CITATION: Duarte v. Ontario; Carson v. Ontario, 2018 ONSC 2612

COURT FILE NO.: DC-1009/16 and DC-17-2015

DATE: 20180425

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M.G.J. Quigley, W. Matheson and M. Faieta JJ.

B E T W E E N:

ANTONIO DUARTE and BELVA SPIEL

Antonio Duarte and Ryan Keller, for the Appellants

Appellants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF NATURAL RESOURCES AND FORESTRY, THE CORPORATION OF THE TOWNSHIP OF TINY, CERTAIN OWNERS IN RP 779, TERRY CHURCH, and ROMSPEN INVESTMENT CORPORATION

John Barzo, for the Respondent, The Corporation of the Township of Tiny

David Preger for the Respondent, Romspen Investment Corporation

No one appearing for the other Respondents except as represented in the second appeal

Respondents

A N D B E T W E E N:

MICHAEL CARSON, TERRY CHURCH, DANU MANDLSOHN, SAMUEL P. MANDLSOHN, MARK MANDLSOHN, ANNE MANDLSOHN, WILLIAM MILLET SALTER, NANCY C. SALTER, GREGORY M. SALTER, LINDSAY J. SALTER-CRAIG, FAIRBRUSH DENTAL MANAGEMENT LIMITED, DAVID K. HOLWELL, DONNA E. HOLWELL, DALE C. RECCHIA, ANTONIO DUARTE and BELVA SPIEL

Shane Rayman and Conner Harris, for the Appellants, Plan 779 Owners

Appellants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF NATURAL RESOURCES AND FORESTRY and THE CORPORATION OF THE TOWNSHIP OF TINY

John Barzo, for the Respondent, The Corporation of the Township of Tiny

No one appearing for Her Majesty the Queen in Right of Ontario

Respondents

HEARD at Oshawa: September 27, 2017

REASONS FOR DECISION

BY THE COURT

Introduction

[1] Two appeals have been brought under s. 49 of the Surveys Act (the “Act”) from the decision of Mr. Eric L. Ansell, a Coordinator in the Crown Land Surveys division of the Office of the Surveyor General (the “Coordinator”).[^1] In his November 28, 2016 decision, the Coordinator approved and confirmed a resurvey that had been commissioned by the Minister of Natural Resources and Forests at the request of The Corporation of the Township of Tiny (the “Township”) under s. 48 of the Surveys Act (the “Order”).

[2] The Appellants own property on Wymbolwood Beach in the Township, on the easterly shore of Nottawasaga Bay of Lake Huron. Recently, the waters of Nottawasaga Bay have receded. The Appellants and the Township disagree about two road allowances, and whether and where they should be drawn over the accreted lands.

[3] Surveyor John Goessman completed the original survey of the subject lands in the 1820s. For the resurvey requested by the Township in its s. 48 application, the Minister retained Mr. Robert D. Halliday, O.L.S. The survey plan prepared by Mr. Halliday is dated September 5, 2013 (the “Halliday Survey”). It is the Halliday Survey that is the subject of the Order appealed from.

[4] In short, the Halliday Survey extends the two disputed road allowances over the accreted lands in a manner that has the effect of cutting off the water access that the Appellants would otherwise enjoy as lakefront property owners.

[5] These appeals are framed simply, as appeals against the Coordinator’s decision under the Surveys Act to confirm the Halliday Survey, but neither the materials filed on appeal, nor the arguments made before us were so simple or constrained. Yet this remains a matter under the Surveys Act, not an avenue for the Township to indirectly obtain property rights over the Appellants’ lands, avoiding proper claims by the Appellants. The appeals are granted for the reasons set out below.

Background

[6] The two road allowances at issue are the following: (i) between Concessions 6 & 7 in front of Broken Lot 19, Concession 6, and Broken Lot 19, Concession 7 (“Concession 7”); and, (ii) between Lots 18 and 19, Concession 7, in front of Broken Lot 19, Concession 7, lying north of the road allowance between Concessions 6 & 7 (“Dunsford Lane”).

[7] The Halliday Survey sets the location of the boundaries of the two road allowances over accreted lands in front of certain properties. The confirmation of the Halliday Survey affects three sets of property owners:

(1) Antonio Duarte and Belva Spiel (the “Duarte Appellants”), who own a parcel of land within Lot 19, Concession 6, that lies immediately to the south of Concession 7 that runs across Lot 19 (the “South Lot”);

(2) Romspen Investment Corporation (“Romspen”), which owns a triangular parcel of land immediately to the north of Concession 7 that is within a portion of Lot 19, Concession 7, and lies west of Dunsford Lane (the “Centre Lot”); and

(3) Danu Mandlsohn, Samuel P. Mandlsohn, Mark Mandlsohn, Anne Mandlsohn, William Millet Salter, Nancy C. Salter, Gregory M. Salter, Lindsay J. Salter-Craig, Fairbrush Dental Management Limited, David K. Holwell, Donna E. Holwell and Dale C. Recchia (the “Plan 779 Appellants”), who own properties that lie within that portion of Lot 18, Concession 7 that lies northeast of Dunsford Lane (the “North Lots”).

[8] The Halliday Survey provides that the boundaries of the two road allowances should extend, continuing along their diagonal path, across the accreted lands to the current water’s edge. The Appellants object to the confirmation of the Halliday Survey because the extended road allowances (which are not perpendicular to the water’s edge) as shown in that resurvey cut across or in front of their properties and result in them no longer owning waterfront properties.

[9] The events giving rise to the request for the Halliday Survey began over ten years ago. At the request of the Township, Peter T. Raikes, O.L.S. prepared a Reference Plan of Survey, dated January 17, 2006 (the “Raikes Survey”). In the Raikes Survey, the two road allowances were shown to extend on a diagonal course to the water’s edge across the accreted lands.

[10] Given the potential impact of the approach shown in the Raikes Survey, the Duarte Appellants commissioned their own survey. Mr. Rodney G. Reynolds, O.L.S. prepared a survey plan dated September 27, 2010 (the “Reynolds Survey”).

[11] The Reynolds Survey introduces a bend in the road allowance at the location of the water’s edge in 1866 (at the time that the land was patented). The Duarte Appellants submit that this approach equitably apportioned accreted lands amongst property owners in accordance with the width of the shoreline frontage of their property, as well as for the two road allowances.

[12] The Duarte Appellants commenced an application under the Boundaries Act in respect of the boundaries of their parcel of land, based on the Reynolds Survey.[^2]

[13] On December 14, 2011, the Township passed a municipal bylaw authorizing it to apply to the Minister of Natural Resources under s. 48 of the Act to fix the position of the two disputed original road allowances and to direct such amendments as the Minister considers necessary.

[14] Section 48 of the Act has rarely been used, although it has been put forward and was evidently called upon in this case as a method for the municipality to avoid individual Boundaries Act disputes with individual owners, in favour of a broader more comprehensive approach to resolving boundaries.

[15] At the request of the Township, the Assistant Examiner of Surveys stayed the Duarte Boundaries Act application until completion of the Township’s application under the Act and pending the completion of the Minister’s resurvey. The grounds for the stay were that it was efficient to stay the Boundaries Act proceedings since the location of the Concession 7 road allowance was also at issue in the application initiated by the Township, which also sought confirmation of the boundaries of Dunsford Lane.

[16] In response to the Township’s request for a resurvey under s. 48 of the Act, the Minister commissioned the Halliday Survey. Mr. Halliday prepared the survey and also prepared a report of his research and field investigation (the “Halliday Report”). As shown in the Halliday Report, the Survey is the product of a field survey, review of other evidentiary materials and a legal analysis by Mr. Halliday. Among other things, Mr. Halliday reviewed the Act and case law under that Act and under the Boundaries Act.

[17] Once it was complete, and as required by the Act, the Coordinator held a hearing regarding the Halliday Survey. The hearing took place almost four years ago, in May 2014. The Duarte Appellants and representatives of the Plan 779 Appellants participated in that hearing.

[18] The Duarte Appellants opposed confirmation of the resurvey on a number of grounds, including that common law rights of accretion have caused the land over which the resurveyed road allowances run to have accreted to them, and that to permit the Halliday Survey to be confirmed would violate common law principles and derogate from their prior Crown grant.

[19] The Plan 779 Appellants opposed confirmation on the basis that the Township had legally recognized their rights as waterfront owners for over twenty years, and as such, the equitable doctrine of estoppel should apply to prevent the Halliday Survey from being confirmed. They claimed the Halliday Survey abrogated the legal relationship established when the Township agreed to quitclaim its rights to the accreted lands in front of their properties.

[20] Almost two and one half years after the hearing, the Coordinator finally released his decision. He confirmed the Halliday Survey with minor amendments.

[21] The appeals were commenced by the Duarte and Plan 779 Appellants. Subsection 49(1) of the Act provides for a statutory appeal by any person who objects to the confirmation of a survey under s. 48(2) of the Act.

[22] The other Respondent represented on the appeals, Romspen, takes no position on the appeals even though the size of its Centre Lot may be reduced if the approach advocated by the Appellants is accepted. It solely seeks a prompt and final resolution so that it may proceed with the re-development of its property.

Surveys Act

[23] The Coordinator’s decision and resulting appeal issues are more readily understood within the context of the Surveys Act itself.

[24] One of the purposes of the Act is to provide certainty to land owners by respecting the original surveys. As set out in Dale v. Tiny (Township), at para. 76:

The Surveyor General reasonably decided that one of the purposes of the Act was to provide certainty to land owners. The Act can be seen as a statutory response to the historical reality of the imperfection of original surveys and to the fact that land as surveyed can change over time due to things like changing water levels. Thus the Act provides direction, a direction driven by the need to respect the original “lot fabric”. [Emphasis added.][^3]

[25] In keeping with this purpose, the Act provides for the continued validity of authoritatively established lines, boundaries and corners, and related rules regarding re-establishment of lost lines, boundaries and corners, as set out in s. 9 of the Act.

[26] In the event that difficulties arise regarding the location of a line, boundary or corner from an original survey, as they have in this case, s. 48 of the Act provides for resurveys. Under s. 48(1), a municipality may apply to the Minister to cause a survey to be made for the purpose of fixing the position of a “disputed or lost line, boundary or corner that is in the municipality and that has been surveyed under competent authority.”

[27] In this case, the lands were surveyed under “competent authority”. In 1821, the Surveyor General retained Mr. John Goessman to create the initial surveys for the Township. He was given instructions and prepared surveys. This history was summarized by the Divisional Court in Dale v. Tiny (Township) and Mr. Goessman’s status as the foundational surveyor is not disputed on this appeal, although the extension of his road allowance lines to the water’s edge is in dispute, unlike in the Dale case.

[28] Thus, under s. 48 of the Act, there may be a resurvey of a “disputed or lost line, boundary or corner” that had been surveyed by Mr. Goessman. There has been other litigation arising from Goessman Surveys, which is not surprising. Conditions in the 1820s were adverse and did not always yield perfect survey results.

[29] Under s. 48(2), it is the Minister who appoints and instructs a surveyor to prepare a resurvey. Mr. Halliday was appointed in this case.

[30] The Surveys Act prescribes the requirements for a valid survey and sets out powers and obligations of surveyors in relation to their work in ss. 2 -7. The Act also permits regulations prescribing the “methods” of performing surveys. In turn, the regulations set out 166 methods of performing a survey for various patterns of township lots. The Act also includes specific requirements when a surveyor is re-establishing a lost or obliterated boundary, as was at issue in this case.[^4] In relation to a double front township, relevant here, those requirements are in s. 24 of the Act.

[31] When the s. 48 survey has been made and the plan and field notes have been examined by the Minister, the Minister must do the following under s. 48(2) of the Act:

(i) cause a notice of hearing to be published once a week for four consecutive weeks in a newspaper having general circulation in the municipality in which the survey has been made;

(ii) consider the survey at the hearing where any interested persons will be heard; and

(iii) based upon the evidence submitted, direct such amendments to be made to the survey as he or she considers necessary, and the Minister may confirm the position of the disputed or lost line, boundary or corner fixed by the survey.

[32] Significantly, any line, boundary or corner confirmed under s. 48(2) of the Act is, subject to appeal rights, “an unalterable line, boundary or corner” and “is final and conclusive and shall not be questioned in any court.”

[33] Thus, subject to the right to appeal under s. 49, the Halliday Survey, as confirmed by the Coordinator with minor amendments, becomes final and conclusive.

[34] The appeal lies to this Court under s. 49 of the Act, which provides as follows:

49 (1) Any person objecting to the confirmation of a survey under subsection 48 (2) may appeal to the Divisional Court and the court may decide the matter on the evidence before it or direct the trial of an issue and may dismiss the appeal or order the Minister to amend the survey and plan in such manner as the court considers proper. …

Decision of the Coordinator

[35] As set out in its preamble, the Coordinator’s decision relates to the Halliday Report and Plan of Survey to “re-establish” the two disputed road allowances.

[36] With respect to the historical evidence before him, the Coordinator began with reference to the Goessman Survey, noting the following:

The Township of Tiny was originally surveyed by John Goessman, PLS, Deputy Surveyor 1821-1822 under instructions issued by the Surveyor General dated August 18, 1821. The township was originally subdivided under the “double front” system of survey as defined in the Surveys Act. The subject road allowance between Concession 6 and 7 and the road allowance between Lots 18 and 19 are original road allowances which originate from the original survey fabric.

[37] The Coordinator also had written evidence of various surveyors who, over time, purported to retrace Goessman’s work for various purposes: M. Gaviller, PLS (1891), Cavana and Watson, OLS (1929 and 1932), John M. Harvey, OLS (1962 and 1975), J.A. Stanton, OLS (1984), J.W. Nicholson, OLS (1993), Gary L. Preston, OLS (2006), Peter T. Raikes, OLS (2006), Rodney G. Reynolds, OLS (2008 and 2010) and the Halliday Survey under review.

[38] With respect to the Crown patents, the Coordinator found that the affected lands were the subject of three Crown patents:

(i) the relevant Concessions in Lot 19 (including the Duarte lands) were patented from the Crown in 1866 (Concession 6) and 1923 (Concession 7); and

(ii) Lot 18 (regarding the Plan 779 Appellants’ lands) was patented from the Crown in 1823.

[39] The Coordinator examined the above three patents for relevant reservations. He found that the two Lot 19 patents were “water’s edge” patents and therefore the lands as patented extended to the water without limitation. For the Lot 18 patent, the description included an “allowance for road”, but the title or interest he found was not addressed by the confirmation of the boundaries of the disputed road allowances.

[40] With respect to the confirmation of the Halliday Survey, the Coordinator did acknowledge the important role of the original Goessman Survey:

It is important to note that a fundamental philosophy has been applied in this Municipal Resurvey decision under section 48 of the Surveys Act (the Act). That is that surveys of the original township fabric throughout Ontario, under the instructions of the Surveyor General, set down the fundamental framework into which all property transactions and future surveys fit. [Emphasis added.]

[41] The Coordinator held that he must determine what was originally done on the ground by Mr. Goessman in 1821 (known as the “first running”, being the lines run, corners posted and acceptance by the public) and then determine “where the location of the road allowance should now be established.” He indicated that he also had to answer questions about the proper method of surveying to be used.

[42] However, the Coordinator ultimately indicated that he had not relied on the Goessman Survey other than to accept that plan of survey as an indication that both the road allowances were originally surveyed by Goessman, whether physically run and measured on the ground or simply shown on the plan of survey. He reached that conclusion notwithstanding an absence of evidence that the road allowance lines were physically run or measured to the water’s edge.

[43] The Coordinator noted ss. 3 and s. 9 of the Act, regarding the continued validity of the lines, boundaries and corners in original surveys, and the “methods” of re-establishing the survey fabric. However, the actual methods set out in detail under the Act and the related provisions of the Act as they may apply to the Halliday Survey, were not the subject of specific analysis in the Coordinator’s decision.

[44] The Halliday Survey showed the road allowances running straight, over the accreted lands, to the water’s edge. At the hearing, the focus of the parties was whether or not there should be a bend in the road allowance before the water’s edge (as reflected in the Reynolds Survey), and whether it should be at the high water mark. The submissions in favour of a bend in the road allowances were made based on common law principles of accretion, requiring an equitable distribution of any additional shoreline.

[45] The Coordinator found that introducing a bend in the road would result in unnecessary confusion and he was not persuaded that this was the intention of the Legislature. The Coordinator instead found that in order to re-establish the original fabric, surveyors are directed by the Act to the methods prescribed by the Act to re-establish that Township fabric, yet he did not address the methods specifically. He further noted that the Township had submitted that if there was no method under the Act that addressed a particular situation, then the Minister may “fix” the position of a disputed or lost line, boundary or corner, and in so doing regard should be had to “what was intended in the original survey.” However, the Coordinator did not then proceed to address the related statutory or historical context.

[46] The Coordinator noted that several plans referred to a high water mark limit, but that “such a limit was not created in the original township survey.” The Coordinator adopted a passage regarding Crown patents from Re Walker and A.G. Ontario.[^5] That case found that any Crown patent that had a boundary of water established a boundary to the water’s edge unless the grant clearly reserved a space between the lands and the water’s edge. However, the Coordinator instead relied upon it as an indication of the extent of the township fabric based in part on the submissions of the parties. The Coordinator concluded that the lots, concessions and road allowance of the original “township fabric” extend to the water’s edge.

[47] The Coordinator rejected the submission that common law principles in relation to accretion should apply to the location of the boundaries of the road allowances. He stated he was not persuaded by the cases, which he found generally spoke to the equitability of private parcel limits and not to the fundamental structure of the township “survey fabric” of Ontario. Instead, the Coordinator relied on Walker and on Ontario (Attorney General) v. Rowntree Beach Assn.[^6] The Coordinator found that the depiction of the end of a concession line is simply marking the direction and production of the line in the township lot fabric.

[48] The Coordinator concluded that the cited case law did not support the existence of a bend on the road allowance nor give a persuasive argument for doing so, and that statute law clearly defined how the limits of a road allowance should be re-established.

[49] On the effect of accretion, reliction, erosion or inundation, the Coordinator agreed with the Surveyor General’s decision regarding another municipal survey—Municipal Survey No. 883. The Coordinator adopted the following passage regarding Municipal Survey No. 883:

After considering the evidence and the law provided I find that reliction/inundation, erosion/accretion have no impact on the location of the road allowance. The Surveys Act in Ontario was written to ensure the lot fabric is restored according to best evidence principles when lost. The objective is to put the lot fabric back where it was, providing certainty to land owners. If the common law principle of equitable distribution of accreted shore lands applies at all, it should be confined to the lot within which the property sits.

[50] Importantly, this passage comes from the Surveyor General’s decision that was challenged in the Dale v. Tiny (Township) case, but that was a decision regarding a different survey, over different geography, and entailing different issues.

[51] Despite detailed and comprehensive submissions by the Plan 779 Appellants on the subject of estoppel against the Township, the Coordinator did not discuss those arguments, which are now raised again on their appeal before us.

[52] The Coordinator confirmed the Halliday Survey with minor changes.

[53] The Coordinator determined that there were some limitations on his jurisdiction. He agreed with the submission that his jurisdiction was limited to determining whether to confirm the limits of the two road allowances as noted in the application. He therefore held that title-related issues fell outside the scope of this tribunal and that the limits of any other parcel was also outside that scope unless it coincided with the limits of one of the road allowances.

Issues

[54] These appeals give rise to a number of issues, as a result of which the Appellants submit that the Coordinator erred, as follows:

(i) in failing to apply the relevant provisions of the Act;

(ii) in finding that a survey line that had neither been illustrated nor run on the ground in the original survey could operate as a derogation from a Crown grant;

(iii) in effectively finding that common law principles regarding the equitable division of accretion of riparian lands were entirely displaced by the Act;

(iv) with respect to the Plan 779 Owners, in failing to apply the equitable principle of estoppel against the Township and failing to address the estoppel argument altogether in the reasons for decision; and,

(v) in ignoring or misapprehending the evidence of Rod Reynolds, OLS.

Standard of Review

[55] The standard of review for these statutory appeals is reasonableness, as set in Dale v. Tiny (Township) at paras. 34-36:

34 While no court has determined the standard of review that is applicable to a decision of the Surveyor General confirming a municipal resurvey (which is not surprising given the fact that such a procedure has not been used in 30 to 40 years), the same considerations that dictate that reasonableness is the standard of review that applies to decisions under the Boundaries Act also dictate that reasonableness is the appropriate standard of review in this case.

35 The powers of the Divisional Court on this appeal are the same as the powers of the Divisional Court in Nicholson, supra, at paras. 42 and 50, where the Court of Appeal found that these powers did not include the ability to substitute its opinion of the evidence for that of the tribunal being appealed from (in this case the Surveyor General).

36 The nature of the problem before the Surveyor General was to decide whether to confirm a survey, which, as in Nicholson at paragraph 43"involves the application of professional principles commonly identified by surveyors." The Surveyor General has an expertise in this highly specialized area that the court does not have. Finally, under s. 48(2) of the Act, the Surveyor General is given a broad discretion to direct any amendments to the survey under consideration as she or he "considers necessary".

[56] Since the standard of review applicable to the Coordinator’s decision is reasonableness, it will be upheld provided that it is "justified, transparent and intelligible" and that it “falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.[^7]

Issue 1: Requirements of the Surveys Act

[57] The Surveys Act provides the necessary framework under which the Coordinator was obliged to determine whether or not to confirm the Halliday Survey and under which the Halliday Survey had to be prepared.

[58] The process of surveying lands commences with s. 2 of the Act, which stipulates that no survey of land for the purpose of defining, locating or describing any line, boundary or corner of a parcel of land is valid, unless made by a surveyor or under the personal supervision of a surveyor. s. 3 provides that “All lines, boundaries and corners established under the authority of any Act heretofore or hereafter in force remain valid and all other things done under any such authority and in conformity therewith remain valid despite the repeal of such authority.”

[59] s. 9 of the Act speaks to the evidence which the surveyor is mandated to rely upon:

Despite section 58, every line, boundary and corner established by an original survey and shown on the original plan thereof is a true and unalterable line, boundary or corner, as the case may be, and shall be deemed to be defined by the original posts or blazed trees in the original survey thereof, whether or not the actual measurements between the original posts are the same as shown on the original plan and field notes or mentioned or expressed in any grant or other instrument, and every road allowance, highway, street, lane, walk and common shown on the original plan shall, unless otherwise shown thereon, be deemed to be a public road, highway, street, lane, walk and common, respectively.

[60] Section 24(2) of the Act is cited above in connection with the description of Mr. Halliday’s Survey and his testimony at the Hearing. It provides that in re-establishing a lost corner or obliterated boundary in a double front township, a surveyor shall obtain the best evidence available respecting the corner or boundary, and it instructs the surveyor how to proceed if the corner or boundary cannot be re-established in its original position from the available evidence.

[61] Section 28 of the Act provides that a surveyor is to follow the process described in the legislation in establishing in a concession in a double front township, a sideline of a half lot that was not surveyed in the original survey.

[62] Under s. 48(1), the Halliday Survey was requested for the purpose of fixing the position of a “disputed or lost line, boundary or corner that is in the municipality and that has been surveyed under competent authority…” The “disputed or lost line, boundary or corner” was the boundaries of the two road allowances.

[63] There is no issue that Tiny is a “double front township” as defined in s. 24(1) of the Act. Mr. Halliday proceeded under Section 24(2), which prescribes the duties of the surveyor in re-establishing an obliterated boundary in a double fronted township, as follows:

24 (2) A surveyor in re-establishing a lost corner or obliterated boundary in a double front township shall obtain the best evidence available respecting the corner or boundary, but if the corner or boundary cannot be re-established in its original position from such evidence, the surveyor shall proceed as follows:

5. If the concession line forming the front boundary of the half lots in a concession is obliterated beyond the last ascertainable point in a concession broken by a lake or river at its end, the surveyor shall re-establish such concession line on the same astronomic course as shown on the original plan and field notes from the last ascertainable point on the concession line. … [Emphasis added.]

[64] Halliday relied on one of the specific methods set out in the Regulation in order to re-establish the “obliterated boundary” under Section 24(2), specifically Method 49, which provides as follows:

Method 49

1. Section 24, subsection 2, paragraph 5, to re-establish a concession line forming the front boundary of the half lots in a double front township in a concession broken at its end by a lake or river and is obliterated beyond the last ascertainable point on the concession line and no evidence of the original position of the line exists.

2. Re-establish the concession line on the same astronomic course as shown on the original plan and field notes from the last ascertainable point on the concession line. [Emphasis added.]

[65] Halliday therefore proceeded as if there was an obliterated boundary.

[66] The Respondent submits on these appeals that s. 24(2) and Method 49 are the statutorily-mandated process, as followed by Halliday and implicitly confirmed by the Coordinator. However, neither Halliday nor the Coordinator addressed the applicable definition of “obliterated boundary” in the Surveys Act. That term is defined in s. 1 as follows:

“obliterated boundary” means a boundary established during an original survey or during a survey of a plan of subdivision registered under the Land Titles Act or the Registry Act where the original posts or blazed trees no longer exist and which cannot be re-established from the field notes of either of such surveys or by evidence under oath; [Emphasis added.]

[67] Thus, as defined in the Act, an obliterated boundary is one that was established in the original survey.

[68] The Appellants therefore submit that there is a significant and substantive legal difference between a boundary line that was once evidenced by a survey line that had been either shown on a survey plan or run on the ground in the original township survey, and a boundary line that was not shown on the original township survey nor run on the ground at that time. On a plain reading of the Act, Section 24(2)5 and the related method only applies to the boundary lines established at the time of the original survey.

[69] In our view, Section 24(2)5 of the Act only applies to the boundaries of the road allowances that were established in the original Goessman Survey. Otherwise, the exercise would not be one of “re-establishing” but rather of “establishing”.

[70] This issue regarding Section 24(2)5 and Method 49 does not fully address the question of whether the Coordinator’s decision is unreasonable because it remains to be considered what boundaries did form part of the Goessman Survey. The Appellants submit that there was no evidence of any survey of those road allowances between the high water mark and the water’s edge. In turn, they submit that Halliday could not properly extend Goessman’s lines in the manner shown on his Survey and that the laws of accretion become relevant. The Township, however, says that the Goessman Survey was to the water’s edge.

[71] The Coordinator had various evidence on this issue. In addition to Goessman, the Coordinator had evidence from other surveys that were founded on Goessman, which showed a range of approaches:

(i) In 1891, the Gaviller Survey, MS 572, did not show any defining feature at the end of the road allowances.

(ii) The Cavana and Watson Registered Plan 757 Survey of the South Lot in 1929 shows the road allowance as ending at an unspecified distance from a line annotated as “water line” and along a line annotated as the “high water mark” but the Coordinator concluded that it did not assist in determining the terminus point of the road allowance.

(iii) In the Cavana and Watson Registered Plan 779 Survey of the North Lots in 1932, the road allowance is drawn as ending at the high water mark, but the Coordinator found that it was not conclusive.

(iv) The two Harvey Surveys prepared in 1961 and 1975 show the road allowance ending at the high water mark.

(v) The 1984 Stanton Survey prepared for a Boundaries Act application showed the road allowance to be at the southerly limit of the road allowance between Concession 6 and 7, Lot 19, and does not show the road allowance extending past that line towards the water’s edge.

(vi) The 1993 Nicholson Survey shows the road allowances, but does not indicate any terminus point.

(vii) The 2006 Preston reference plan shows both road allowances extending to the water’s edge.

(viii) The 2006 Raikes reference plan requested by the Township shows the two road allowances extending on a diagonal course to the water’s edge. This is the survey that provoked the later surveys, given that the road allowances cut across the accreted lands in front of the Appellants properties, cutting off lakefront access for those properties.

(ix) The Reynolds Survey commissioned by the Duarte’s in 2008 extended the road allowances to the water’s edge but with a bend at the point of the water’s edge as at the date of the Crown Patent for the South Lot.

(x) The Halliday Survey concluded that the road allowances should be extended on a diagonal straight to the water’s edge.

[72] The Coordinator failed to reasonably consider these other surveys and the absence of evidence that the road allowance lines were ever physically run to the water’s edge or measured, as required by the Act. Significantly, he ultimately indicated that he had not relied on the Goessman Survey other than to accept it as an indication that both road allowances had originally been “surveyed by Goessman”, “whether physically run and measured on the ground or simply shown on the plan of survey”. He stated as follows:

I therefore, draw no distinction between a boundary that was actually or physically run and a line not run when referring to the methods under the Surveys Act. This is especially important when commenting on the road allowance between Lots 18 and 19, across Concession 7. The road allowance is a side road allowance and the limits were not actually surveyed by Goessman during the course of the original survey. However, the road allowance must be established or re-established in accordance with the Surveys Act and as intended in the original survey. [Emphasis added]

[73] Instead, the Coordinator was motivated in his decision, as he emphasized in his reasons and as is evident from his reliance upon the quotation from the decision in MS 883, to give precedence to governmental policy rather than the specific requirements of the Surveys Act. He specifically states, after acknowledging that the Goessman Survey was the original survey, that he is more strongly influenced by policy considerations than prior survey results. He stated:

It is important to note that a fundamental philosophy has been applied in this Municipal Resurvey decision under Section 48 of the Surveys Act (the Act). That is that surveys of the original township fabric throughout Ontario, under the instructions of the Surveyor General, set down the fundamental framework into which all property transactions and future surveys fit. The methods as described in the Surveys Acts, past and present, prescribe specific rules as to how that foundational fabric is to be redefined, perpetuated and extended as necessary to maintain the fabric and to have continuity and confidence in it.

[74] In the result, despite the evidence that the Goessman Survey lines had not extended to the water’s edge, the Coordinator nevertheless accepted the Halliday Survey, with its lines extending straight to the water’s edge. He professed to be bolstered in this view by the Halliday Survey’s adherence to the preceding “fundamental philosophy” that the Coordinator found is to be applied in all Municipal Resurvey decisions. In his view, the only issue was whether to amend that survey. He stated his position as follows:

In making a decision as to whether to amend the "Halliday Survey", I must determine what was originally done on the ground by Goessman in 1821, commonly referred to as the "first running", being the lines run, corners posted and acceptance by the public and then determine where the location of the road allowance should now be established. It is important to note that the duty of all subsequent surveyors after the first running was to find and retrace that original work on the basis of best evidence. I must also answer a number of questions, which would give rise as to the proper method of surveying and establishing the limits of the road allowances under this application. These questions have been presented during the course of the tribunal hearing and in written submissions by the applicant and objectors.

In accordance with the survey requirements the "Halliday Survey" has re-established the original limits of the road allowances and has shown those limits to extend to the water's edge of Lake Huron. The issue to be now decided is whether a bend in the road allowance exists at some point, at the "high water mark" or at some other point between the "high water mark" and the water's edge.

[75] The Coordinator was also motivated in part to reach this conclusion by his observation that neither the Duarte Appellants nor the Plan 779 Appellants had any dispute with the road allowances as reflected in the Halliday Survey, upland of the high water mark. In our view, however, this provides little support for his decision to accept those lines as extended to the water’s edge, in the face of the contrary evidence of prior surveys and the absence of evidence that the portion of those lines between the high water mark and the water’s edge had ever been established. Neither is it surprising that the Duarte Appellants and the Plan 779 Appellants would not have objected to the upland portions of the road allowances as reflected in the Halliday Survey, since those portions had no impact on the status of their properties as waterfront properties. It is only the portion from the high water mark to the water’s edge that is at the core of this dispute.

[76] As an alternative position, however, the Township contended that an analysis of the road allowance as conducted by Halliday under Section 28 #1 supported the Coordinator’s decision to confirm the Halliday Survey. Section 28 of the Act was referenced in connection with the description of Mr. Halliday’s Survey and his testimony at the Hearing. It provides that a surveyor is to follow the process described in the legislation in establishing in a concession in a double front township, a sideline of a half lot that was not surveyed in the original survey. In particular, the method of performing the survey in paragraph 1 of s. 28 of the Act is described in Method 59 of the Regulation. The Regulation states that the sidelines of the half lots shall be established “on the same astronomic course as the boundary line of the concession at the end from which the lots are numbered, if so intended in the original survey.” On the basis of this provision and methodology, the Township argued that the Coordinator could confirm the boundaries in the Halliday Survey on the basis that they were “disputed”, whether or not they were the subject of the Goessman Survey.

[77] In our view, however, Surveys Act proceedings under s. 48 are specific to “re-establishing” lines, not establishing new ones. The underlying principles also support the focus on the original survey, rather than a new and unrestricted opportunity to address any boundary dispute. Moreover, even if the application of the astronomic course methodology is an acceptable surveying method to establish the extension of the road allowances beyond the points to which they were originally run or measured, and we do accept that it is, we find that method could not serve to effectively expropriate previously vested proprietary rights.

[78] In conclusion, given the legislative framework and the surveying methodology it mandated, we find that the Coordinator’s decision on this issue was not reasonable. Notwithstanding the deference he is due, it was not reasonable for him to confirm the use of the method described in Section 24(2)5 of the Act in determining the boundary of Concession 7 beyond the water’s edge as it existed in 1823, that is, in adopting Mr. Halliday’s use of the projection of the Road Allowances between the high water mark and the water’s edge. The methods are specific survey methods with very specific application to “re-establish” a boundary line that at some time must first have been “established.”

Issue 2: Derogation from Crown grant

[79] It is an ancient rule of general application that a grantor must not derogate from his grant. “A grantor having given a thing with one hand is not to take away the means of enjoying it with the other.”[^8] It is “a principle which merely embodies in a legal maxim a rule of common honesty.”[^9] Thus, in the real property context, “[t]he previous owner is prevented from asserting any interest or rights in the land transferred to the new owner beyond what the previous owner expressly reserves in the terms of the transfer”.[^10]

[80] The Duarte Appellants contend that the Coordinator made a legal error in ruling that a survey line that was neither illustrated nor run in an original township survey can derogate from the plain meaning of the grant in the Crown Patent for their lands. Since there is nothing in the Crown Patent for the South Lot that clearly reserves a space between the lands granted and the water boundary, by description or otherwise, they contend that the Coordinator’s Decision is unreasonable and improperly derogates from the Crown Patent granting Lot 19, Concession 6, by cutting off the lot owners’ access to the water.

[81] The Plan 779 Owners made the same argument in their factum, although they did not speak to it at length before us, preferring to ground their appeal against the Coordinator’s decision on the equitable doctrine of estoppel, as explained later in these reasons.

[82] While not explicitly stated, however, it is obvious that the Appellants’ positions on this issue are premised on the finding that the Goessman Survey of 1821 did not extend over the accreted lands, since that survey came into existence before the lands were patented to the original owners by the Crown.

[83] The Appellants did not expand on this argument or provided any significant case authority for it, but as we have noted above, plainly the law does recognize the legal principle that would preclude a grantor, including the Crown, from derogating from its own grant.

[84] The Township maintains, however, that the road allowance boundaries were previously established up to the water’s edge on the Goessman Survey, which predates the Crown Patents. As such, it takes the position that whatever may be illustrated in a plan or written into a deed is irrelevant to re-establishing the boundary on the ground. As the Township put it to us, if a deed contains wording reflecting riparian status but in fact on the ground the lot was not, then the lot was simply not riparian.

[85] In our view, the Coordinator’s approach to this issue was not reasonable, at least relative to the Duarte Appellants. In any event, this argument does not speak to the location of a property’s boundaries but rather who owns that property. Accordingly, it is our view that the derogation from grant argument does not inform the “… fixing of a disputed or lost line, boundary or corner …”

Issue 3: Common law of accretion

[86] This issue focuses on the interaction of common law principles and the legislative framework established in the Surveys Act. In particular, the issue is whether the stipulations of the Act have abrogated or displaced or taken precedence over the common law relating to the accretion of land to riparian property. That law has two legs. The first is that accretions to land formed in the ordinary course of the natural operation of abutting water become the property of the owner to whose land the accretion becomes attached.[^11] The second aspect is that accreted land is to be equitably allocated in order to preserve each riparian owner’s access to water.[^12]

[87] In our view, the common law principles remain applicable depending on the circumstances, as set out below.

[88] The specific arguments made before us and the differences between this case and the decision in Dale v. Tiny Township are addressed in the balance of this section, but we first address the Appellants’ argument that it was not reasonable within the Dunsmuir standard for the Coordinator to refuse to recognize that there is strong common law authority to support the distribution of accreted lands on an equitable basis rather than solely in accordance with the Act.

[89] At pages 21-22 of his reasons, while acknowledging no specific mandatory language, the Coordinator adopted the view that the Act requires road allowances to project over accreted land:

The Surveys Act doesn’t speak specifically to extending lot fabric over accreted lands. The phrase “as intended in the original survey” is used again and again and we must interpret the Act in its broadest sense. In this instance the original plan is clear, these road allowances were intended to run to the township boundary. I am of the belief that the only interpretation of the Act is to extend township fabric lines and road allowances to the water’s edge over accreted or exposed land. [Emphasis added.]

[90] In his testimony, Mr. Halliday referred the Coordinator to the decision in Pitt v. City of Red Deer[^13], and the Coordinator relied upon that case to support his conclusion that “any accreted gain is limited to be within the bounds of the survey fabric and hence there is no justification for the bending of the original township fabric.” In our view, however, in reaching this conclusion, the Coordinator was also influenced by his steadfast belief that the policy position of the Ministry to respect and re-establish township fabric was a predominating directive on the manner in which he should interpret the Act. These two factors caused him to conclude, that “the Surveys Act provides clarity to re-establish the lot structure and to extend the lot structure to the water as intended in the original survey.” [Emphasis added.]

[91] Contrary to that conclusion, we find that the principle that a road allowance should always be extended over accreted land is neither provided for nor supported by the Act. The progression of a road allowance over accreted lands may occur with the Act dictating that result, but it does not necessarily occur.

[92] The progression and establishment of a road allowance by survey over accreted land was upheld in Dale v. Tiny Township, where this court specifically recognized that result was possible, and so ruled. However, the result in that case arose from the very different factual circumstances that were present there, as compared to this case. In Dale, the boundaries for the road allowance had actually been run in the original Goessman Survey not only to the water’s edge but also over part of the frozen bay, and thus over an area where accretion subsequently occurred. Those lines were drawn, run and established, long before any Crown grants of patents or any accretion of land had occurred due to the waters of Nottawasaga Bay receding. The lands in question were situated at the end of Concession 12 where Lot 12, the property owned by the Dale’s, was located, and only the north-east corner of which was bounded by the shoreline of Thunder Bay. It was that road allowance that was the focus of the Dale decision. In contrast, in this case there was no evidence that the boundaries for the disputed road allowances were ever run to the water’s edge.

[93] Further, in our view the Coordinator’s reliance on Pitt v. City of Red Deer was misplaced and unreasonable having regard to its own differing facts and circumstances, and differences between Alberta and Ontario surveying law. In Pitt, unlike in this case, the boundaries of the property were fixed on all sides. There was no natural boundary to any part of the property. Second, as the Court of Appeal observed in Andriet v. County of Strathcona No. 20, the conclusion in Pitt resulted from an application of s. 90 of the Alberta Land Titles Act, which provided that “Every parcel of land described in a certificate of title consists only of the actual area within its legal boundaries and no more or less, notwithstanding that a certificate of title or other instrument that describes the parcel expresses an area that is more or less than the actual area.” [Emphasis added][^14]

[94] At the Hearing in this case, Mr. Halliday confirmed in his testimony that the accretion from Nottawasaga Bay did attach evenly along the length of the shore he surveyed. Since each riparian property is attributed its own accreted lands attached to its own shoreline, and accretion along the Bay was evenly distributed along this shoreline, then on his evidence and professional opinion as a surveyor, that resulted in those accretions attaching to the riparian property lines along that shoreline at right angles to the water’s edge.[^15] Those are the properties of the Appellants in this case, over which the Township now seeks to run road allowances based on the Halliday Survey that the Coordinator confirmed.

[95] It is well established at common law that accreted lands do actually attach to and increment each riparian property’s shoreline. In Clarke v. Edmonton, Justice Lamont of the Supreme Court wrote that:

Notwithstanding, however, that the bed of tidal waters was vested in the Crown and the bed of non-tidal waters was vested in the riparian proprietors, the law of England was that all accretions formed gradually and imperceptibly in the ordinary course of the natural operation of the water became the property of the owner of the land to which the accretion became attached. [Emphasis added][^16]

[96] The decisions in Paul v. Bates and McTaggart v. McDouall go on to suggest that the common law methodology for division of accreted lands between riparian property owners should involve the drawing of a perpendicular line from a line offshore representing the general line of the shore to “the end of the land boundary” between each riparian property.[^17] Those cases found that the high water mark was the correct point, “the accurate and enduring shoreline feature of the upland riparian land to which the accretions attach.” This is the foundation for the Appellants’ position that, once the accreted lands are equitably allocated amongst the riparian landowners, the road allowances should bend to project at right angles to the water’s edge commencing at the high water mark, rather than crossing the accreted lands that they claim have become their property by operation of law.

[97] We take specific note that the Boundaries Act tribunal has applied these common law and equitable principles in this way in Ontario. Indeed in the Frustaglio decision, the adjudicating surveyor applied Paul v. Bates to order the allocation of variable accumulations of accretion between lots.[^18] He did so by specifically bending the lot lines at various points between the high water mark and the new water’s edge. In Cornell, also a Boundaries Act decision, the adjudicating surveyor applied Paul v. Bates to order a bend in two road allowances in the Township so that they projected at right angles to the water’s edge and accorded the lot situated between those two road allowances an accumulation of accretion attached to the water’s edge from the date of the Crown Patent of the lot.[^19] The resulting final survey plan by James Nicolson, O.L.S., in the Cornell decision, a document that was in evidence before the Coordinator at this hearing, clearly shows these bends and that such results have been approved in the context of Boundaries Act proceedings.[^20] This is exactly the result that the Duarte and Plan 779 Appellants argue should occur in this case.

[98] The Appellants also argued on the basis of three allegedly key Ontario Court decisions[^21], that courts have applied common law and equitable principles in preference to Surveys Act methods, but that the Coordinator failed to mention or consider those cases in his reasons, even though they contend the Surveys Act tribunal was bound by those decisions.

[99] However, we do not interpret those cases as binding and determinative in the circumstances here. Dennison v. Chew was an early application of the “conventional lines doctrine”. As such, it has no bearing on whether common law principles should apply over Surveys Act principles outside of that limited context. White v. Rosseau (Village) did not involve a boundaries dispute and the court did not mention either the Surveys Act or the Boundaries Act. In Richmond Hill Furriers Ltd. v. Clarissa Developments Inc., the court ruled that a grantor’s intentions were determinative of a boundary line in a Boundaries Act appeal, but the Boundaries Act has no effect on the establishment or re‑establishment of lines under the Surveys Act.

[100] As well, we find that the interpretation the Appellants advanced is not the only meaning that can be given to the Coordinator’s conclusions. The Appellants contend that the Coordinator concluded that the Surveys Act displaced the common law, but we reject that his decision should be interpreted in that way. Rather, we find that he concluded that the common law is and remains applicable, but only in so far as it speaks to the fundamental structure of the Township’s survey fabric and the evidentiary methods that should be used to establish that fabric. In this case, however, the Coordinator then declined to apply the common law because of his views relative to policy and the Township fabric. In spite of that conclusion, we find that the concluding paragraphs of Dale v. Tiny Township leave the door open for the common law principles of accretion to supplement the provisions of the Surveys Act, in those particular cases where equitable allocation of accretion amongst the riparian landowners is appropriate.[^22]

[101] Returning to the application of common law principles of accretion and the point at which accretion attaches, recent case law involving the Township specifically noted that the high water mark was historically favoured by the Crown itself as the point of attachment and enduring natural feature for that purpose. In Tiny (Township) v. Battaglia, Justice Epstein of the Court of Appeal made this clear in her summary of the relevant history:

From the 1900’s and for many decades onwards, the government departments responsible for Crown lands took the position that the Crown owns the beds of navigable waters extending to the high water mark.

… In 1940, the province enacted a statutory definition of the terms “bed” and “high water mark” by amending the Bed of Navigable Waters Act, S.O. 1911, c. 6. The amendments also gave statutory effect to the Crown’s position that it owns the beds of navigable waters extending to the high water mark.

This amending legislation was repealed in 1951, thereby restoring the common law position. Nonetheless, the Crown continued to assert ownership over the beds of navigable waters to the high water mark.

The Crown’s position was ultimately rejected in the decision of Walker v. Ontario (Attorney General), [1971] 1 0.R. 151 (H.C.J.), aff’d [1972] 2 0.R. 558, aff’d 1974 3 (SCC), [1975] 1 S.C.R. 78…”[^23]

[102] The case law has now accepted that lots bounded by water end at the water’s edge unless the original survey plan or Crown grant clearly reserved otherwise: see for example: Ontario (A.G.) v. Walker, above, as well as the decisions cited by the Township. This case law suggests that the more appropriate place to attach accretion may be at the water’s edge. However, in Frustaglio, which as noted is a Boundaries Act decision that post-dates Walker, and the cases that have followed it, the high water mark was the commencement point adopted by the Boundaries Act tribunal.

[103] The second aspect to the accretion issue is whether it was unreasonable for the Coordinator to reject the Appellants’ submission that a bend should be introduced in the road allowance in the area of the accreted lands. He stated, at page 22:

I am of the belief that the only interpretation of the Act is to extend township fabric lines and road allowances to the water’s edge over accreted or exposed land. … I conclude that … any accreted gain is limited to be within the bounds of the survey fabric and hence there is no justification for bending of original township fabric.

[104] In our view, the Act does not support so broad an articulation of the principle. As noted above, this court recognized in Dale that there are cases where, in the event of accretion, it is appropriate that land should be distributed on an equitable basis.[^24] Unlike the situation in Dale, which is distinguishable on its facts in that the boundaries for the road allowance had been run in the original survey over a bay and thus over the area where accretion had subsequently occurred, there is no method in the Act that dictates the approach used by the Coordinator in this case.

[105] In the result, we conclude that the Act has not abrogated or displaced the much older common law principle that all accretions formed gradually and imperceptibly in the ordinary course of the natural operation of the water become the property of the owner to whose land the accretion becomes attached. Neither does the Act refute the principle that accreted land should be equitably allocated in order to preserve each owner’s access to water.

[106] These appeals arise in a specific statutory context – that is, the request to re-establish the lines that form the boundaries of the road allowances in the Goessman Survey. Our role is to determine whether it was reasonable for the Coordinator to decide that the common law of accretion of riparian lands was displaced in these s. 48 proceedings. In our view, that was not a reasonable conclusion, also bearing in mind the Coordinator’s unreasonable approach to the Goessman Survey, as set out under Issue 1, above.

Issue 4: Plan 779 Appellants’ estoppel claim

[107] At the conclusion of the hearing, the Plan 779 Appellants provided the Coordinator with written submissions. Fifteen of the 30 pages of submissions explained why, in their view, the boundaries of the Dunsford Lane road allowance shown on the Halliday Survey should be amended to reflect boundaries based on the application of the doctrine of estoppel. Amongst other things, the owners submitted that the Plan 779 subdivision, as approved by the Township in 1932, depicted Dunsford Lane as ending at the “High Water Mark.” As such, they contended that the Township is estopped from taking the position that it now ends at the water’s edge.

[108] The Plan 779 Appellants submitted before us that the Coordinator’s decision is necessarily unreasonable and that he committed an “error of law” because his decision does not address any of these arguments.

[109] A challenge to the sufficiency of reasons forms part of the reasonableness analysis under Dunsmuir, but it is not a freestanding basis to quash a decision. The reasons must be read together with the record and the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board).[^25] In reviewing a decision, the court must first seek to supplement the decision maker’s reasons before it seeks to subvert them. The effort to supplement the reasons includes considering the record and the reasons “which could be offered” in support of the decision: Newfoundland and Labrador Nurses' Union, at paras. 11-12; Dunsmuir, at para. 48.[^26]

[110] In fairness to the Coordinator, the early disclaimer in his reasons that his jurisdiction was limited may account for his failure to even mention the estoppel-based arguments of the Plan 779 Appellants. He stated at the outset of his reasons that he considered his jurisdiction to be limited to determining whether to confirm the limits of the two road allowances as noted in the application. He therefore held that so-called “title-related issues” fell outside the scope of the tribunal’s jurisdiction, and that the limits of any other parcel was also outside that scope unless it coincided with the limits of one of the road allowances. However, given the extent of the estoppel based submissions made to him by the Plan 779 Appellants and their natural justice right to know that they have been heard, it is regrettable that the Coordinator did not at least state in his reasons that he was declining to consider those submissions because he regarded them as property title, rather than survey issues.

[111] The Plan 779 Owners presented substantial evidence and arguments in favour of their position that the Township should be estopped from what they regard as its attempt to acquire the waterfront lands of the Plan 779 Owners in the guise of a mere Surveys Act confirmation.

[112] The Township submits that the estoppel claims are not properly part of the Surveys Act proceedings. The Township submits that it only triggered the Surveys Act proceedings and that the confirmation proceedings below were conducted at the direction of the Province not the Township.

[113] The Township also relies on the operation of the Land Titles Act and related legislation, which it submits governs the Plan 779 lots, an argument that was also not addressed below. At least implicitly, by not addressing it, the Coordinator also saw this as outside the proper scope of the Surveys Act confirmation proceeding. This is not a proceeding under which the Township will acquire property rights. It is a process under which a survey may be confirmed, or not, and as set out below that issue is being sent back to be decided in accordance with these reasons for decision.

Issue 5: Reynolds evidence

[114] The Duarte Appellants submitted that the Coordinator misapprehended the expert testimony of Mr. Reynolds by failing to consider Mr. Reynolds’ plans of survey of their parcel to the water’s edge dated May 2, 2000, and updated December 13, 2005. Those two surveys predate the Raikes Reference Plan, in which the Township commissioned the first illustration or actual running on the ground of any portion of the Road Allowances between the high water mark and the water’s edge. In both of these earlier surveys by Mr. Reynolds, the sidelines of the Duarte Appellants’ Parcel are shown running at right angles to the water’s edge and there is no indication of any intrusion or effect from the South Road Allowance. Consequently, they contend that the Coordinator incorrectly identified the Duarte Appellants’ Boundaries Act application, and not the Raikes Reference Plan, as the material change to the status quo that triggered the issues that led to the Township’s application for a municipal resurvey under the Act.

[115] Additionally, the Duarte Appellants submitted that the Coordinator misapprehended the limited role and purpose of the Reynolds Boundaries Act Plan from 2010 as compared to his 2008 Plan. It was their position that these two Reynolds surveys were prepared for different purposes. One had been prepared in connection with the Duarte Appellants Boundaries Act application, invoking potential differences, and the other in connection with this Surveys Act proceeding.

[116] The Appellants submitted that the Coordinator therefore wrongly attributed any confusion between these two surveys to “mischief” where it was simply competing considerations between the two different regimes. However, we find that the Coordinator heard the Reynolds testimony and that his assessment of it was squarely within his expertise, and deserving of considerable deference. As such, we do not find this ground of appeal has merit.

Disposition of appeals

[117] For the preceding reasons, our disposition of the appeals is as follows:

(i) We find that the Coordinator’s decision to confirm the Halliday Survey and its extension of the road allowances to the shoreline of Nottawasaga Bay was not reasonable under the Surveys Act;

(ii) The appeals under the Surveys Act from the confirmation decision of the Coordinator are therefore allowed and this matter is remitted to the Office of the Surveyor General for a trial of an issue, in accordance with these reasons for decision, specifically regarding whether the Halliday Survey should be confirmed with or without amendments;

(iii) The trial of that issue under subparagraph (ii) shall be expedited and shall proceed by way of a continuation of the prior hearing, including all evidence previously accepted and such additional evidence and submissions as the Office of the Surveyor General finds fair and just to properly address the issues, or adopting such other court or arbitration or other procedure as the parties may agree on;

(iv) The parties have informed the Court that they have already reached an agreement regarding the costs of these appeals.

___________________________ M.G.J. QUIGLEY J.

___________________________ MATHESON J.

___________________________ FAIETA J.

Date of Release: April 25, 2018

[^1]: Surveys Act, R.S.O. 1990, c. S.30 [^2]: Boundaries Act, R.S.O. 1990, c. B.10. [^3]: Dale v. Tiny (Township), 2015 ONSC 7340, 45 M.P.L.R. (5th) 223 (Div. Ct.). [^4]: R.R.O. 1990, Reg. 1029. [^5]: Re Walker and A.G. Ontario, [1971] 1 O.R. 151, at p. 177 (H.C.), aff’d 1972 31 (ON CA), [1972] 2 O.R. 558 (C.A.), aff’d 1974 3 (SCC), [1975] 1 S.C.R. 78 (S.C.C.). [^6]: Ontario (Attorney General) v. Rowntree Beach Assn. (1994), 17 O.R. (3d) 174 (H.C.J.). [^7]: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. [^8]: Birmingham, Dudley & District Banking Co. v. Ross (1888), 38 Ch. D. 295, at 313 [Bowen L.J.]. [^9]: Palmer v. Fletcher (1663), 1 Lev. 122; Harmer v. Jumbil (Nigeria) Tin Areas Ltd., [1921] 1Ch. 200, at 225 [Younger L.J.], as cited in R.E Megarry & H.W.R. Wade, The Law of Real Property, (London UK: Stevens & Sons, London U.K., 1966), at pp. 683, 816. [^10]: Roop v. Hofmeyr, 2016 BCCA 310, 88 B.C.L.R. (5th) 223, at para. 1. [^11]: Clarke v. Edmonton, [1930] S.C.R. 137, at p. 150. [^12]: Andriet v. County of Strathcona No. 20, 2008 ABCA 27, 86 Alta L.R. (4th) 113, at paras. 36-37, 73-78; Dale, at para. 75. [^13]: Pitt v. Red Deer (City of), 2000 ABCA 281, 271 A.R. 160, aff’g 1998 ABQB 724, 230 A.R. 396. [^14]: Andriet, at para. 63; Land Titles Act, R.S.A. 2000, c. L-4. [^15]: Halliday Testimony. [^16]: Clarke v. Edmonton, at p. 150. [^17]: Paul v. Bates (1934), 48 B.C.R. 473, at p. 479 (B.C.S.C.); McTaggart v. McDouall (1867), 5 M. 534. [^18]: Frustaglio, Boundaries Act Case No. B-1167, Aug. 15, 2005. [^19]: Cornell, Boundaries Act Case No. B-1197, Oct. 24, 2008. [^20]: Registered Plan of Survey by James Nicolson, OLS, Dec. 4, 2008, Plan BA-2546. [^21]: Dennison v. Chew [1835] O.J. No. 70 (UCCKB); White v. Rosseau (1995), 24 O.R. (3d) 826 (Div. Ct.); Richmond Hill Furriers Ltd. v. Clarissa Developments Inc. (1996), 31 O.R. (3d) 529. [^22]: Dale, at paras. 74-78. [^23]: Tiny (Township) v. Battaglia, 2013 ONCA 274, 10 M.P.L.R. (5th) 182, at paras. 15-19. [^24]: Dale, at para. 75. [^25]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] S.C.R. 708 [Nfld. Nurses’ Union]. [^26]: Nfld. Nurses’ Union, at paras. 11-12; Dunsmuir, at para. 48.