THE BOUNDARIES ACT
Director of Titles – Ontario (Boundaries Act)
Citation: Amlani v. Golparvary, 2023 ONBAH 1 Date: 2023-09-27 Docket: B-1265 Registry: Ottawa
Between: Feizal Amlani and Sylvie Bissonnette, Applicants
- and - Fahimeh Golparvary, Objector
Before: Ken Wilkinson, Deputy Director of Titles
REASONS FOR DECISION
1IN THE MATTER OF an application by Feizal Amlani and Sylvie Bissonnette, (the ‘Applicant’) the registered owners of lands designated as PIN 04077-0194 (LT), being Part of Lot 7, Registered Plan 489, City of Ottawa, for the purpose of confirming, under the Boundaries Act, the true location on the ground of the limit or boundary between the lands designated as PIN 04077-0194 (LT) and PIN 04077-0030 (LT) in accordance with a draft plan of survey, dated November 4, 2022, with the aforementioned boundary shown by a heavy solid line, prepared and signed by Daniel Robinson, Ontario Land Surveyor (O.L.S.).
2AND IN THE MATTER OF an objection by Fahimeh Golparvary (the ‘Objector’) the registered owner of the lands designated as PIN 04077-0030 (LT), being Part of Lot 13, Registered Plan 291190, City of Ottawa, situated immediately south of the Applicant’s lands.
3This application came before me by electronic hearing convened at 10:00 in the morning, on June 6th, 2023. At this hearing there appeared before me:
Feizal Amlani and Sylvie Bissonnette Applicants Drew McArthur Counsel for the Applicants Daniel Robinson Land Surveyor who prepared the Draft Plan Tareyn Gardner O.L.S. Observer
The list of the exhibits is attached as Appendix "A" to these Reasons.
4This matter came before me because of an application by Feizal Amlani and Sylvie Bissonnette regarding the location on the ground of the limit or boundary between the lands designated as PIN 04077-0194 (LT) and PIN 04077-0030 (LT) as shown on the draft application Plan of Survey by Daniel Robinson, O.L.S., dated November 4, 2022.
5An objection to the boundary location shown on the draft application Plan of Survey was filed by Fahimeh Golparvary, who contended that the boundary under application was correctly located in alignment with the easterly extension of an easement that the objector Fahimeh Golparvary believes is located on the property line between 1669 Ortona Avenue and 1675 Ortona Avenue, also being the boundary line between PIN 04077-0026 and PIN 04077-0027.
6Having reviewed the testimony of the witnesses and the exhibits entered at the hearing and considered the applicable law, I have concluded on the balance of probabilities, and based on the best available evidence, that Surveyor Robinson’s retracement method of using measurements and bearings derived from surveys performed when original evidence was available and documented by previous land surveyors to be correct. Further, I find that the true location on the ground of the southerly limit of Lot 7 Plan 489 is as illustrated and monumented on the Draft Application Plan prepared, and signed, by Daniel Robinson, O.L.S.
7Herein I have set out my reasons for my decision in this matter.
A. PRELIMINARY ISSUES
8On December 9, 2022 Sam Hoveyda, the husband of the Objector, first notified the Boundaries Act Tribunal (the “Tribunal”) by email that they objected to Boundaries Act application B-1265. Mr. Hoveyda noted in his December 9th email that Mrs. Golparvary had health problems and because of this she ”is not able to answer you back directly but, she will sign the letter for objection.” Sam Hoveyda was to be the representative for the Objector.
9The Tribunal obtained agreement from the representatives for the Applicant and Objector for a hearing date of April 25th, 2023. Formal notice of the hearing date was provided in accordance with the Boundaries Act and the Statutory Powers and Procedures Act.
10The parties were contacted by email for a pre-hearing conference to be held on April 20, 2023. Neither the Objector nor her representative attended the pre-hearing conference.
11On April 21, 2023, the Tribunal received an email request from the Objector for an adjournment of the hearing because of chronic mental and physical health problems. The attached doctor’s note stated that the patient had “been advised to consider rescheduling her court hearing until September 2023.” The hearing scheduled for April 25th, 2023, was adjourned.
12On May 3, 2023, based on information provided by both parties, June 6th, 2023 was set as the new date for the hearing. Both parties were immediately notified by email followed by delivery of an Amended Notice of Hearing delivered by registered mail.
13On May 5th Sam Hoveyda, the representative for the Objector, submitted an email setting out that he would not be available until September 2023. In addition, he informed the Tribunal that he would no longer represent the Objector.
14On May 12th, 2023, the Objector sent the Tribunal an email with a second doctor’s note from a different doctor again requesting an adjournment until September 2023.
15I responded to the Objector that she was provided an adjournment until June 6, 2023, to allow her to prepare for the hearing.
16On June 6th 2023, the Applicants, their expert witness, and their legal representative attended the Hearing however neither the Objector nor her husband attended.
17Accordingly, it appeared that on the balance of probabilities that the provision of last-minute doctor’s notes and the failure of the objector and her husband to attend either the pre-hearing conference or the hearing was not for any proper reason but rather was an attempt to frustrate the proceeding.
18The Statutory Powers and Procedures Act at section 7(3) states:
(3) Where notice of an electronic hearing has been given to a party to a proceeding in accordance with this Act and the party neither acts under clause 6 (5) (c), if applicable, nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding. 1994, c. 27, s. 56 (15).
19Both the original formal Notice of Hearing and the amended Notice of Hearing contained the following wording: “… TAKE NOTICE that if you do not attend, the Deputy Director of Titles may proceed with the hearing in your absence, and you will not be entitled to any further Notice of proceedings.
20For these reasons, I decided to proceed with the hearing in the absence of Fahimeh Golparvary.
B. REASONS
21I have formatted my reasons under the following headings:
- Survey and Title History
- Issue to be Determined
- Analysis with Applicable Law
- Costs
Survey and Title History
22Registered Plan 489 (“Plan 489”) was laid out on July 23, 1948, on Township Lots 32 and 33, Concession B, Rideau Front (RF) following the instructions of the owner of the land - The Director, The Veterans Land Act (“VLA”). Plan 489 was located immediately south of Falaise Road which had been laid out in January 1946 by Registered Plan 455 also under the instructions of the VLA.
23Plan 489 created ten new subdivision Lots, two of which were intended to be extensions of existing streets located north of Falaise Road. Plan 489 also laid out a widening for Fisher Avenue. Fisher Avenue is an original road allowance laid out between Concessions A and B, Rideau Front during the Township survey.
24The registration of Plan 489 created new boundary lines in three locations: along the south limit of the plan; between each new Lot shown on the plan; and along the east limit of Lot 1 on Plan 489. Sometimes described as the ‘first running of the line’ these boundaries came into existence through the registration of Plan 489 in the land registry office by the owner of the land.
25Two years after Plan 489 created new boundaries, Registered Plan 291190 (“Plan 291190”) was laid out south of Plan 489 by the VLA. This new registered plan consists of 95 Lots and various streets and street widenings. This plan shows Plan 489 as existing and being coincident with a northerly boundary of Plan 291190.
26Lot 7 on Plan 498 and Lot 13 on Plan 291190 share a common boundary, being the south limit of Plan 489.
27Lot 7 Plan 489 was held by the VLA until the east 110 feet of the Lot was granted to Dorothy Helen Fraser on June 7, 1965 by Instrument CR495022. This deed has an attached survey signed by H.R. Farley O.L.S. The Farley survey plan (shown below) illustrates a building numbered 1058 and a row of trees in a line north of the south boundary of Lot 7. The plan also indicates a line of cedar trees on the west limit of the lands in the deed with the base of the trees being located east of the property line.
28Dorothy Helen Fraser immediately granted her land to Eric and Anne Maria Pomerantz by Instrument CR495023. These same lands were later transferred to Feizal Amlani, and Shelina Amlani through a Transfer registered as OC1421158 on October 19, 2012.
29The Amlani’s then had Farley Smith and Denis Surveying Ltd. prepare a plan of survey of their land which was deposited in the Ottawa Land Registry Office (the “LRO”) as Plan 4R-26580. This reference plan laid out the easterly portion of Lot 7 into two Parts each with an identical frontage of 16.765 meters. The Amlani’s then transferred Part 1 to the Applicants Feizal Amlani and Sylvie Bissonnette. Part 2 Plan 4R-26580 was transferred from the Amlani’s to Shelina Amlani.
30The westerly remainder of Lot 7 was transferred from the VLA to Hector and Dealtry Capell through a deed registered as CR688918 on April 7, 1976. This same remainder of Lot 7 was then transferred by the Capells to Borjac Investments Ltd.
31Borjac Investments Ltd. also purchased the northerly 39.33’ of Lot 14, Plan 29190 located immediately south of westerly remainder of Lot 7 which Borjac had purchased from the Capells.
32The lands owned by Borjac Investments Ltd. and fronting Ortona Avenue were described on a plan of survey by Fairhall and Moffatt Limited which was deposited in the Ottawa Land Registry Office on September 30, 1976 as Plan 4R-2001. A portion of this plan is shown below:
33Borjac Investments created a new parcel fronting on Ortona Avenue composed of Parts 3 to 8 Plan 4R-2001 for use as building lot (the “Building Lot”). This Building Lot is where the house numbered 1675 Ortona Avenue is located. Based on the photograph in ‘exhibit 18’ of the Objector’s submission (Tribunal Exhibit 3) and the air photo on page 8 of Tribunal Exhibit 2 (the Applicant’s submission), this house structure is centered on the parcel composed of Parts 3 to 8 of Plan 4R-2001.
34The irregularly shaped Building Lot created by Borjac Investment Ltd. being Parts 3 to 8 on Plan 4R-2001, straddles two Registered Plans and the location of the ‘easement’ created by Instrument CR291652, which appears to have been released by The Hydro-Electric Commission of the City of Ottawa through Quit-Claim Deeds registered on November 15, 1976.
35Lot 13 Plan 291190 is located immediately south of Lot 7 Plan 489 as shown on the excerpt of Plan 291190 below.
36Lot 13 Plan 291190 was transferred as a whole Lot from the VLA to John C and Grace M. Allen through a Deed registered as CR659449 on September 5, 1974. The land in Instrument CR659449 was then redescribed as Parts 1 to 4 on Plan 4R-1107. The Allen’s then transferred part of their lands, described as being Parts 1 and 2, 4R-1107 to Antonio and Catherina Fotia by an instrument registered as Instrument CR661808 on October 28, 1974.
37The land in Parts 1 and 2, Plan 4R-1107 were later transferred to Concettina and Franco Crescenzi in 2008 and then to the objector, Fahimeh Golparvary, on July 15, 2014.
38Exhibit 2 contains a Surveyors Real Property Report (SRPR) of the objector’s land being Parts 1 and 2, 4R-1107. This SRPR, a portion of which is shown below, was prepared for S. Fotia and shows a 2-storey brick dwelling, No. 1059, and a shed at the rear of the property. This SRPR was certified as being completed and signed by J.P. Shipman O.L.S. on the 16th day of November 1998. This 1998 SRPR is consistent with the boundary and the information shown near the boundary on the 2022 Draft Plan, particularly the location of the vinyl clad shed at the rear of the objector’s lands, the location of the fence and the location of the cedar hedge. In addition, the measured width and length of Parts 1 and 2 are identical to those same measurements shown on Plan 4R-1107.
39In 1998 Grace Mary Allan also transferred Parts 3 and 4, Plan 4R-1107 to Sam and Lori Ann Fotia, who continue to own these lands.
40The objection signed by Ms. Golparvary, and entered as Exhibit 3, focussed on the location of an ‘easement’ registered on title to Lots within Plan 291190. The objection referred to an easement created by registration of Instrument CR291652.
41As the objection relied on the location of an easement and complete title search of the source of this easement was not performed by the parties or clarified during the hearing. I invited the Applicant and Objector by letter dated August 8, 2023, and filed as Exhibit 5, to provide search of title for Lot 7 Plan 489 and Lots 13 & 14 Plan 291190, and a further search of survey records held by Farley Smith & Denis Surveying for surveys and notes by H.R. Farley O.L.S in Lot 7 Plan 489.
42As a result of my letter, the Supplementary Information consisting of a title search in and around ‘Part of Lot 7 Plan 489 being Part 1 on 4R26580’ and three pages of surveyor’s field notes were provided by the Applicant. The Objector did not disagree with entering this evidence or provide any additional information regarding the title search or survey field notes other than to re-iterate their position on the location of the easement created by registration of Instrument CR291652. This additional evidence is entered as Exhibits 6 and 7. The response from the objector is entered as Exhibit 8.
43A review of Instrument CR291652 (the ‘easement’) shows that this document was registered on title as an ‘Agreement and Grant of Easement’ and has been treated by the landowners and land surveyors as creating a 4-foot-wide easement in favor of the Hydro Electric Commission of the City of Ottawa (the ‘Commission’) for installation of wires and other fixtures on Registered Plan 291190. The extent of the easement in favor of the Commission was established as “4 feet on each side of all boundary lines, other than street lines of lots shown on the said plan” together with full right of access.
44The easement is both located only within Plan 291190 and alongside the boundary lines of Plan 291190, except for the street Iines. As such, the boundary lines of Plan 291190 must be determined to correctly locate the 4-foot easement.
45As shown in the image below, taken from the objector’s submission, the objector has decided, through a registry office search, a review of title documents, and the belief that a structure cannot be placed on an easement, that the ‘easement’ by Instrument CR291652 is now correctly located along the northerly boundary of the ‘Building Lot’ now occupied by the house numbered 1675 Ortona Avenue.
46Further the objector asserts that the boundary between Lot 7 Plan 489 and Lot 13 Plan 291190 is aligned with the easterly extension of the ‘easement’ that the objector Fahimeh Golparvary has suggested is located on the northerly limit of the ‘Building Lot’. The objector’s opinion of the boundary between Lot 7 Plan 489 and Lot 13 Plan 291190 is shown below.
47The result is that it is the objector’s opinion that the boundary between Lot 7 Plan 489 and Lot 13 Plan 291190 is located approximately 10.4 meters (34’) north of the position shown on the Draft Plan signed by Daniel Robinson O.L.S.
48However, as established earlier in these reasons, the land registry information establishes that the north boundary of the ‘Building Lot’, being the line between the 1669 Ortona Avenue and 1675 Ortona Avenue properties, also being the line between PIN 04077-0026 and PIN 04077-0027, is located completely within Lot 7 Plan 489. Instrument CR291652 only affects land in Registered Plan 291190. Further, the land registration records do not indicate the existence of a registered easement on the boundary between PIN 04077-0026 and PIN 04077-0027.
49Finally, no evidence or law was provided to support the objector’s contention that a structure such as a house or shed could not be placed atop the easement created by Instrument CR291652.
Issue to be Determined
50The issue to be determined is the true location on the ground of the southerly limit of Lot 7 Plan 489. Once this boundary is located, the location of the northly limit of Plan 291190 and the location of the ‘easement’ described in Instrument CR697991 can be determined.
Analysis with Applicable Law
51The Surveys Act is the primary legislation governing how subdivision plan boundaries lines and corners are to be re-established. Section 54 and 55 of this Act sets out that:
True and unalterable line, boundary and corner
54 Every line, boundary and corner established by survey and shown on a plan of subdivision is a true and unalterable line, boundary or corner, as the case may be, with respect to such plan and shall be deemed to be defined by the original posts or blazed trees in the first survey thereof, whether or not the actual measurements between the original posts are the same as shown on the plan of subdivision or expressed in any grant or other instrument R.S.O. 1990, c. S.30, s. 54.
Re-establishment of lost corners, etc.
55 A surveyor in re-establishing a line, boundary or corner shown on a plan of subdivision shall obtain the best evidence available respecting the line, boundary or corner, but if the line, boundary or corner cannot be re-established in its original position from such evidence, the surveyor shall proceed as follows:
If a part of a line or boundary is obliterated, the surveyor shall re-establish it by joining the nearest ascertainable points thereof in the manner shown on the plan of subdivision.
If a corner on a line or boundary is lost, the surveyor shall re-establish it by the method that accords with the intent of the survey as shown on the plan of subdivision and, if it is consistent with the intent of the survey as shown on the plan of subdivision, the surveyor shall determine the distance between the two nearest undisputed corners, one being on either side of the lost corner, and the surveyor shall re-establish the corner by dividing the distance proportionately as shown on the plan of subdivision having due regard for any road allowance, highway, street, lane, walk or common shown on the plan of subdivision. R.S.O. 1990, c. S.30, s. 55.
52The 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.
53The 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).
54The south limit of Plan 489 at Lot 7 is the boundary that is under Application. As noted previously, this boundary was created in 1948 following registration of Plan 489. Plan 489 illustrates monuments were set at the south-west corner of Lot 7 and the south-east corner of Lot 4.
55The first available retracement survey of the south boundary of Lot 7 Plan 489 is Plan 291190 registered in 1950. Like Plan 489, Plan 291190 indicates that iron bars were located at the southwest corner of Lot 7 Plan 489 and the southeast corner of Lot 4 Plan 489.
56The next available survey of the south limit of Lot 7 is a plan by H.R. Farley dated June 30, 1965 (the “Farley Plan”) the first transfer of land by the VLA in Lot 7 plan 489 attached to Instrument No. CR495022. The plan indicates that an I.B. (a 5/8” X 24” iron bar) was placed by surveyor Farley at the southeast corner of Lot 7 and at the approximate midpoint of Lot 7. This survey was prepared for the first transfer of land in Lot 7 Plan 489. The I.B. shown at the southeast corner of Lot 7, was placed based on original monuments and measurements shown on Plan 489.
57The south limit of Lot 7 was again surveyed in 1974 by W.H. Moffatt for the survey deposited as plan 4R-1107. Moffatt shows that he found and accepted the original monument at the southwest corner of Lot 7 Plan 489 and illustrated the boundary between Lot 7 and Lot 14 in the same location as set out on Plan 489.
58The south limit of Lot 7 was again surveyed in 1974 by W. H. Moffatt for Plan 4R-2001. Moffatt again found and accepted the original monument at the southwest corner of Lot 7 Plan 489 and the H.R. Farley IB at the midpoint of Lot 7 and illustrated the boundary between Lot 7 and Lot 14 in the same location as Plan 489.
59In 1983 Charles Fairhall O.L.S. surveyed Lot 6 plan 489 for plan 5R-7583 and accepted the IB at the southeast corner of Lot 7 shown on Plan 489.
60The 1998 Surveyors Real Property Report of Part of Lot 13 Plan 291190, designated as Parts 1 and 2, Plan 4R-1107, signed by H.A. Ken Shipman O.L.S. retraced the south limit of Lot 7 and found and accepted the original monument at the southwest corner of Lot 7 Plan 489 and the IB at the mid point of Lot 7 shown on the plan by H.R. Farley dated June 30, 1965 and illustrated the boundary between Lot 7 and Lot 14 in the same location as Plan 489.
61Reference Plan 4R- 26580 and an SRPR were both prepared by Farley, Smith & Denis Surveying Ltd. to illustrate Part of Lot 7 in October 2012 and September 2013 respectively. Both of these plans found and accepted the IB’s at the south limit of Lot 7 originally shown on the plan by H.R. Farley dated June 30, 1965 and illustrated the boundary between Lot 7 and Lot 14 in the same location as Plan 489.
62In summary, prior to preparation of the Draft Plan for this Application by surveyor Daniel Robinson, the common boundary under application between the lands designated as PIN 04077-0194 (LT) and the lands designated as PIN 04077-0030 (LT), being the boundary between Lot 7 Plan 489 and Lot 14 Plan 291190, were retraced by five land surveyors on eight occasions. I find that each retracement of the boundary under application has been in accordance with that shown on Plan 489.
63During the survey for the Draft Application Plan Surveyor Daniel Robertson was not able to locate the monuments shown on Plan 489, however, because of the numerous surveys performed around both Lot 7 Plan 489 and Lot 14 Plan 291190, Robertson was able to find land survey documentary and field evidence which agrees with the eight previously completed surveys.
64Surveyor Robertson first established the two street lines being north limit of Stormont Street and the south limit of Falaise Road in accordance with the previous surveys and first set the Lot depth of 49.07 metres (161.00 feet) for Lot 13 Plan 291190 (as shown on Registered plan 291190, Plan 4R-1107, and the Shipman SRPR in 1998).
65By setting this distance north from Stormont Street, surveyor Robinson found that the south limit of Lot 7 to be 60.33 metres (197.33’) south of Falaise Road. This distance agreed with both 4R-26580 and the SRPR by Denis O.L.S. Both surveys were completed when the monuments first shown on the Farley Survey and Registered Plan 489 were still in the ground.
66Having reviewed the testimony of the witnesses and the exhibits entered at the hearing and considered the applicable law, I have concluded on the balance of probabilities, and based on the best available evidence, that Surveyor Robinson’s retracement method of using measurements and bearings derived from surveys performed when original evidence was available and documented by previous land surveyors to be correct and in accordance with land surveying principles.
67Further, I find that the true location on the ground of the southerly limit of Lot 7 Plan 489 is as illustrated and monumented on the Draft Application Plan prepared, and signed by Daniel Robinson, O.L.S.
68Further, I find that the northerly limit of Registered Plan 291190 is coincident with the southerly boundary of Lot 7 Plan 489 and the easement described in Instrument CR291652 is located 4 feet on each side of all boundary lines, other than street lines of Lots shown on Plan 291190 and that this easement does not affect land in Plan 489.
69Finally, I find that the objection by Fahimeh Golparvary is denied.
Costs
70I find that the application was made in good faith and the applicant’s submission was helpful. Given the various issues facing the applicant, this application was a proper course of action. The objector provided a written basis for their objection.
C. ORDER
71I CONFIRM that the Application by Feizal Amlani and Sylvie Bissonnette is allowed, and the objection made by Fahimeh Golparvary is denied.
72I CONFIRM that the true location on the ground of the limit or boundary between the lands designated as PIN 04077-0194 (LT) and PIN 04077-0030 (LT) is as shown on the draft plan of survey prepared for the Application, prepared, and signed by Daniel Robinson, Ontario Land Surveyor (O.L.S.) and dated November 4, 2022, with the aforementioned boundary shown by a heavy solid line.
73THE TRIBUNAL ORDERS THAT:
The boundaries as confirmed be monumented in accordance with section 9 of O.Reg. 525/91 by the applicant’s land surveyor, Daniel Robinson, O.L.S.
All the monuments conflicting with the confirmed boundaries be removed by the applicant’s land surveyor, Daniel Robinson, O.L.S.
A final plan of the confirmed boundaries be prepared by the applicant’s land surveyor, Daniel Robinson, 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. The final plan of survey 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.
Each party to this hearing is responsible for their own costs.
DATED September 27, 2023, 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”
Exhibit 1 – Draft Plan of Survey dated November 4, 2022, prepared, and signed by Daniel Robinson, Ontario Land Surveyor.
Exhibit 2 – Survey Report Dated October 18, 2022, prepared by Farley Smith & Denis Surveying Ltd.
Exhibit 3 – Objection letter and 18 exhibits dated December 11, 2022.
Exhibit 4 – Costs submission from Applicant.
Exhibit 5 – Letter to Applicant (copied to objector) requesting addition information.
Exhibit 6 – Title Search Lot 7 Plan 489 and surrounding lands.
Exhibit 7 – Farley Field notes – Lot 7 Plan 489.
Exhibit 8 – email from Fahimeh Golparvary received on August 25, 2023