property in 1991. In 2005, Mark Goldhar purchased the abutting lands to the north of the Park designated as PIN 01052-0246(LT), described as Part of the Water Lot in front of Part of Lot 106, Concession 1, Sandwich East, designated as Part 1 on Plan 12R-22283. Mark Goldhar, also has a 1/48th interest in the land designated as PIN 01052-0020(R), described as Rossini Park, being Private Park, Plan 813.

103Mark Goldhar testified on his understanding that his ownership of the Water Lot in front of the Park extends to where Ross Clarke, OLS, determined the limit between Parts 1 and 2, plan 12R-22283 to be. He testified that he maintained the dry lands included in Part 1 on Plan 12R-22283.

104He testified that he is aware that the owner of Lot 1, Plan 813 did the filling, and clarified that he did not witness any of it.

Aerial photographs

105Aerial photographs of the site (dated 2000 and 2017) and an aerial photograph of Windsor (dated 1954) were submitted at Tab B.2, B.3 and B.4 of Exhibit 1. Andrew Mantha, OLS, provided no clarification in his reports on the relevance of these documents.

106Andrew Mantha, OLS, testified on cross-examination on the relevance of a 1931 aerial photograph, filed at Tab C of Exhibit 3 (the Objector’s submission), stating that the configuration of the upland area seems to follow the configuration of Plan 813. He also submitted that it is reasonable to conclude the existence of a beach area roughly illustrated on this photograph. He also clarified that no land additions or improvements in form of timber walls can be identified in 1931 on this aerial photograph related to Lot 1 or the Private Park, Plan 813. Andrew Mantha, OLS also testified that the aerial photograph of Windsor (dated 1954) included in his submission is unclear and of limited help.

107However, my review of the 1931 aerial photograph illustrates Lots 2 and 3 as being extended to what appears to be a wall feature erected between the dry land and the water, well beyond the shoreline shown for Lot 1 and Private Park. No additional testimony related to the 1931 aerial photograph was provided in respect of the configuration of Lots 2 and 3 or the fact that these Lots were already substantially extended back in 1931.

108Ross Clarke, OLS submitted, in his report filed as Exhibit 5, that “There is no aerial photography of the area from which RP 813 was created, in the time frame of 1916, therefore any current photography is only to be used for current conditions and have no Influence on the basic question.”

Water levels for Detroit River

109The Detroit River is a passage river connecting Lake Huron and Lake St. Clair in the north to Lake Erie in the south, as part of the Great Lakes system.

110Metric International Great Lakes Datum, 1985 (IGLD 1985) water level elevations were obtained from the Canadian Hydrographic Service. They chart the monthly and yearly means of observations taken at several water level recording stations from 1918 to 2019 (inclusive) and were filed as Exhibit 8 and Exhibit 9. No water level elevations relating to the site of the survey were determined or entered in evidence by the parties during the hearing.

111The Geological Investigation Report for the Past Detroit River Shoreline at Rossini Park, filed as Exhibit 4, indicates that the actual locations of the boreholes were surveyed by Clarke Surveyors. The report further indicates that Clarke Surveyors also determined the geodetic ground surface level at each borehole location and that the depths and elevations presented in this report were derived for the sole benefit of the geological analysis and stratigraphic evaluation by the geotechnical/geological engineer.

112The Supplementary Information Related to the Geologic Investigation for Historic Detroit River Shoreline at Rossini Park, Windsor, Ontario, filed as Exhibit 22, related the borehole data to IGLD 1985 datum, consistent with the Canadian Hydrographic Services water level records entered as Exhibits 8 and 9 and provided interpolated IGLD 1985 water level records specific to the site for the period 1931 to 1944. The Supplementary report concluded that between the years 1931 and 1944, at the location of Rossini Park, the IGDL 1985 water elevations ranged between a maximum of 175.54 metres and a minimum of 174.41 metres. The Supplementary report also concluded that between the years of 1955 and 1965, at the location of Rossini Park, the IGLD 1985 water elevations ranged between a maximum of 175.96 metres and a minimum of 174.67 metres and provided a list of elevations at the bottom of the fill for all 22 borehole locations on the Private Park, converted to IGLD 1985.

113I noted that the maximum depth of fill at borehole B8 has been reported as 2.50 metres in contrast to the 2.05 metres maximum depth initially reported in The Geological Investigation Report filed as Exhibit 4. This will have no influence on the outcome of my decision. The applicant did not disagree or refute the data provided on behalf of the Objector.

THE LAW AND ANALYSIS

114In the matter before this tribunal, the boundary that is in dispute is the northerly boundary of Private Park, Plan 813, being the common limit between the Private Park and Part of the Water Lot in front of Lot 106, Concession 1, Sandwich East. There are five questions of uncertainty about the disputed boundary under application that must be addressed and determined:

1151. Where is the riverside boundary of Lot 106, Concession 1, Sandwich East, according to the Crown Patent and the intention of the parties to it?

116The Crown Patent of the subject property, filed at Tab D of Exhibit 1, granted to Francois Meloche on November 23, 1803, describes the subject boundary: “….Then North Twenty Eight Degrees West to the River Detroit Then Westerly along the Water's Edge to the place of beginning.”

117In Walker et al and Attorney General for Ontario (1971), 1970 CanLII 953 (ON HCJ), 14 D.LR. (3d) 643 (Ont.H.C.); aff’d (1972), 1972 CanLII 31 (ON CA), 26 D.L.R.(3d) 162 (C.A.); aff’d (1974), 1974 CanLII 3 (SCC), 42 D.L.R. (3d) 629.at p.673 Stark J. concluded:

"It appears to me therefore that I am driven to this conclusion that any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water then it establishes that boundary as at the water's edge and not upon any bank or high water mark unless of course the grant clearly reserves by description or other wise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water's edge"

118The location of the water's edge is of prime concern because it is a natural boundary and as such is at the top of the hierarchy of evidence as set out by Simon Greenleaf in A Treatise on the Law of Evidence. Justice Stortini clarifies this in Thelland v. Golden Haulage Ltd [1989] O.J. No.2303 Action No.759/85:

"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)."

119The evidence illustrates that Lot 106, Concession 1, Sandwich East extends to the water’s edge of the Detroit River and there are no reservations related to the original patent of this lot. The Objector did not disagree or refute the Applicant’s submission in this respect.

120I conclude from the above analysis that the riverside boundary of Lot 106, Concession 1, Sandwich East, as patented in 1803, is the natural limit of the water's edge of the Detroit River.

The next question to be addressed is as follows:

1212. Where is the southerly boundary of the Water Lot in front of Lot 106, Concession 1, Sandwich East, according to the Water Lot Crown Patent and the intention of the parties to it?

122The Water Lot in front of Lot 106, Concession 1, Sandwich East, as outlined in the review of the evidence, is described as extending to the high-water mark of Detroit River:

“Commencing at high water mark on the southerly shore of the River Detroit …… …… produced three hundred and six feet to high water mark on the shore of the Detroit River, Thence Westerly along said high Water mark to the point of commencement.”

123The reference to the high water mark in the description of the Water Lot and the illustration of high water mark fixed bearing and distance dimensions on the plan of the Water Lot suggest that the southerly boundary of the Water Lot is higher than the water’s edge of the Detroit River and inland from it. This conflicts with the description of the adjacent property to the south, being Lot 106, Concession 1, Sandwich East, granted on November 23, 1803 to Francois Meloche and where the lands are described as extending to the water’s edge of the Detroit River. There is no reference in the Water Lot Patent that could be taken to mean that the Crown intended to include any dry upland or set out a dimension to suggest the existence of a strip of dry land between the water’s edge and the high water mark. There is no evidence provided to illustrate a transaction of such strip of land. Therefore, the reference to the high-water mark in the description of the Water Lot creates a latent ambiguity which arises when the Water Lot Patent, which is unambiguous on its face, is reviewed in the context of reviewing the description of the adjacent lands to the south.

124In seeking some clarification as to how the courts have dealt with the interpretation of prior and subsequent grants and whether effect is to be given to a prior grant, I reviewed Robinson v. Wilson, (1847) 1847 CanLII 3 (NB SC), 5 N.B.R. 301 (C.A) where the plaintiff was claiming title to the subject land under a grant from the Crown and the defendant claimed the same under a similar grant which was subsequent in time and which encroached upon the earlier grant.

125The judgement of the Court delivered by Chipman, C.J. stated:

"It was ruled by the judge at the trial, on the principle that a prior grant must have its effect, and that the Crown cannot by a subsequent grant derogate from its own act, that the plaintiff had proved his title to the locus in quo."

Chipman, C.J continues:

"... and the Crown, which at the time of the grant to Thomas Robinson had the title to all the land contained in these several lots, clearly granted to Thomas Robinson his lot No. 9 as commencing at a distance of twelve chains from the southeast angle of lot No. 7; and having done so, cannot by any subsequent grant alter this boundary."

126In other words, the earlier grant must take priority; and the Crown could not derogate from its own prior act of conveying, by the earlier grant, the lands perceived as being included in the later grant and full effect must be given to the boundaries of the land conveyed and established by the description of the earlier grant.

127Also, of importance to note is that in Herold Estate v. Canada (Attorney General), 2021 ONCA 579, Zarnett J.A. stated the following:

128[36] …..the interpretation of the Letters Patent involves discerning what the parties to them objectively intended. That is a fact specific exercise; it is a function of the language used, read in light of the relevant factual matrix or surrounding circumstances, and the legal principles that arise from those circumstances. It follows that the interpretation of the Letters Patent is a question of mixed fact and law. Absent an extricable error of law, or a palpable and overriding error of fact, a determination of a question of mixed fact and law is subject to deference on appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 234, at paras. 26, 36-37; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50, 53; Corner Brook (City) v. Bailey, 2021 SCC 29, at para. 44.

And later:

47Third, this approach is in line with this court’s holding in the leading case concerning the interpretation of conveyances by deed or Crown grant: Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 129 D.L.R. (4th) 449 (Ont. C.A.). Although expressed in pre-Sattva language, the basic principles articulated in Gibbs do not vary, in any respect that is material to this case, from those articulated in Sattva. Those principles equally focus on determining the intention of the parties to the deed or grant.

49Gibbs refers to the requirement that a latent ambiguity must exist in a deed or Crown grant before extrinsic evidence will be considered: at p. 461. Sattva permits the consideration of factual matrix or surrounding circumstances in any contractual interpretation, recognizing that it may be difficult to determine intention by the words alone. In this case, this is a distinction without a difference. The test for a latent ambiguity, and thus for the admission of extrinsic evidence under Gibbs, is met in cases where the description of the land in the deed or grant, when applied to the land itself, raises an issue about the location of a boundary. Clearly, that test is met in this case.

129Repeating the question: whether it was the intention of the Crown, objectively ascertained, that the Water Lot Patent conveyed the property up to the water’s edge in 1878, which physically did not include any dry lands, or whether the Crown also conveyed land that in 1878 was upland beyond the water’s edge? In my view the former interpretation is the only one which reflects the objectively ascertained intentions of the parties, as determined by the language of the Patent read in light of the facts and the legal principles that apply:

a) The language for the description of the Water Lot in Front of Lot 106, Concession 1, Sandwich East, is described as commencing and extending to the high-water mark on the southerly shore of the Detroit River and did not include any dry land beyond the water’s edge of the Detroit River.

b) The written description and plan of the Water Lot on front of Lot 106, Concession 1, Original Township of Sandwich East, filed at Tab D of Exhibit 1, dated May 14, 1878 and signed by Fred Foster, Provincial Land Surveyor shows solid bearings and distances to define the highwater mark limit along the shore of the Detroit River described in the 1878 patent of the Water Lot.

c) Nothing in the language of the Water Lot Patent or the Plan of the Water Lot, or in correctly applying legal principles concerning boundaries, would reasonably be taken to mean that the reference to high water mark was intended to include any dry upland beyond the water’s edge at the time of the Water Lot Patent.

d) While the 1878 Water Lot patent defines a limit running along the high-water mark, it should be interpreted as abutting the upland 1803 patent to Lot 106, Concession 1. Yet the Water Lot Patent did not reference any dry upland or set out a value for such strip of land, nor is anything else in evidence provided to illustrate a transaction of such strip of land.

e) By the time of the 1878 Water Lot Patent, the Crown, under the Patent to the parent Lot 106, Concession 1, Sandwich East, filed at Tab D of Exhibit 1, granted on November 23, 1803 to Francois Meloche lands extending to the water’s edge of the Detroit River. In this instance, the Crown could not derogate from the prior 1803 Patent to include part of the upland in the Water Lot.

f) Because the Crown was granting the Water Lot to Charles Janisse, then, owner of the upland Lot 106, Concession 1, Sandwich East, it is reasonable to conclude that the Crown intended to convey the Water Lot to abut the upland parcel.

130I conclude that while the 1878 Water Lot patent defines a limit running along the high-water mark, it should be interpreted as abutting the upland 1803 patent of Lot 106, Concession 1, which extended to the water's edge of Detroit River. The first patent must govern, and I conclude that the southerly boundary of the Water Lot in front of Lot 106, Concession 1, Sandwich East, according to the Water Lot Crown Patent and the intention of the parties is the natural limit of the water's edge of the Detroit River, being an existent natural boundary created in 1803.

The next question to be addressed is as follows:

1313. Where is the northerly boundary of Plan 813 according to the plan and the intention of the subdivider?

132The shoreline limit of Plan 813 along Detroit River is illustrated by six irregular roughly parallel lines, the most southerly of which is a heavier line weight than the others. The heavier line weight is consistent with the line weight for the other lot boundaries within Plan 813, and represents the northerly boundary of Lot 1, 2, 3 and Private Park. From a plan drafting perspective, I would understand the combination of the six irregular lines to represent a graphic illustration of the waters of the Detroit River with the heavier line representing the water’s edge.

133However, the northerly boundary of Plan 813 is illustrated as a meandering line with no label as to clearly illustrate whether the measurements on the plan are to a natural feature or to a fixed boundary.

134The Surveys Act, R.S.O. 1990, c. S30 sets out instructions to surveyors for the retracement of boundaries created in the survey of Plans of Subdivision. The relevant sections follow:

Methods governing plans, other than township subdivision plans

10. A surveyor in establishing or re-establishing a line, boundary or corner surveyed under competent authority and shown on the original plan thereof, other than a township subdivision plan, is governed by sections 54 and 55. R.S.O. 1990, c. S.30, s. 10.

PART IX PLANS OF SUBDIVISION

Definition

53. In this Part,

“plan of subdivision” means a plan of subdivision that is registered under the Land Titles Act or under the Registry Act. R.S.O. 1990, c. S.30, s. 53.

True and unalterable line, boundary and corner

54. Every line, boundary and corner established by survey and shown on a plan of subdivision is a true and unalterable line, boundary or corner, as the case may be, with respect to such plan and shall be deemed to be defined by the original posts or blazed trees in the first survey thereof, whether or not the actual measurements between the original posts are the same as shown on the plan of subdivision or expressed in any grant or other instrument R.S.O. 1990, c. S.30, s. 54. Reestablishment of lost corners, etc.

55. A surveyor in re-establishing a line, boundary or corner shown on a plan of subdivision shall obtain the best evidence available respecting the line, boundary or corner, but if the line, boundary or corner cannot be re-established in its original position from such evidence, the surveyor shall proceed as follows:

56. If a part of a line or boundary is obliterated, the surveyor shall re-establish it by joining the nearest ascertainable points thereof in the manner shown on the plan of subdivision.

57. If a corner on a line or boundary is lost, the surveyor shall re-establish it by the method that accords with the intent of the survey as shown on the plan of subdivision and, if it is consistent with the intent of the survey as shown on the plan of subdivision, the surveyor shall determine the distance between the two nearest undisputed corners, one being on either side of the lost corner, and the surveyor shall re-establish the corner by dividing the distance proportionately as shown on the plan of subdivision having due regard for any road allowance, highway, street, lane, walk or common shown on the plan of subdivision. R.S.O. 1990, c. S.30, s. 55.

135The question of how these sections apply to the northerly boundary of the Private Park shown on Plan 813 depends on whether or not this limit was an existing boundary between Stanislas Janisse’s land and the Water Lot in front of it or a boundary newly created by the Plan resulting in a strip of land retained by Stanislas Janisse between a fixed limit shown on the Plan and the water’s edge of 1916.

136These sections of the Surveys Act apply to any new boundaries created by a Subdivision Plan and they do not apply to boundaries created before the registration of the Subdivision Plan. Generally, some of the exterior boundaries on a Subdivision plan may have been created prior to the Subdivision plan and, for such instances, the plan illustrates such exterior boundaries as a retracement of existent boundaries and not as a representation of new boundaries. This was addressed by the Divisional Court Judgment in Michnick v. Bass Road Beach Association, 2015 ONSC 1936 where Sacks J. analysed the decision of the Deputy Director of Titles (DDT) in an Application under the Boundaries Act:

(39) The Appellant made the same submission before the DDT. The DDT rejected the argument that s. 54 of the Surveys Act prohibited her from altering the boundaries of the owner's lots. According to the DDT:

Section 54 of the Surveys Act applies to any new boundaries created by a Plan of Subdivision. Section 54 does not apply to boundaries created before a Plan of Subdivision is registered. Typically some or all of the exterior boundaries on a Plan of Subdivision have already been created prior to the registration of the Plan of Subdivision. If they have already been created, the Plan of Subdivision illustrates these exterior boundaries as a retracement of existing boundaries.

(40) Thus, the DDT found that the application of s. 54 of the Surveys Act depended upon whether the southern boundary, as shown on the original registered plan of subdivision, was intended by the subdivider to be the retracing of an already existing boundary or whether it was meant to be the establishment of a new boundary. In the end, on the basis of the evidence before her, the DDT found that it was intended to be the former and, therefore, s.54 of the Surveys Act had no application.

137The judgments in Walker et al. and Attorney--‐General for Ontario 1970 CanLII 953 (ON HCJ), [1971] 1 O.R. 151, 14 D.L.R. (3d) 643, Attorney General of Ontario v Walker, 1972 CanLII 31 (ON CA), 1972 CanLII31 (ON CA) and Attorney General of Ontario v. Walker, 1974 CanLII 3 (SCC), [1975] 1 SCR 78 are clear that, unless a deed contains a clear statement of an intent to retain ownership of the beach, it must be concluded that the intention was to convey a property to the water limit as owned by the grantors and not to retain any land between that property and the water. The Supreme Court of Canada confirmed with Walker case that in Ontario the common law principle applies, that in the case of inland, non‐tidal waters, a boundary of water is the water’s edge, not a bank or high water mark, unless a space is reserved by description or on an original plan of survey.

138I also reviewed Ellard v. Township of Tiny, 2012 ONSC 280, 2012 ON SC 280 Ontario Superior Court of Justice (Divisional Court), Tiny (Township) v. Battaglia, 2013 Ontario Court of Appeal 274 and Lackner v. Hall, 2012 ONSC 3951 and Lackner v. Hall, 2013 Ontario Court of Appeal 631. Ellard, Battaglia, and Lackner are all addressing issues related to the registration of Plans of Subdivision adjacent to non‐tidal bodies of water, during a period of time when the Ontario Crown policy was that a water boundary was the High Water Mark, contrary to the law confirmed in Walker case. These cases do not apply to the context of Plan 813, which was registered in 1916, well before the adoption of such policy.

139In the application before me I have already concluded that there is evidence that at the time of registration of the Plan of Subdivision, the ownership of the lands underlying the Plan, extended to a boundary of water with no described reservations or clear exceptions or reservations on an original plan of survey. The intention of the landowner to lay out the land shown on Plan 813, being the subdivision of a portion of Farm Lot 106 Concession 1 into Lots and Streets was confirmed and legally put into effect upon the transfer of the Lots and the registration of such conveyances in the Land Registry Office. The owner of all lands in Plan 813 at the time of registration was Stanislas Janisse. He signed the Owner’s Certificate on the face of the plan, which stated: “I hereby certify that this land was laid out and Plan prepared according to my instructions.” The Owner’s Certificate makes no mention of a dedication of the Private Park to public use.

140A complete history of the transfers of all the Lots in Plan 813, was not submitted in evidence. However, the testimony of Andrew Mantha, OLS and his report, both indicate that the original deeds to various lots issued and signed by Stanislas Janisse are clear in defining the limits of the Park as "Rossini Park lying between Sandwich Street and the Detroit River as indicated on said Plan of Subdivision and that "the purchaser" shall not pledge or in any way dispose or incumber his interest in the said Rossini Park separately from the lands heretofore conveyed". The same wording appears in the deeds for Lot 1, Plan 813, registered as Instrument FC1163, filed at Tab C3 of Exhibit 1, and for Lot 2, Plan 813, registered as Instrument FC8860, filed at Tab C4 of Exhibit 1, as well as in other original deeds signed and issued by Stanislas Janisse such as Instrument FC1234, filed at Tab C1 of Exhibit 1.

141The Lots on Plan 813 were sold with a description simply referencing the Lot numbers and Plan 813. Purchasers of the 48 numbered lots described in Plan 813 also received a 1/48th interest in the lot labelled as "Private Park", the apparent intention being that the owners of the numbered lots would share the ownership of the "Private Park" thus acquiring the benefit of access to and enjoyment of the river.

142Plan 813 shows the same continuous feature for the northerly boundary of the plan across Lots 1, 2, 3 and the Private Park. There is no distinction for the park boundary as compared to the boundaries of those Lots and there is no evidence before me indicating a gap between those Lots and the corresponding abutting portions of the Water Lot.

143My earlier conclusions on the review of the 1803 patent of Lot 106, Concession 1, and the 1878 patent of Water Lot must apply equally to the interpretation of Plan 813 and subsequent conveyances of the Lots on this Subdivision Plan. There were no reservations of a space along the shore in either the patent or subsequent conveyances.

144The only evidence presented regarding Stanislas Janisse’s intention for the Private Park was as illustrated and stated on Plan 813 and in the descriptions of the original deeds to various lots issued and signed by Stanislas Janisse. I take this to be a clear indication of Stanislas Janisse’s intention with regard to the Private Park lying adjacent to Detroit River.

145In other words, with the evidence analysed using the Walker case, I conclude that Stanislas Janisse, the subdivider for Plan 813, owned the upland to the ambulatory water’s edge at the time that the Plan was registered and also owned the adjacent Water Lot to the north extending to the natural limit of the water's edge of the Detroit River. I conclude that the Private Park was intended to provide access to, and enjoyment of, the river for the benefit of the back-lot owners, and that the subdivider intended to subdivide all of the Lot 106, Concession 1, lands that he owned to its northerly boundary. I also conclude that the northerly boundary of Plan 813 according to the plan and the intention of the subdivider is the natural limit of the water's edge of the Detroit River, being an existent natural boundary created in 1803, to which the sections of the Surveys Act do not apply.

146Before moving to the next question, I would like to address the nature of the riparian character and the validity of the accreted land in the proximity of the disputed boundary that have come into question during the hearing as a result of the filling activities carried out by the owner of Lot 1, Plan 813, between 1931 and 1944, to extend his land toward the Water Lot and to protect that work by a timber retaining wall, or by any other persons (including possibly owners of Lots 2 and 3) dealing with the filling of the Park lands.

Riparian considerations

147It was submitted, by Andrew Mantha, OLS, that the parcel of land owned by the Applicant is a riparian parcel and that the entitlement to accretion is a riparian right.

148I will quote, for reference, paragraph 6.01 of Survey Law in Canada (1989: Carswell) in part: “…These riparian rights arise where the land adjoins water. Direct right of access to the water at all points along the water frontage is inherent in the riparian right and there is a property right to the water irrespective of the ownership of the land under the water. A riparian proprietor of the upland enjoys rights of use of the water as to quantity and quality, as to flow and as to drainage,” …

149I will further reference Legal Aspects of Surveying Water Boundaries (1996: Carswell), pp 125-127, where it states, in part:

150“It is the upland that is riparian, not the bed. In the leading English decision of Lyon v. Fishmongers’ Co. (1876), cited in Snow v. Toronto (City) (1924), Lord Shelbourne stated:

With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights properly so called, because the word “riparian” is relative to the bank, not the bed, of the stream; the connection, when it exists, of property on the bank with property in the bed of the stream depends, not upon nature, but on grant or presumption of law.”

“Again, in the Supreme Court of Canada decision in Attrill v. Platt (1884):

A title to the bed of the river is clearly not requisite to entitle a proprietor of the bank to use of the water; the case of Lyon v. Fishmongers’ Company [L.R. 1 H.L.C. 662], expressly decides that the lateral or riparian contact of the land with the water is sufficient to entitle the landowner to his right though he may own no part of the bed of the stream.”

“A corollary to these aspects of water contact, but not ownership of the bed, is that the riparian nature of the upland is founded on access to the water, a feature that was brought out in Snow v. Toronto (City), …”

“Riparian rights are treated by the law as natural rights, like the air we breathe; the rights are not, in English law, open for appropriation or for exclusive possession. Attached to the upland proprietorship, they are incorporeal rights in the nature of servitudes over, for instance, the foreshore of the sea which remains in the ownership of the Crown, but which may be granted. There is no ‘foreshore’ in the legal sense on inland non-tidal waters.”

151I agree with the Applicant’s submission that Lot 106, Concession 1, Sandwich East, as patented, was created, as a riparian parcel but no Canadian ruling was provided stating that a riparian parcel must forever be given access to every portion of its initial riparian frontage as to support the Applicant’s argument that as riparian owners, they are entitled to the accreted and the filled lands as shown on the proposed Boundaries Act plan. I refer, in this respect, to the review of law made by J. S. Cotterill in a Boundaries Act decision, (file B-1201). Although prior decisions under the Boundaries Act do not create precedents, this review of law highlighting the difference between Canadian and American authorities, made by Mr. Cotterill, is relevant concluding that a riparian parcel may, in certain circumstances, cease to be riparian, and states, in part:

“In reference to the Queen's County case La Forest writes; "A riparian owner's privilege was subject to changes of nature; the right of access was not the underlying basis of accretion".

“The Supreme Court of Canada specifically considered American authorities in treating the complex problem which arose in this case where accretion attached to an island and subsequently cut out the access to water previously enjoyed by another riparian owner when that accretion eventually connected the island to the mainland. The opinion of the court was expressed as follows;

Per Kerwin and Hudson JJ.: "As a riparian owner, the respondent, or his predecessors, had certain rights at one time, among them being that of access to the river. "The rights of a riparian proprietor, ... , exist jure naturae, because his land has, by nature, the advantage of being washed by the stream: ... " (Lyon v. Fishmonger's Company [1875-76] 1 A.C. 662, at 682). But, once the advantage of being washed by the water is put an end to by an act of nature, this right of access disappears, as it has disappeared in this case. Then, no question of public policy can interfere with the title which, so far as the parties hereto are concerned, has been acquired by law by the appellant Municipality."

And further;

Per Hudson and Estey JJ.; "The riparian owner's rights are subject to the changes affected by nature. So long and to the extent that nature continues the riparian owner as such, he enjoys riparian rights, but nature or the act of any person in the exercise of his rights may from time to time alter or even destroy those of a riparian owner. -In the present case, the relative positions of the appellant Municipality and the respondent have thus been determined by nature: the first has been fortunate, while the latter unfortunate."

“The court went on to say, in respect of the American authorities:

It will therefore be observed that in the United States there is not uniformity of decision. .... It would appear that in a country such as Canada, where we have large rivers and many islands large and small, the common law rule should be adhered to and if in a given locality the circumstances are such to make some other rule desirable the matter should be dealt with by legislation."

“My reading of the American cases referred to in Andriet and in Queen’s County clearly shows that in some American jurisdictions, continued access to water has been determined to be the prime consideration (in some states confirmed by statute) and this can result in accretions being awarded to lands other than those to which they attach and to inequitable divisions of accretion. “

“A careful review of Queen's County together with all of the cases referred to by the court therein persuades me that continued access to the waterway is not the prime concern in Canadian law. It is clear to me that the Supreme Court rejected that notion, which has been endorsed in several American states, in favour of the principle that accretion belongs to the parcel to which it attaches and that the actions of nature can and do sometimes cause a riparian parcel to be cut off from water and therefore cease to be riparian.”

152I conclude, based on the above review of law that a riparian parcel may, in certain circumstances, be cut off from water and therefore cease to be riparian.

153Counsel for the Objector submitted that the Park ceased to be riparian because there is a privately owned Water Lot in front of it.

154Re Snow and City of Toronto 1924 CanLII 393 (ON SCAD), 56 OLR 100 (1924) is one of the Ontario Court of Appeal cases that dealt with boundaries of Water Lots expropriated by the City of Toronto. In Snow, Mrs. Snow owned both the upland and Water Lot parcels, and at the time of expropriation natural accretion covered part of the Water Lot lands. The Court concluded that “the part of the lands not now covered by water and which may be permanent accretions should be considered as being part of Mrs. Snow's land-lot and valued as such.” Therefore, it was determined that natural accretion extended the upland Lot and diminished the Water Lot.

155Based on the above, I do not accept the Objector’s submission that the Park ceased to be riparian because there is a privately owned Water Lot in front of it.

The mechanics of accretion

156The mechanics of accretion are reviewed in Chuckry v. The Queen in right of the Province of Manitoba 1973 CanLII 134 (SCC), [1973] S.C.A. 694, [1973] 5 W.W.R. 339, 35 D.L.R. (3d) 607,4 L.C.R. 61, reversing 1972 CanLII 962 (MB CA), [1972] 3 W.W.R. 561, 27 D.L.R. (3d) 164, 2 L.C.R. 249 (Sub. nom. Re Chuckry v. R.):

“For accretion to have occurred it must be the result of a well-understood mechanism operating in a definite way. This mechanism can take one of two forms or be a combination of both. These are: the retreating of the high-water line away from its former position, thus exposing land that was until then submerged; or the build-up of land through the process of alluvium, thus pushing back the high-water line: A.-G. B.C. v. Neilson (1956), 1956 CanLII 62 (SCC), 5 D.L.R. (2d) 449 at p. 455, [1956] S.C.R. 819, per Rand, J.; Re Bulman (1966), 1966 CanLII 633 (BC SC), 57 D.L.R. (2d) 658 at p. 662, 56, W.W.R. 225, per Ruttan, J.”

“The second requirement is that the process operates slowly and gradually so that the land growth is imperceptible. If any additions are made as a result of flooding they must be those that would occur in the natural course of events: Clarke v. City of Edmonton, [1920] 4 D.L.R. 1010 at pp. 1014 and 1019; [1030] S.C.R. 137; Re Bulman, Supra at p. 662; 230; Bruce v. Johnson, 1953 CanLII 306 (ON HCJ), [1954] I D.L.R. 571 at p. 576, [1953] O.W.N. 724.”

157As a physical process, accretion is also described by David W. Lambden and Izaak de Rijcke in Legal Aspects of Surveying Water Boundaries (1996: Carswell), Chapter 5. Of particular interest is the definition of terminology used at pp. 179:

“’Dereliction’ (a noun) is an accretion of dry land gained by the gradual receding of waters. (‘Reliction’ is an American term recorded as obsolete in the Oxford Dictionary.) The recession or withdrawal of waters from the upland as the result of seasonal changes in water level, or of longer term climatic changes such as drought conditions, is an aspect of boundary shift that is treated by the courts in the same manner as accretion; the term appears to be used only to explain the cause. The riparian right of access to the water continues. Similarly, ‘diluvion’ is the term for the slow advance of the waters onto the upland.”

158The Objector submitted the judicial consideration of many cases reviewed by Lamont J. in Clarke v. Canada (Attorney-General), 1929 CanLII 38 (SCC), [1930] S.C.R. 137 in order to determine what constitutes accretion:

“The term accretion denotes the increase which land bordering on a river or on the sea undergoes through the silting up of soil, sand or other substance, or the permanent retiral of the waters. This increase must be formed by a process so slow and gradual as to be, in a practical sense, imperceptible, but which is meant that the addition cannot be observed in its actual progress from moment to moment or from hour to hour, although after a certain period, it can be observed that there has been a fresh addition to the shore line. The increase must also result from the action of the water in the ordinary course of operations of nature and not from some unusual or unnatural action by which a considerable quantity of soil is suddenly swept from the land of one man and deposited on, or annexed to the land of another.”

and further concluded that:

“all accretions formed gradually and imperceptibly in the ordinary course of the natural operation of the water became the property of the owner of the land to which the accretion became attached, but if an accretion was the result of a sudden and considerable accumulation of soil, it could not be claimed by the riparian owner against whose land it accumulated.”

159The Objector submitted that the riparian aspect and the ambulatory nature of the disputed limit have been affected by the 1931 to 1944 filling activity and any subsequent filling activities, as they may relate to the issue of the northerly extent of the Private Park across the accreted lands. All parties before me through their experts agreed that fill was deposited over the whole site.

The next question to be determined is:

1604. Was the fill material deposited only on dry land, or was it also deposited in the water so as to raise the bed of the river above the water and displace or shift the water’s edge from its location immediately before the filling activity?

161In comparing Plan 813 with the draft plan of survey prepared by Andrew Mantha, OLS in support of this application, I am aware of a substantial difference in the depth of the Park as a result of accepting the water’s edge as of the day of survey as defining the northerly limit. Instead of a depth of 147 feet along the easterly limit of the Private Park and a depth of 105 feet along the westerly limit of the Private Park, the Private Park according to the application plan would have a depth of 213.94 feet along the easterly limit and approximately 192 feet along the westerly limit.

162The 1931 aerial photograph, filed at Tab C of Exhibit 3, and the 1944 Plan of Survey by Orville Rolfson, OLS, filed at Tab L of Exhibit 1, sustain the submission of the parties that the property under application was subject to an artificial process of filling in the vicinity of Lot 1, Plan 813, somewhere in between 1931 and 1944. The Applicant’s surveyor, Andrew Mantha, OLS, also suggested that the Park was subject to an additional process of filling possibly again around the 1960s. The Geological Investigation Report, filed as Exhibit 4, shows that the entire property under application was subject to an artificial process of filling showing that the depth of the fill and topsoil material varies between 0.00 metres and 2.05/2.50 metres at the test hole locations.

The artificial process of filling

163The term filling describes the process for the physical deposit of soil material upon an existing ground. A sudden deposit of fill material along the water's edge done to artificially extend the dry upland out into the water, such as to raise part of the bed of the water body above the water, results in a sudden horizontal shift of the water’s edge. This is contrary to the slow and imperceptible requirement for accretion, and it is viewed that the physical water’s edge is displaced from the boundary location of the riparian property. On the other hand, the placement of fill material limited to the dry upland will not change the position of the physical water’s edge from the movable boundary and such lands will still have the benefit of accretion caused by fluvial deposits.

164In seeking clarification as to how the courts have dealt with the physical deposit of soil material upon an existing property, I reviewed the case Attorney-General (Upper Canada) v. Perry (1865), 15 U.C.C.P. 329 which considered Attorney-General v. Chambers (1859), 4 De G. & J. 55, 45 E.R. 22, where Richards, C. J., delivered the judgment of the court and stated:

“If the Queen owns the shore, then of course any accretion to it belongs to the Crown; but if the shore be owned by a private person, then the accretion belongs to the subject so owning the shore. But if from some convulsion the sea suddenly recedes, and leaves a large portion of the bed of the sea permanently disclosed, then it is said the land so uncovered belongs to the Crown, by virtue of the former ownership of such land.”

165The Perry case described the process of filling to be among those actions where the bed is suddenly raised above the water and the ownership remains with the owner of the bed prior to such event as follows:

“The defendant himself has, by artificial means, not by the gradual accretion from day to day, but more like the effect of the sudden upheaving from a convulsion, raised the land of the Crown from the bottom of the lake to and above its surface: the buildings and the piering must be considered as affixed to the soil of the Crown. It does not cease to be the soil of the Crown from anything the defendant has done, and I see no reason why the defendant may not be removed from the possession of the property of the Crown upon which he has encroached.”

166I also considered the case of Ennisclare on the Lake Limited v. Preston Glen Corporation (1983), unreported decision of Blair, Co. Ct. J, January 20, 1983, C.C.O.M. 1659/82; hearing pursuant to appeal as dismissed in (1982), 1982 CanLII 1883 (ON HCJ), 39 O.R. (2d) 154, 25 R.P.R. 272, 139 D.L.R. (3d) 344 (Co. Ct.). The initial case Ennisclare on the Lake Limited v. Preston Glen Corporation, (1982), 39 OR, (2d) 154, 25 R.P.R. 272, 139 D.L.R. (3d) 344 (Co. Ct.) dealt with the appeal of the title issues determined through a hearing for an application for first registration under the Land Titles Act, and ordered a trial de novo on the facts dealing with the extension of the property.

167The Ennisclare judgement referenced A.G. v. Perry (1865) 15 U.C.C.P. 329, Re Hall and Selby Rail Company [1839] 5 M. & W. 327 and Brighton and Hove General Gas Co. v. Hove Bungalows Ltd., [1924] 1 Ch. 372, (particularly Romer, J. at 386,388,389,390,391) and concluded that the process of filling, lawfully done by an owner over dry land to protect a property from being eroded, and without an intention to create an accretion, in combination with natural accretion, can maintain an ambulatory water’s edge and can result in an extension of the upland riparian property.

168Counsel for the Objector referenced the decision of Morgan, J. in Mihaylov v. Long Beach Residents' Association, 2018 ONSC 14 at para. 37 and 38:

“With due respect, there is a significant difference between a naturally occurring change in the shoreline and a manmade landfill that extends from the shore into an area that previously was fully part of a lake. The very term used for a recognized change in the boundary of a lakeshore lot – accretion – suggests a slow, gradual process of receding waters, and not an engineered process that takes place as part of a construction project.”

“Leading authors have opined that an accretion to property abutting a lake or waterway must be a naturally occurring phenomenon and not an artificially created landfill: Anne W. LaForest, 2 Anger & Honsberger Law of Real Property, 3rd ed. (Toronto: Canada Law Book) §19:20.80. The Disputed Lands were once simply water and were part of the water lot. They are now filled in with gravel and are effectively dry land, but they are still part and parcel of the water lot.”

169Counsel for the Objector, further, submitted in reference to Red Carpet Inns Ltd. v. Ontario, [2004] O.J. No. 2768 that intentional and unauthorized fill does not change the prior character of the Park and that the filling on the Water Lot was sudden and substantial and perceptible and was therefore, not accretion. Counsel for the Objector contended that the Applicant's surveyor is incorrect in stating at page 11 of his Survey Report that "The only possible exception for not holding the current water's edge as best evidence of the park limit would be if the limit could be identified as an area of artificial fill jointly put in by the 48 title holders of the Park…" submitting that “…there is no requirement for all of the owners of the Park to have jointly filled on the Water Lot nor is there a requirement for the filling to have been done by any owner of the Park.”

170The above case law concludes that the placement of the fill on the bed of a water body to extend the upland into the water is contrary to the rule of slow and imperceptible change required for accretion to take place, having the end result of fixing the boundary position at its last known location prior to such event. On the other hand, the placement of fill material limited to the dry upland will not have an impact on the movable boundary and such lands will still have the benefit of accretion. The case law indicate that the natural process and movable character of a water boundary can be influenced by the artificial process of filling. The fact to be determined, is whether the fill material was only placed on accreted dry land or was also placed on land covered with water.

171As previously stated, the 1931 aerial photograph, filed at Tab C of Exhibit 3 by the Objector, and the 1944 Plan of Survey by Orville Rolfson, OLS of Lot 1, Plan 813, filed at Tab L of Exhibit 1 by the Applicant, indicated, as agreed by both parties, that fill material was added sometime between 1931 and 1944, in the vicinity of Lot 1, Plan 813.

172The Geological Investigation Report, filed as Exhibit 4, shows that the entire property under application was subject to an artificial process of filling showing that the depth of the fill and topsoil material varies between 0.00 metres and 2.05/2.50 metres at the test hole locations.

173The Applicant claims ownership to the current water’s edge and alleges that the disputed land is the result of accretion because fill was limited to the dry land. It must be determined whether the surveyor for the Applicant correctly proved and applied the doctrine of accretion.

174In the application before me, the Objector submitted that the onus of establishing that accretion occurred falls on the landowner who claims the benefit of it. Reference was made to the statements provided by Locke J. in British Columbia (Attorney General) v. Neilson 1956 CanLII 62 (SCC), [1956] S.C.R. 819 (S.C.C.):

“The onus rested upon the respondent to establish that, prior to the construction of the Ladner Ferry Road, the area in dispute had through accretion ceased to be the property of the Crown. To establish this, it was necessary for him to show that at that time the area was not overflowed by the water of the river at ordinary tides, so construed. This has not been shown and that is decisive of the matter against the respondent, in my opinion.”

175A sudden change in the course of a body of water, caused by human interference, is distinguishable from accretion. The onus of proving accretion, being on the person alleging it, is also discussed by Federal Court, Trial Division in Port Franks Properties Ltd. v. R. (1979), 1979 CanLII 2569 (FC), 99 D.L.R. (3d) 28 (Fed. T.D.):

“The onus rests on the plaintiff to establish on a balance of probabilities what land was included in Peninsula No. 2 in 1903 and 1905 and what has happened to the land from that date to the present. The deed to Peninsula No. 2 contains no metes and bounds description. The plaintiff has led no evidence that is of assistance to the Court either in ascertaining the exact size, shape or location of Peninsula No. 2 at any point in time or in establishing on a balance of probabilities that the changes which the plaintiff alleges did in fact occur. There is no persuasive evidence that the river crossed in front of the reserve at some point between 1826 and 1900.”

and further concluding:

“I find that the plaintiff has not met the onus that rests upon him to establish on a balance of probabilities based on credible evidence that accretion has occurred.”

176While the parties do not agree on where the fill was placed or who has the onus of establishing that accretion occurred, they agree on the legal standard, applied in this case for deciding the outcome of this matter.

177I have concluded that no land additions or improvements in the form of timber walls or other walls can be identified on the 1931 aerial photograph, filed at Tab C of Exhibit 3, related to Lot 1 or the Private Park, Plan 813. I also conclude that the 1931 aerial photograph illustrates Lots 2 and 3 as being substantially extended to what seem to be a wall feature erected between the dry land and the water, well beyond the shoreline shown for Lot 1 and Private Park. I agree with Andrew Mantha, OLS that it is reasonable to conclude the existence of a beach area roughly illustrated on this photograph on the north side of the Private Park, Plan 813. No evidence related to the extension of Lots 2 and 3 prior to 1931 was entered or presented during the hearing. All other aerial photographs entered in evidence provided no conclusive clarification that would assist the tribunal to determine when and where fill material was deposited over the Private Park.

178The 1944 Plan of Survey by Orville Rolfson, OLS of Lot 1, Plan 813, filed at Tab L of Exhibit 1, is the first evidence that indicates that Lot 1 was extended between 60 to 70 feet to a timber wall marking the edge of water of the Detroit River in 1944. I have concluded, as agreed by both parties, that fill material was added sometime between 1931 and 1944 to Lot 1 and to the Park in the vicinity of Lot 1, Plan 813.

179The draft Boundaries Act plan in support of the application illustrates that, between 1944 and 2018, Lot 1, Plan 813 was further extended by an approximative 9.8 feet to the current 0.4-foot-wide break wall constructed in front of Lot 1 and the westerly portion of the Park. The first plan to illustrate a different break wall in front of Lot 1 is the Plan of Survey by VSHBB dated Oct 22, 1991 filed at Tab K of Exhibit 1, suggesting that Lot 1 was further extended approximately 9.1 feet between 1944 and 1991.

180It was suggested by Andrew Mantha, OLS, that the property under application was subject to an additional artificial process of filling somewhere around the 1960s. He submitted that he has no record or evidence showing who was involved in the construction and the extension of the timber wall or in the construction of the current break wall in front of Lot 1 and the westerly portion of the Park, or in the placing of stones in front of the Park. He clarified that he believes that all these improvements were part of the work undertaken by the owner of Lot 1, Plan 813 and this is reflected in the 1960 letter signed by Mr. Braun, a predecessor in title of Lot 1, filed at Tab J of Exhibit 1, where it is acknowledged: “With respect to the Rossini Park Association Lot adjoining on the East of my property at 4182 Riverside Drive, this is to state that any work done or material supplied by me to the park lot should not be construed as an effort on my part to assert any interest or right in the said park lot other than that disclosed in the deed of my property to me.” On cross-examination Andrew Mantha, OLS, interpreted the letter to mean that Mr. Braun would not make any possessory claims in the interest of the Park and not necessarily as a statement of construction in 1960 on behalf of the Park. He stated that the fill was probably not placed by the Park Association but by the owner of Lot 1 in his efforts to extend his uplands. On cross-examination, he also agreed that the Park Association is not the owner of the Park and Mr. Braun, the predecessor owner of Lot 1, Plan 813, was, in fact, a co-owner of the Park at that time.

181I have considered the evidence and testimonies and concluded that there is nothing to support that the property under application was subject to an additional artificial process of fill somewhere around the 1960s. The evidence only supports that an additional artificial process of fill extending the timber wall to a break wall by approximately 9 feet, took place sometime between 1944 and 1991 within Lot 1 and possibly affecting the Private Park.

182Evidence further illustrates that in 1945, by a Plan of Survey showing Lot 3, Plan 813 and fill in Front thereof in the Town of Riverside, CGR Armstrong, OLS, recognized that the altered northerly limit of Plan 813 was by fill and not accretion.

183The next survey evidence to illustrate the addition of fill is the plan dated Oct 11, 1983, filed at Tab M of Exhibit 1, by John Smeeton, OLS, of Lot 2, Plan 813 and Part of the Water Lot in front of Lot 106, Concession 1 (McNiff) and the Surveyor’s Real Property Report of Lot 2, Plan 813 and Part of the bed of the Detroit River in Front of Lot 106, McNiff’s Survey, Concession 1, by VSHBB dated Aug 12, 1991 is filed at Tab M of Exhibit 1. Andrew Mantha, OLS, submitted that Lot 2 has similarly been extended out between 100-130 feet beyond the original limit through the construction of a boat house and steel retaining wall since at least 1983. The 1991 plan illustrates the present water’s edge along a new 0.7 foot wide steel break wall and around a boat lift with roof and the approximate location of an old break wall confirming that the dry land included in this property was further extended between the 1983 survey by John Smeeton, OLS, and the 1991 VSHBB survey.

184The Applicant’s surveyor indicated in his initial report filed with Exhibit 1:

“The slope would seem to support the assertion that this is natural accretion as there is no evidence of artificial structures extending the use of the park out into the water lot. In fact, there is no evidence of artificial fill except that done by the adjoining owners.”

185However, after reviewing the reports filed in support of the objection, Andrew Mantha, OLS agreed, in his additional submission filed as Exhibit 2, that the evidence overwhelmingly shows that there was fill added to the Private Park site, but maintained that this fill was added to the sand beach which comprises part of the Park and was not extending out into the Water Lot.

186Andrew Mantha, OLS submitted that the version of the northerly limit of the Park subject to his submission would reflect the best representation of the contested boundary under application, the area in dispute being the result of accretion and concluded that “the current water's edge is the result of construction on either side of the park which has caused the area immediately north of the park to fill in over time”. But to establish this, it was necessary for him to make a determination of fact that fill was added to dry, accreted land of the Park and not placed in the waters of that part of the Water Lot located to the north of the Park.

187Andrew Mantha, OLS, submitted two web pages from Michigan Department of Environment, Great Lakes, and Energy (EGLE) titled 2019 High Water Levels Information for the Great Lakes attached to his supplementary report filed at Exhibit 2 where he indicated that:

“the current limit of the water's edge shown on our application plan is the highest limit since 1986 according to the Great Lakes water level datum. There is no conceivable way it could have been 2.5m higher as stated in the core sample report at the time that Registered Plan 813 was prepared in August of 1916.”

188No detailed exercise or explanation was undertaken to show how he reached the above conclusion and how the above mentioned water levels attached to his supplementary report provided for the Applicant are applicable at this location at the time fill material is presumed to have been added between 1931 and 1944.

189The elevations illustrated on the topographic plans entered in evidence cannot simply be compared to the water levels entered as Exhibits 8 and 9. The topographic plan filed at Tab P of Exhibit 1 indicates that the elevations are referenced to the Canadian Geodetic Datum, but the Site Benchmark note indicates that elevations are referenced to an assumed elevation of 100.00 implying a local vertical datum. The plan showing borehole locations on the Private Park, prepared by Clarke Surveyors Inc. filed with Exhibit 5, illustrates a table of elevations for each borehole but it is not clear to which Datum these elevations are referenced. The plan showing site features of Municipal Numbers 4220, 4240 and 4290 Riverside Drive prepared by Clarke Surveyors Inc. filed with Exhibit 5 indicates that elevations shown on this plan are based on the Canadian Geodetic Datum.

190The Geological Investigation Report, filed by the Objector as Exhibit 4, shows that the entire property under application was subject to an artificial process of filling showing that the depth of the fill and topsoil material varies between 0.00 metres and 2.05/2.50 metres at the test hole locations. The report indicates that the actual locations of the boreholes were surveyed by Clarke Surveyors. The report further indicates that Clarke Surveyors also determined the geodetic ground surface level at each borehole location and that the depths and elevations presented in this report were derived for the sole benefit of the geological analysis and stratigraphic evaluation by the geotechnical/geological engineer. The report, however, did not conclusively determine when the fill material was placed or if it was only placed on dry land.

191As outlined earlier, on the Great Lakes, chart datum elevations are presently referenced to IGLD 1985. To be consistent to published recorded water levels, such as those entered as Exhibits 8 and 9, all elevations on topographic plans or reports should have been converted to IGLD 1985 Datum. This exercise was not done by the parties or clarified during the hearing.

192Therefore, subsequent to the hearing, I invited both parties through their experts, by letter dated March 05, 2021, filed as Exhibit 13, to undertake a review, and to provide details of the trends of the rising and falling of the water levels over the periods in question when fill material was added to the site, and in particular in the ranges that effect the subject area between 1931 and 1944.

193As a result of my letter dated March 05, 2021, the Supplementary Information Related to the Geologic Investigation for Historic Detroit River Shoreline at Rossini Park was filed by the Objector as Exhibit 22, together with revised original ground elevation values at the boreholes at the time of the filling event, and water level values during the 1931 to 1944 period all analysed and converted to IGLD 1985 datum. The original ground elevations at the time of the filling event were provided with Exhibit 22 as Table 1 called the list of IGLD Underside of Fill Elevations (from Clarke survey to IGLD 1985). The applicant did not disagree or refute this data.

194The Site Map, attached as Appendix ‘C’, is adapted from drawing 5 of Exhibit 4, filed by the Objector, (where the approximate location of the application boundary according to Andrew Mantha, OLS, is coloured red; and the location of the Objector’s boundary according to Ross Clarke, OLS, is coloured yellow). I have added the underside of fill/original ground elevations at each borehole, according to IGLD 1985 Datum together with the corresponding depth of the fill, in red lettering. I have examined the various elevations for the purpose of plotting the minimum and maximum water elevations as they existed at various times, particularly between 1931 and 1944. They indicate a regular and constant movement of the water’s edge over the disputed area. Although some borehole elevations for the underside of the fill are higher than the lowest water level and some are higher than the highest water level, they are consistent with the range of water level elevations provided showing that between the years 1931 and 1944, at the location of Rossini Park, the IGDL 1985 water elevations ranged between a maximum of 175.54 metres and a minimum of 174.41 metres. The borehole elevations for the underside of the fill material are consistent with the range of water level elevations provided between 1931 to 1944. The significant boreholes elevations (converted to IGLD 1985 Datum) marking the underside of the fill are F10 (175.89), F11 (175.07), F13 (174.54), F15 (175.06), D10 (175.40), D11 (176.42), D13 (174.55), and B10 (175.49), B11 (175.91), B12 (176.73) and they can be seen on the site map attached as Appendix ‘C’, lettered in red.

195I observe that while elevations of the underside of fill at the boreholes in the disputed area, (the area lying between the boundary by Ross Clarke, OLS and the boundary by Andrew Mantha, OLS), are within the range of the water level variations over the period of 1931 to 1944, the range of possible levels is too large to determine the elevation of the water, at the time of the filling, without knowing more precisely when the fill activity occurred.

196Strictly referencing the measured underside of fill elevations without considering the effects of the wash of the water on the original surface:

• the original ground at borehole locations F15, F13, D13, F11, D10, and B10 (circled by blue outline in the Site Map would have been both below and above water during the 1931 to 1944 period. Borehole locations D10 and B10 are located to the south of OLS Clarke’s boundary, while F15, F13, D13, and F11 are located to the north of it.

• the original ground at boreholes B12, D11, and B11 (circled by orange outline in the above Site Map) would have always been above water during the 1931 to 1944 period, all three points lying to the north of OLS Clarke’s boundary and also north of borehole locations B10 and D10, and

• similarly, the original ground at borehole locations F10, F9, D9, B9, F8, D8, B8, D7, B7, D6, B6, B5 and B3 (not circled in the above Site Map) would also have always been above water during the 1931 to 1944 period; all points lying to the south of OLS Clarke’s boundary.

197It is, further, noted that if the fill material was deposited when the water level was at its lowest elevation during the 1931 to 1944 period, (174.41 metres), it is apparent that the water’s edge would have been to the north of the most northerly borehole sites, (F15, F13, D13, and B12), thus supporting OLS Mantha’s position. This result would also apply to any water level between 174.41 metres to 174.53 metres at the time of fill material deposit.

198Alternatively, if the fill material was deposited when the water was at its highest elevation during the 1931 to 1944 period, (175.54 metres), it is apparent that the water’s edge would have been to the south of borehole locations F15, F13, F11, D13, D10, and B10; which would have been below water, and at which fill was determined to have been deposited; thus contradicting or defeating OLS Mantha’s position. This result would also progressively apply to any water level between 174.54 metres to 175.54 metres at the time of fill material deposit.

199The elevations of the underside of fill also illustrate the condition of the Private Park site pre-filling being a rough and uneven terrain with abrupt changes in elevations: (1.02 metres between D11 and D10), (1.87 metres between D11 and D13), (1.24 metres between B12 and B10), (0.68 metres between B10 and B9), (1.08 metres between D6 and D7), (2.51 metres between B3 and B7) and (1.35 metres between F10 and F13). B12 is the only borehole noted north of Ross Clarke’s boundary displaying a fill depth of 0.00 metres (no fill) and with abrupt changes in elevations of 2.18 metres between B12 and D13.

200The Supplementary Information Related to the Geologic Investigation for Historic Detroit River Shoreline at Rossini Park, Windsor, Ontario determined that between the years 1931 and 1944, at the location of Rossini Park, the IGDL 1985 water elevations ranged between a maximum of 175.54 metres and a minimum of 174.41 metres, and shows that the underside of the fill material is consistent with the range of water level elevations provided between 1931 to 1944.

201With respect to Lots 1, 2, and 3, Plan 183, and the abutting portions of Water Lot, I conclude from the surveys and plans and the 1931 aerial photograph, together with the Exhibit 22 material and the range of river water level elevations as they affected the northerly extension of the Private Park lands, that the owners of Lots 1, 2, and 3, Plan 183, extended the dry lands in front of those Lots well beyond the location of the water’s edge at the low water levels, by the deposit of fill material into the waters of the Detroit River to raise the bed of the abutting portions of the Water Lot.

202The Applicant did not provide any clarification to my letter dated March 05, 2021, filed as Exhibit 13. I was not satisfied that fill was added only to the dry land of the Park without extending it out into the adjacent Water Lot. I find that the surveyor for the Applicant had not establish based on conclusive and supportive evidence that accretion has occurred as to prove the proposed boundary.

203With respect to the Private Park, the lands which are the subject of the application before me, I conclude that the surveys and plans and the 1931 aerial photograph, together with the Exhibit 22 material and the range of river water level elevations as they affected the northerly extension of the Private Park lands, do not definitively, or sufficiently, clarify when the filling activity took place on the Private Park lands, or whether the fill material was only deposited on dry land or was also deposited in the water so as to raise the bed of the river above the water and displace or shift the water’s edge from its location immediately before the filling activity.

204Subsection 9(1) of the Boundaries Act allows the Director of Titles to order that the draft plan submitted with the application be amended and to then confirm a boundary in the location as shown on the amended plan. However, this is a practical alternative when sufficient evidence is presented at a hearing to allow the Director to establish a disputed boundary in a way that conforms to accepted survey practice and it is also supported by the statutes and the case law.

205The levels of the Detroit River are subject to variations in elevation within a day, over a month, and throughout the seasons, of an extent which could cause the scenario under consideration to exist for very short periods of time, such as within a day, to longer, for several months of the year. I cannot make any speculative conclusions as to whether the changes in water elevation at this site constituted at each point in time, a change in the location of the ambulatory natural boundary but I assume a general conclusion, only for analysis purposes that, where the initial shoreline as defined by the underside of the fill is not characterized by a vertical drop from the land into the water but by a continuous slope of the upland into the water, every single change in elevation, is a change in the location of the ambulatory boundary.

206Because the historical water level records and the underside of fill analysis cannot be conclusive of the question without knowing the specific time of the filling activity, the last question to be answered is:

2075. Can the issue described at item 4, be determined by the evidence before me? Both parties, through their experts, were in agreement, as a matter of fact, that fill material had been deposited over the entire area of the Private Park site, including the area north of the boundary according to Ross Clarke, OLS and south of the boundary according to Andrew Mantha, OLS. While the parties don’t agree on when and where the fill was placed, they agree on the legal standard, applied in this case for deciding the outcome of this matter. This requires deciding, on a balance of probabilities, where the fill material was more likely deposited.

208The Ennisclare case, as reviewed above, determined that where the process of filling, lawfully done by an owner over dry land to protect a property from being eroded and without an intention to create an accretion, in combination with the process of natural accretion can maintain an ambulatory water’s edge and can result in an extension of the upland riparian property. No evidence was produced as to clarify that the artificial process of filling of Lots 1, 2 or 3 and the Private Park on Plan 813 was lawfully done by the owners of such lots and with a clear intention to protect their properties from being eroded and without an intention to create an accretion.

209The list of cases here provided by the Objector and previously discussed concludes that the placement of the fill on the bed of a water body to extend the upland into the water is contrary to the rule of slow and imperceptible change required for accretion to take place and has the end result of fixing the boundary position at its last known location prior to such event. As stated in the Mihaylov case, there is a significant difference between a naturally occurring change in the shoreline and a manmade landfill that extends from the upland into an area that previously was fully part of a river. For the above reasons, the intention to gradually extend the dry land beyond the riparian property may have merit where the upland owner also owns the abutting bed of the Water Lot and must be considered in this case. I have carefully considered the action of the owners of the adjacent properties placing fill in the water and extending their dry land properties keeping in mind that the owners of Lots 1 and 2, Plan 813 were also part owners with others, for the Private Park, Plan 813. There is nothing entered in evidence to indicate exactly when such actions took place. However, the common ownership of Lot 1 and the Water Lot in front of it and the common ownership of Lot 2 and the Water Lot in front of it are important facts and must also be considered.

210The significance of the limits between the upland Lots and the Water Lots as legal boundaries would no longer matter to the common owners of these Lots and Water Lots because the ownership of such properties is merged. The land comprising the Park does not benefit from similar common ownership of the abutting Water Lot. As summarized above, following the issuance of the first Patent to Francois Meloche in 1803, there was a separation of Crown ownership and surveyors would consider this as the point in time when the northerly limit of Lot 106 Concession 1, Sandwich East, attained the status of a private legal boundary. The subsequent separation of ownership between the Park and that part of the Water Lot in front of the Park maintained the legal status of this boundary to the present day. There is nothing to suggest that the owners of the Lots adjacent to the Park were aware that the northerly boundary of the Private Park maintained a different legal status and that the movable character of the water boundary of the Private Park can be influenced by the artificial process of filling undertaken by them.

211The levels of the Detroit River may be subject to variations in elevation within a day, so is it less probable that all the fill material between 0.00 metres and 2.05/2.50 metres situated over the entire Private Park, was allegedly deposited at once when the water level was at its lowest elevation. The review of the elevations of the underside of fill at the boreholes across the entire park indicates a rough and uneven pre-fill ground with abrupt changes in elevations and having concluded that:

• fill material was added sometime between 1931 and 1944 to Lot 1 and to the Park in the vicinity of Lot 1, Plan 813.

• there is nothing to support that the property under application was subject to an additional artificial process of fill somewhere around the 1960s. The evidence only supports that an additional artificial process of fill extending the timber wall related to Lot 1 Plan 813 to a break wall by approximate 9 feet, took place sometime between 1944 and 1991.

• no land additions or improvements in the form of timber walls or other walls can be identified on the 1931 aerial photograph filed at Tab C of Exhibit 3 related to Lot 1 or the Private Park, Plan 813.

• the 1931 aerial photograph shows Lots 2 and 3 as being substantially extended to what seem to be a wall feature erected between the dry land and the water, well beyond the shoreline shown for Lot 1 and Private Park.

• Lot 2 has similarly been extended out between 100-130 feet beyond the northerly limit, according to the side line dimensions of Plan 813, through the construction of a boat house and steel retaining wall since at least 1983.

• the Surveyor’s Real Property Report of Lot 2, Plan 813, and Part of the bed of the Detroit River in Front of Lot 106, McNiff’s Survey, Concession 1, by VSHBB dated Aug 12, 1991, filed at Tab M of Exhibit 1, illustrates the present water’s edge along a new 0.7 foot wide steel break wall and around a boat lift with roof confirming that the dry land included in this property was further extended between the 1983 survey by John Smeeton, OLS, and the 1991 VSHBB survey.

212The above evidence strongly supports the idea that fill material, related to the property under application, was more likely deposited at different points in time. I agree with Andrew Mantha, OLS that the 1931 aerial photograph shows the existence of a beach area to the north of the boundary of the Private Park, according to the side line dimensions shown on Plan 813. However, such feature may have very well been the result of filling activities related to Lots 2 and 3, Plan 813 pre-dating the 1931 aerial photograph. Alternatively, the beach area could be the result of low water level at the time of the photograph which is not conclusive of what the water level was at the time of filling, which may have been subsequent to 1931.

213In the absence of evidence that the fill was placed on dry land or in the water, on a balance of probabilities, and based on the review of action of the adjacent owners to the Private Park it is more likely to conclude that the intention of the adjacent owners of Lots 1, 2 and 3 was to gradually extend their upland properties by artificial processes without being aware that the movable character of the northerly boundary of the Private Park can be influenced by such improvements and simply because the northerly boundary of the Private Park maintained a different legal status. Their respective limits between the Lots and the Water Lots in front of them as legal boundaries would no longer matter because of their merged common ownership.

214This, combined with the review of the water levels, the depth and the consistency of the fill material at each borehole location described in Tom O’Dwyer’s testimony and reports, suggest that the fill more likely went into the water as well as on to the dry land. For these reasons, I find that the issue described at item 4 can be determined by the evidence before me.

215I conclude, on a balance of probabilities, that the fill material was more likely deposited when the water was at its highest elevation during the 1931 to 1944 period, (175.54 metres), when it is apparent that the water’s edge would have been to the south of borehole locations F15, F13, F11, D13, D10, and B10; which would have been below water, and at which fill was determined to have been deposited. This result would also progressively apply to any water level between 174.54 metres to 175.54 metres at the time of fill material deposit. I also conclude that the fill was intentional, sudden, substantial, and perceptible, both into the water and onto the dry land, having the end result of fixing the boundary position at its last known location prior to such event.

216I also conclude that the best evidence of the water limit at the time of filling is the northerly limit of the Private Park as illustrated on Plan 813 and as retraced by Ross Clarke on Plan 12R-22283.

217I hereby dismiss the application in part and allow the objection.

218I have determined that the Northerly limit of the Private Park being the northerly limit of Part 2, as retraced by Ross Clarke, OLS, on plan 12R-22283 and shown on the Sketch attached to these Reasons as Appendix ‘B’ constitutes the best available evidence for the disputed boundary.

219I also accept the retracement methodology employed by Andrew Mantha, OLS, with respect to the Southerly limit of the Private Park as illustrated on the draft Boundaries Act plan and shown on the Sketch attached to these Reasons as Appendix ‘B’.

220I also accept the retracement methodology, in part, employed by Andrew Mantha, OLS, with respect to the Westerly and Easterly boundaries of the Private Park up to the last ascertainable points of Plan 813 as illustrated and retraced in part on the draft Boundaries Act plan and shown on the Sketch attached to these Reasons as Appendix ‘B’.

221Furthermore, in response to Deborah Ann Buckner’s testimony, 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. The rights of the Applicants to make such a claim are in no way affected by this judgment, should they wish in the future to make such claim.

DECISION

222Upon 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:

223I DO HEREBY ORDER that the application of Glen Ray is dismissed in part and the objection of Mark Goldhar is allowed, with respect to the boundaries of the lands designated as PIN 010520020(R) described as Rossini Park, being Private Park, Plan 813, in the City of Windsor, County of Essex and I therefore CONFIRM the Northerly limit of the Private Park as retraced by Ross Clarke, OLS, on plan 12R-22283, filed at Tab E of Exhibit 1 and shown on the Sketch attached to these Reasons as Appendix ‘B’. I DO FURTHER CONFIRM the Southerly limit of the Park as illustrated on the draft Boundaries Act plan and shown on the Sketch attached to these Reasons as Appendix ‘B’. I DO FURTHER CONFIRM the Westerly and Easterly boundaries of the Park up to the last ascertainable points of Plan 813 as illustrated and retraced in part on the draft Boundaries Act plan and shown on the Sketch attached to these Reasons as Appendix ‘B’.

224I DO FURTHER ORDER that the confirmed boundaries be monumented by the Applicant’s surveyor, Andrew Mantha, OLS, in accordance with Section 9 of 0.Reg. 525/91, under the Surveyors Act, R.S.O. 1990, c. S.29

225I DO FURTHER ORDER the removal of all monuments conflicting with the confirmed boundaries.

226I 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

227I 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.

228I 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 1st day of November 2021.

Roxana Niculae, OLS, OLIP

Deputy Director of Titles

APPENDIX A

Schedule of Exhibits

Exhibit 1

Binder containing survey report dated July 28, 2019 by Andrew Mantha, OLS for the Applicant and supporting documents.

Exhibit 2

Additional Submission dated January 14, 2021 by Andrew Mantha, OLS.

Exhibit 3

Letter of objection and supporting documents filled by Janice Busch on behalf of Mark Goldhar.

Exhibit 4

Report on Geological Investigation dated October 15, 2020 by Tom O’Dwyer Licensed Professional Engineer.

Exhibit 5

Binder containing survey report received January 15, 2021 by Ross Clarke, OLS for the Objector and supporting documents.

Exhibit 6

Curriculum Vitae of Thomas J. O’Dwyer, Licensed Professional Engineer.

Exhibit 7

Article from Ontario Professional Surveyor Magazine - Surveying Beach Properties.

Exhibit 8

Great Lakes Water Levels (1918-2021) IGLD (1985).

Exhibit 9

Monthly and Yearly Mean Water Levels network 2020.

Exhibit 10

Property Index Map 01052-0246(LT).

Exhibit 11

Property Index Map 01052-0020(LT).

Exhibit 12

Court File No. 05 - CV – 589 affidavit of Janice Busch.

Exhibit 13

Letter DOT to parties March 05, 2021.

Exhibit 14

Armstrong 1945 Survey.pdf.

Exhibit 15

Water Lot Parcelization Memorandum.pdf.

Exhibit 16

SE6695.pdf.

Exhibit 17

EW523.pdf.

Exhibit 18

EW587.pdf.

Exhibit 19

LRO 12 - Historical Book - Abstract Parcel Register Book - Omitted documents page 113.pdf.

Exhibit 20

LRO 12 - Historical Book - Abstract Parcel Register Book - Lot 106 Village of Ford City.pdf.

Exhibit 21

LRO 12 - Historical Book - Abstract Parcel Register Book - Lot 106 Sandwich East.pdf.

Exhibit 22

Goldhar-Rossini Park-AdjudicatorQs (2).pdf.

Exhibit 23

Letter DOT to parties April 29, 2021.pdf.

APPENDIX B

Sketch showing the confirmed boundaries of Private Park, Plan 813, in the City of Windsor, County of Essex designated as PIN 01052-0020(R)

APPENDIX C

Site Map showing the underside of fill elevations (converted to IGLD 1985 Datum) together with the corresponding depth of the fill