CITATION: Godfrey v. Ontario (Natural Resources and Forestry), 2015 ONSC 7802
DIVISIONAL COURT FILE NO.: 540/14 DATE: 20151210
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, SANDERSON AND HAINEY JJ.
BETWEEN:
JUDITH C. GODFREY
Appellant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY
Respondent
Allan D. J. Dick, for the Appellant
Edmund S. Huang and Domenic D. Polla, for the Respondent
HEARD at Toronto: December 10, 2015
MOLLOY J. (ORALLY)
[1] This is an appeal from a decision of the Deputy Director of Titles (“the Deputy Director”) under s.9 of the Boundaries Act. At issue is the location of the eastern boundary of Mrs. Godfrey’s property in Gravenhurst. Mrs. Godfrey took the position that her property included some land on the eastern shore of Three Mile Lake. The Deputy Director accepted the position taken by the Crown that Mrs. Godfrey’s eastern boundary was the western shore of Three Mile Lake.
[2] An appeal lies to the Divisional Court pursuant to s.12(1) of the Boundaries Act. The powers of this Court on appeal are set out in s.12(2) of the Act which states:
[3] 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.
[4] The applicable standard of review is that of reasonableness as established by the Ontario Court of Appeal in Nicholson v. Halliday (2005), 2005 259 (ON CA), 74 O.R. (3d) 81, 248 D.L.R. (4th) 483 and as recently confirmed by Sachs J. of this Court in Michnick v. Bass Road Beach Association, 2015 ONSC 1936 at paras. 30-33. To the extent questions of law are involved in the appeal before this Court, they relate to the interpretation of home statutes within the special expertise of the Deputy Director. There are no issues that would attract a different level of deference other than reasonableness.
[5] The Deputy Director provided detailed written reasons for her decision. Although the appellant contends that the Deputy Director ignored extrinsic evidence, we do not find that to be the case. Rather, the Deputy Director considered all of the evidence, but nevertheless found it was not persuasive. Instead, she found that the original plan was the most compelling source for determining the location of the boundary. The Deputy Director explained why she accepted that evidence and why she did not find the other evidence to be persuasive.
[6] At one point in her Reasons the Deputy Director, in explaining why she was not relying on a 1948 survey, stated that she did not find it to be “conclusive.” The appellant argues that she thereby applied a burden of proof that exceeded the balance of probabilities and that she therefore fell into reversible error. We do not agree. The use of the word “conclusive” does not necessarily relate to burden of proof. It has an ordinary meaning as well. The Supreme Court of Canada has directed in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] S.C.C. 62, para. 13, that it is not appropriate to parse every word of a tribunal’s decision. The reviewing Court must look at the whole of the reasons and look at them in context. That is what a reasonableness review entails.
[7] The reasoning of the Deputy Director is intelligible. The conclusion she reached is a reasonable one in light of the evidence and falls within the range of acceptable, rational outcomes. It is entitled to deference.
[8] The appellant argued that the Deputy Director erred in determining that the Crown did not intend to patent the land on the eastern shore of Three Mile Lake. The Director recognized the ambiguity created by the language in the original 1907 patent. However, upon looking at all of the evidence, she concluded that this was a simple error. That is a reasonable view, supported in the evidence. Reasonable minds could disagree on this point. However, that is not the test. Based on the whole of the evidence, the Director made a factual finding that cannot be said to be unreasonable. Again, it is not for this Court to interfere.
[9] The appellant argued that the Deputy Director erred in law and jurisdiction in failing to hold that the Crown Resurvey done in 1963 was conclusive as to the boundary as required under s.48(2) of the Act. I do not agree. The Resurvey confirmed the southeast corner of Lot 3. The Deputy Director’s finding that the southeast boundary of Lot 3 was the shore of the lake is fully consistent with recognizing the corner monument because the monument is actually at the high water mark of the lake. Confirming the corner of the southeast end of the lot, does not resolve the central issue. The real issue is where the boundary travels northwards from that point. The Act does not compel the Deputy Director to draw a straight line perpendicular to the concession line from the southeast corner marker to the corner market at the north end of the lot. The retracing survey did not confirm the location of the side line boundaries. To determine the side boundaries the Deputy Director had recourse to the patent and the original plan. The patent did not contain a metes and bounds description of the property conveyed. Therefore, the precise boundaries are to be determined by survey. The Deputy Director therefore went to the original plan, which did not draw the east side boundary line perpendicular from the concession line. The official plan is consistent with the Crown’s position that the triangular piece of land in dispute is in fact part of Lot 2, which belongs to the Crown.
[10] The original plan specifies that Lot 2 is 107 acres and that Lot 3 is 31 acres. The patent also shows that Lot 3 is 31 acres. Again, this shows the consistency between the patent and the original plan and the reasonableness of the Deputy Director’s conclusion that the eastern boundary of Lot 3 was the western shoreline of the lake.
[11] The Deputy Director clearly understood her jurisdiction and the question that was before her, which was the proper location of the boundary. Although there may be occasional references to what lands were included in the original patent, this was done solely in the context of the issue squarely before her: the location of the boundary. There is no jurisdictional error and no findings of ownership.
[12] At the conclusion of her decision the Deputy Director recommended that the Crown should issue “corrected letters patent”. This was merely a recommendation. It has no impact on the decision itself as to the location of the boundary and does not purport to amend the patent. Regardless of whether such a recommendation is within the Director’s authority, it had no impact on the result and is immaterial for purposes of the appeal. It is not a basis for setting aside the decision.
[13] Accordingly, this appeal is dismissed.
Costs
[14] I have endorsed the Appeal Book, “For oral reasons provided today, this appeal is dismissed. The parties agree that a cost award of $10,000, payable to the respondent is appropriate. Order to go accordingly.”
___________________________ MOLLOY J.
SANDERSON J.
HAINEY J.
Date of Reasons for Judgment: December 10, 2015
Date of Release: January 8, 2016
CITATION: Godfrey v. Ontario (Natural Resources and Forestry), 2015 ONSC 7802
DIVISIONAL COURT FILE NO.: 540/14 DATE: 20151210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, SANDERSON AND HAINEY JJ.
BETWEEN:
JUDITH C. GODFREY
Appellant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY
Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: December 10, 2015
Date of Release: January 8, 2016