Nicholson, O.L.S., C.L.S., on behalf of Little v. Halliday, O.L.S., on behalf of Serre [Indexed as: Nicholson v. Halliday]

74 O.R. (3d) 81

[2005] O.J. No. 57

Docket: C41690

Court of Appeal for Ontario,

Goudge, Feldman and Lang JJ.A.

January 14, 2005

Real property -- Boundaries -- Boundary dispute -- Appellate review -- Director under Boundaries Act concluding that fence representing best evidence of original running of boundary line between two properties -- Reasonableness appropriate standard of appellate review -- Boundaries Act -- Boundaries Act, R.S.O. 1990, c. B.10.

In 1915 and 1919, patents were issued for Lots 22 and 23, two bush lots on Manitoulin Island that had originally been surveyed in 1870. In 1962, Hugh Little purchased Lot 22 and, in 1979, Ronald Serre purchased Lot 23. For over 50 years, the owners assumed that a fence, constructed long before either acquired title, marked the boundary between the lots. In 1992, Serre commissioned Robert Halliday, O.L.S., to survey Lot 23. Halliday began the survey in the north corner of the lot at the road allowance and established the lot frontage by proportional division. He did not consider the fence to be a boundary fence because it did not extend to the lot's north limit and because it followed an irregular path, unlike other boundary fences in the concession. The boundary line established by Halliday supported a significantly different boundary than established by the fence. Mr. Dorland, a second surveyor, agreed, and he was of the opinion that the fence was not built to mark the boundary.

In 1998, Little retained James Nicholson, O.L.S., C.L.S., who opined that the fence established the boundary. He thought that the fence builder had started to build from the southerly limit of the lot and that the substantial deviations in the running of the fence and the disparity in the size of the lots were explained by the fence-builder having begun at the southerly limit and continuing with the aid of a compass through rocky bush land in what was believed to be a northerly direction for the approximate depth of the lot.

The surveyors' differences of opinion led the parties to the Director for a boundary determination pursuant to the Boundaries Act. The Director heard evidence from the surveyors and the two landowners and concluded that the fence represented the best evidence of the original running of the line. Serre appealed to the Divisional Court, and a majority of the court reversed the Director's decision. The majority found that the Director had committed four palpable and overriding errors in: (1) finding the fence was a boundary fence absent direct evidence that the fence had ever been used for that purpose, particularly at the time of the original survey; (2) accepting as relevant, evidence of the lot owners' peaceful acceptance of the fence as the boundary; (3) confusing the principles applicable to the resolution of a boundary dispute with the principles applicable to adverse possession; and (4) failing to give weight to the fact that each owner believed he had bought hundred acres of bush land. Little appealed to the Court of Appeal for Ontario.

Held, the appeal should be allowed.

The Director is an administrative decision-maker and the standard of appellate review is a question of law. To determine that degree of deference, the court must consider the four factors of: (1) the presence or absence of a privative clause or a statutory right of appeal in the legislative scheme; (2) the nature of the question; [page82] (3) the relative expertise of the tribunal; and (4) the purpose of the legislation. Considering these four factors, reasonableness was the appropriate standard of review. Such a standard required the court to ask whether the Director's reasons supported the conclusion. The court should consider the reasons both in the context of the Director's expertise in boundary disputes and his lack of expertise in writing judicial reasons, which meant that the reasons should be considered as a whole and not parsed in the same detail that might be applied to a judge's reasons. The Director was entrusted with a broad discretion in the determination of boundary disputes because of expertise about surveys, not because of expertise in decision writing.

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

In this case, the Director considered all the evidence, weighed the evidence for and against the fence as a boundary and gave considered reasons which, read as a whole, supported his determination. There was no requirement that the parties identify and call direct or clear evidence as to the fence- builder's purpose. To hold otherwise would prove fatal to the long-accepted surveyors' hierarchy. The fence itself was the legacy that its builders had left and the fence, its location, and its known history were the only available evidence from which its original purpose could be inferred. Reading his reasons as a whole, the Director considered the evidence and determined, on the balance of probabilities, that the fence was built, not as a fence of convenience, but to mark the boundary between the lots. It could be said that the Director's inference that the fence represented a first running of the lot line was unreasonable or that it was not supported by evidence. Longstanding peaceful acceptance was a fact from which the Director was entitled to draw an inference in support of the proposition that, since the fence served the purpose of a boundary from at least 1937, it likely also served that purpose when it was built. There was no error in the Director's reliance on the lot owners' acceptance of the fence as informing the question of the fence's purpose, and contrary to the view of the Divisional Court majority, the Director clearly understood the distinction between boundary law and the law of adverse possession. While the significant deviation in the acreage in the lots might call into question the reliability of the fence as marking a boundary, it could not be said that the Director's decision amounted to an unreasonable weighing of the totality of the evidence. Accordingly, the appeal should be allowed and the order of the Director affirmed.

APPEAL from a decision of the Divisional Court (Campbell, Desotti and Maranger JJ.) dated November 5, 2002.

Cases referred to

Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1997] S.C.J. No. 116, 144 D.L.R. (4th) 1, 209 N.R. 20, 71 C.P.R. (3d) 417; Davison v. Kinsman (1853), 2 N.S.R. 1 (C.A.); Diehl v. Zanger, 39 Mich. 601 (Sup. Ct. 1878); Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Kingston v. Highland (1919), 1919 854 (NB SC), 47 N.B.R. 324; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1; [page83] Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 242 D.L.R. (4th) 193, 2004 SCC 54, 45 B.L.R. (3d) 161, 17 Admin. L.R. (4th) 1; Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.); Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004] 7 W.W.R. 411, 2004 SCC 23, 29 Alta. L.R. (4th) 1, 14 Admin. L.R. (4th) 165; Weston v. Blackman (1917), 12 O.W.N. 96, [1917] O.J. No. 437 (C.A.)

Statutes referred to

Boundaries Act, R.S.O. 1990, c. B.10, ss. 3, 4, 5, 8, 9, 12

Joseph M. Chapman, for appellant. Eleni Maroudas, for respondent.

The judgment of the court was delivered by

[1] LANG J.A.: -- This appeal involves a dispute over the boundaries between two bush lots on Manitoulin Island. For over 50 years, the owners assumed that a snake rail fence, constructed long before either of them acquired title, marked the boundary between their lots. In 1992, and again in 2000, surveys conducted by Mr. Halliday, O.L.S. (the "Halliday survey" or "Halliday line") supported a significantly different boundary. Application was made under the Boundaries Act, R.S.O. 1990, c. B.10, to the Director of Titles to determine whether the fence or the Halliday line marked the boundary between the lots.

[2] After a hearing before the Director of Titles' designate, the Deputy Director of Titles (the "Director"), the Director held that the boundary was marked by the fence and not by the Halliday line. The parties appealed to the Divisional Court. On that appeal, and before this court, while there was no dispute as to either the facts or the law, the appellant alleged that the Director erred in the inferences he drew from the facts and on his application of the law to those facts. The Divisional Court majority, A. Campbell J. dissenting, reversed the Director's decision and held the Halliday line to be the true boundary. A further appeal was brought to this court. For the reasons that follow, I would allow the appeal and restore the Director's decision.

Facts

[3] In 1870, the township and concession that included Lots 22 and 23 was originally surveyed, establishing five 100-acre lots, each with a frontage of 20 chains (1,320 feet) and a [page84] depth of 50 chains (3,300 feet). While the survey noted posts set in the lot corners, the lines between the lots were not surveyed.

[4] In 1915 and 1919, patents were issued to Lots 22 and 23 respectively. Since then, both lots have been separately held. Both have been used for deer hunting, although Lot 22 has also been used for cattle grazing.

[5] In 1962, Mr. Little bought Lot 22 from Mr. McDonald. Since then, Mr. Little, who used his lot regularly, always considered the fence to mark the boundary between his lot and Lot 23. As he had lived in the area since 1932, Mr. Little remembered the fence from his youth, and remembered helping Mr. McDonald repair the fence in about 1937.

[6] In 1979, Mr. Serre bought Lot 23 from Mr. Cameron, who had owned that lot since about 1973. Mr. Serre used the lot for hunting and then only occasionally. As did his predecessor in title, Mr. Serre shared Mr. Little's assumption that the fence represented the boundary between the two lots. That view changed, however, in 1992, after the first Halliday survey.

[7] For reasons unrelated to, but which provoked this boundary dispute, Mr. Serre commissioned the 1992 Halliday survey. Mr. Halliday began the survey in the north corner of the lot at the road allowance and established the lot frontage by proportional division. After establishing the line's northerly commencement, Mr. Halliday simply ran the lot line to the lot's southerly limit using the required bearing. Mr. Halliday did not consider the fence to be a boundary fence because it did not extend to the lot's north limit and because it followed an irregular path, unlike other boundary fences in the concession.

[8] During the course of his survey, Mr. Halliday saw a cabin located on what he thought was Mr. Serre's lot. The cabin turned out to be Mr. Little's, built on what both he and Mr. Serre had believed to be Mr. Little's lot.

[9] In preparation for the current litigation, Mr. Serre retained a second surveyor, Mr. Dorland. Mr. Dorland supported the Halliday line, in part because he concluded that the fence had not been built in relation to the original monuments and because its irregular path was not in keeping with the rectilinear nature of other fences in the area. In those circumstances, Mr. Dorland was of the opinion that the fence was not built to mark the boundary.

[10] In 1998, Mr. Little retained Mr. Nicholson, O.L.S., C.L.S., who gave his opinion that the fence established the boundary. Mr. Nicholson held this opinion because he thought that the fence's builder had started to build not from the northerly limit -- where the Halliday survey began -- but from the southerly limit of the lot. In support of his opinion, he noted that, at the southerly limit [page85] of the lot, the fence was "virtually coincident" with the south corner established by the Halliday survey.

[11] From the south limit, the fence continued for approximately 3,400 feet and then abruptly ended 100 feet south of the lot's north limit. The fence proceeded on a northwesterly angle with several bends, including one particularly dramatic bend about 400 feet south of the north limit, a bend that may have accommodated a bush road that traversed the property. Mr. Nicholson saw this fence as consistent with its builder ascertaining the southerly lot limit and then proceeding northerly using a magnetic compass and discontinuing the fence once it exceeded the vicinity of 3,300 feet. To complete the lot line, Mr. Nicholson continued the fence with a projected line on the same bearing as the last section of the fence until the line reached the northerly limit of the lot.

[12] If the fence is the boundary, Mr. Serre's Lot 23 is 87 acres and Mr. Little's Lot 22 is 113 acres. This results because the fence, by the time it reaches its northerly termination, runs approximately 830 feet west of the Halliday line. If the Halliday line is the boundary, each lot is 100 acres.

[13] In rejecting the fence as the boundary, Mr. Serre's surveyors emphasized its significant deviation from a true north direction, and the extent that it was out of position in comparison to the measurements.

[14] Mr. Nicholson did not find these factors determinative. He thought the deviation would be explained if the fence- builder began at the south limit of the concession, where the lot to the south was likely already developed, and continued, with the aid of a compass, through rocky bush land in what the fence-builder believed to be a northerly direction for the approximate depth of the lot. In Mr. Nicholson's opinion, by the time the fence was built, the northerly monuments may no longer have been known or available and would not have provided a marker for the fence-builder.

[15] The surveyors' differences of opinion led the parties to the Director for a boundary determination.

Relevant Statutory Provisions

[16] Boundaries Act, supra:

Application for confirmation of boundaries

3(1) Where doubt exists as to the true location on the ground of any boundary of a parcel, an application, in the prescribed form, may be made to the Director to confirm the true location of the boundary on the ground.

. . . . . [page86]

Objection

8(1) Any person desiring to object to the location of the boundary or boundaries to be confirmed, as shown on the plan of survey, shall deliver to the Director ... a written statement setting forth the nature and grounds of the objection.

(4) Where the Director is not satisfied by the application and the material filed in support thereof, he or she may convene a hearing and require any person he or she considers necessary to appear at the hearing to give evidence.

Hearing and confirmation

9(1) Upon the hearing convened under section 8, the Director may dispose of any objection in such manner as he or she considers just and equitable under the circumstances and may, by order, confirm the location of the boundary or boundaries as shown on the plan of survey, or, if he or she thinks proper to do so, may order that the survey and plan be amended in such manner as he or she may direct, in which case he or she may confirm the location of the boundary or boundaries as shown on the plan as so amended.

Appeal from Director's decision to Divisional Court

12(1) Any party aggrieved by an order of the Director made under subsection 9(1) or under section 11 may appeal to the Divisional Court.

(2) The Divisional Court, on an appeal from an order of the Director, may,

(a) where the appeal is from an order under subsection 9(1), decide the matter on the evidence before it or direct the trial of an issue or may dismiss the appeal or order that the survey and plan be amended and confirm the location of the boundary or boundaries as shown on the amended plan; and

Judicial History

A. The Director's decision

[17] The parties to the application before the Director were not the owners but the surveyors. Mr. Serre's surveyor, Mr. Halliday, made the application and Mr. Little's surveyor, Mr. Nicholson, objected. Both surveyors were represented by counsel. The Director heard evidence from the surveyors, including Mr. Dorland on behalf of Mr. Serre, and from the two landowners.

[18] No issue is taken with the Director's factual findings or his analysis of the law and applicable principles. Issue is taken with the inferences the Director drew from the facts, including the nature and location of the fence. [page87]

[19] After reviewing the evidence, The Director concluded that the snake rail fence represented "the best evidence of the original running of the line". In so concluding, the Director reviewed the history of the lots, properly recited the principles to be applied, weighed the conflicting evidence and opinions regarding the fence, analyzed the applicable law, and concluded:

In summation I have found that the fence relates in time to when the lots were first patented and occupied and that the owners, other than Mr. Serre from 1992, have accepted the fence as the boundary. The law does not require that the fence be located in the theoretical position intended in the original survey of the Township or that the position of the fence be based upon a survey. The fence is a monument of the original running of the line. Therefore upon considering all the evidence, the material filed at the hearing with the application and with the objection, the applicable law and the submissions made at the hearing I have come to the conclusion the snake rail fence and its prolongation as illustrated as the westerly limit of Part 1, Plan 31R-2907 as prepared by James Nicholson OLS, dated August 31, 1998, represents the best available evidence of the original running of the line between Lots 22 and 23, Concession 1, Township of Tehkummah.

B. The Divisional Court majority

[20] Writing for himself and Maranger J., Desotti J. found that the Director committed four palpable and overriding errors in:

(1) finding the fence was a boundary fence absent direct evidence that the fence had ever been used for that purpose, particularly at the time of the original survey;

(2) accepting as relevant, evidence of the lot owners' peaceful acceptance of the fence as the boundary;

(3) confusing the principles applicable to the resolution of a boundary dispute with the principles applicable to adverse possession; and

(4) failing to give weight to the 100 acres of bush land that each owner believed he had bought.

[21] With respect to the first error as to the purpose of the fence, the majority noted that no one knew who built the fence and no one gave direct evidence as to its purpose. In the absence of such direct evidence, the majority was of the opinion that the nature and location of the fence did not support its purpose as a boundary relating to the original survey.

[22] In overturning the Director's decision, Desotti J. wrote at para. 22:

In the absent [sic] of clear evidence that the fence was a boundary fence and given the strong probability as found by the Director that this was a fence of [page88] convenience, the intention of the parties as supported by the proportional survey by Mr. Halliday should govern.

C. The Divisional Court minority

[23] In his dissent, Campbell J. saw the majority decision as a dispute with the Director's analysis of the evidence and was of the opinion that, as a matter of law, the Director's decision must be upheld. He noted the Director's expertise as a surveyor in weighing the surveyors' conflicting opinions and the evidence upon which they were based.

[24] With respect to the purpose of the fence, Campbell J., as did the Director, acknowledged its irregular and incomplete nature, its location as it meandered northwest, and the contrast between this fence and other boundary fences in the concession. He accepted, however, the Director's findings that these characteristics did not preclude the fence as a boundary marker, that a boundary need not first be run by a surveyor, and that the 1937 fence repair supported the existence of the fence at the time the lots were patented.

[25] Campbell J. accepted that the fence was "old, irregular, decrepit, and incomplete". He also noted the findings made by the Director that:

(1) The fence had been peaceably accepted as the boundary for over 50 years from 1937; and

(2) Mr. Little's cabin or hunt camp was built on the disputed portion of the land.

[26] Campbell J. differed from the majority on the inferences drawn by the Director with respect to the dramatic bend. While the majority interpreted the Director's reference to that bend as a finding of a "strong probability" that the fence was built for convenience and not as a boundary, Campbell J. noted that the Director only said that this portion of the fence "quite conceivably" was built for "ease of construction". Campbell J. noted that, while awkwardly phrased given the legal principles at issue, the sentence did no more than acknowledge a possibility and did not amount to a finding of probability.

[27] Campbell J. would have dismissed the appeal because, in considering the evidence as a whole, the Director, in thorough reasons, on a balance of probabilities, found the best conclusion to be that the fence reflected the original running of the boundary. [page89]

Analysis

A. The legal principles

[28] The 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 (at p. 2 QL):

(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).

As in the case before this court, in the absence of natural boundaries and original monuments, the surveyor would look for fences or possession before resorting to measurement.

[29] As Stortini D.C.J. said (at p. 2 QL):

[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.

[30] 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.

[31] The efficacy of this method of boundary demarcation was specifically addressed in Davison v. Kinsman (1853), 2 N.S.R. 1 (C.A.). In that case, Haliburton C.J. noted that during the early settlements in Canada, surveyors were few in number, and those [page90] who were available were "not remarkable for their accuracy" (at p. 3). Haliburton C.J. went on to note that (at pp. 3-4):

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.

[32] The settler determined his own lot line by locating the original monument, or otherwise determining the location of the lot limit, and, using a compass, following and marking a lot line either by blazing a trail along its length or by erecting a fence. Lots would afterwards be occupied and used in accordance with the boundary if it was peaceably settled by adjacent lot owners. This accepted practice was recognized and supported by survey practice, even though such a boundary was not in accordance with survey measurements.

[33] If survey law had not developed principles such as the surveyor's hierarchy of evidence, boundaries long settled between neighbours would become unreliable, with the results described in Diehl v. Zanger, 39 Mich. 601 (Sup. Ct. 1878), at p. 605:

Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.

[34] To avoid such a calamity, the surveyor's goal was to find and confirm where the lot line had been run in the first place; not to correct by measurement a lot line that had already been set by the owner and accepted by the neighbour. Fences and possession became an accepted means of boundary demarcation because it was presumed that, if they were established for the purpose of running the lot line, they were so established in relation to monuments that were no longer available. Even if the monuments themselves had been wrongly placed, the acceptance of a boundary [page91] by landowners became the best method of ensuring a just running of the line. As noted in Diehl v. Zanger, at pp. 605-06:

As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are.

[35] A similar point was made in Kingston v. Highland (1919), 1919 854 (NB SC), 47 N.B.R. 324, at pp. 329-30:

It is by no means uncommon that we find men whose theoretical education is supposed to make them experts, who think, that when monuments are gone, the only thing to be done is to place new monuments where the old ones should have been, and where they would have been, if they had been placed correctly. This is a serious mistake. The problem is now the same that it was before -- to ascertain by the best lights of which the case admits, where the original lines were. The original lines must govern, and the laws under which they were made must govern, because the land was granted, was divided, and has descended to successive owners under the original lines and surveys; it is a question of proprietary right.

The general duty of a surveyor in such a case is plain enough. He is not to assume that a line is lost until after he has thoroughly sifted the evidence and found himself unable to trace it. Even then he should hesitate long before doing anything to the disturbance of settled possessions. Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary, when no other is attainable; and the surveyor should enquire when it originated, how and why the lines were then located as they were, and whether claim of title had always accompanied the possession, and give all the facts due force as evidence. Unfortunately, cases have happened where surveyors have disregarded all evidence of occupation and claim of title, and plunged whole neighborhoods into quarrels and litigation by assuming to establish lines at points with which the previous occupation does not harmonize.

[36] In weighing such evidence of a boundary line, the Director was entitled to draw inferences from the facts, as was done in Weston v. Blackman (1917), 12 O.W.N. 96, [1917] O.J. No. 437 (C.A.) at p. 97 O.W.N.:

The facts so found warranted the inference that the old fence was built when the original monuments were in existence and on the true boundary line.

B. Standard of review

[37] Counsel agreed that the dispute with the Director's decision rested on the inferences the Director drew from the evidence before him. They phrased their arguments, both before the Divisional Court and before this court, using the language of palpable and overriding error. In his dissent, in discussing the deference to be given to the Director, Campbell J. recognized the particular surveying expertise of the Director in weighing conflicting survey opinions. [page92]

[38] In acting under the Boundaries Act, the Director is an administrative decision-maker. The standard of review to be applied to his decision is a question of law. The parties' agreement on that standard is not determinative: Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 242 D.L.R. (4th) 193, at para. 6.

[39] As McLachlin C.J.C. wrote in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 21"the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach". That principle applies whether the review is by way of appeal or judicial review. The object is to determine the degree of deference the legislature intended the courts to give to the decision being reviewed.

[40] To determine that degree of deference, the court must consider the four factors established by the jurisprudence: the presence or absence of a privative clause or a statutory right of appeal in the legislative scheme; the nature of the question; the relative expertise of the tribunal; and, the purpose of the legislation: see Dr. Q., supra, at para. 26; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at para. 27; Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, at para. 16.

[41] I begin with the first contextual factor: the legislative scheme of the Boundaries Act, the relevant provisions of which are set out at para. 16 of these reasons.

[42] The legislation contains no privative clause. Not only does s. 12 specifically provide for a statutory right of appeal, but its language permits the Divisional Court to "decide the matter on the evidence before it". At first impression, this wording suggests a broad right of appeal. However, other provisions, which I will discuss in para. 44, give the Director broad powers in the conduct and content of the hearing. In addition, the Director has an expertise not shared by the courts. In those circumstances, it cannot be said that the words permitting the Divisional Court to "decide the matter on the evidence before it" can or should be interpreted to dictate a standard of correctness permitting the court to substitute its opinion of the evidence for that of the Director. Nonetheless, the absence of a privative clause and the presence of a right of appeal do suggest a lesser degree of deference be given to the Director's decision: Monsanto, at para. 7.

[43] The second contextual factor addresses the nature of the problem: the issues involved in the determination of boundary disputes, which itself involves the application of professional principles commonly identified by surveyors. The issues do not [page93] involve statutory interpretation, in which courts generally are said to have an equal or greater proficiency. Rather, boundary determination requires the weighing of specialized evidence, often including expert opinions. It is a specialized task given to a specialized tribunal. The nature of the problem is, in essence, factual. As the Supreme Court of Canada noted in Dr. Q., supra, at para. 34: "When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more deference towards the tribunal's decision." This is particularly so where the facts are determined through the prism of survey principles.

[44] With respect to the third contextual factor, as I have already mentioned, the Director has particular expertise when contrasted with that of a court: he is a surveyor. His expertise is recognized by the Boundaries Act, which gives him independent authority to require certain information (s. 4(2)); to initiate a proceeding on his own initiative and to engage a surveyor (s. 5(1)); to determine whether to hold a hearing (s. 8(4)); and, most significantly, confers broad powers to dispose of the dispute (s. 9(1)). The difficulties inherent in boundary re-establishment, which will be canvassed in my later review of survey law, show the expertise required of the Director in weighing facts and balancing expert opinion. Indeed, the parties before the Director were surveyors and not the landowners. Given the application of appropriate legal principles, the determination of the running of a lot line or the re-establishment of a boundary are factual matters peculiarly within the knowledge and skill of those trained in surveying, which suggests a high degree of deference is owed to the Director's findings.

[45] These powers are consistent with the fourth factor, the apparent purpose of the Boundaries Act: to provide an expeditious, summary, cost-effective means for neighbours to resolve disputes. The legislature determined that the Director, experienced with boundary resolution concepts and equipped with broad powers, would best achieve an efficacious resolution of boundary disputes. The legislature gave the Director power in s. 9(1) to "dispose of any objection in such manner as he or she considers just and equitable under the circumstances" and to set boundaries as "he or she thinks it proper to do so". The legislature intended to entrust significant decision-making authority to the specialized Director.

[46] Considering these four factors, I conclude that reasonableness is the appropriate standard of review. Such a standard requires the court to ask whether the Director's reasons can stand up to a somewhat probing examination; whether the reasons support the Director's conclusion: see [page94] Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1997] S.C.J. No. 116, at para. 56.

[47] In applying this standard of review, I am mindful that the primary challenge to the Director's decision is based on the weight he gave to certain evidence in preference to other evidence suggesting a contrary boundary. In Southam, supra, at para. 43, Iacobucci J., in the context of a judicial review on a standard of reasonableness, addressed the degree of deference to be given to a tribunal weighing the evidence:

The most that can be said, as a matter of law, is that the Tribunal should consider each factor; but the according of weight to the factors should be left to the Tribunal.

Further, at para. 80:

[A] reviewer ... will often be tempted to find some way to intervene when the reviewer him- or herself would have come to a conclusion opposite to the tribunal's. Appellate courts must resist such temptations.

[48] In keeping with this deferential standard of review, the appellate court will consider the Director's reasons both in the context of his expertise in boundary disputes and his lack of expertise in the particularities of writing judicial reasons. That lack of expertise in writing judicial reasons means that the Director's reasons must be considered as a whole and not parsed in the same detail that might be applied to a judge's reasons. The Director was entrusted with a broad discretion in the determination of boundary disputes by way of a summary procedure because he has expertise in the discipline, not because he is an expert in decision writing.

[49] While the Divisional Court accepted the parties' submission that the standard of review was palpable and overriding error, in my view, in the circumstances of this appeal, the standard of reasonableness that I have found applicable does not operate in opposition to that principle, particularly where the concern is the Director's findings of fact, and the inferences to be drawn from those facts. Where there is no palpable and overriding error in the Director's findings of fact, those factual findings can also be said to be reasonable. Indeed, in Southam, supra, at para. 59, Iacobucci J. noted the relationship between these two standards:

The standard of reasonableness simpliciter is also closely akin to the standard that this Court has said should be applied in reviewing findings of fact by trial judges. In Stein v. "Kathy K" (The Ship), 1975 146 (SCC), [1976] 2 S.C.R. 802, at p. 806, Ritchie J. described the standard in the following terms:

... the accepted approach of a court of appeal is to test the findings [of fact] made at trial on the basis of whether or not they were clearly [page95] wrong rather than whether they accorded with that court's view of the balance of probability. [Emphasis added]

[50] In any event, although other statutes specifically permit a reviewing court to substitute its opinion of the facts for that of the tribunal, the right of appeal under the Boundaries Act does not do so. Accordingly, the court does not have the right to substitute its interpretation of the facts for that of the Director, or to conduct a retrial. The broad authority in remedy given to the appeal court if it overturns the Director's decision does not give that court the right to re-try the case or to substitute its opinion on the facts for that of the Director.

[51] With these principles in mind, I turn to the errors identified by the majority of the Divisional Court.

C. The four errors

1. Purpose relating back to the original survey

[52] This error found by the Divisional Court majority has two parts: first, whether the evidence must relate back to 1870 and second, whether the evidence as to the fence's purpose was sufficient.

[53] With respect to whether the evidence must relate back to the original survey, the Director related the fence back in time to 1915 or 1919, when the patents were granted for the two lots and the lots were first separately held. This may be a matter of common sense because, until the lots were separately owned, no reason existed for anyone to run the line or build a fence. The relevant dates accepted by the Director were not an issue before him and were not raised in the facta in this case. Accordingly, for the purposes of this appeal, to the extent any date must be fixed, I accept 1915 or 1919 as the appropriate date of reference.

[54] In any event, the date of the fence's construction in relation to the date of the survey does not seem to have been a significant issue at the hearing before the Director. Rather, the question before the Director was characterized differently.

[55] As Mr. Dorland said in his evidence:

The first question that I dealt with was whether or not the fence in question was constructed in such a manner and location to indicate that its position was guided by original monuments or original survey.

[56] Accordingly, the question was not when the fence was built but whether it was built in relation to the original survey.

[57] With respect to the sufficiency of the evidence, the Divisional Court majority held that the purpose of the fence could only be established by "clear evidence" or "direct evidence". [page96]

[58] In my view, there is no requirement that the parties identify and call direct or clear evidence as to the fence- builder's purpose. To hold otherwise would prove fatal to the long-accepted surveyors' hierarchy. Clear or direct evidence is often not available. Passage of time makes it increasingly difficult and, in this case, impossible to provide direct evidence of intent. The builder of the fence is often no longer available to testify as to their intention at the time. In this case, where the fence was built sometime before 1937, and likely some 20 years earlier, it is not surprising that the original fence-builder was not called to give evidence.

[59] The fence itself is the legacy that its builders have left and the fence itself, its location, and its known history are the only available evidence from which its original purpose can be inferred. In my view, the Director was entitled to draw inferences from the fence itself and the evidence he had about the fence.

[60] One of the factors with which the Divisional Court majority was concerned was evidence about the dramatic bend at one segment of the fence. With respect to this evidence, the Director said: "It is quite conceivable that the fence was built along the edge of the bush road for ease of construction."

[61] There are three points to be made about this statement. First, the fact that a small portion of the fence was built along the bush road does not derogate from the conclusion that it was intended to mark the boundary.

[62] Second, the Director's reasons simply acknowledge the possibility that this portion of the boundary fence was a fence of convenience. Reading his reasons as a whole, he clearly considered this evidence, together with all the other evidence, and determined, on the balance of probabilities, that the fence was built, not as a fence of convenience, but to mark the boundary between the lots.

[63] Third, the Director's reference to ease of construction applied only to that portion of the fence that took a bend at a point 400 feet from its northerly termination. It was not a reference to the fence in its entirety and cannot be used to undermine the Director's overall finding that the fence, taken in its entirety, marked the boundary.

[64] With respect to the history and location of the fence, the Director relied on Mr. Little's evidence that the fence existed in a state of disrepair in 1937 and Mr. Nicholson's evidence that its southerly point was "virtually coincident" to the south lot line. It cannot be said that the Director's inference that the fence "related back" to the accepted dates and represented a first running of the lot line was unreasonable or that it was not supported by evidence. [page97]

2. Peaceful acceptance

[65] There was evidence before the Director that the owners of Lots 22 and 23 had peacefully accepted the fence as the boundary for more than 50 years. On these findings, the majority in the Divisional Court said (at para. 20): "[w]hat the parties think or thought [about the fence] and then thought again is irrelevant. You cannot think or 'unthink' a boundary fence into and out of existence'.

[66] The majority was correct in this way: the question before the Director was whether the fence delineated a boundary, not whether subsequent purchasers believed that it did so. Nonetheless, the history of the fence, including its acceptance by subsequent owners, properly informs the question of its original purpose.

[67] Evidence of lengthy acquiescence or peaceful acceptance of a fence as a boundary has long been held to be relevant to the question of the fence's purpose:

It is often the case that where lines or parts of lines are found to be extinct, all persons concerned have acquiesced in lines which were traced by the guidance of some land-mark which may or may not have been trustworthy; but to bring these lines into discredit, when the people concerned do not question them, not only breeds trouble in the neighborhood, but must often subject the surveyor himself to annoyance, since in legal controversy, the law as well as common sense must declare that a supposed boundary line or a supposed division line, if long acquiesced in, is better evidence of where the real line should be, than any survey made after the original monuments have disappeared.

Kingston v. Highland, supra, at p. 330 N.B.R.

[68] Longstanding peaceful acceptance is a fact from which the Director was entitled to draw an inference in support of the proposition that, since the fence served the purpose of a boundary from at least 1937, it likely also served that purpose when it was built. I see no error in the Director's reliance on the lot owners' acceptance of the fence as informing the question of the fence's purpose.

3. Adverse possession

[69] While the Divisional Court majority was of the view that the Director confused boundary law with adverse possession, I cannot agree. The Director clearly understood the distinction.

[70] The Director was alive to his obligation to set a boundary, not to determine a case of adverse possession. This distinction was explained in Boundaries Act, File No. B.A. 168, Sudbury, ON, per Smythe S., Director of Titles, October 4, 1966, at p. 12:

[I]n order for adverse possession to occur, there must be a true boundary and this is the question before the hearing. Occupation to the true boundary by either party cannot be considered adverse. [page98]

[71] Possessory evidence is relevant to set the boundary. Only once the boundary is set can any issue arise about adverse possession. Moreover, possessory evidence is a specific component of the surveyor's third indicator of boundary in the hierarchy of evidence. As Stortini D.C.J. said in Thelland, at p. 2 (QL):

If no original monumentation is in existence, the next acceptable evidence is evidence regarding the original positions of the monumentation or evidence regarding the original running of the line, including possessory evidence. The first establishment of the line need not have been done by a surveyor. Evidence of possession which relates back to the first survey or first establishment of the line would be the best evidence of where the line was originally located.

[72] Accordingly, the neighbours' acquiescence to the fence as creating a boundary, and their lengthy possession of the lands in accordance with that boundary, was evidence from which the Director was entitled to draw reasonable inferences.

4. Relevance of acreage

[73] As noted above, the fourth and final error found by the majority of the Divisional Court is described at para. 22:

In the absent [sic] of clear evidence that the fence was a boundary fence and given the strong probability as found by the Director that this was a fence of convenience, the intention of the parties [that each would own 100 acres of bush land] as supported by the proportional survey by Mr. Halliday should govern.

[74] On this issue, the majority of the Divisional Court was concerned about the lot owners' intention to acquire 100 acres of bush land and was of the view that this intention should have been given more weight by the Director. By ascribing less weight to this factor, according to the majority, the Director erred in giving one owner 87 acres of land and the other 113 acres.

[75] It was the boundary line, however, that was the issue, not the expectations as to acreage of the current owners. The irrelevance of acreage was canvassed in Kingston v. Highland, supra, at pp. 328-29 N.B.R.:

[T]he duty of the surveyor is to find if possible, the place of the original line, the stakes, marked trees and monuments which determined the boundary line between the proprietors in the first instance. However erroneous may have been the original survey, or even if there was no survey at all, technically speaking, the monuments that were set, the trees that were marked and blazed, must, nevertheless, govern, even though the effect be to give to one proprietor a much greater acreage than his deed would seem to entitle him, and give to the adjoining proprietor very much less. In the case of successive purchasers or owners, they are entitled to no more or less an area than their predecessors in title; for parties buy or are supposed to buy in reference to the earlier lines or monuments, and are entitled to what is within their lines and no more. [page99]

[76] At the time of acquisition, any owner who wished to ensure title to a specific number of acres could have required a survey to ensure he or she received what they bargained for. No owner did until 1992: perhaps acreage was not important. For many years, Mr. Serre only had access to 87 acres of land for the occasional purpose of fall hunting. He did not notice the missing 13 acres. It was the boundary that was at issue before the Director, not the acreage.

[77] This discrepancy of acreage was not relevant to the Director's consideration. What was relevant, however, was the fence's large degree of deviation at its northerly end where it erred by more than 800 feet from the likely location of the original monument. This deviation was considered by the Director as significant to his ultimate determination as to whether the fence was erected as a boundary fence.

[78] In his reasons, the Director spoke to the possible explanations for this deviation. In the end, he determined that the fence was probably constructed from the south limit of the concession northward with the use of a compass and that, in addition to perhaps some magnetic declination, the builder of the fence was further deflected in his path by the topography of trees, bush and rock croppings. These findings were based on the evidence of Mr. Nicholson, a local surveyor, familiar with conditions in the area.

[79] While to another observer, this significant deviation might call into question the reliability of the fence as marking a boundary, it cannot be said that the Director's decision amounted to an unreasonable weighing of the totality of the evidence. The Director was entitled to take into consideration the local conditions as evidenced by Mr. Nicholson and others. A deviation, even to the extent of the deviation in this case, in sizable rural bush land primarily used for the occasional purpose of deer hunting, may not be as significant as it would be in the case of smaller limited city plots.

Summary

[80] The question before the Divisional Court and before this court is whether the Director's decision was reasonable. In this case the Director considered all the evidence, weighed the evidence for and against the fence as a boundary and gave considered reasons, which read as a whole, support his determination.

Disposition

[81] I would allow the appeal, set aside the order of the Divisional Court, and affirm the order of Deputy Director William D. Snell, O.L.S., C.L.S., dated October 25, 2001. [page100]

[82] At the conclusion of argument, counsel advised that they had not sought the disposition of their Divisional Court costs before that court. They agreed that, considering all costs, including those before the Divisional Court, the successful party on this appeal should be awarded costs of $5,000. Accordingly, I would award costs to the appellant payable by the respondent fixed at $5,000 plus GST.

Appeal allowed.