Court of Appeal for Ontario

CITATION: Lumme v. Eagle Point L.L.C., 2011 ONCA 291

DATE: 20110413

DOCKET: C52803

Before: Cronk, MacFarland and Rouleau JJ.A.

BETWEEN

Mark Lumme

Applicant/Appellant

and

Eagle Point L.L.C.

Respondent/ Respondent on Appeal

Counsel:

Libero C. Paci, for the applicant/appellant

J. Paul R. Cassan, for the respondent

Heard and released orally: March 30, 2011

On appeal from the judgment of Justice W.L. Whalen of the Superior Court of Justice, dated September 10, 2010.

ENDORSEMENT

[1] The appeal is dismissed.

[2] It is clear from his Notice of Application that among the relief sought by the appellant was a declaration that he “continues to be the absolute owner of the lands described in PIN 31451-0072”. His argument that the application judge did not have jurisdiction to decide the issue of ownership because there was “no request to the judge to make a determination of ownership” is without merit.

[3] As the Deputy Director of Titles noted in his reasons, he was

… not entitled to decide whether or not Mr. Lumme has acquired any interest in lands that are part of Lot 1, Concession 2, Registered Plan 8 Cuthberston Location as a result of any acts of possession he made in reliance on the Miller survey …

[4] And the Divisional Court affirmed, that in confirming the true location of the boundary on the ground, the Deputy Director’s finding was not a grant of ownership or possession.

[5] That said, there was ample evidence before the application judge for him to make the determination he did. The transfers by which the appellant acquired title only ever purported to convey part of Lot 4, Concession 2. No part of Lot 1 was ever part of any conveyance to the appellant and his title is limited accordingly. The Reference Plan relied on by the appellant does not convey any interest in property. It is a reference plan and only that. Section 53(42) of the Planning Act does not alter this result.

[6] If the appellant was purporting to make a claim of ownership to the disputed parcel of land based on possession, the time to do it was before the application judge. On the evidence it is clear that the Miller survey was in error and the evidence of Surveyor Bolan to that effect was uncontradicted. The Land Titles Act only guarantees the quality of one’s title, not the extent of it. On the documentary evidence, including the deeds, transfers, abstracts and boundary decision, it is clear that the appellant had no interest in any part of Lot 1.

[7] The effect of the decision made by the Deputy Director of Titles is to correct the location of the boundary which divides Lots 1 and 4 from what is depicted on the Miller survey, which was an error.

[8] The conveyance to the appellant only ever purported to convey part of Lot 4. However, because the description contained in the deed was based on the erroneous Miller survey it described, in part, lands located on Lot 1. Such lands were never owned by the appellant’s predecessor in title and could not be transferred to him by deed. Absent any claim to title by possession or use, the application judge’s determination of ownership was inevitable. It does not appear that any claim to some entitlement to title based on possession was ever part of the appellant’s case and, in any event, the affidavit of Ken Richmond sworn September 2, 2010 disproves any such entitlement.

[9] We see no error in the decision of the application judge and the appeal is dismissed.

[10] The respondent is entitled to its costs of the appeal, fixed in the sum of $5000.00, inclusive of disbursements and applicable taxes.

“E.A. Cronk J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”