CITATION: Duarte v. Ontario (MNDNRF), 2022 ONSC 2262

DIVISIONAL COURT FILE NO.: Toronto Court File No. DC-141-21 Oshawa Court File No. DC-20-1227

DATE: 20220412

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, STEWART AND J.A RAMSAY JJ.

BETWEEN:

ANTONIO DUARTE and BELVA SPIEL Appellants

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF NORTHERN DEVELOPMENT, NATURAL RESOURCES AND FORESTRY, THE CORPORATION OF THE TOWNSHIP OF TINY, INTERRA LANDS INC., and CERTAIN OWNERS IN RP 779 Respondents

Antonio Duarte self-represented

L. Glenn Frelick for the Minister John I. Barzo for Tiny Township David Preger and Dylan Augruso for Interra Lands Inc. Shane Rayman and Conner Harris for certain owners in RP779

AND BETWEEN:

DANU MANDLSOHN, SAMUEL P. MANDLSOHN, MARK MANDLSOHN, ANNE MANDLSOHN, WILLIAM MILLET SALTER, NACY C. SALTER, GREGORY M. ALTER, LINDSAY J. SALTER-CRAIG, FAIRBRUSH DENTAL MANAGEMENT LIMITED, DAVID K. HOLWELL, AND DALE C. RECCHIA Appellants

Shane Rayman and Conner Harris for the Appellants

– and –

THE CORPORATION OF THE TOWNSHIP OF TINY Respondent

John I. Barzo for the Respondent

HEARD: At Oshawa March 21, 2022 by videoconference

REASONS FOR JUDGMENT

J.A. RAMSAY J.

[1] This file contains two appeals under s.49(1) of the Surveys Act, R.S.O. 1990, c. S.30 from the order of the Surveyor General of Ontario who confirmed a survey made by Robert Halliday under s.48(2) of the Act.

[2] The appellants are landowners who are affected by the survey. Some of them have properties that are part of Registered Plan 779. The Respondents are the Township, the Minister of Northern Development, Natural Resources and Forestry and Interra Lands Inc. Interra owns a triangular parcel of land that borders on that of the appellants. The survey in question fixes the boundaries of road allowances for a concession road and a side road by continuing the lines of road allowances all the way to the water’s edge. By statute, road allowances are public highways, property of the Crown (later in some cases transferred to the ownership of the municipality). The road allowances here do not run at right angles to Georgian Bay. The result, then, if the survey is confirmed, is that the appellants will find that a road allowance runs across their property, separating it from the beach. If it is amended as the appellants ask and the course of the road allowances are bent to run perpendicular to the beach, Interra will lose land to a road allowance.

[3] The Duarte appellants are affected by the survey of the concession road allowance between concessions 6 and 7 across lot 19. The Duarte appellants commissioned their own survey by Rod Reynolds. Instead of running the road allowance straight to the water’s edge, he made a bend in it, relying on the assumption that land had accreted and the common law principle that accreted land is to be allocated equitably in order to preserve each riparian owner’s access to water. Accreted land is land that has built up by the deposit of silt or by permanent recession of the body of water. Accreted land belongs to the land that it abuts.

[4] The Mandlsohn appellants own land in Registered Plan 779. They are affected by the survey of the road allowance between lots 18 and 19 (the side road allowance, also known as Dunsford Lane). They argued that the Township was estopped from attempting to confirm the Halliday survey on the ground that it had long recognized their rights as waterfront landowners.

Fixing a lost boundary under the Surveys Act

[5] Section 48 of the Surveys Act provides:

48 (1) The council of a municipality or the board of trustees of an improvement district, upon its own motion, may, or upon the petition of one-half of the landowners affected shall, pass a by-law authorizing an application to the Minister to cause a survey to be made under his or her direction 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 or under the Land Titles Act or the Registry Act.

(2) The Minister shall appoint and instruct a surveyor to make the survey for which an application has been made under subsection (1) and when the survey has been made and the plan and field notes have been examined by the Minister, the Minister shall cause a notice to be published once in each week for four consecutive weeks in a newspaper having general circulation in the municipality in which the survey has been made of a hearing to be held by him or her at a stated place on a day not less than ten days after the last publication of the notice at which hearing the survey will be considered and any interested persons will be heard, and upon the evidence submitted the Minister may direct such amendments to be made as he or she considers necessary and may confirm the position of the disputed or lost line, boundary or corner fixed by the survey, and any line, boundary or corner so confirmed is, subject to section 49, an unalterable line, boundary or corner and is final and conclusive and shall not be questioned in any court.

[6] The hearing at which interested parties may be heard is not an adversarial proceeding. The decision-maker is entitled to conduct a hearing that resembles a public inquiry: Dale v. Tiny Township, 2015 ONSC 7340 (Div. Ct.).

The history of this proceeding

[7] In 2006 the Township commissioned Peter Raikes to survey the area. His survey showed the two road allowances in question to extend to the water. Duarte commissioned his own surveyor, Rod Reynolds, whose survey introduced a bend in the road allowance at the location of the high water mark in 1866 (the date when the land was granted by the Crown). Duarte commenced an application under the Boundaries Act to settle the boundaries of his parcel.

[8] In 2011 the council of Tiny Township passed a by-law under s.48(1) authorizing an application to the Minister to make a survey for the purpose of finding the road allowances that had been established in 1822 under competent authority. Robert Halliday was appointed to conduct the survey. The Duarte Boundaries Act application was stayed. Halliday conducted a survey and concluded that the road allowances continue all the way to the lake on their original courses.

[9] After a hearing under s.48(2) of the Act, Eric Ansell, the Coordinator of Crown Land Surveys, confirmed the Halliday survey with minor amendments. Both sets of objecting landowners appealed to the Divisional Court under s.49 of the Act, which provides:

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.

[10] The Divisional Court, in a published decision (Duarte v. Ontario; Carson v. Ontario, 2018 ONSC 2612), applied the reasonableness standard in Dunsmuir v. New Brunswick, 2008 SCC 9 and Dale v. Tiny Township. It allowed the appeal and remitted the matter to the Office of the Surveyor General for the trial of an issue, to wit: whether the Halliday survey should be confirmed with or without amendments, in accordance with the court’s reasons. The court directed that the trial should proceed by way of a continuation of the previous hearing, including all evidence previously heard and such additional evidence and submissions as the Office of the Surveyor General finds fair and just.

[11] Mr Ansell was not available to continue the hearing. As a result, Susan F. MacGregor, the Surveyor General, presided instead. She considered the exhibits from the first hearing and transcripts of the viva voce evidence and heard additional evidence. She had the benefit of better transcriptions of the original surveyor, Goessman’s notes and an improved digital copy of the original plan. Halliday and another surveyor, Chester Stanton, who had testified at the first hearing, gave additional expert evidence based on the improved notes and plan. Rod Reynolds, who was called by the Duarte appellants at the first hearing, was not called by them to testify again. The Surveyor General, then, did not have his comments on the new evidence.

[12] On April 7, 2020 the Surveyor General confirmed the Halliday survey with minor amendments. The appellants now appeal that decision under s.49 of the Act.

Standard of review on appeal

[13] The jurisprudence has changed the understanding of the applicable standard of review since the previous decision of the court. This is a statutory appeal. Accordingly the standard of review is correctness on a question of law and palpable and overriding error on a question of fact: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Housen v. Nikolaisen, 2002 SCC 33.

Fixing the boundaries of townships in Ontario

[14] The executive government of Upper Canada set out to establish the boundaries of Tiny Township in 1821. Three relevant statutes were in operation at the time.

[15] The Surveys Act, 1798, required monuments to be placed at the corners of every township and at the end of concession lines. The lines defined by those monuments were the permanent boundary lines of townships and concessions.

[16] The Surveys Act, 1818 provided that if a survey was performed under the authority of the executive government, all boundary lines of townships, all concession lines and all posts or monuments planted at the front angles of lots intended to determine the width of the lots were “true and unalterable”. It also provided that every lot embraced the whole width contained between the posts or monuments placed at the front angles of the lot, regardless of what was expressed in any letters patent or instrument. Finally, every surveyor was required to run the side lines of lots parallel to the course of the township boundary from which lots were numbered.

[17] The Highways Act, 1810 provided that all allowances for roads made by the King’s surveyors in any township were to be deemed “Common and Public Highways” unless altered in accordance with the Act, and that the Crown owned the soil underneath. This legislation has continued in various forms to this day, although many public highways have been transferred to municipal jurisdiction and ownership.

Fixing the boundaries of Tiny Township

[18] In 1821 the competent authority, the Surveyor General of Upper Canada, instructed John Goessman to survey Crown land to establish the permanent boundaries of Tiny Township. This was the original survey. Goessman’s 1823 plan of the Township is the original plan.

[19] Goessman was instructed to establish a base line on a course North 30 degrees West, and to lay off concessions. He was then instructed to produce “the Northern Boundary of Flos (Township) to Lake Huron.” This was also the southern boundary of Tiny.

[20] Goessman was instructed to proceed with Tiny Township at the base line, commencing at a given point and to produce the line to Lake Huron and lay off concessions and road allowances. He was to lay off the concession lines at right angles to the base line parallel to the north boundary of Flos, and to lay off lots, roads, and so on throughout Tiny until completion.

[21] Goessman and his team took two years to finish the project. The result was a “double front township” as described in s.24 of the Surveys Act, with 200-acre lots which could be conveyed to settlers in 100-acre half lots, each half lot fronting on a side road with a concession road every five lots.

The issues at the continued trial

[22] The Surveyor General identified the issues before her as:

1. What was run (established) by Goessman and subsequent surveyors for the Concession Road and where does the line terminate?

2. What was run by Goessman and subsequent surveyors for the side road and where does the line terminate?

3. Has there been accretion to the shore of Lake Huron in this location and how do we address accretion in Ontario when considering the geographic lot fabric of a township created by an original survey?

[23] The Surveyor General answered the first two questions by confirming the Halliday survey, which showed the side road and concession road in question to terminate at the water’s edge of Lake Huron. As to the third question, she found as a fact that there had been no accretion of land to the shore. As a result, it was not necessary for her to decide how to address such accretion.

The issues on appeal

[24] The Duarte appellants raise the following issues with respect to the concession road allowance:

1. Did the Surveyor General err in law by disregarding the order and reasons of the Divisional Court, thereby setting the sidelines of Concession 7 over the accreted lands for reasons that displace or abrogate the common law principles that accretions become the property of the owner to whose lands the accretions attach and that accreted lands be equitably allocated in order to preserve each owner’s access to water?

2. Did she err in law by disregarding the order and reasons of the Divisional Court, thereby setting the sidelines of Concession 7 over accreted lands for reasons that misapply the Surveys Act to either establish or re-establish such sidelines in the absence of evidence of the running or dimensional measurement of such sidelines by any competent authority?

3. Did she err in law by failing to amend the Halliday survey, disregarding Mr. Halliday’s own admission that he had misunderstood the import of the grant by Caston of the land that was eventually granted to the Duarte appellants?

The Mandlsohn appellants raise the following issues with respect to the side road allowance:

4. Did the Surveyor General err by ignoring findings of the Divisional Court with respect to the side road allowance?

5. Did she err in her treatment of the Plan 779 owners’ claims regarding equity and estoppel?

Did the Surveyor General err in disregarding the previous decision with respect to accreted lands and the concession road allowance?

[25] To deal with these arguments it is necessary to look at the decision of this court on the first appeal.

[26] The appellants argued in the previous appeal that the Coordinator had erred:

a. in failing to apply the relevant provisions of the Act;

b. 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;

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

d. 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,

e. in ignoring or misapprehending the evidence of Rod Reynolds.

[27] The court did not accept grounds (d) or (e). It allowed the appeal, holding that that the Coordinator’s decision was unreasonable in that

a. he resorted to surveying methods prescribed in the Act without first finding the location of the original boundaries, relying on Ministry policy instead of the requirements of the Surveys Act;

b. he ignored evidence that the original survey had not placed the limit of the road allowance at the water’s edge and concluded that the road allowances ended at the water’s edge without sufficient evidence to support that conclusion; and

c. he found that the Act entirely displaces the common law principle that accretions become the property of the owner to whose property they are attached, and that accreted land should be equitably allocated to preserve each owner’s access to the water.

[28] It then remitted the matter for trial of an issue “in accordance with these reasons, specifically whether the Halliday survey should be confirmed with or without amendments.”

[29] Consistent with jurisprudence in the pre-Vavilov era, the court did not substitute its own views for that of the decision-maker. At paragraph 55 of its decision it adopted the following excerpt from Dale v. Tiny Township:

The powers of the Divisional Court on this appeal are the same as the powers of the Divisional Court [with respect to the Boundaries Act] 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).

[30] The order to try the issue “in accordance with these reasons” meant in accordance with the court’s rulings on questions of law, because the court did not give its opinion on any questions of fact. Whether land had accreted to the properties is a question of fact.

[31] The Surveyor General decided that it had not. She found that Lake Huron’s edge is about where it was 200 years ago. The water’s edge goes back and forth with the seasons. In coming to this conclusion she considered evidence from the National Ocean and Atmospheric Administration about water levels from 1860 to date. She also considered the evidence of surveyors Halliday and Stanton and Reynold’s evidence from the earlier hearing. The way she resolved the contradictions among them was open to her. The layout of the lots broken by Lake Huron that existed in 1822 is much the same as it is today. Her finding of fact is based on evidence and cannot fairly be characterized as erroneous, let alone as a palpable and overriding error.

[32] Given this finding of fact, common law principles relating to the treatment of accreted land are not applicable and Mr Reynolds’ opinion that the road allowances must bend to take them into account cannot be sustained.

Did the Surveyor General err in finding that Goessman established the limits of the road allowances at the water’s edge?

[33] The Surveyor General found that Goessman ran (established) the concession road allowance to the lake. (He was not instructed to run the side road allowances. Instead he planted posts at the front corners of the lots to show the location of the side road allowances. The side roads’ courses were governed by the base line: they were parallel to it. They were actually run in 1928 by A.G. Cavana.)

[34] On Goessman’s original plan the concession road allowances and the side road allowances intersect the edge of Lake Huron.

[35] Section 9 of the Surveys Act provides:

9. 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.

[36] The concession road allowance, then, having been established (run) by an original survey and shown on an original plan, is true and unalterable. The concession road allowance and the side road allowance, having been shown on the original plan, are deemed to be public highways.

[37] The Surveyor General did not make the error identified by the Divisional Court in the previous decision. She recognized that the survey conducted under s.48 of the Act is to re-establish boundaries, not to set new boundaries using statutory surveying methods. She confirmed that Halliday re-established the concession road allowance that had been established by Goessman (and re-established by Gaviller in 1891) and the side road allowance that had been established by Cavana.

[38] To find that the concession road allowance terminated at the water’s edge, the Surveyor General relied on evidence, not Ministry policy.

[39] The evidence includes the following:

a. Halliday and Stanton confirmed the existence of the survey lines to the water’s edge in the digitally enhanced copy of the Goessman survey, which they saw for the first time after the previous decision of the Divisional Court.

b. Goessman’s diary establishes that he surveyed across a portion of the ice and drew his lines to the water’s edge and to the line of the woods.

c. Subsequent surveyors found monuments left by Goessman. Some of Goessman’s original posts and blazed trees were found by Creswick in 1879, Burnett in 1880 and Gaviller in 1891.

d. Halliday and Stanton gave expert evidence that surveying practice was to set monuments at the back of the beach so that they would not be submerged by fluctuating water levels. Such placement did not imply that the road allowance ended at the monument.

[40] In coming to her conclusion the Surveyor General used the two highest forms of evidence in the hierarchy of evidence used by surveyors – natural boundaries (the lake) and monuments. It was a logical conclusion. Why would a surveyor who has been commissioned to establish the boundaries of a township have the road allowances stop short of its most important natural boundary? Water transport was important in Upper Canada in the early 19th century. Why would the roads not run to the water?

[41] I note in passing that the Surveyor General’s conclusion should not have come as a surprise. In Dale v. Tiny Township this court upheld the Surveyor General’s decision that Goessman ran the road allowance between concessions 18 and 19 to the lake. In Ontario (Attorney General) v. Rowntree Beach Assn. (1994), 17 O.R. (3d) 174 (Gen. Div.), which had to do with property around concession 11, Flinn J. concluded (paragraph 62), “Goessman was required to survey the whole township to the water's edge, and he did; … Nowhere is he instructed not to survey the beaches, and in fact he did with his traverse.”

Did the Surveyor General err by ignoring Halliday’s admission with respect to the Caston lands?

[42] By deed dated May 14, 1931 David Caston acquired title to land situated between land which he then owned and the water’s edge. These combined lands were subsequently sub-divided by him in deeds to 5 parcels, including the Duarte appellants’ parcel. Mr. Halliday conceded in testimony at both hearings that this was a deed to the water’s edge and that he had been incorrect in his assessment of the Caston Lands as non-riparian. On this basis the Appellants submit that the Halliday survey should be amended to depict the sidelines of the Appellants’ parcel on perpendiculars to water’s edge.

[43] If Mr Halliday’s evidence can be taken as an admission of error, it was an error as to interpretation of land grants, not a surveying error. It was not within the purview of the Surveyor General’s mandate to decide this question and there was no need for her to amend the Halliday survey accordingly. Whether Caston had title to the water’s edge does not affect subsisting road allowances.

[44] Section 26 of the Municipal Act, 2001 preserves the statutory principle that road allowances that have not been closed remain public highways. The legislation’s history is related by the Court of Appeal in Dicenzo Construction Co. v. Glassco (1978), 21 O.R. (2d) 186. The court explains the maxim "once a highway always a highway.”

Did the Surveyor General err by disregarding the previous decision of the court with respect to the side road allowance?

[45] This argument is largely concerned with the Surveyor General’s preliminary ruling that the previous decision of the Divisional Court did not fetter her in her findings of fact, and the contention that she made findings of fact that are inconsistent with the court’s. I have already dealt with this argument in connection with the Duarte appeal. In my view the Surveyor General was correct to say that the previous decision of the court did not constrain her with respect to findings of fact.

[46] Based on ample evidence she found that Goessman located the side road allowances by marking the edges of the lots and following the astronomical course that was determined by reference to the base line. A.G. Cavana ran the side road allowances on the ground in 1928. There was, therefore, a “disputed boundary” within the meaning of s.48 of the Surveys Act for Halliday to re-establish.

[47] Watson and Cavana prepared a plan dated March 2, 1932 to subdivide a 300-foot strip of broken Lot 18, Concession 7, into 96 Lots, which was subsequently registered as Plan 779 under the Registry Act. The southwest limit of Plan 779 was part of the line Cavana ran in 1928.

[48] The Mandlsohn Appellants contended that the side road allowance ends at the high-water mark, but the Surveyor General preferred the evidence of one witness “that the side road was used to access the beach with supplies and equipment” over the contrary evidence of another that “many owners believed the side road stopped at the limit of RP 779”. She found that the former evidence was “corroborated by the Bowman survey in 1938 … under instructions from the Crown and clearly shows a road extending along the line of the side road beyond RP779 and it includes a note along the bay which states, “fine sandy beach Travelled by cars”.

[49] That finding of fact was supported by evidence and is owed deference in the absence of palpable and overriding error.

The evidence of Robert Halliday and Chester Stanton

[50] The Mandlsohn appellants argue that the Surveyor General further disregarded the previous decision of the Divisional Court in breach of the doctrine of stare decisis by relying on the evidence of Robert Halliday and Chester Stanton, two surveyors who expressed disagreement with certain aspects of the court’s decision in the previous appeal, and who were therefore biased.

[51] I note first that Halliday was appointed by the Minister, not the Township. He had no reason to favour one side as opposed to the other.

[52] Second, the allegation that the witnesses disagreed with the court relies heavily on the assumption that the court made findings of fact, an assumption that is ill founded. Moreover, the witnesses commented on additional evidence that was not before the court on the previous appeal.

[53] Finally, expert witnesses express opinions based on facts that they have observed or assumed. They are not limited by findings of fact made by the court and if it is suggested that a court has found differently, they do not show bias by commenting on the court’s opinion, whether favourably or adversely. An expert must be free to give an honest opinion without prior restraint. The Surveyor General got the impression that both experts expressed themselves clearly and showed an openness to consider alternate views. She was entitled to find them helpful and rely on their evidence to the extent she thought fit. No issue of stare decisis arises.

Did the Surveyor General err by rejecting the estoppel and equity arguments with respect to Registered Plan 779?

[54] The Mandlsohn appellants submit that Tiny Township was estopped from supporting Halliday’s survey because for years it has treated their property as lakefront property.

[55] The Surveyor General dealt with this argument by saying that it fell outside the purview of her inquiry. In doing so she followed the ruling of this court in the previous appeal.

[56] The appellants made the same argument in the previous appeal. The court rejected it. I adopt the following excerpt of the court’s reasons from paragraph 113:

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.

Conclusion

[57] Having found no error of law or palpable and overriding error of fact I would dismiss the appeals.

[58] The parties may make written submissions to costs not exceeding three pages in length to which may be appended a bill of costs, the respondents within 14 days and the appellants within 14 further days.

J.A. Ramsay J.

I agree. _______________________________

Sachs J.

I agree. _______________________________

Stewart J.

Released: April 12, 2022