THE BOUNDARIES ACT
Director of Titles – Ontario (Boundaries Act)
Registry: Essex
Between: Dina Venturini – Applicant
- and -
Hassan Bahcheli – Objectors
Before: Hugh Goebelle, Deputy Director of Titles
1IN THE MATTER OF an Application made by Dina Venturini (or the “Applicant”), the registered owner of the parcel of land designated as PIN 75000-0599 (LT) (or the “Venturini land”), dated January 29, 2020, for the purpose of confirming, under the Boundaries Act, the true location on the ground of the boundary between PIN 75000-0599 (LT) and PIN 75000-0555 (LT) in Lot 1, Concession West of River Peche, Geographic Township of Maidstone, Town of Tecumseh, County of Essex, as shown on a draft plan of survey by “Clarke Surveyors Incorporated” dated June 11, 2020, (or the “draft plan”).
2AND WHEREAS a Notice of Application, dated June 23, 2020, with a print of the draft plan attached, was served upon all persons and upon all corporations entitled to receive such a Notice under Section 7 of the Boundaries Act.
3AND WHEREAS an Objection to the Application, dated August 14, 2020, was filed by Hassan Bahcheli (or the “Objector”) who is one of the registered owners of the adjacent parcel of land designated as PIN 75000-0555 (LT) (or the “Bahcheli land”).
4AND WHEREAS pursuant to Sub-Section 9 (1) of the Boundaries Act, the Director of Titles has the jurisdiction to hear and to determine any Objections to the Application, and a written hearing was held in this matter with final submissions delivered to me on or before May 4, 2021.
THE HEARING
5A Notice of Written Hearing for this Application dated March 4, 2021, was forwarded to the parties. A written hearing was held with final submissions being delivered by the Objector no later than 5:00 p.m. on March 31, 2021, and by the Applicant by 5:00 p.m. on April 16, 2021. The parties to the hearing are:
Dina Venturini Applicant
R. Craig Stevenson Solicitor for the Applicant
Ross A. Clarke Ontario Land Surveyor for the Applicant
Hassan Bahcheli Objector
Barton J. Seguin Solicitor for the Objector
Bloss J. Sutherland Ontario Land Surveyor for the Objector
6For the Written Hearing, the Applicant filed two exhibits with the Tribunal and the Objector filed one exhibit with the Tribunal. I have attached a list of these three exhibits, plus the two exhibits filed by me, to these ‘Reasons’ as Appendix "A".
REASONS
NOTES
7In this decision, I have converted the measurements originally shown in feet and decimals thereof into metric measurements unless otherwise indicated. To do so, I have multiplied measurements in feet and decimals thereof by a conversion factor of 0.3048 to derive metric measurements.
8For clarity, I have referred to the “exhibits” found within the Survey Report prepared by Bloss J. Sutherland, Ontario Land Surveyor (or O.L.S.), as “tabs”. By doing so, the potential for confusion with any “Exhibits” submitted to this Tribunal will become minimized.
9For convenience of reference, I have adopted and have used the purely descriptive labels of “Point A” (whose location is undisputed) and “Point B” (whose location is indeed disputed) as illustrated on the draft plan of survey prepared to support this Application. Please also refer to the “Sketch Prepared by the Hearing Officer” attached to these ‘Reasons’ as Appendix "B" for a graphical representation of the site.
10For ease of reference, I have assumed that Brighton Road runs north/south and I have assumed that Tecumseh Road runs east/west. As a result, I have indicated all directional references to these two assumptions.
BACKGROUND
11This matter arose as a result of the re-development of the Bahcheli land. This re-development included, but was not limited to, the removal of the then existing remains of a wire fence, the installation of a new vinyl fence, the installation of new concrete curbs, and the installation of new light standards on concrete bases during the mid-late 2010s (i.e. “sometime in the summer of 2018” according to Section “Seven” of the Survey Report prepared by Ross A. Clarke, O.L.S.). These activities all occurred in the vicinity of the limit (or the line) running between Point A and Point B as illustrated on the draft plan of survey prepared to support this Application.
12During the mid-late 2010s, there were three survey companies known to be operating in the immediate vicinity of Point B of the boundary under Application. Operating at the Venturini land was Ross A. Clarke, O.L.S., of Clarke Surveyors Incorporated. Operating at the Bahcheli land was Bloss J. Sutherland, O.L.S., of Total Tech Surveying Inc. Operating for “2593430 Ontario Limited” (on the neighbouring parcel of land to the east) at the then PIN 75000-0596 (and now PIN 75000-0600 – entered as Exhibit 4) was Roy A. Simone, O.L.S., of Verhaegen Land Surveyors – A Division of J.D. Barnes Ltd. (formerly known as Verhaegen Stubberfield Hartley Brewer Bezaire Inc. (or VSHBB)). For clarity, neither “2593430 Ontario Limited” nor Roy A. Simone, O.L.S., nor Verhaegen Land Surveyors – A Division of J.D. Barnes Ltd. are parties to this Application.
13In 2016, Bloss J. Sutherland, O.L.S., prepared a Topographic Survey which illustrated the limit between Point A and Point B. In 2018, Ross A. Clarke, O.L.S., prepared multiple plans of survey which also illustrated the limit between Point A and Point B. At that time, it became apparent to Dina Venturini (the Applicant) and to Hassan Bahcheli (the Objector) and their respective surveyors that doubt regarding the location on the ground of the boundary between their respective parcels of land existed (details also noted in Section 3 of the Survey Report by Bloss J. Sutherland, O.L.S., dated Mach 31, 2021, being Tab 20 of his Survey Report).
14On January 29, 2020, Dina Venturini, the Applicant, filed an Application under the “Boundaries Act”. This Application requested the confirmation of the true location on the ground of the boundary between PIN 75000-0599 and PIN 75000-0555 within Lot 1 of the Concession West of the River Peche (also known as Pike Creek) in the Geographic Township of Maidstone in the Town of Tecumseh in the County of Essex. A draft plan of survey, dated June 11, 2020, and signed by Ross A. Clarke, O.L.S., of Clarke Surveyors Incorporated, accompanied this Application. The draft plan of survey illustrates the boundary as the limit running between Point A and Point B which is the subject of this Application for confirmation under the Boundaries Act.
15Hassan Bahcheli filed an Objection to this Application on August 14, 2020. The Survey Report prepared by Bloss J. Sutherland, O.L.S., of Total Tech Surveying Inc., in support of the Objection did not dispute Point A. As a result, the greater portion of these ‘Reasons’ will concentrate upon the location of Point B which is indeed under dispute.
16As an aside, these two parcels of land, being 408 Brighton Road to the north of the limit between Point A and Point B and 414 Brighton Road (sometimes referred to as 411 Brighton Road) to the south of the limit between Point A and Point B, were formerly located in the Village of St. Clair Beach. Since 1998, these two parcels of land have been located in the Town of Tecumseh.
Point A
17John B. Smeeton, O.L.S., first established Point A in 1974. He surveyed Point A as the southeastern angle of Part 1 on Plan 12R-1630. A week later, he re-surveyed Point A as the southeastern angle of Part 1 on Plan 12R-1654 (entered as Tab 2 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tabs 2 and 3 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). Point A became, in due course, the southeastern angle of a parcel of land which widened Brighton Road northwards from the limit (or the line) running between Point A and Point B as illustrated on the draft plan of survey prepared to support this Application. In both of these surveys, John B. Smeeton, O.L.S., delineated Point A using measurement; however, he did not demarcate Point A at that time by installing a survey monument at this location.
18For Job No. 4-23747, at Field Note Page 5 of 13, a field crew of VSHBB planted a Short Standard Iron Bar (or SSIB) (the date for this page of field notes is not visible – entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.) at Point A.
19In 2007, Andrew S. Mantha, O.L.S., prepared Plan 12R-23224 for VSHBB (entered as Tab 5 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 5 of the Surveyor Report prepared by Bloss J. Sutherland, O.L.S.). At Point A, this survey illustrated a found Standard Iron Bar (or SIB) with a numerical identification of 1528 (which corresponds to Timothy D. Hartley, O.L.S., of VSHBB).
20In 2016, Bloss J. Sutherland, O.L.S., prepared a Topographic Survey for Total Tech Surveying Inc. (or TTS) (entered as Tab 15 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 19 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). At Point A, this topographic survey illustrated and accepted a found SIB with the numerical identification of 1528. In 2018, Ross A. Clarke, O.L.S., prepared a Surveyor’s Real Property Report (or S.R.P.R.) for Clarke Surveyors Incorporated (entered as Tab 12 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 17 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). At Point A, this plan of survey also illustrated and accepted a found SIB with the numerical identification of 1528.
21In 2020, Ross A. Clarke, O.L.S., prepared the draft plan to support this Application for Clarke Surveyors Incorporated (entered as Tab 1 of the Survey Report prepared by Ross A. Clarke, O.L.S.). At Point A, this draft plan of survey also illustrates and accepts a found SIB with the numerical identification of 1528. As a result, there is no disagreement between the Applicant’s surveyor and the Objector’s surveyor regarding the evidence which defines Point A – the found SIB with the numerical identification of 1528 - as accepted by both the Applicant’s surveyor and by the Objector’s surveyor.
Point B
22In 1962, John B. Smeeton, O.L.S., recorded discovering a “g.p.” (which I read as a gas pipe) on Page 57 of his field notes (entered as Tab 7 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). As an aside: although Ross A. Clarke, O.L.S., attributed this page of field notes to C.G. Russell Armstrong, O.L.S., in Section “Two” and in the “Table of Contents” of his Survey Report, I have accepted these notes as originally being prepared by John B. Smeeton, O.L.S., as indicated by Bloss J. Sutherland, O.L.S., in his Survey Report.
23Also in 1962 (by my inference), Smeeton, O.L.S., recorded discovering a “fnd old gp” (which I read as found old gas pipe) on Page 59 of his field notes (entered as Tab 15 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
24In 1969, Smeeton, O.L.S., again recorded discovering a “FD gas pipe” (which I read as a found gas pipe) at Page 105 of his field notes (entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
25In 1974, Smeeton, O.L.S., remained silent on the issue of what he discovered on Page 55 of his field notes (entered as Tab 14 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). On the other hand, also in 1974, Smeeton, O.L.S., recorded discovering a “gas pipe” for Point B on his Plan 12R-1630 and on his Plan 12R-1654.
26In 1980, C.G. Russell Armstrong, O.L.S., recorded discovering a “fd gas pipe” (which I read as a found gas pipe) on Page 40 of his field notes (entered as Tab 8 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
27In 1989, Timothy D. Hartley, O.L.S., of VSHBB, recorded discovering a “FD GAS PIPE” (which I read as a found gas pipe) at Pages 1 and 3 respectively (entered as Tab 9 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). (On the other hand, the Plan of Survey associated with these field notes by Hartley, O.L.S., recorded discovering more generically an “iron pipe” (or an IP) (entered as Tab 9 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 8 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.)).
28In 2016, a Topographic Survey by TTS recorded discovering a “GAS PIPE 0.33ᴓ THREADED AT TOP” (I read “ᴓ” as round). It is interesting to note that this TTS plan showed no other pipes of any kind at or near this location albeit the plan indicated that there were “0.15mᴓ METAL POSTS” nearby. As an aside, although this Topographic Survey (published in metric) refers to a diameter of 0.33 for the gas pipe, I conclude that this reference is actually 0.33 feet which equates to 0.10 metres.
29In January of 2018, Roy A. Simone, O.L.S., of Verhaegen Land Surveyors – A Division of J.D. Barnes Ltd., recorded on his Topographic Survey setting an “SSIB” at Point B (entered as Tab 10 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 10 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). Pages 2 and 4 and 5 of the accompanying field notes reiterated this statement about only setting an “SSIB” at this location (entered as Tab 10 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). On the other hand, Page 3 of the accompanying field notes stated “(FD PIPE BURIED [SET] SSIB)” (which I read as a buried but found pipe replaced with an SSIB) (entered as Tab 10 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 9 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). The Topographic Survey by Simone, O.L.S., also showed an undescribed “POST” being an un-dimensioned distance to the northeast of the set SSIB. As an aside, I will review these survey results in greater detail in later sections.
30In mid-April of 2018, Ross A. Clarke, O.L.S., recorded a found “SSIB (1744)” on an S.R.P.R. at Point B. The numerical identification of 1744 corresponds to Andrew S. Mantha, O.L.S., being a member of Verhaegen Land Surveyors – A Division of J.D. Barnes Ltd. Ross A. Clarke, O.L.S., reiterated this information in September of 2018 on a “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road” (entered as Tab 13 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 12 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
31In late-April of 2018, TTS illustrated a found “Gas Pipe 4” [or 0.10 metres] ᴓ Threaded @ Top” at Point B on the field notes for an inspection of the site of its 2016 Topographic Survey (entered as Tab 15 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 7 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). This page of field notes also illustrated a found “SSIB (1744)” 0.66 metres to the south of Point B thus illustrating the disagreement about the location of Point B.
32In April of 2019, Roy A. Simone, O.L.S., prepared a draft reference plan in support of an Application for Absolute Title (or LT+) for the parcel of land to the east (entered as Tab 11 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 11 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). Simone, O.L.S., later deposited this plan, which he had revised, as Plan 12R-28327 in August of 2020 (filed as Exhibit 5). At Point B, Simone, O.L.S., reiterated that he “Found pipe (1194) buried [Set] SSIB”. Interestingly, Simone, O.L.S., attributed this pipe to John B. Smeeton, O.L.S., (who had actually first recorded finding this [gas] pipe in 1962 and who corresponds to the numerical identity of 1194). On the other hand, neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information which corroborates the opinion that Smeeton, O.L.S., set this pipe.
33In November of 2019, Roy A. Simone, O.L.S., reiterated the information above on Plan 12R-28018 (entered as Tab 17 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 22 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.). Plan 12R-28018 is another reference plan which supported a transfer of other lands located to the north of Point B to the Applicant (an undeposited version of Plan 12R-28018 is entered as Tab 6 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
34In 2020, Ross A. Clarke, O.L.S., prepared the draft plan supporting this Application. The draft plan illustrates an “SSIB (1744)” at Point B.
THE FENCE SHOWN ALONG THE LIMIT BETWEEN POINT A AND Point B
35In 1962, John B. Smeeton, O.L.S., showed “-x-” (which I read as a fence) along this limit at Page 57 of his field notes. This fence appeared with no measured ties; however, this fence appeared in such a manner that surveyors of the day equated to being either on the limit or close to it. Later in 1962, Smeeton, O.L.S., illustrated a “very old wire fence” at Page 59 of his field notes. Again, this fence appeared with no measured ties; however, this fence appeared in such a manner that surveyors of the day equated to being either on the limit or close to it.
36In 1969, the remarks of Smeeton, O.L.S., on Page 105 of his field notes are illegible. In 1974, Smeeton, O.L.S., showed no fence details at all on the face of his Plans 12R-1630 and 12R-1654. In 1980, on the other hand, C.G. Russell Armstrong, O.L.S., continued to show an “old wire fence” at Page 40 of his field notes. Although this fence appeared with no measured ties, this fence appeared in such a manner that surveyors of the day equated to being either on the limit or close to it. As an aside, this page of field notes did not record that the “old wire fence” was attached to the “gas pipe” – contrary to the statements made by Bloss J. Sutherland, O.L.S., in his Survey Report of 2020.
37In 1989, Hartley, O.L.S., showed a “WF” (which I read as a wire fence) at Page 2 of his field notes. Once again, this fence appears with no measured ties; however, this fence appears in such a manner that surveyors of the day equated to being either on the line or close to it.
38In 2016, the TTS Topographic Survey showed “fence remnants” to the south of this limit and with no measured ties shown to that limit. Put another way, Bloss J. Sutherland, O.L.S., showed the limit to the “… north of the old fence remains …” (as referenced at Section “Four” of the Survey Report prepared by Ross A. Clarke, O.L.S.). As an aside, the remains of this old fence was attached to the “gas pipe” at Point B and remains visibly so in 2020 (as referenced at Section 2 of the Survey Report by Bloss J. Sutherland, O.L.S.). In late-April of 2018, the TTS field notes for the inspection of the site indicated that only a “concrete curb” remained along the boundary itself.
39In mid-April of 2018, Ross A. Clarke, O.L.S., showed no fence along this limit on his S.R.P.R. but he did show a “concrete curb” there along. In September of 2018, a few months later, Clarke, O.L.S., showed a “CONCRETE CURB” and a new “VINYL FENCE” along this limit on his “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road”.
40In 2020, the draft plan supporting this Application, prepared by Ross A. Clarke, O.L.S., showed a “VINYL FENCE” and a “CONCRETE CURB” and other items complete with measured ties to this limit.
THE ISSUE RE-INTRODUCED
41Between 1962 and 1980, Smeeton, O.L.S., and Armstrong, O.L.S., referred to a found “gas pipe” marking the location of Point B on their various surveys in the area. More particularly, in 1974, Smeeton, O.L.S., recorded discovering a “gas pipe” which he “used as the corner in question” at Point B on Plan 12R-1630 and on Plan 12R-1654 (as referenced in Section “One” of the Survey Report prepared by Ross A. Clarke, O.L.S.).
42As an aside, both Smeeton, O.L.S., and Armstrong, O.L.S., illustrated “iron pipes” at other locations during their survey work in the area. The obvious inference here is that the “gas pipe” at Point B was somehow different from the other “iron pipes” found and shown at nearby locations. Unfortunately, neither Smeeton, O.L.S., nor Armstrong, O.L.S., described the physical appearance and/or the characteristics of the “gas pipe” in any of the submitted survey records. Furthermore, neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information about the physical appearance and/or the characteristics of “gas pipes” in general within their respective Survey Reports.
43In 1989, however, opinions about the location of Point B possibly began to diverge. During the production of a Plan of Survey, Hartley, O.L.S., referred to a found “iron pipe” on his Plan as marking the location of Point B being also referred to as a found “gas pipe” in his field notes as marking the location of Point B. Like his surveyor predecessors, Hartley, O.L.S., did not describe the physical appearance and/or the characteristics of this “gas pipe” in his survey records. Unlike his predecessors, Hartley, O.L.S., did not show any other kind of iron pipes nearby to Point B. If 1989 did not constitute a divergence, then certainly after 1989, opinions about the location of Point B diverged.
44In 2016, Bloss J. Sutherland, O.L.S., held a found pipe as Point B which he believed represented the same “gas pipe” which surveyors had held as Point B in prior surveys between 1962 and 1980. Bloss J. Sutherland, O.L.S., reiterated this opinion in 2018. Photographs of this pipe are located at Tab 21 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.
45Conversely, in 2018, Simone, O.L.S., set an SSIB in seemingly the identical location of the “gas pipe” which Hartley, O.L.S., had discovered in 1989. Ross A. Clarke, O.L.S., found and held this SSIB as Point B later in 2018 during multiple surveys. Ross A. Clarke, O.L.S., reiterated this opinion in 2020. Photographs of this SSIB are located at Tab 21 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.
46The Applicant contends that the SSIB discovered by Ross A. Clarke, O.L.S., in 2018 constitutes the best evidence of the location of Point B. Simone, O.L.S., had planted this SSIB earlier in 2018 seemingly in the identical position of a “gas pipe” discovered by Hartley, O.L.S., in 1989. As summarized by Ross A. Clarke, O.L.S., (at Section “Five” of the Survey Report prepared by Ross A. Clarke, O.L.S.): “Verhaegen surveyors … found the pipe on Plan 12R-1654 (July 25/1974) and replaced it with a short standard 1 inch iron bar (SSIB)”. The Applicant has further illustrated the position of the east-west boundary between Point A and Point B (being the SSIB) in 2020 with a bold, solid, line on the draft plan of survey accompanying this Application.
47The Objector contends that the pipe discovered by Bloss J. Sutherland, O.L.S., in 2016 constitutes the best evidence of the location of Point B. In the Objector’s opinion, the pipe which Sutherland, O.L.S., discovered is one and the same as the “gas pipe” shown on the surveys between 1962 and 1980 and, therefore, constitutes the best evidence of the location of Point B.
48The discrepancy between the SSIB, shown as Point B by Ross A. Clarke, O.L.S., and the pipe, shown as Point B by Bloss J. Sutherland, O.L.S., is 0.66 metres. As an aside, these two features did not clearly appear on the same survey at the same time in the surveying records submitted to this Tribunal until the 2018 field notes of Bloss J. Sutherland, O.L.S., followed by the 2020 Plan of Survey by Ross A. Clarke, O.L.S. Please also refer to the “Sketch Prepared by the Hearing Officer” attached to these ‘Reasons’ as Appendix "B" for a graphical representation of the site.
49As for the fences along the limit between Point A and Point B, the surveys in the 1960s illustrated an old wire fence estimated as on or near this limit by the surveyors of the day. Although the surveys from the mid-1970s do not illustrate a fence along this limit, the surveys from the 1980s continued to illustrate an old wire fence estimated as on or near this limit by the surveyors of the day. By 2016 though, Bloss J. Sutherland, O.L.S., reported that only the remains of a wire fence continued to exist but even those remains had been removed entirely by the time Ross A. Clarke, O.L.S., arrived at this site in April of 2018. Later in 2018, the Objector installed a new, vinyl, fence along the vicinity of this limit.
THE TITLE HISTORY
50Neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information about the title history of this area beyond providing some of the most recent title documents related to these parcels of land (entered as Tabs 4 and 5 and 6 of the Survey Report prepared by Ross A. Clarke, O.L.S.).
51Regarding PIN 75000-0599 from the north, being the Applicant’s land, inst. no. R1446261, registered in 1998, merely refers to Part 5 on Plan 12R-1630 by Smeeton, O.L.S.; therefore, this deed offers no additional information.
52Regarding PIN 75000-0555 from the south, being the Objector’s land, a predecessor deed, registered as inst. no. R468665 in 1970, indicates that the distance to Brighton Road from Point B is 47.24 metres, that there is no distance given to Tecumseh Road from Point B, and that “a post” represents Point B.
53Regarding then PIN 75000-0596 (now PIN 75000-0600) from the east, being the neighbouring land of “2593430 Ontario Limited”, a predecessor deed, registered as inst. no. R1143478 in 1990, indicates that there is no distance to Brighton Road from Point B, indicates that there is no distance to Tecumseh Road from Point B, indicates that there is no distance to the northwestern angle of Part 1 on Plan 12R-28018 from Point B, and that there is no definition of Point B.
THE ORIGINAL TOWNSHIP PLAN
54Given that the limit between Point A and Point B on the draft plan does not form a portion of the original township fabric nor is the limit between Point A and Point B on the draft plan referred to a portion of the original township fabric, the original township plan is not germane to this investigation. As an aside, neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information about the original township plan in their respective Survey Reports.
EARLY SURVEYS SUBSEQUENT TO THE ORIGINAL TOWNSHIP PLAN
55It is interesting to note that the first modern surveyor, John B. Smeeton, O.L.S., known to be working at or near the location of Point B in the 1960s indicated that he found the already existing iron pipes and the already existing gas pipe. Put another way, and for emphasis, the first modern surveyor known to be working at or near the location of Point B in the 1960s, indicated that he did not set any kind of monument to define the location of Point B because a gas pipe already existed there.
56Neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information about any possible early surveys which may had occurred between the original township plan and the arrival of modern surveyors beginning in the 1960s within their respective Survey Reports – a period of approximately 140 years. As a result, I cannot review any information about the origin of the iron pipes or the gas pipe at or near Point B.
MODERN SURVEYS BEGINNING IN THE EARLY 1960s
57Before analyzing the individual modern surveys provided by Ross A. Clarke, O.L.S., and by Bloss J. Sutherland, O.L.S., within their respective Survey Reports, I would like to review the membership of the following survey firm: Verhaegen Land Surveyors – A Division of J.D. Barnes Ltd. (formerly known as Verhaegen Stubberfield Hartley Brewer Bezaire Inc.). Both Roy A. Simone, O.L.S., and Andrew S. Mantha, O.L.S., are currently members of this firm. In addition, Timothy D. Hartley, O.L.S., is a past member of this firm. Furthermore, this firm holds the records of both John Smeeton, O.L.S., and C.G. Russell Armstrong, O.L.S.
THE EVIDENTIARY QUESTION
58The crux of my analysis, therefore, becomes whether the modern SSIB, set in 2018 and seemingly in the same position as the “gas pipe” previously surveyed in 1989, constitutes the best evidence on the ground of the location of Point B or whether the pipe found in 2016 constitutes the best evidence on the ground of the location of Point B. As previously indicated, the former represents the argument of the Applicant while the latter represents the argument of the Objector. Given the absence of affidavit evidence regarding Point B and given the absence of descriptive evidence in the field notes of the surveyors during the 1960s and the 1970s and the 1980s about the physical appearance and/or the characteristics of the “gas pipe” itself at Point B, I must evaluate additional evidence including, but not necessarily limited to, measurements as referenced in the plans and in the field notes of the various surveyors.
59The distance between the Applicant’s position for Point B and the Objector’s position for Point B is 0.66 metres. The alignment between these two opinions of Point B’s position is not specifically defined. That being said, the alignment is visually in a predominantly north/south direction along the sideline between PIN 75000-0599, being the Applicant’s land, and PIN 75000-0555, being the Objector’s land, on the one side and then PIN 75000-0596 (now PIN 75000-0600), being the neighbouring land to the east, on the other side.
THE ANGLE MEASURED AT THE ORIGINAL LIMIT OF BRIGHTON ROAD LOOKING SOUTH AND TURNING COUNTER-CLOCKWISE TO POINT B AS RECORDED ON THE MODERN SURVEYS
60Aside: I have only compiled and/or calculated below values for those surveys which recorded a measurement unless otherwise indicated.
John B. Smeeton, O.L.S., on his 1969 field notes at Page 105
4°03’30”
John B. Smeeton, O.L.S., on his 1974 Plans of Survey being Plans 12R-1630 and 12R-1654
94°03’30”
Andrew S. Mantha, O.L.S., on Plan 12R-23224 in 2007 (note that Mantha, O.L.S., only measured to an intermediate point along the line to Point B)
±93°57’30”
Bloss J. Sutherland, O.L.S., on his 2016 Topographic Survey (note that Sutherland, O.L.S., illustrated a different bearing along the relatively short road widening portion)
±93°52’45”
Roy A. Simone, O.L.S., on his January of 2018 Topographic Survey
93°14’30”
Ross A. Clarke, O.L.S., on his April of 2018 S.R.P.R. and on his September of 2018 “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road”
Not Given
Bloss J. Sutherland, O.L.S., on his site inspection field notes in late April of 2018 (note that Sutherland, O.L.S., illustrated a different bearing along the relatively short road widening portion)
±93°41’10”
Ross A. Clarke, O.L.S., on his 2020 draft plan
Not Given
61It is very interesting to note that Bloss J. Sutherland, O.L.S., measured a different angular value for each of his surveys between 2016 and 2018. On the other hand, Ross A. Clarke, O.L.S., did not define an angular value during any of his three surveys between 2018 and 2020. In any event, I cannot draw any conclusions from the data collected above (given the Applicant’s want of data and given the Objector’s variable data).
THE DISTANCE FROM POINT B WESTWARD TO THE ORIGINAL LIMIT OF BRIGHTON ROAD AS RECORDED ON THE MODERN SURVEYS
62Aside: I have only compiled and/or calculated below values (expressed in metres) for those surveys which recorded a measurement unless otherwise indicated.
John B. Smeeton, O.L.S., on his 1962 field notes at Page 59 to a found IP
46.48
John B. Smeeton, O.L.S., on his 1969 field notes at Page 105 to a found IP which he replaced with an Iron Bar (or an IB)
46.48
John b. Smeeton, O.L.S., on his 1974 Plans of Survey, being Plans 12R-1630 and 12R-1654, to a found IB
46.48
Bloss J. Sutherland, O.L.S., on his 2016 Topographic Survey to a found IB.
Sutherland, O.L.S., reiterated this measurement on his site inspection field notes in late April of 2018.
46.53
Roy A. Simone, O.L.S., on his January of 2018 Topographic survey indicates 44.63 to the southward widening of Brighton Road plus 1.75 across Part 4 of Plan 12R-23244 from 2007 (entered as Tab 5 of the Survey Report prepared by Ross A. Clarke, O.L.S., and entered as Tab 5 of the Survey Report prepared by Bloss J. Sutherland, O.L.S.).
Simone, O.L.S., reiterated this value in April of 2019 on his draft reference plan in support of an Application for LT+ which he ultimately deposited as Plan 12R-28327 in August of 2020.
46.38
Ross A. Clarke, O.L.S, on his April of 2018 S.R.P.R. indicates 44.60 to the southward widening of Brighton Road plus 1.75 across Part 4 of Plan 12R-23244 from 2007.
Ross A. Clarke, O.L.S., reiterated this measurement for his “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road” in September of 2018.
46.35
Ross A. Clarke, O.L.S., on his 2020 draft plan indicates 39.76 to the northwards widening plus 6.66 across Part 1 of Plan 12R-1630 (also known as Part 1 of Plan 12R-1654) from 1974
46.42
63Summarising the information in the table above, all of the measurements from Point B to the original limit of Brighton Road are within 0.15 metres of the measurements recorded on the known surveys between 1962 and 1974. This want of a substantial variance between the Applicant’s and the Objector’s positions for Point B westward to the original limit of Brighton Road is not surprising. Remember, the 0.66 metre difference between the Applicant’s and the Objector’s positions for Point B is predominantly a north/south difference along or near to the direction of the western limit of the parcel or land to the east. For a graphical representation of this difference, please refer to the “Sketch Prepared by the Hearing Officer” attached to these ‘Reasons’ as Appendix "B". (For an alternative but an indicative illustration of this difference, please refer to the sketch included at Tab 18 of the Survey Report prepared by Ross A. Clarke, O.L.S.)
64Contrary to the opinion expressed by Bloss J. Sutherland, O.L.S., in Section 3 of his Survey Report, I cannot conclude that the similarity of the distance expressed on his 2016 Topographic Survey identifies the pipe which Sutherland, O.L.S., accepted as being one and the same as the “gas pipe” discovered by the first, known, modern, surveyors working in the area since 1962. In any event, I cannot draw any conclusions from the data collected above because the variance between the measured values is simply too small.
THE DISTANCE FROM POINT B NORTHWARD TO THE POINT WHICH BECOMES THE NORTHWESTERN CORNER OF PART 1 ON PLAN 12R-28018 ON THE MODERN SURVEYS
65Aside: I have only compiled and/or calculated below values (expressed in metres) for those surveys which recorded a measurement unless otherwise indicated.
John B. Smeeton, O.L.S., on his 1962 field notes at Page 57 to an
“IP against N side post” (presumably Smeeton, O.L.S., is referring to the “Anchor Post” also shown on his other field notes at this corner)
7.16
John B. Smeeton, O.L.S, on his 1962 field notes at Page 59 to a found “IP”
7.16
John B. Smeeton, O.L.S., on his 1969 field notes at Page 105 to a “FD I.P. PL IB” (which I read as to a found IP which he replaced with an IB)
7.16
John B. Smeeton, O.L.S., on his 1974 Plans of Survey, being Plans 12R-1630 and 12R-1654, to a “Fd. I.B.” (which the I read as to a found IB)
7.16
Timothy Hartley, O.L.S., on his 1989 Plan of Survey to a “Cut Cross” which he set on a “CONCRETE SIDEWALK”
7.16
Bloss J. Sutherland, O.L.S., on TTS’s 2016 Topographic Survey
No information shown
Roy A. Simone, O.L.S., in January of 2018 on his Topographic Survey to a set “CP” (which I read as a Concrete Pin) on his plan or to a set “P.K. [nail] (conc)” on Page 3 of 16 of the corresponding field notes.
Simone, O.L.S., reiterated this value in April of 2019 on his draft reference plan in support of an Application for LT+ which he ultimately deposited as Plan 12R-28327 in August of 2020.
Simone, O.L.S., also reiterated this value in November of 2019 on Plan 12R-28018.
Aside: Simone, O.L.S., illustrated this “CP (1744)” on “BRICK PAVERS”.
7.16
Ross A. Clarke, O.L.S., on his S.R.P.R. in mid-April of 2018 to a found “CP (1744)”.
Although Clarke, O.L.S., is silent upon this measurement for his “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road” in September of 2018, Clarke, O.L.S., reiterated this measurement in 2020 on his draft plan.
7.16
Bloss J. Sutherland, O.L.S., on his field notes of late-April of 2018, to a found “GEAR SPIKE (1744)” from an “SSIB (1744)”.
Bloss J. Sutherland, O.L.S., on his field notes of late-April of 2018, to a found “GOOD BAR READING UNDER OLD CONCRETE WALK” from a found “GAS PIPE 4” [or 0.10 metres] ᴓ ROUND THREADED @ TOP”.
7.16
7.16
66Summarising the information in the table above, the measurement from the SSIB planted by Roy A. Simone, O.L.S., in 2018, and seemingly in the same position as the “gas pipe” found by Timothy D. Hartley, O.L.S., in 1989 to the CP also planted by Roy A. Simone, O.L.S., in 2018, and in, apparently, the same position as the Cut Cross (or the CC) set by Timothy D. Hartley, O.L.S., in 1989 at the northwestern angle of Part 1 on Plan 12R-28018 matches the measurement recorded on the known surveys between 1962 and 1989.
67Equally, from the information in the table above, the measurement from the pipe found by Bloss J. Sutherland, O.L.S., in 2016, to the “GOOD BAR READING …” (discovered with his metal detector) at or near the northwestern angle of Part 1 on Plan 12R-28018 also matches the measurement recorded on the known surveys between 1962 and 1989 (refer to Section 4 of the Survey Report of Bloss J. Sutherland, O.L.S.).
68It is important to note that Bloss J. Sutherland, O.L.S., also recorded the following instructive remarks: “… as well as measuring almost exactly 23.50’ [or 7.16 metres] from the ‘gas pipe’ to a paint dot that was marked on an old concrete sidewalk in the vicinity of where the original IB shown on the 1974 plan is probably beneath” (refer to Section 6 of a letter to Ross A. Clarke, O.L.S., from Bloss J. Sutherland, O.L.S., dated June 1, 2019, and entered as Tab 16 of the Survey Report prepared by Ross A. Clarke, O.L.S.).
69I must admit that I am more convinced by the monuments reportedly found by Clarke, O.L.S., than by the theoretical evidence of monuments possibly found by Sutherland, O.L.S. With that being said, Sutherland, O.L.S., denies the very existence of the monuments reportedly found by Clarke, O.L.S., at the northwestern angle of Part 1 on Plan 12R-28018. As a result, I cannot draw any clear conclusions from the data collected above given the blatant disagreement about the facts discovered, or not discovered, by these two surveyors.
THE DISTANCE FROM POINT B SOUTHWARD TO TECUMSEH ROAD ON THE MODERN SURVEYS
70Aside and once again: I have only compiled and/or calculated below values (expressed in metres) for those surveys which recorded a measurement unless otherwise indicated.
John B. Smeeton, O.L.S., on his 1962 field notes at Page 57 to an IP
68.70
C.G. Russell Armstrong, O.L.S., on his 1980 field notes at Page 40 to an “Iron Pin”
68.69
Timothy Hartley, O.L.S., on his 1989 Plan of Survey which measured to a found “SIB” according to his plan or which measured to a “SET IB” according to Page 1 of the accompanying field notes
68.66
Bloss J. Sutherland, O.L.S., on TTS’s 2016 Topographic Survey to an “IB (1528)”.
Sutherland, O.L.S., reiterated this measurement on his site inspection field notes in late April of 2018.
69.33
Roy A. Simone, O.L.S., in January of 2018 on his Topographic Survey to a found “IB (1194)”.
Simone, O.L.S., reiterated this value in April of 2019 on his draft reference plan in support of an Application for LT+ which he ultimately deposited as Plan 12R-28327 in August of 2020.
Simone, O.L.S., also reiterated this value in November of 2019 on Plan 12R-28018.
68.67
Ross A. Clarke, O.L.S., on his S.R.P.R. in April of 2018 to a found “SIB (1528)”.
Although Clarke, O.L.S., is silent upon this measurement for his “Plan to Show Location of the Vinyl Fence and Concrete Curb Between Mun. No. 408 and Mun. No. 414 Brighton Road” in September of 2018, Clarke, O.L.S., reiterated this measurement in 2020 on his draft plan.
68.67
71Summarising the information in the table above, the measurement from the SSIB planted by Roy. A. Simone, O.L.S., in 2018, and seemingly in the same position as the “gas pipe” found by Timothy D. Hartley, O.L.S., in 1989 to Tecumseh Road most closely matches the measurement recorded on the known surveys between 1962 and 1989 (i.e. the difference is approximately 0.01 metres to the average measurement of 68.68 metres measured between 1962 and 1989). On the other hand, the distance between the pipe discovered by Bloss J. Sutherland, O.L.S., in 2016 and Tecumseh Road is approximately 0.65 metres too long (based upon the average measurement of 68.68 metres measured between 1962 and 1989).
72It is interesting to note again that the distance between the pipe discovered by Bloss J. Sutherland, O.L.S., in 2016 and Tecumseh Road is approximately 0.65 metres longer than the distance between the SSIB discovered by Ross A. Clarke, O.L.S., in 2018 and Tecumseh Road. Remember that the difference between the SSIB discovered by Ross A. Clarke, O.L.S., in 2018 and the pipe discovered by Bloss J. Sutherland, O.L.S., in 2016 is 0.66 metres in a north/south direction approximately along the line from Point B to Tecumseh Road.
73It is also interesting to note that neither the 2020 draft plan by Ross A. Clarke, O.L.S., nor the 2018 Topographic Survey by Bloss J. Sutherland, O.L.S., illustrate any measurements to the two intermediate monuments between Point B and Tecumseh Road. To be fair, these two intermediate monuments last appeared on the 1989 Plan of Survey by Timothy D. Hartley, O.L.S., and, therefore, may no longer exist (a conclusion supported by Plan 12R-23224 which Andrew S. Mantha, O.L.S., deposited in 2007 and which also does not show these two intermediate monuments).
THE DISAGREEMENT ABOUT THE MONUMENTATION AT POINT B
74As summarised by Bloss J. Sutherland, O.L.S., in Section 1 of a letter to Ross A. Clarke, O.L.S., dated June 1, 2019, “we agree that the ‘gas pipe’ that is shown on the above noted plan [(referring to Plan 12R-1654 by Smeeton, O.L.S., from 1974)] is the NW corner of #411 Brighton Road and the [sic] this ‘gas pipe’ is the above ground gas pipe that we found and accepted and NOT the pipe, iron pipe or gas pipe that both Ross Clarke found and for which is mentioned in VSHBB Inc. field notes dated October 20, 1989 nor the pipe found and mentioned in topographic survey by VSHBB Inc. dated Jan. 10 2018. We however believe it to be the gas pipe that VSHBB Inc. found and accepted for their field survey completed August 3, 2007 and registered as plan 12R-23224 and deposited on October 15, 2007” (entered as Tab 16 of the Survey Report prepared by Ross A. Clarke, O.L.S.). That being said, contrary to the assertion of Bloss J. Sutherland, O.L.S., there is no monument illustrated on Plan 12R-23224 (which Andrew S. Mantha, O.L.S., deposited in 2007) at Point B.
75Neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided a copy of the originating letter from Clarke, O.L.S., to Sutherland, O.L.S., and dated April 17, 2019, which prompted the response letter from Sutherland, O.L.S., to Clarke, O.L.S., dated June 1, 2019, referred to above.
76Conversely, when discussing Point B in a statement dated April 14, 2021, and submitted via an email on April 14, 2021, by R. Craig Stevenson, being the Applicant’s solicitor (and entered as Exhibit 2), Ross A. Clarke, O.L.S., stated that “There were 2 different pipes in the area, the survey pipe is or was a small pipe, probably an inch in diameter [or 0.025 metres], whereas the other pipe is 4 inches in diameter [or 0.10 metres], and in my experience of 50 years, never used as a survey monument.” That being said, neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided any information which corroborates the idea that a surveyor at any time could find both a small IP and a larger “gas pipe” at or near to Point B.
A MATHEMATICAL ANALYSIS OF THE 2018 REPLACEMENT OF CERTAIN MONUMENTS SET BY ROY A. SIMONE, O.L.S., AT THE MONUMENTS FOUND AND/OR PLANTED IN 1989 BY TIMOTHY D. HARTLEY, O.L.S.
77As mentioned previously, Roy A. Simone, O.L.S., during his Topographic Survey in January of 2018, re-established the position of a “gas pipe” discovered by Timothy D. Hartley, O.L.S., during his Plan of Survey in 1989 at or near to Point B. Simone, O.L.S., during his Topographic Survey in January of 2018, also re-established the position of a CC set by Timothy D. Hartley, O.L.S., during his Plan of Survey in 1989 at or near to the northwestern corner of what becomes Part 1 on Plan 12R-28018. In the former case, Simone, O.L.S., planted an SSIB and, in the latter case, Simone, O.L.S., planted a CP.
78In 1989, on Page 3 of 3 of the field notes accompanying the Plan of Survey by Hartley, O.L.S., the following measurements appear on the field traverse:
90°38’37” and 31.88 metres to a “FD GAS PIPE”; and
101°46’54” and 34.94 metres to a “SET CC”.
79In 2018, on Page 3 of 16 of the field notes accompanying the Topographic Survey by Simone, O.L.S., the following measurements appear on the field traverse:
90°38’37” and 31.88 metres to a “SET SSIB”; and
101°46’54” and 34.94 metres to a “SET P.K. (CONC)”.
80Note that an analysis of both of these sets of field notes indicates that the 2018 Topographic Survey by Simone, O.L.S., used/re-established the identical field traverse points used during the 1989 Plan of Survey by Hartley, O.L.S.
81As a result, the monuments re-established by Simone, O.L.S., in 2018 are in the identical position as the monuments discovered or established by Hartley, O.L.S., in 1989. The Applicant’s surveyor agrees with this conclusion stating that “Verhaegen surveyors … found the pipe on Plan 12R-1654 (July 25/1974) and replaced it with a short standard 1 inch iron bar (SSIB)” (refer to Section “Five” of the Survey Report prepared by Ross A. Clarke, O.L.S.).
82With respect to the SSIB at or near to Point B, the Topographic Survey in January of 2018 by Roy A. Simone, O.L.S., simply indicated that the surveyor set an SSIB. Page 3 of 16 of the accompanying field notes provides more detail though by stating that Simone, O.L.S., “(FD PIPE BURIED [SET] SSIB)” (which I read as finding a buried pipe which the surveyor replaced with an SSIB). On the other hand, Pages 2 and 4 and 5 (all of 16) of the accompanying field notes corroborated the Topographic Survey plan itself by reiterating the statement about only setting an “SSIB” at this location.
83Also, and according to his field notes, Bloss J. Sutherland, O.L.S., for the late-April of 2018 review of his Topographic Survey from 2016 stated that, at the “SSIB (1744)”, he “REFERENCED THEN REMOVED AND LOOKED IN A 3.5’ᴓ AND 2.5’ DOWN FOR A POSSIBLE OTHER PIPE OR MONUMENT. DID NOT FIND A PIPE AS NOTED ON PAGE 3 OF VSHBB INC. FIELDNOTES DATED DEC. 21/2017” (refer to Section 5 of the Survey Report of Bloss J. Sutherland, O.L.S.).
84To summarise these findings, I have concluded, based upon the whole of the evidence and based upon the balance of probabilities, that Simone, O.L.S., did not find a surviving pipe in 2018. (Sutherland, O.L.S., also stated in Section 5 of the letter to Ross A. Clarke, O.L.S., dated June 1, 2019, that “when going back and taking a closer look at the party chief’s [2018] field notes where they mention the ‘(found iron pipe)’, you can clearly see that something else had been written in there previously, erased and then ‘SET SSIB (found iron pipe)’ written in after the fact”). Remember also that two other monuments between Point B and Tecumseh Road no longer exist. On the other hand, I have also concluded, based upon the whole of the evidence and based upon the balance of probabilities, that Simone, O.L.S., using the surveyed measurements found within the survey records in his possession, planted an SSIB in 2018 in the identical position of a “gas pipe” previously found by his colleague, Timothy D. Hartley, O.L.S., in 1989.
THE “ERRONEOUS” DISTANCE FROM POINT B SOUTHWARD TO TECUMSEH ROAD
85Bloss J. Sutherland, O.L.S., stated in 2019 that “we believe that the survey undertaken by VSHBB Inc. on October 20, 1989 measured the easterly limit of #411 Brighton Road from Tecumseh Road northerly to the incorrect pipe, iron pipe, gas pipe. We believe that the VSHBB Inc. survey completed on August 3, 2007 and deposited October 15, 2007 as 12R-23224 to have correctly come up with a distance of 227.38’ [or 69.31 metres] by ‘missing course’ calculation” (refer to Section 2 of the letter from Bloss J. Sutherland, O.L.S., to Ross A. Clarke, O.L.S., dated June 1, 2019). It is important to note that neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., provided copies of the field notes used to prepare Plan 12R-23224 from 2007 in their respective Survey Reports. As a result, I cannot independently confirm any of the statements made by Bloss J. Sutherland, O.L.S., with respect to the measurements to Point B on Plan 12R-23224.
86In an alternative scenario, I will further explore the assertions made by Bloss J. Sutherland, O.L.S., with respect to the field notes supporting Plan 12R-23224. The main two assertions of Bloss J. Sutherland, O.L.S., are that the VSHBB field crew recorded measurements in their field notes to the identical 0.10 metre diameter pipe at or near to Point B and that Andrew Mantha, O.L.S., accepted the identical 0.10 metre diameter pipe as Point B itself.
87To begin, if the VSHBB field crew did indeed record measurements to the identical 0.10 metre diameter pipe found at or near to Point B as asserted, based upon which Bloss J. Sutherland, O.L.S., was able to make calculations, the results indicate that the measurement from this 0.10 metre diameter pipe at or near to Point B to Tecumseh Road only differed by 0.02 metres. From this comparison, I can only conclude that the 0.10 metre diameter pipe at or near to Point B did not move between Plan 12R-23224 (in 2007) and the TTS Topographic Survey (in 2016). I cannot conclude that the 0.10 metre diameter pipe at or near to Point B existed in the early 1960s when the first, known, modern surveyors began to survey in the area. Also, I cannot conclude from this information that the 0.10 metre diameter pipe at or near to Point B is the same monument (i.e. the “gas pipe”) accepted by the first, known, modern surveyors who began to survey in the area as Point B itself.
88Furthermore, it is important to note that Andrew S. Mantha, O.L.S., was surveying parcels of land in order to widen Brighton Road using Parts on Plan 12R-23224 deposited in 2007. That being said, and as previously stated, I cannot find any monument illustrated at Point B published on Plan 12R-23224 nor can I find any distance from Point B to Tecumseh Road published on Plan 12R-23224.
89Finally, I cannot uncover the basis for the assertion of Bloss J. Sutherland, O.L.S., that the distance shown from Point B to Tecumseh Road was erroneously recorded on the previous surveys. In turn, I cannot uncover the basis for the assertion of Bloss J. Sutherland, O.L.S., that previous surveys had accepted an alternative pipe which erroneously attempted to monument the position of Point B (refer to Section 3 of the letter from Bloss J. Sutherland, O.L.S., to Ross A. Clarke, O.L.S., dated June 1, 2019).
90As a result, I must discard these assertions made by Bloss J. Sutherland, O.L.S., based upon the whole of the evidence and based upon the balance of probabilities.
AFFIDAVIT EVIDENCE
91Neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., included any affidavit evidence from non-surveyors about Point B or about any other matter related to this Application in their respective Survey Reports.
ADDITIONAL EVIDENCE
92Neither Ross A. Clarke, O.L.S., nor Bloss J. Sutherland, O.L.S., included any further evidence about Point B or about any other matter related to this Application in their respective Survey Reports.
93On the other hand, Bloss J. Sutherland, O.L.S., added the following remark during his submissions: “We further believe that there is exculpatory evidence that both VSHBB Inc. and Ross Clarke have neglected to mention in their most recent surveys” (refer to Section 8 of a letter to Ross A. Clarke, O.L.S., dated June 1, 2019). I cannot, however, discern the existence or the nature of such evidence from the submission of Bloss J. Sutherland, O.L.S. As a result, I must discard this assertion as well based upon the whole of the evidence and based upon the balance of probabilities.
THE LAW
94Other than Section 60 of the “Surveys Act”, which states that
The plan of a survey of land shall show the position, type and form of every survey monument or object used to define a point placed, planted, set or marked in the survey[,]
95the “Surveys Act” does not set out procedures for dealing with surveyed lines, presumably created by deed, through the middle of a lot in a geographic township. In this case, no prior plan of survey provided by the Applicant’s surveyor or by the Objector’s surveyor has described the physical appearance and/or the characteristics of the “gas pipe” in any way.
96According to Clause 8(c) of the ‘Performance Standards for the Practice of Professional Land Surveying’, being Ontario Regulation 216/10 under the “Surveyors Act”,
When undertaking a survey, a licensed member shall, give priority to the evidence in accordance with common law and statute law.
97With that introduction of the professional duty of surveyors, I will review some of the guiding examples found in the case law with a view to answering the following question: can the “gas pipe”, found by the first, known, modern surveyor working at the site in the early 1960s, represent Point B?
98With respect to evaluating the boundaries of parcels of land, judges have reviewed acceptable evidence and prioritised this evidence into a hierarchy. Over the past 175 years, judges have refined these priorities of evidence. When considering this matter, I find myself guided by the words of Justice Lang who, in 2005, and during the decision of Nicholson v. Halliday, 2005 CanLII 259 (ON. C.A.), before the Ontario Court of Appeal, wrote the following passage:
The mandate of a surveyor is to re-establish boundaries, and a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. Survey law has developed a hierarchy of evidence from most compelling to least compelling as follows: (1) natural boundaries; (2) original monuments; (3) fences or possession that can be related reasonably back to the time of the original survey; (4) measurements (as shown on the plan or as stated in the metes and bounds description) (at Page 3).
99With respect to the first priority, being natural boundaries, no portion of the boundaries of the parcels of land illustrated on the draft plan, most particularly the portion of the boundary between Point A and Point B, is referenced to a natural feature either within the known deeds or within the known plans of survey. This want of natural boundaries related to the limit between Point A and Point B means that I must next examine the second priority being original monuments.
100With respect to the second priority, being original monuments, this point may well be the crux of argument between the two positions laid before me. Ross A. Clarke, O.L.S., considers the SSIB established by Roy A. Simone, O.L.S., with the numerical identification of 1744, planted in 2018, to best represent the position of the monument found by the first known modern surveyor in its originally discovered position. Roy A. Simone, O.L.S., planted this SSIB in the identical position of a “gas pipe” found in 1989 by a predecessor being Timothy D. Hartley, O.L.S. All three surveyors believed that this “gas pipe” was the “gas pipe” found by the first known modern surveyor practicing in the area and accepted it as Point B. On the other hand, Bloss J. Sutherland, O.L.S., considers the 0.10 metre diameter, round, pipe which he found in 2016 to be the actual “gas pipe” found by the first known modern surveyor practicing in the area and accepted it as Point B.
101Given the nature of this particular argument between the surveyors, I will also use elements of the last priority, being measurements, to confirm which monument constitutes the best evidence of what may well have been the original monument in its original location at Point B. The content of some of the case law though warrants closer scrutiny to guide me in making my final determination with respect to which monument represents the position of Point B.
102I shall start with an early case which dealt with a disputed boundary between Lots 33 and 34 in Concession 3 in the Geographic Township of Alfred in the United Counties of Prescott and Russell in eastern Ontario (refer to Charbonneau v. McCusker, (1910) 22 O.L.R. 46 (C.A.)). Much of this case dealt with conventional lines and the extension of such lines and the employment of astronomic bearings and the measurement of baselines and the taking of oaths from chainmen. Obviously, these issues do not concern this Tribunal.
103Ultimately, this case concerned itself with the true location of a boundary under dispute on the ground; therefore, an issue pertinent to this Tribunal is the acceptance of the already existing, or found, monuments. In this case, the then current surveyor, named Mr. Wilkie, O.L.S., at the site in 1909, discovered a series of stone monuments established in 1881 by a prior surveyor named Mr. Robert Hamilton, O.L.S. In a summary of the situation, the trial judge explained, at Page 56, that Mr. Wilkie, O.L.S., had accepted the existing stone monuments even though he had not “seen Mr. Hamilton’s plan or field notes…”. The trial judge went further and stated that Mr. Wilkie, O.L.S.,
was justified, I think, at this lapse of time, in going by the permanent monuments he found on the ground, and it was not necessary to take the evidence of any eyewitnesses on oath. There must come a time when a surveyor’s monuments will speak for themselves, and evidence of witnesses who saw them planted cannot be got. It is for this purpose that such monuments are planted of stone or other such durable material (at Page 57).
104In summary then, Mr. Wilkie, O.L.S., “found a stone which he recognized as a surveyor’s monument…” which he then relied upon albeit he did not know its origins (refer to Page 55). Riddell, J., writing for two other appeal judges as well, upheld this reasoning in the subsequent decision of the appeal court (refer to Page 66).
105Put another way, Mr. Wilkie, O.L.S., was justified in his acceptance and use of a recognizable monument made from a durable material even though he did not know specifically about its origin. By comparison, in 1962, and in the surveys which he made during the years which followed, John B. Smeeton, O.L.S., accepted the “gas pipe” which he found as designating the location in the field of Point B even though he did not record that he knew anything about its origin.
106Interestingly, albeit perhaps only instructively, there is also the old case of Elliott v. Eastwood et al, 1948 CanLII 89, which was originally reported as Elliott v. Eastwood et al, [1948] O.R. 903. This case dealt with a boundary dispute between Lots 11 and 12, Registered Plan 3, Township of Cavendish, County of Peterborough, in eastern Ontario. In this situation, there was a discrepancy between the distance shown on the registered plan of subdivision and the distance measured between two original monuments in the field along the disputed boundary. In the final analysis, Roach, J.A., writing for the other two judges of the appeal decision, decided in favour of holding the actual measurement between the monuments planted in the field over the measurement recorded between the two monuments on the plan of subdivision.
107Reduced to a maxim, a headnote on Page 1 of the decision reads as follows:
… the actual location of the posts must govern. The principle of the overriding, governing factor of monumentation in surveys has been part of the law of Ontario since 1849.
108Similar conclusions may be put forward about monuments and deeds.
109Again, by comparison, and in the surveys which he made during the years which followed, John B. Smeeton, O.L.S., accepted the “gas pipe” which he found in 1962 as designating the actual location in the field of Point B over any other theoretical location presented within any deeds or on any plans which may have been in his possession.
110Another important case is that of Nightingale v. Brooks, 2008 CanLII 31811 (ON. S.C.D.C.). This case involved two parties who shared a rural boundary between half lots within Lot 22 of Concession 2 in the Geographic Township of Esquesing in the Region of Halton at the western edge of the Greater Toronto Area of the Province of Ontario. Upon appeal from a decision originally made under the “Boundaries Act” (refer to File No. B-1175), Justice Carnwath, writing also on behalf of the other two judges hearing this appeal, noted that the Deputy Director of Titles believed that the first modern surveyor on the scene in 1970, a Mr. Carr, O.L.S., “was in a better position to record its position” (at Paragraph 17) meaning the location on the ground of the boundary in question. In the same way, John B. Smeeton, O.L.S., as the first modern surveyor known to be surveying at this site in 1962, was in a better position to evaluate the evidence and to record the position of Point B.
111In the Nightingale v. Brooks case, the judge noted that the Deputy Director of Titles believed that the first modern surveyor at the disputed location was in a better position to assess the evidence and to form an opinion about the position of the boundary. More specifically, and also from this case in 2008,
The Deputy Director [of Titles] found that sufficient evidence existed today to retrace Mr. Carr’s [1970] survey (both experts had no difficulty in retracing it), and that Mr. Carr was on the ground at a time when the snake rail fence existed. He located the end of the snake rail fence, and was satisfied that the snake rail fence probably once extended to the north limit of the parcel (at Paragraph 15).
112In the case before me, the Applicant’s surveyor, Ross A. Clarke, O.L.S., collected evidence from the intervening VHSBB surveys which had collected evidence from the earliest known modern surveyor on the scene being John B. Smeeton, O.L.S. Even though the Objector’s surveyor, Bloss J. Sutherland, O.L.S., disputed the existence and veracity of some of VHSBB’s survey work, the evidence discovered during the surveys of John B. Smeeton, O.L.S., remained both locatable and, therefore, reproducible.
113Returning to the case of Charboneau v. McCusker, the trial judge stated and accepted the following on Page 54: Mr. Wilkie, O.L.S.,
verified it, he says, by finding similar posts to the west between lots 35 and 36 and to the east between 31 and 32, and measuring the distance between them, when he found that the middle point between them was within half a link of the post.
114In a sense, Mr. Wilkie, O.L.S., working in 1909, verified the location of the local stone monument which he found by taking measurements to other nearby monuments. By comparison, I was able to make four, pertinent, comparison charts of the measurements from the monuments at or near to Point B to the other nearby features.
115Also returning to the case of Nicholson v. Halliday at Paragraph 34, re-iterating the guiding words of Justice Lang on appeal, it remains a current surveyor’s duty to discover the location on the ground of the original running of a boundary. In addition, it remains a current surveyor’s duty to re-establish an existing boundary on the ground according to the best available evidence. Furthermore, a modern surveyor should not correct or adjust an existing boundary using modern measurements combined with existing descriptions.
116With respect to the boundary in question before this Tribunal, I find that I must pay close attention to the developments related within two particular field surveys. First, there is the 1989 survey by Timothy D. Hartley, O.L.S., along with its supporting filed notes. Second, there is the 2018 survey by Roy A. Simone, O.L.S., along with its supporting filed notes. While examining these two surveys, I must also keep in mind Sub-Section 4(1) of the “Surveys Act” which directs professional surveyors to “make and preserve exact and regular field notes of all his or her surveys…”.
DECISION
117John B. Smeeton, O.L.S., first established Point A as the southeastern corner of Part 1 on Plan 12R-1630 in 1974. Within that same year, Point A transformed into southeastern corner of Part 1 on Plan 12R-1654. John B. Smeeton, O.L.S., deposited both plans; however, John B. Smeeton, O.L.S., did not establish a monument at this southeastern corner. Many years later, VSHBB planted a monument at this corner (during Job No. 4-23747). Ross A. Clarke, O.L.S., and Bloss J. Sutherland, O.L.S., both accepted this monument, noted as a SIB, with the numerical identification of 1528, as Point A during their multiple surveys at this site between 2016 and 2020 and within their respective Survey Reports submitted to this Tribunal. As a result, and based upon the whole of the evidence and based upon the balance of probabilities, I have concluded that the SIB, with the numerical identification of 1528, represents the best evidence of Point A.
118With respect to Point B, John B. Smeeton, O.L.S., first discovered what he described as a “gas pipe” at this location in 1962. Over the ensuing twelve years, John B. Smeeton, O.L.S., continued to accept this “gas pipe” as Point B during other surveys done in 1962 and in 1969 and in 1974 and again in 1974. In addition, C.G. Russell Armstrong, O.L.S., accepted this “gas pipe” as Point B in 1980. Furthermore, Timothy D. Hartley, O.L.S., accepted this “gas pipe” as Point B in 1989 (according to his field notes which offered more specificity). Finally, both Ross A. Clarke, O.L.S., and Bloss J. Sutherland, O.L.S., have indicated in their respective Survey Reports submitted to this Tribunal that the “gas pipe” discovered by John B. Smeeton, O.L.S., being the first known modern surveyor working at this site, represents Point B. As a result, and based upon the whole of the evidence and based upon the balance of probabilities, I have concluded that the “gas pipe” originally discovered by John B. Smeeton, O.L.S., in 1962 represents the best evidence of Point B.
119To re-iterate this point, in 1962, John B. Smeeton, O.L.S., was the first, known, modern surveyor working at this site (which was some six decades ago). As such, John B. Smeeton, O.L.S., was in a better position to assess the evidence and, therefore, in turn, to form an opinion about the position of Point B. In addition, John B. Smeeton, O.L.S., justifiably accepted and used this “gas pipe” as a recognizable monument made from a durable material even though he did not record knowing specifically anything about its origin. Furthermore, in 1962, John B. Smeeton, O.L.S., recorded that the “gas pipe” was already “old”. If this “gas pipe”, which marked the location of Point B, was already “old” in 1962, then I find it reasonable to infer that this “old” “gas pipe” was the original monument at Point B. There was certainly no evidence submitted to this Tribunal to indicate that some other monument even older than the “old” “gas pipe” had existed to mark the location of Point B.
120In 1989, however, the Plan of Survey prepared by Timothy D. Hartley, O.L.S., described Point B as marked (and perhaps generically described) by a found IP. On the other hand, Pages 1 and 3 of the three pages of field notes supporting this Plan of Survey by Timothy D. Hartley, O.L.S., described Point B as marked (and perhaps more specifically described) by a found “gas pipe”. In addition, although there were no telling measurements recorded either to the north of Point B or to the west of Point B during this 1989 survey, the distance measurement recorded to the south of Point B (i.e. to Tecumseh Road) varied only insignificantly from the previous measurements on record. More specifically, the distance measurement recorded by Timothy D. Hartley, O.L.S., in 1989 only varied by 0.04 metres to the 1962 survey of John B. Smeeton, O.L.S., and only varied by 0.03 metres to the 1980 survey of C.G. Russell Armstrong, O.L.S. As a result, and based upon the whole of the evidence and based upon the balance of probabilities, I conclude that Timothy D. Hartley, O.L.S., measured to the “gas pipe” first discovered in 1962 by John B. Smeeton, O.L.S., at Point B.
121In early 2018, Roy A. Simone, O.L.S., having been unable to find the “gas pipe” discovered by John B. Smeeton, O.L.S., planted a new SSIB to mark the position of Point B. Roy A. Simone, O.L.S., planted this SSIB in the same position as the “gas pipe” found in 1989 by Timothy D. Hartley, O.L.S. To do so, Roy A. Simone, O.L.S., used identical measurements as recorded by his VSHBB predecessor, again being Timothy D. Hartley, O.L.S., in his 1989 field notes (refer to the analysis of Roy A. Simone’s survey at pages 14-15 of these ‘Reasons’). Later in 2018 and in the years which followed, Ross A. Clarke, O.L.S., found and accepted this SSIB as indicating the position of Point B as previously indicated by an “old” “gas pipe”.
122There were no telling measurements recorded either to the north of Point B or to the west of Point B during the surveys of Ross A. Clarke, O.L.S., in 2018 and in the years which followed. On the other hand, the distance measurement recorded to the south of Point B (i.e. to Tecumseh Road) varied only insignificantly (i.e. within 0.03 metres or less) when compared to all the other surveys submitted in the area dating back to 1962 save and except for the surveys of Bloss J. Sutherland, O.L.S., of course. As a result, and based upon the whole of the evidence and based upon the balance of probabilities, I have concluded that the SSIB planted in 2018, and with the numerical identification of 1744, represents the best evidence of the position of the “gas pipe” last measured by Timothy D. Hartley, O.L.S., in 1989 and originally discovered by John B. Smeeton, O.L.S., in 1962, and, therefore, constitutes the best evidence of the position of Point B.
123Although the agreement of all parties affected by a boundary survey is indeed preferable, such agreement is not essential to the completion of a professional opinion by a licensed Ontario Land Surveyor. As a result, and based upon the whole of the evidence presented to this Tribunal and based upon the balance of probabilities, I find it reasonable to conclude that the boundary on the ground between PIN 75000-0599 (LT) and PIN 75000-0555 (LT) is the straight line running from the SIB (1528) at Pont A to the SSIB (1744) at Point B as confirmed above.
124The Applicant’s surveyor, Ross A. Clarke, O.L.S., illustrates this identical boundary in bold on his draft plan of survey prepared in support of this Application.
ORDER
Upon considering all of the testimony submitted to the Written Hearing and upon considering all of the evidence filed with the Tribunal by the Applicant and by the Objector, and upon considering the applicable law, I find as follows:
125I DO HEREBY ORDER that the Application of “Dina Venturini” is allowed in full.
126AND I DO HEREBY ORDER that the boundary as illustrated with a bold, solid, line on the Draft Plan of Survey, dated June 11, 2020, and signed by Ross A. Clarke, O.L.S. of the survey firm “Clarke Surveyors Incorporated”, and prepared in support of this Application, is confirmed.
127AND I DO HEREBY ORDER that the Objection of “Hassan Bahcheli” is denied.
128I DO FURTHER ORDER that the confirmed boundary be monumented in accordance with Section 9 of O.Reg. 525/91.
129AND I DO FURTHER ORDER that Ross A. Clarke, O.L.S. make the Draft Plan of Survey of the confirmed boundary current within the meaning of O.Reg. 43/96.
130AND I DO FURTHER ORDER the removal of any monuments conflicting with the confirmed boundary.
131AND I DO FURTHER ORDER that a final Plan of Survey of the confirmed boundary be prepared by the Applicant, 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 Survey of the confirmed boundary shall be submitted to the Director of Titles within three months of 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 by the court.
COSTS
132As I did not receive any submissions with respect to costs, I make no order in that regard. I found that both parties co-operated with the written hearing process and that there was an identifiable discrepancy (being 0.66 metres) with respect to the position on the ground of the found “pipe” and the found “short standard iron bar” – both shown at (or near to) Point B on the draft plan of survey.
DATED at my office in Guelph, Ontario:
January 27, 2022.
Hugh Beaumont Goebelle, O.L.S.
Deputy Director of Titles
APPENDIX “A”
LIST OF EXHIBITS
Survey Report (binder with 18 supporting tabs) prepared by Ross A. Clarke, O.L.S., of Clarke Surveyors Incorporated and dated January, 2020, as revised on October 22, 2020, and on November 13, 2020, and on December 10, 2020.(Applicant)
Email from R. Craig Stevenson, Barrister and Solicitor, dated April 14, 2021. (Applicant)
Survey Report (binder and dividers added by the Hearing Officer to organise it and its 22 supporting tabs) prepared by Bloss J. Sutherland, O.L.S., of Total Tech Surveying Inc. and dated March 31, 2021. (Objector)
PIN 75000 - 0600 (LT)
Plan 12R-28327
APPENDIX “B”
SKETCH PREPARED BY THE HEARING OFFICER
(Not to scale)