SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: BRENDA DIANE NIGHTINGALE
Applicant
(Appellant in Appeal)
- and -
LEAH BROOKS and WILLIAM BROOKS
Respondents
(Respondents in Appeal)
BEFORE: CUNNINGHAM, A.C.J., CARNWATH & MACDOUGALL, JJ.
COUNSEL: Izaak de Rijcke, for the Applicant/(Appellant in Appeal)
Steven C. Foster, for the Respondents/(Respondents in Appeal)
HEARD: May 28, 2008
In the matter of an appeal under Section 12(1) of the Boundaries Act, R.S.O. 1990, c. B.10
E N D O R S E M E N T
1Brenda Diane Nightingale appeals to the Divisional Court from the order of Deputy Director of Titles, J.S. Cotterill, O.L.S., pursuant to the Boundaries Act, R.S.O. 1990, c. B.10 (“the Act”).
2The Deputy Director was asked to confirm the true location on the ground of the boundary between the lands of Ms. Nightingale and the Brooks. He did so, to the satisfaction of neither Ms. Nightingale nor the Brooks. The boundary is part of the centre line of Concession 2, being the boundary between the NE ½ and the SW ½ of lot 22 of the Township of Esquesing. The boundary in issue would be the west boundary of the Nightingale’s property and the east boundary of the Brooks’ property
3The appeal raises two questions:
What is the standard of review applicable to the decision of the Deputy Director?
Applying that standard, should the Deputy Director’s decision stand?
BACKGROUND
4Under s. 9(1) of the Act, the Deputy Director may confirm the location of a boundary shown on a plan of survey, or may order the survey and plan be amended and confirm the location of the boundary as shown on the amended plan.
5Both parties retained Ontario land surveyors to attend the site, prepare a draft plan of survey and give an opinion to the Deputy Director. Both of the retained surveyors had the northern part of the boundary veer in a westerly direction, but disagreed as to the starting point of the change in direction.
6The surveyor retained by Ms. Nightingale, Mr. Buisman, testified that the best available evidence of this boundary line was a row of stumps, one with wire marks on its side, which he contended marked the limits of long-standing occupation. He said that the boundary line should veer slightly westerly from the south-west corner of the Nightingale property.
7The Brooks’ surveyor, Mr. Dolliver, testified that the best available evidence was the field notes of Ontario Land Surveyor, Mr. Carr, who surveyed the property in 1970 when the Nightingale property was originally severed from the farm property. Mr. Dolliver testified this evidence establishes the half-lot line along the centre of the remains of an old snake rail fence marking the centre of the Concession. He concluded the boundary should continue in a north-westerly direction along a barbed wire fence marking the long-standing occupation as retraced in a 2001 survey.
8The Deputy Director disagreed with both surveyors. He found the boundary should extend northerly in a straight line from the end of the snake rail fence and parallel to the easterly boundary of the Nightingale lot as shown on the 1970 plan of survey prepared by Mr. Carr. Retracing the boundary of Mr. Carr results in a substantial encroachment of improvements on the Nightingale parcel onto the adjoining lot and road allowance (the covered and screened-in patio, the stone retaining wall, and the driveway).
9The Township of Esquesing was first surveyed in 1819. The survey laid out the lots in a double front pattern. In the original survey, only the Concession lines were run and monuments were set in the limits of the road allowance between Concessions at the limits of intersecting side line road allowance and at intersecting lot lines. The road allowance between lots and the centre line of the Concession was not run on the ground on the original survey. The centre line of the Concession (the line between the east-half and the west-half) is shown on the original plan of the Township as a straight line. Only the centre line of roads as Concession lines were run, and monuments set on either side of the Concession lines to mark the front corners of lots and side roads. Previous adjoining owners on either side of the centre line constructed a rail fence, portions of which remain today further to the south of the lands in question.
10When Ms. Nightingale purchased her property in 1993, no cedar rails remained along the property’s westerly boundary. There were some barbed wire fence posts, remaining from a pig pen, that were located west of the property line. There was a garage to the west of her house and a patio to the west of the garage. The west edge of the patio was on top of a stone foundation or retaining wall. The lane was outlined with stones, and a stone wall was located along the west side of the lane, which continued to the foundation at the edge of the patio. There were trees along the entire west side, west of the stone wall. The previous owner had mowed an area of grass west of the trees, apparently by agreement with the adjoining owner.
11In 1970, the lot now owned by Ms. Nightingale was created by severance from the larger farm parcel as surveyed by Mr. Carr for registration purposes. Ms. Nightingale’s lands were severed by deed that year. When Mr. Carr conducted the survey in 1970, he retraced the location of the snake rail fence and found that it followed a straight line along the centre line. Where there was no further evidence of the snake rail fence, Mr. Carr projected it northerly, so that the western boundary in this area ran parallel with the eastern boundary of the parcel. As such, he fixed the straight line as the centre line of the Concession lot 22. Mr. Carr marked the location of the boundary (the straight line following the centre line) with two iron bars and one witness bar. These bars were located by the surveyors hired by both parties. There is a dispute whether any remnants of the barbed wire fence existed at the time of the expert witnesses’ surveys.
12Mr. Buisman, the expert witness for the appellant, found remnants of wire fence on trees south of the property and east of the centre line, as well as wire marks on a stump on Ms. Nightingale’s property. He accepted Mr. Carr’s opinion that the centre line of the snake rail fence was the best available evidence of the centre line of the Concession, retracing this line to the point where Mr. Carr observed the end of the snake rail fence. He then accepted the barbed wire fence running north-westerly from the end of the snake rail fence as the best available evidence of the centre line.
13The expert witness for the respondent, Mr. Dolliver, testified that since there was no evidence of any wire on anything but the stump on the property, the rest of the trees had little significance in determining the location of the snake rail fence. He noted that barbed wire was usually installed from tree to tree when the snake rail fences started to deteriorate. Mr. Dolliver had recommended an application under the Act, as the barbed wire fence could be evidence of the boundary as accepted and occupied for a considerable amount of time, and it differed with that of Mr. Carr’s.
DECISION OF THE DEPUTY DIRECTOR (OCTOBER 26, 2006)
14The Deputy Director observed that when Mr. Carr surveyed Ms. Nightingale’s property in 1970, the snake rail fence ran along a portion of the centre line of the Concession. Both experts who testified at the hearing agreed that the snake rail fence was the best evidence of the location of the boundary. There was no evidence to determine when either the snake rail fence or barbed wire fence had been erected. The Deputy Director noted that both the 1849 and current statutes provide a methodology to be used in establishing the centre line of a Concession (and outlined where the boundary would be located in accordance with that methodology). He observed that the experts agreed that they are not establishing the boundary for the first time, but are retracing a boundary that had been run earlier but was “lost in history”.
15The Deputy Director found that sufficient evidence existed today to retrace Mr. Carr’s survey (both experts had no difficulty in retracing it), and that Mr. Carr was on the ground at a time when the snake rail fence existed. He located the end of the snake rail fence, and was satisfied that the snake rail fence probably once extended to the north limit of the parcel.
16The Deputy Director observed that the presence of the barbed wire fence located east of the snake rail fence probably indicated that the snake rail fence had fallen into disrepair and could no longer contain livestock. He also observed that there was no evidence as to when the barbed wire fence was erected or its location, except that its location was probably convenient.
17In deciding the matter, the Deputy Director was satisfied that the centre line of the snake rail fence was the best available evidence of the historic peaceful possession, and that acceptance of this line as the boundary between the east and west halves of lot 22 would accord with the case law. The experts accepted that the barbed wire fence was a fence of convenience where it existed beside the snake rail fence and did not provide evidence of the boundary. Although Mr. Buisman had argued that Mr. Carr had not accurately located the snake rail fence, the Deputy Director noted that Mr. Carr was on the ground at a time when remnants of the snake rail fence existed, and that he was in a better position to record its location than the expert witnesses.
18As a result, the Deputy Director found the monuments erected by Mr. Carr to be the best evidence of the centre line of the snake rail fence, which was, in 1970, the best available evidence of the first running of the centre line of Concession. He confirmed the boundary to be a straight line between the south-west corner of the parcel as set from Mr. Carr’s witness bar to the iron bar set by Mr. Carr at the production of the snake rail fence with the barbed wire fence marking the south limit of the road diversion. The Deputy Director accepted that Mr. Carr was satisfied with both the location of the centre of the snake rail fence and the probability it once existed on the projection of what remains right up to the south limit of the diverted road. The Deputy Director found it highly likely the snake rail fence was built to contain livestock and highly unlikely it stopped just short of reaching any other barrier.
COURT’S JURISDICTION
19The Act provides for the following right of appeal:
Appeal from Director’s decision to Divisional Court
- (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.
Power of 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
(b) where the appeal is from an order as to costs under section 11, annul or, with or without modification, confirm the order.
STANDARD OF REVIEW
20The appellant submits that the standards of review in an appeal under the Boundaries Act are reasonableness and correctness, citing Nicholson v. Halliday (2005), 2005 259 (ON CA), 74 O.R. (3d) 81 (C.A.). In Nicholson, Lang J.A. considered the four factors to establish the appropriate degree of deference in relation to a decision of the Deputy Director under the Boundaries Act. She concluded:
46Considering 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 [page 94] 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.
48In 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.
49While 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. …
50In 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.
21I find the standard of review of the decision of the Deputy Director to be that of reasonableness.
ANALYSIS
22The Deputy Director derives his jurisdiction from s. 9(1) of the Act:
- (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.
23Ms. Nightingale submits that the Director lost jurisdiction because the location of the boundary he confirmed was not sought by either party. I reject this submission. The Deputy Director was not required to choose one or other of the boundaries proposed by the parties. Rather, he was to apply the provisions of s. 9(1) of the Act to the facts as he found them. In doing so, his reasons make it clear that he considered all the submissions relating to the correctness of the boundary line.
24Ms. Nightingale submits that she was denied the opportunity to be heard because the Deputy Director failed to inform the parties of the ultimate result. He was, says Ms. Nightingale, required to allow the parties to adduce further evidence in argument on the correctness of the result. I reject this submission. Perusal of the Deputy Director’s detailed reasons convinces me that the parties had ample opportunity to be heard and the submissions for and against the location of the boundary received careful attention from the Deputy Director. This submission alleging a denial of an opportunity to be heard disguises a desire to have the matter re-tried, nothing more.
25Ms. Nightingale submits the Deputy Director committed a fatal flaw by resorting to s. 27(1) of the Act since a boundary fence already existed. I reject this submission. This is exactly what the Deputy Director did not do. At pp. 20-21, the Deputy Director found as follows:
It is clear to me that all of the experts who have endeavoured to locate this boundary have agreed that they are not establishing it for the first time (in which case they would be bound and directed by the statute) but are, in fact, retracing a boundary that had been first run at an early time, lost in history.
26Ms. Nightingale submits the Deputy Director should not have rejected what she submitted was evidence of the old snake rail fence. Her counsel identified facets of the evidence of the fence’s location which would allow its retracement. I reject this submission. The Deputy Director referred to the evidence advanced by the appellant, considered it and rejected it in favour of the information found on the ground by Mr. Carr at the time of the existence of the snake rail fence and preferred that evidence to the surveyors who followed on many years later. Mr. Carr’s iron bars were found by the experts who testified at the hearing. The Deputy Director concluded that the snake rail fence established the original boundary between the parcels and that it was logical to extend it northerly in a straight line to continue the line already established. This was a conclusion he was entitled to make on the evidence. It goes without saying that the Deputy Director was not bound to accept the experts’ evidence. He was entitled to accept all, part or none of it, absent palpable and overriding error on his part.
27The appellant’s position on this appeal falls squarely within what Lang J.A. said in Nicholson v. Halliday, above, at para. [50]:
50Accordingly, 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 nor to substitute its opinion on the facts for that of the Director.
28The Deputy Director considered the evidence on behalf of both parties in considerable detail. He carefully explained why he did not accept certain evidence. He explained why he accepted the survey carried out by Mr. Carr as the basis for the establishment of the original line. Having so found, he extended that original line northerly in a straight line and confirmed that to be the boundary. It was reasonable for him to so conclude and he was entitled to his conclusion on the evidence before him.
29The appeal is dismissed. The parties have twenty-one days to submit brief written submissions as to costs, limited to three pages.
CUNNINGHAM A.C.J.
CARNWATH J.
MACDOUGALL J.
DATE: June 27, 2008