THE BOUNDARIES ACT

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

Director of Titles – Ontario (Boundaries Act)

Citation: Litz v. Plati, 2022 ONBAH 2 Date: 2022-07-22 Docket: B-1258 Registry: Simcoe

Between: Robert and Sandra Litz – Applicants

• and - Francesco Plati, Graziella Plati, Maria Monardo – Objectors

Before: Ken Wilkinson, Deputy Director of Titles

Reasons for Decision

Application B-1258

1IN THE MATTER OF an application by Robert Litz and Sandra Litz, the registered owners of the lands designated as PIN 58952-0471(LT), being part of Lot 31, Concession 1 in the Geographic Township of Nottawasaga, Township of Clearview, County of Simcoe for the purpose of confirming, under The Boundaries Act, R.S.O. 1990 c. B.10, the true location on the ground of the boundary between the lands designated as PIN 58952-0471 (LT) and PIN 58952-0463 (LT), in accordance with a draft plan of survey, dated October 29, 2018, with the aforementioned boundary shown by a heavy solid line, prepared and signed by Rodney G. Reynolds, Ontario Land Surveyor.

2AND IN THE MATTER OF an objection by Francesco Plati, Graziella Plati and Maria Monardo, the registered owners of the lands designated PIN 58952-0463 (LT), being part of Lot 31, Concession 1 in the Geographic Township of Nottawasaga, Township of Clearview, County of Simcoe, situated immediately south of the Applicant's lands.

3AND IN THE MATTER OF an electronic and written hearing held pursuant to Rules 6.3 and 6.4 of the Tribunal’s Rules of Procedure.

4This application came before Lise Currie by electronic hearing convened at 10:00 in the morning, on the 11th day of January 2021. The hearing continued on the 12th and 13th of January 2021. At this hearing there appeared before Ms. Currie:

Sandra and Robert Litz Applicants Scott Fairley Counsel for the Applicants Rodney Reynolds Land Surveyor who prepared the Draft Plan Graziella Plati Objector Domenic Saverino Counsel for the Objectors Domenic Monardo Witness Peter Raikes Witness Alan Worobec Witness

5Four exhibits containing multiple tabs were filed during the hearing before Ms. Currie.

6Mr. Reynolds O.L.S. (Ontario Land Surveyor) was qualified as an expert witness land surveyor, presented the Draft Plan of Survey, and testified on behalf of the Applicants. Mr. Raikes O.L.S. and Mr. Worobec O.L.S. were also qualified as expert witness land surveyors and testified on behalf of the Objectors.

7On June 8th, 2022, all parties were notified that Ms. Currie, the hearing officer assigned to File B-1258, was not able to complete the Decision due to personal reasons. Ken Wilkinson O.L.S., Deputy Director of Titles was assigned to replace Ms. Currie.

8The matter was converted to a written hearing. The complete recordings of the electronic component of the hearing, as well as the written exhibits were entered into evidence and reviewed by Mr. Wilkinson. The parties were notified of the procedural changes and given an opportunity to raise any concerns. No concerns were raised by the parties. Mr. Wilkinson then commenced a written hearing pursuant to the Statutory Powers and Procedures Act R.S.O. 1990 c. S. 22. A list of the exhibits is attached as Appendix "A" to these Reasons.

REASONS FOR ORDER

9Herein I have set out my reasons for my decision in this matter. I have formatted the reasons under the following headings:

• Survey and Title History
• Issue to be Determined
• Analysis with Applicable Law
• Conclusion
• Costs

Survey and Title History

10The Township of Nottawasaga in the County of Simcoe was originally surveyed in 1833 by T. Kelly and the remainder completed later in the same year by C. Rankin, both government surveyors. The township was surveyed as a 2400 acre sectional system, where the usual practice in the original survey was to survey the township boundaries, concession lines and side lines of sections defining the section boundaries and to establish the front corners of the lots and section corners. Regular lots were established as 30 chains wide and 66.67 chains in length. Usually, a road allowance, one chain wide, was made between each alternate concession, every third lot, and along the township boundaries.

11The land in this application lies within the portion of Nottawasaga Township surveyed by Mr. Rankin. Lot 31 was shown on the C. Rankin Township of Nottawasaga Plan as being nominally 66.67 chains by 30 chains which calculates to a nominal 200 acres. Lot 31 fronts on the road allowance between the Township of Nottawasaga and the Township of Sunnidale.

12The Rankin fieldnotes and diary for his original survey in the area of Lot 31 indicate that the original township name for the portion of Nottawasaga Township he was assigned to survey was Merlin Township.

13At the start of his survey of the remainder of the township, Rankin wrote in his diary that he:

"went down by Mr. Kelly’s line between Sunnidale and Merlin to go up between lots 18 & 19 to where he left off running the 2nd and 3rd con line of Merlin for the purpose of continuing that line to the Lake shore."

14There is no indication that Mr. Rankin resurveyed the line of the road allowance between the Townships. The road allowance between Townships is the only road allowance on Rankin’s Township map that does not indicate a bearing or a dimension for the broken Lot adjoining Lake Huron. In addition, no lot dimensions are shown along the road allowance for either Lot 33 or Lot 34, Concession 1.

15The frontage (or width) of both Lot 31 and Lot 32, Concession 1 on the road allowance between Townships is shown on Rankin’s map as being 30 chains. It is more likely than not that he marked the front corners of these two lots as he ‘went down the line between Sunnidale and Merlin’ established by Mr. Kelly.

16All of Lot 31 Concession 1 was patented by the Crown to John Caleb Lloyd on or about December 28, 1835. Lot 31 was then transferred as a whole Lot through a series of owners until early 1857 when John Murray of Nottawasaga transferred the south half (100 acres) of Lot 31 to James Murray of York. In early 1864 a Bargain and Sale transfer of the north half (100 acres) of Lot 31 to William Kerr was registered in the Simcoe County land registry office.

17The land in Lot 31 continued to be transferred as two separate aliquot parts until Mr. John Henry Collins purchased the south half in April 1907 and later the north half of Lot 31 in February 1927 bringing all of Lot 31 into a single parcel owned by Mr. Collins whose occupation was listed as ‘Farmer’ on the deed.

18Mr. Collins owned Lot 31 as a whole Lot for 23 years until March 1950 when he transferred “all of Lot No. Thirty-One in the First Concession in the said Township of Nottawasaga save and except the northerly forty acres thereof” (the ‘southerly parcel’) to John Burton Freethy of Nottawasaga. This Deed was registered as No. 22264 and described Mr. Freethy’s occupation as a Farmer.

19Mr. Collins retained the northerly forty acres of Lot 31 (the ‘northerly parcel’) for only about a month until he registered a transfer, Instrument No. 22273, of this parcel to William James Ward of the Township of Nottawasaga for the nominal sum of one dollar in April 1950.

20Mr. Ward’s occupation is recorded on Instrument No. 22273 as a Farmer, and on the Land Transfer Tax Act Affidavit explaining the nominal amount, the relationship between Mr. Ward and Mr. Lloyd is described as being between father and foster son.

21The term foster son implies a very close relationship between Mr. Collins and Mr. Ward as the usual definition of a foster son is someone who was raised as a son although not related by birth. As such there is a very high probability that Mr. Ward worked closely with Mr. Collins farming the land in Lot 31, Concession 1, Nottawasaga for some of the 23 years that it was owned entirely by Mr. Collins.

22John Freethy held the southerly parcel for only about two years before he transferred “all of Lot No. Thirty-One in the First Concession in the said Township of Nottawasaga save and except the northerly forty acres thereof’ to Mr. Adriaan Van Beek, through Instrument 23317 on April 14, 1952. Mr. Van Beek’s occupation is shown on the deed as being a Farmer.

23The southerly parcel is then transferred through several parties, intact save for a road widening, to the current owners Francesco Plati, Graziella Plati, and Maria Monardo.

24The ‘northerly parcel’ has a more complicated title history.

25The first severance from the ‘northerly parcel’ was a strip of land 60 feet in width adjoining the line between Lot 31 and Lot 32. Using three separate deeds, Mr. Ward transferred the easterly 1742 feet of the most northerly 60 feet of Lot 31 to Lewis Peachman in 1953 and 1954.

26On October 27, 1966, the County of Simcoe registered a Land Plan on Lot 31, Concession 1 as Instrument RO232383. This plan was prepared under Section 66 of the ‘Highway Improvement Act’ R.S.O. 1960, C. 171 and the ’Expropriation and Procedures Act’. This Land Plan expropriated an approximately 16-foot-wide strip of land from part of the ‘northerly parcel’ and all the ‘southerly parcel’ along with other lands to widen portions of the road allowance between the Townships of Nottawasaga and Sunnidale (now known as County Road No.7). The land surveyor who signed the Land Plan was Clare W.A. Jones O.L.S. of Barrie.

27The Land Plan indicates that a 16.16 foot wide strip of land described as Part 1 on the plan was expropriated from of the ‘northerly parcel’ and a 16.16 foot strip and a daylighting described as Part 2 on the Land Plan was expropriated from the ‘southerly parcel’. To create the boundary between Part 1 and Part 2, Mr. Jones was required to locate the point where the boundary between the northerly and southerly parcels intersected County Road No. 7.

28Mr. Jones placed this intersection 402.01 feet south of the northeast corner of Lot 31, Concession 1. Mr. Jones’ field notes do not provide information as to how this intersection was determined or how the bearing of the line between the northerly and southerly parcels was set. The Jones field notes do indicate the frontage of Lot 31 as being 2010.07 feet, which is about 30 feet longer than the distance of 1980 feet (30 chains) shown on Rankin’s original survey.

29In his Survey Report, Mr. Reynolds theorized that Mr. Jones set the line between the northerly parcel and southerly parcel using proportioning. On page 11 of his report Mr. Reynolds calculated that:

"40 acres of 200 acres is 20 percent. 20 % of 2010.07 feet is 402.01 feet. The County Plan show 60 + 186.42 +155.59 or 402.01 feet. It is quite clear O.L.S. James Diamond¹ proportioned the distance along the road allowance from a proportion of the areas. If the length of 200 acres is 2010.07 feet, the length of 40 acres should be 402.01 feet."

30In his oral evidence, Mr. Reynolds stated that he did not believe the 402.01 foot dimension shown on the Land Plan was correct. He suspected the dimension did not create a parcel containing exactly forty acres because the length of Lot 31 was not considered or measured for the calculation of this corner.

31Further, Reynolds noted that Surveyor Jones could not have relied on previous work by a surveyor or a fence to set the 402.01 foot dimension. Reynolds noted in his oral evidence that he did not find any survey monuments or survey records dating back to the time of the severance and the Land Plan indicated ‘no fence’ at the line between the northerly and southerly parcels.

32Mr. Reynolds also gave oral evidence that the severance created by Mr. Collins created aliquot parts. Further, Reynolds included s. 35 of the Surveys Act R.S.O. 1990 c. S. 30 in his Survey Report. Section 35 sets out how a survey method for establishing aliquot part boundaries in a 2400 acre sectional township.

33The Surveys Act does not define the term ‘aliquot part’. The rules in the Surveys Act and the regulations under the Act setting out procedures for the surveying of aliquot parts appear to be designed to allow for a fair division of land when the actual lot area is different from the nominal lot area.

34For example, s. 59 of the Surveys Act R.S.O. 1990 c. S. 30 sets out how a surveyor is to establish the boundaries of aliquot parts for a parcel that is not a Township Lot although the process is similar to that for a township lot:

59. The aliquot part of a parcel of land that is not an aliquot part of a township lot is the aliquot part of the area of the parcel of land whether the area of the aliquot part as so determined is more or less than that expressed in any grant or other instrument.

35Under this section, a surveyor is required to determine the actual area of an original parcel, rather than assuming the nominal area, before determining the boundaries (the ‘first running of the line’) of a specific fraction, such as half of the original parcel or ‘aliquot part’, to ensure each of the owners of the fractions get their correct proportion of the total area of the original parcel.

36The Collins severance was not an aliquot part as the land in the transfer to Ward was described as ‘the northerly forty acres’, a fixed number, and not a fraction of the whole township lot. Similarly, the ‘southerly parcel’ in Lot 31 was not given a fractional designation. As such, the s. 35 Surveys Act method does not apply to the ‘first running of the line’ between the northerly and southerly parcels.

37Under Section 10 of the Highway Improvement Act R.S.O. 1960 C. 171, notice of the expropriation and a description of the land taken by the Land Plan was to be provided to the former owners of the expropriated land.

38It is more likely than not that Mr. William Ward and Mr. George Van Beek were given notice of the registration of the Land Plan and, as a result, notice of Mr. Jones’s location of the intersection of the line between the northerly parcel and the southerly parcels and County Road 7. No evidence was provided that would indicate either Mr. Ward or Mr. Van Beek sought to contest the location of the intersection set by Surveyor Jones.

39William Ward died on or about June 1st, 1977. In September 1977 his executors registered a Transfer as Instrument 619118 of the “northerly forty acres of Lot No. 31 in the First Concession” to Mr. Albert Schell and Mr. George Schell. The description in this deed was stamped by the Land Registry Office as being ‘not an acceptable description for future registrations’.

40On July 25, 1978, Albert and George Schell registered a transfer of the same lands in Instrument 619118 to Donna Browning by Instrument 645811. Likely in response to the Land Registry office description warning placed on Instrument 619118, the lands described in Instrument 645811 employed a new metes and bounds description. Instrument 645811 described the ‘northerly parcel’ as:

COMMENCING at a point in the Northerly limit of said lot, distant westerly thereon 1,742 feet from the Northeast angle of said Lot;

THENCE continuing westerly along said Northerly limit to the northwest angle of a said lot;

THENCE Southerly along the westerly limit of said Lot a distance of 402.01 feet to a point;

THENCE Easterly parallel to the northerly boundary of said lot to a point in the Easterly limit of said lot distant 402.01 feet southerly thereon from the northeast angle of said lot;

THENCE Northerly along said Easterly limit, a distance of 342.01 to a point in the said easterly limit;

THENCE Westerly parallel to the northerly limit of said lot a [72] distance of 1,742 feet to a point;

THENCE Northerly parallel to the Easterly limit of said lot a distance of 60 feet more or less to the point of commencement.

SAVE AND EXCEPT therefrom those lands expropriated by the corporation of the County of Simcoe for road widening purposes by instrument Number 232383.

41Both surveyor Worobec and surveyor Reynolds agreed that this metes and bounds description was created by a non-surveyor and not based on any fieldwork. Of note in this description is the re-use of the 402.01 foot dimension as the distance along the rear of the ‘northerly parcel’. This is a good indication that the owners of the ‘northerly parcel’ both knew of and accepted the 402.01 foot distance shown on surveyor Jones’ Land Plan registered in October 1966.

42During the years after 1978, the remainder lands in the ‘northerly property’ were transferred several times among members of the Sharp family and a company owned by the Sharp family.

43On October 22, 1999, Plan 51R-29058, the second known modern survey of lands in Lot 31, was deposited as a reference plan in the Simcoe Land Registry Office. According to surveyor Worobec’s oral evidence, the client for this plan was a member of the Sharp family. The surveyor who signed this plan was F. Dale Eplett of Eplett Worobec Surveying Limited.

44The following excerpt from plan 51R-29058 shows a portion of the plan prepared by surveyor Eplett:

45Reference plan 51R-29058 is based mainly on the previous work by C.W.A. Jones O.L.S. In addition to the monuments placed to demark Part 1 on the plan, surveyor Eplett placed additional monuments at the north end of the County Road widening and at the intersection of the boundary between the northerly and southerly parcels and the County road widening. Eplett was the first known surveyor to place a monument at the intersection of the boundary between the northerly and southerly parcels and the County Road widening.

46Surveyor Worobec testified that he was a business partner with Mr. Eplett at the time plan 51R-29058 was prepared and recalled this project. Mr. Worobec gave evidence that Mr. Eplett went to the additional effort and expense to place this monument at the intersection in accordance with the Land Plan at the request of his client, Mr. Sharp. I would expect that if Mr. Sharp had any concerns with the 402.01 foot dimension on the Land Plan or the location of the southerly boundary of his lands, the request to Mr. Eplett would have been to survey the entire south boundary of the Sharp owned ‘northerly parcel’ rather than simply place a monument in accordance with the Land Plan.

47The remainder of the ‘northerly lands’ were transferred to Betty Hampel through Instrument RO1424127. On June 11, 2001, these remainder lands were administratively automated and converted to the land titles system by the Province of Ontario. Property Identifier Number (PIN) 58952-0461 was assigned to the Betty Hampel lands. On conversion the description of the Hempel lands became: PT LT 31 Con 1 Nottawasaga as in RO1424127

48The metes and bounds description contained in Instrument RO1424127 is identical to the metes and bounds description first used in the deed registered by Albert and George Schell in 1978.

49Betty Hempel then transferred Part 1 51R-29058 to Robert Douglas Fraser and later transferred the remainder of her lands to 668122 Ontario Inc. a company for which Robert Litz had signing authority.

50668122 Ontario Inc. then transferred this same land to Robert Litz and Sandra Litz through a transfer registered as SC401989 on January 6, 2006. The description of the Litz’s property, as shown on PIN 58952-0471, is:

PT LT 31 Con 1 Nottawasaga as in RO1424127 except PT 1 51R29058; Clearview

51The current parcel configuration is shown on the following excerpt from a Government of Ontario Land Registration Property Index Map (Exhibit 1 Tab B.40). The Litz property is shaded and labelled with the number 0471.

52In 2003, Mr. Reynolds was asked by Robert Litz to review the property description of Mr. Litz’s property, especially in regard to the south boundary, as Mr. Litz hoped to build a house on his property, but not too close to the south boundary line of his land.

53Following a review of the available documents and plans, Mr. Reynolds determined that he needed to survey the entire Lot 31, Concession 1 to develop the location of the south boundary of the Litz property.

54Mr. Reynolds’ field notes and oral evidence indicate he performed enough survey work to satisfy himself that he knew where the south boundary was located. He based his opinion of the south boundary on a mathematical calculation of forty acres after measuring the total width and length of Lot 31 and setting the south boundary of the ‘northerly parcel’ as a straight line parallel to the overall resultant bearing of the entire northerly limit of Lot 31.

55Following this calculation, Mr. Reynolds returned to the field and laid out markers for the construction of the new Litz house. Mr. Reynolds’ crew also placed wooden stakes and iron pins or bars along the line Reynolds calculated as the southerly limit of the ‘north parcel’.

56Around the time of the stake and bar mark out of the south boundary of the ‘northerly parcel’ for Mr. Litz, a member of Mr. Reynold’s survey crew noticed some strands of old wire fence hung in trees and lying on the ground and called Mr. Reynolds to the Litz property. Mr. Reynolds had a walk along part of the fence and determined that it was his opinion that the old wire fence was a cattle fence or fence of convenience and did not signify a boundary line.

57The fieldwork and calculations used for the building layout were later used to create a draft plan of survey. This draft plan shows the south boundary of the Litz property as a straight line on a bearing of N 71 04’ 10” W with a distance of 4,218.7 feet (1285.87 m) from the rear of the parcel to the widened limit of County Road 7. The draft plan is incomplete and unsigned and bears a date of January 12, 2005. It is unknown if this draft plan was issued to the client or even completed as it was Mr. Reynolds evidence that in regard to work on the Litz property:

"We had not prepared a plan or even a bill. We believed in November of 2006, we had been terminated. His file had been sitting around and not completed. We were busy and were not looking for work."

58In late spring of 2006, Mr. Reynolds was contacted by David Pesce O.L.S. for the survey fieldnotes regarding a Reynolds survey monument Pesce found while he was conducting a survey of the ‘southerly parcel’ in Lot 31, Concession 1.

59Mr. David Pesce O.L..S had been hired by the owners of the ‘southerly parcel’ to survey the extent of their lands. The available fieldnotes show that Mr. Pesce attended Lot 31 in the months of June and July 2006. Although the fieldnotes provided are not complete, based on my review Mr. Pesce completed enough work to produce a plan of survey of the ‘southerly parcel’ and show the location of the Monardo / Plati barn and farmhouse in relation to the boundaries.

60According to the fieldnotes, Pesce placed the northern boundary of the ‘southerly parcel’ lands very close to the line Surveyor Reynolds developed for the Litz house layout in October 2004 and displayed on his draft plan in January 2005. Pesce placed at least three iron bars on his opinion of the north boundary on July 4th, 2006, indicating that his calculations and fieldwork were almost complete in this area.

61A feature labeled as an ‘old P+W cattle FNC’ is illustrated on the Pesce field notes as continuous straight line located parallel to and north of the line he calculated as the northern boundary of the ‘southerly parcel’. The distances to the fence from the Pesce boundary are not shown on the notes. Ms. Plati confirmed that Pesce was not paid for his work on Lot 31 and that she did not receive either a plan or an invoice.

62At some point after 2006, Ms. Plati began looking for another surveyor to prepare a survey of the ‘southerly parcel’ and engaged Eplett Worobec Raikes Surveying Ltd. for this work. Alan J. Worobec, O.L.S. led the survey crew for the fieldwork.

63Mr. Worobec began the fieldwork on November 4, 2010, when he met Maria Monardo to discuss the issues and concerns regarding the Monardo / Plati northern boundary. Mr. Worobec also met with one of the former owners of the ‘southerly parcel’, Wilma McQueen, and obtained a field affidavit regarding the remains of an old post and wire fence located at the edge of the cultivated field. Worobec also took 19 pictures of the old wire fence at various locations.

64Ms. McQueen was very familiar with Lot 31 as she had assisted in maintaining the fences on Lot 31 between 1961 and 2001 to contain livestock. At his first meeting with Ms. McQueen, Mr. Worobec’s field notes describe a discussion about the cattle fence of convenience that separated the farm field from the pond or wet lowland at the north-east area of her former property. In a subsequent affidavit based on a second meeting with Mr. Worobec in 2011, Ms. McQueen provided an affidavit dated June 12, 2012, that included:

"I went to the farm to meet with Mr. Alan Worobec, Ontario Land Surveyor, on July 06, 2011 we examined the existing fence along the North Limit of the farm and I identified the fence existing there today was the same fence in the same location I had maintained until 2001.

The remains of the wire fence attached to trees and post and wire fence from the new pond Westerly is the fence I always understood to be the North Boundary of our farm."

65In a third affidavit dated November 18, 2018, Ms. McQueen further noted that by 2011 “deterioration had taken place” in the condition of the fence since she had maintained it.

66Both surveyor Reynolds and surveyor Worobec agreed that the old post and wire fence and the wire fence attached to the trees along the north edge of the plowed field described in the McQueen affidavit are very old and most likely pre-date the severance of the northerly and southerly parcels by Mr. Collins in 1950.

67Mr. Worobec’s pictures also show a few strands of more recent (un-rusted) barbed wire attached to and placed alongside the very old wire fence. In addition, the pictures show there are some sections of the fence attached to T-bars and sections of old wooden fence posts still standing in a line. Based on the pictures it appears that this present day old wire fence would have been a substantial and obvious feature in the 1940’s and 1950’s.

68Mr. Reynolds confirmed that this fence, identified in Ms. McQueen’s affidavit as what she thought was the north boundary of her land, was the same wire fence that he and his field crew saw in October 2005.

69During the course of the Worobec survey Mr. Litz became aware of surveyors walking near his home. Surveyor Worobec confirmed that he spoke with Mr. Litz while conducting the fieldwork in 2011. It appears that following this meeting Mr. Litz contacted Surveyor Reynolds.

70Rod Reynolds O.L.S. returned to Lot 31 in January 2012 at the request of Mr. Litz. According to Reynolds’ fieldnotes his survey crew performed more fieldwork and set monuments on the southern boundary of the Litz property in support of a new plan of survey that was deposited in the Simcoe Land Registry Office as reference plan 51R-38333. In his survey report in support of the Boundaries Act application Reynolds described 51R-38333 as an update of the 2005 private survey of the Litz property.

71Similar to Reynolds’ 2005 draft plan, reference plan 51R-38333 shows the south limit of the Litz property as a straight line front to back. However, the south boundary now has a bearing of N 70 18’ W and a distance of 4203.15 feet (1281.12 m) from the rear of the parcel to the widened limit of County Road 7, approximately 15 feet shorter than the distance shown on the 2005 draft plan. Unlike the 2005 draft plan, 51R38333 also shows a fence line labeled as “Wire Stands [sic] in Trees No Post” curving north of Reynolds’ south boundary from the rear and connecting to the north-south cattle fence.

72By January 14, 2013, Mr. Raikes completed the required fieldwork to produce a plan of survey of the ‘southerly parcel’ and deposited this reference plan on May 16, 2013 in the Simcoe Land Registry Office as plan 51R-38957.

73Plan 51R-38957 indicates that surveyor Raikes accepted the old wire fence as marking the boundary between the ‘northerly parcel’ and the ‘southerly parcel’. The Raikes survey report states that the northern boundary of Part 1, Plan 51R-38957 was determined from the best available evidence of the first positioning of the boundary as marked on the ground.

74Both Raikes and Reynolds reference plans indicate that the old wire fence forms a shallow curve between its east and west terminus. Both plans show a fence starting at the west limit of Lot 31 and then curving in a northerly direction until about the midpoint of Lot 31 and then curving back in a southerly direction. The curve is not visible in Surveyor Worobec’s pictures as the fence line is covered by new growth and only sections of the fence are visible. The sections of fence shown in the pictures are not irregular and appear to the eye to run straight. The pictures and oral evidence of both surveyors did not provide any reason for the fence other than as an internal division between land actively used for farming and land set aside for some other purpose. Mr. Reynolds was of the opinion that the land north of the fence was sandy with moguls although this was not visible in the Worobec pictures or confirmed by surveyor Worobec.

75On the Reynolds reference plan, the old wire fence runs for about two thirds of Lot 31 before it abruptly ends. The curve in the line of the old wire fence strongly suggests that that no surveyors equipment such as a telescope or transit was used to run the fence.

76The western terminus of the old wire fence is shown on both Reynolds and Raikes survey fieldnotes as being at a 3 foot (1.0 m) diameter oak tree located about 6 feet (1.83 m) from the west limit of Lot 31 and about 7 feet (2.21 m) north of where Reynolds placed a standard Iron Bar monument marking his opinion of the southwest corner of the ’northerly parcel”.

77Reynolds’ fieldnotes indicate the wire passes through the middle of the oak tree. The picture of this same oak tree by Worobec shows very old wire both wrapped around and passing through the trunk of the tree. The intersection of the old wire fence with the west limit of Lot 31 is shown on the portion of plan 51R-38957 below:

78The distance between the northwest corner of Lot 31 and the intersection of the old wire fence with the west boundary of Lot 31 is shown on the both the Raikes plan and the Reynolds’ plan as being 417. 45 feet (127.24 m)

79There may be several methods that could be used by a non-surveyor to estimate the acreage enclosed north of the old wire fence. For example, a calculation could be made based only on the information from the original township survey. Forty acres is 20 percent of 200 Acres. If the width of the township lot is 30 chains (1980 feet) then a fence located about parallel to the north boundary of Lot 31 would need to start approximately 400 feet (20% of 1980 feet) from the North-West corner of Lot 31 to enclose a nominal forty acres.

80In their oral evidence both surveyors agreed it is quite conceivable that Mr. Collins could have paced or otherwise measured the distance between the Northwest corner of Lot 31 and the location where the east-west old wire fence intersected with the west limit of Lot 31.

81Each surveyor indicates a different eastern terminus on their plan:

• The 2013 Raikes survey shows the old wire fence as ending west of the pond located in front of the 1 storey stone dwelling (the Litz house).
• The 2012 Reynolds survey shows the old wire fence (based on 2005 survey work) continues east past the 1 storey stone dwelling (the Litz house) to where it abruptly ends at a north-south fence of convenience.

82There are several reasons why the old wire fence abruptly ends on the east end of Lot 31 and is shown as ending in two different locations. Surveyor Worobec arrived after the Litz home was built on the northerly parcel and much of fence near the house was removed during the construction phase. Reynolds was on site before the house was built and was able to locate more of the fence.

83The area between the Litz house and Country Road 7 is the location of a pond or low lying wet area. The original survey of Lot 31 does not indicate any pond in this area, and it was Mr. Litz’s oral evidence that the low lying wet area was a gravel pit at some point.

84The use of this land for sand or gravel extraction would mean that an east-west page wire fence in this area would have been removed. As the low-lying area straddles the line under application, the creation of the pond or removal of the gravel would most likely have occurred prior to the Collins severance in 1950.

85Both surveyors agree that the newer fence around the west and south sides of the pond or former gravel pit was a fence of convenience built to keep farm animals away from the wet area. And both agreed this newer fence was not a boundary fence. The fact that this fence of convenience connects at one point to the older wire east-west fence does not necessarily mean that the old wire fence takes on the same meaning or characteristics as the newer fence of convenience around the low lying wet area.

86I find that based on the evidence presented it is more likely than not that the old wire fence originally ran from the west side of lot 31 to the east side of lot 31 at the road allowance between the Township of Nottawasaga and the Township of Sunnidale. This fence was most likely built to separate the working farm on the south from the lands set aside for another purpose in north part of Lot 31. It appears that the land north of this fence had various uses over time, including residential purposes. When the pond near Country Road 7 was dug either to excavate gravel or sand or for other purposes, the page wire fence was removed, and a new fence of convenience was constructed around the excavated area to protect livestock roaming the ‘southerly parcel’ from the excavated area.

Issue to be Determined

87In the case before me, the surveyors differ in their interpretation of the evidence. Mr. Reynolds, while acknowledging he was not aware of the existence of the fence when he took on the project to lay out Mr. Litz’s house, has indicated on his plan of survey that accompanied the application and in his oral evidence that he does not consider the fence to be the best evidence of the boundary between the northerly and southerly parcels. Accordingly, there being no other evidence of the line, he established it based on a mathematical calculation of a forty acre parcel.

88Mr. Raikes O.L.S. has adopted the old wire fence and its projection to the County Road as the best available evidence of the original establishment of the boundary created by the severance of the northerly forty acres of Lot 31.

89As I see it, this is the issue to be determined: Does the boundary between the ‘northerly parcel’ and ‘southerly parcel’ follow an old wire fence and then project out to a corner established by C.A.W Jones on the widened limit of County Road 7 or is the boundary to be set by a mathematical calculation of forty acres.

90I accept the uncontradicted and credible evidence of Mr. Reynolds that the fence was in place long before the severance of the southerly parcel from the northerly parcel by Mr. Collins.

91In addition, I accept that the reason for the construction of the fence is unknown. Mr. Ward and Mr. Collins have long ago passed, and no evidence is available regarding the reason for the construction of the fence. Ms. McQueen did provide some evidence that the land north of the fence may have been used as residential land at some point but was mostly vacant.

92Because of their occupation, it is highly likely Mr. Collins and Mr. Ward would have had a good understanding of the extent and the features on Lot 31 after 23 years of working the land and maintaining the fences even if neither actually lived on Lot 31. The fence at the north end of the cultivated field would have been an obvious landmark in the 1950’s.

93It is highly likely that Mr. Collins could have measured and calculated an estimate of the acreage of land enclosed north of the old wire fence.

94On the balance of available evidence, I also accept that the west terminus of the old wire fence running roughly parallel to the northern boundary is at a location that a non-surveyor would accept as the corner of an east-west boundary fence line enclosing a nominal forty acres.

95Finally, it is more likely than not that when it came time for Mr. Collins to retire and sell the working farm, he knew what land he intended to transfer to another farmer for agricultural uses and what land he was retaining. What is most likely is that the old wire fence was an existing and substantial monument marking the division between the land transferred and the land retained. The nominal forty acres used in the description of the retained lands came from a non-surveyor calculation of the acreage of land enclosed on the south by the old wire fence and its extension to County Road 7.

96As such, on the balance of probabilities, I find that the old wire fence and its extension east to the County Road 7 was the intended southern boundary of the land Mr. Collins retained and then transferred to his foster son, Mr. Ward.

97As the old wire fence no longer extends to the road allowance on the east limit of Lot 31, surveyors have offered differing opinions of the true location of southeast corner of the northerly parcel at the widened road limit.

98The first surveyor to provide an opinion was Clare W. A. Jones O.L.S. who described the location on his Land Plan as being 402.01 feet south of the northeast corner of Lot 31, Concession 1. Next was Surveyor Eplett who followed the Land Plan dimensions, accepted Surveyor Jones’ work, and placed a survey monument at the location described on the Land Plan. Next was David Pesce O.L.S. who used an unknown calculation to mark his opinion of this corner on the ground. Finally, Rod Reynolds O.L.S. calculating the location of this corner based on a calculation of forty acres and placed a monument at his opinion of the location of this corner.

99The result is shown on the detail below taken from plan 51R-38957. The number 1613 is the Association of Ontario Land Surveyors (AOLS) licence number for Alan Worobec O.L.S., 1776 is the AOLS licence number for David Pesce O.L.S., and 1386 is the AOLS licence number for Rod Reynolds O.L.S.

100I find that Mr. Jones’ approach of measuring out a distance from the nearest known lot corner best matches the method that a non-surveyor would use if they were locating this corner themselves in the early part of the 20th century.

101There is no evidence that the location of this corner established by surveyor Jones was disputed by any owner of the northerly parcel or the southerly parcel after it was first established, and it is highly likely that both were given notice of the Land Plan showing Jones’ location of this point.

102In addition, the owners of the northerly parcel following Mr. Ward re-used the same 402.01 foot dimension for the distance along the rear of the Lot in their metes and bounds description of the northerly parcel. A subsequent landowner, Mr. Sharp, asked surveyor Eplett to place a monument on the corner established by surveyor Jones very likely so that he was able to see how much frontage was left after the land in plan Part 1, 51R-29058 was sold.

103As such, I find that the method used by surveyor Jones was a reasonable approach to retrace a property corner that was never previously located on the ground by a land surveyor.

104I further agree with surveyor Worobec that this monument, never disputed by the owners of either the northerly parcel or the southerly parcel until the survey by Mr. Reynolds in 2005, correctly marks the southeast corner of the northerly parcel being the northeast corner of the southerly parcel.

Analysis with Applicable Law

105The applicant’s surveyor contends that the old wire fence cannot be the limit between the northerly and southerly parcels as it pre-dates the severance of land in 1950, is too distant from the expected position, is not continuous from front of the lot to the rear, and in his opinion appears to be a fence of convenience, not a boundary fence.

106The objector’s surveyors Worobec and Raikes contend that the old wire fence is

"... the best available evidence of the boundary under application."

107The boundary in this application was created through a severance of land. The severance was not an aliquot part of the township lot, rather it was of a specific area of land: the most northerly forty acres. The Surveys Act R.S.O. 1990 c. S. 30 does not set out procedures for dealing with surveyed lines created by a deed, through the middle of a lot in a geographic township. As such the Surveys Act does not apply to the boundary under application.

108Section 8 of Ontario Regulation 216/10 under the Surveyors Act, R.S.O. 1990 c. R. 20 requires land surveyors to find and assess evidence when undertaking a survey:

8. When undertaking a survey, a licensed member shall,

(a) refer to the documentary evidence related to the land under survey and the land adjoining the land under survey;

(b) carry out a thorough field investigation for the best available evidence of all lines, boundaries, and corners of the land under survey; and

(c) give priority to the evidence in accordance with common law and statute law.

109The hierarchy in the assessment of best available evidence that guides a surveyor when conducting a survey also guides this tribunal in the determination of the correct location of the boundary under application.

110The leading authority on boundary resolution is Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.). In that decision, Stortini D.C.J. cited an article by Lorraine Petzold, O.L.S., the Executive Director of the Association of Ontario Land Surveyors, “The Survey and The Real Estate Transaction”, which was presented to the Law Society of Upper Canada in its Continuing Legal Education Seminar of October 1983. That article notes the surveyors’ “hierarchy of evidence”, which ranks the evidence to re-establish a boundary from most compelling to least compelling as follows:

a) Natural boundaries; b) Original monuments; c) Fences or possession that 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).

111As Stortini D.C.J. further said (at p. 2):

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

112And further, at page 3, Stortini D.C.J. went on to say:

The first establishment of the line need not have been done by a surveyor.

113In Nicholson v. Halliday, 2005 CanLII 259 (ON CA), the court stated:

"Where a line was accepted as a boundary and relates to the original survey, the surveyor will re-establish that line as the boundary. The reasons for this basic principle are evident from earlier authorities. When lands such as the bush lands of Manitoulin Island were settled, the original deeds only conveyed lots: particulars of a lot's description were not available. Not only were there no existing surveys, purchasers were not in a financial position to retain a surveyor; the expense of a survey would often have exceeded the value of the land at issue.

114In Davison v. Kinsman (1853), 2 N.S.R. 1 (C.A.). Haliburton C.J. noted that:

"In fact, the actual location of those settlers was almost a matter of guesswork; but they did locate themselves on what they supposed to be the lots granted or conveyed to them, and adjusted their boundaries with each other as best they might . . . . This would have produced a fruitful field of litigation had not the Court upheld the principle that where the parties had mutually established the boundary between them upon the land they should be bound by it, unless it could be shewn that any unfair advantage had been taken by one over the other. At that early period, and for some time afterwards, land was selling for sixpence and one shilling per acre, and one hundred acres would not have produced money enough to defray the expense of a survey. If to save that expense the parties, in mutual ignorance of where the line between them would in strict accuracy run, agreed to establish such a line as was then satisfactory to both of them, the Court would not allow either to depart from it . . . . I can see no end to it, but by adhering to the principle that where a line has been settled and adjusted in good faith upon the land, neither party shall be permitted to dispute it."

115The balance of evidence before this tribunal indicates that the old wire fence line between the ‘southerly parcel’ and the ‘northerly parcel’ was the original monument accepted by parties on both sides of the fence for 55 years until Mr. Reynolds produced his calculated boundary opinion based a calculation of exactly forty acres.

116In his oral evidence, Mr. Reynolds stated that he anguished over this decision. The tipping point for Mr. Reynolds to reject the old wire fence was the fact that the fence was most likely in place long before the farm on the ‘southerly lands’ was sold by Mr. Collins.

117However, Mr. Reynolds did not take into consideration that the intention behind the severance of the southerly lands was the sale of a working farm from one farmer to another. Further, the retained land was ultimately intended as a gift to Mr. Ward, a person in a position to know what was being sold as farmland and what was retained by Mr. Collins. And there is no evidence that Mr. Ward made any attempt to make a claim for lands south of the old wire fence once he received the lands in Instrument No. 22273.

118In summation, and on the balance of evidence, I find that Mr. Collins knew what land he was retaining for his foster son and that Mr. Ward knew the location of boundaries of the land he received. Mr. Ward was to receive the land at the north end of Lot 31, Concession 1, being a nominal forty acres and bound on the south by an existing original monument; the old wire fence.

119The new boundary line between the northerly and southerly parcels did not need to be run by a surveyor as it was already marked by a fence. The law does not require the wire fence monument to be in the correct theoretical position to contain the nominal forty acres mentioned in the transfer to Mr. Ward.

120The only point of concern Mr. Ward and Mr. Collins may have had was that the boundary through the pond or low lying area was no longer fenced and, as a result, the intersection of Mr. Ward’s south boundary with the road allowance was lost. This was resolved when surveyor Jones measured a distance to establish this corner in 1966. This corner as established by surveyor Jones was apparently not contested until surveyor Reynolds arrived in 2005.

Conclusion

121Therefore, upon considering all the evidence, the material filed at the hearing from both the applicant and the objector, the applicable law and the submissions made at the hearing, I conclude that the boundary between the northerly and southerly parcels, being PIN 58952-0471 (LT) and PIN 58952-0463 (LT), is as retraced and shown on Plan 51R-38957 signed by Peter T. Raikes O.L.S. and dated January 14, 2013.

122The boundary has its western terminus at an SIB (Standard Iron Bar) labeled on the Draft Plan of Survey dated October 29, 2018, as ‘EWR’ (Eplett, Worobec, Raikes Surveying Limited) and being located 417.45 feet (127.24 m) south of the North Westerly corner of Lot 31, Concession 1. The boundary then follows the remains of an old wire fence and its production to its intersection with County Road 7 (as widened) and marked by an SIB with the identification ‘1613’ being located approximately 402.01 feet (122.53 m) south of the North Easterly Corner of Lot 31, Concession 1.

Costs

123Both parties agreed that they would not submit a request for costs.

ORDER

124I CONFIRM that the Application by Robert Litz and Sandra Litz is dismissed and the objection of by Francesco Plati, Graziella Plati and Maria Monardo is allowed.

125I CONFIRM the true location on the ground of the boundary between the lands designated as PIN 58952-0471 (LT) and PIN 58952-0463 (LT) being part of Lot 31, Concession 1 in the Geographic Township of Nottawasaga, Township of Clearview, County of Simcoe is as shown on Plan 51R-38957 dated January 14, 2013, and signed by Peter T. Raikes O.L.S.

126I DO ORDER that the boundary as confirmed be monumented in accordance with section 9 of O.Reg. 525/91 under the Surveyors Act R.S.O. 1990 c. S. 29 and that all conflicting monuments be removed.

127I DO ORDER that a final plan of the confirmed boundary be prepared by the applicant’s surveyor, Mr. Rodney Reynolds O.L.S., 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 R.S.O. 1990 c. B 10. The final plan of the confirmed boundaries shall be submitted to this office 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.

128I DO ORDER that each party be responsible for their own costs.

DATED July 22, 2022, at my office in the Land Registration Services Branch Ministry of Public and Business Service Delivery 20 Dundas Street West Toronto, Ontario

Ken Wilkinson O.L.S. Deputy Director of Titles

Appendix A

B-1258 Hearing Recording Files 1-1 to 1-8; 2-1 to 2-8 and 3-1 to 3-7, all inclusive.

Exhibit 1 - Survey Report by Rod Reynolds O.L.S. and Tabs A to F Exhibit 2 - 2014 Field Notes (Rod Reynolds O.L.S.) Exhibit 3 - Survey Report by Peter T. Raikes O.L.S. Exhibit 4 – Objection from Plati / Monardo with Exhibits A to I inclusive

Footnotes

1. 1There is no mention of a James Diamond surveyor on the fieldnotes, or the Land Plan registered as instrument RO232383. This is the only mention of James Diamond surveyor in Mr. Reynolds’ Survey Report.