Court of Appeal for Ontario

Date: 2017-12-08 Docket: C63677

Judges: Strathy C.J.O., Juriansz and Huscroft JJ.A.

Between

Karen Jean Weaver and William Bryce Weaver Applicants (Appellants)

and

Gordon Robert Anderson Respondent (Respondent)

Counsel

Daniel J. Wyjad, for the appellants

Andrew Mae, for the respondent

Heard: December 4, 2017

On appeal from the judgment of Justice James A.S. Wilcox of the Superior Court of Justice dated March 27, 2017, with reasons reported at 2017 ONSC 1928.

Reasons for Decision

[1] The appellants assert the application judge made palpable and overriding errors in establishing the boundary line between their property and the respondent's.

[2] They make four submissions.

[3] First, they say that the application judge misinterpreted the field notes of an earlier surveyor, White. We do not agree. As the application judge observed, White's note was "cryptic", but it was open to the interpretation the judge gave it – that a former owner of the respondent's lot had identified the fence as the boundary between the appellants' property and the respondent's. The respondent's expert witness, Williams, was critical of White's work and said that White's decision not to accept the fence as the boundary was "contrary to much common law." He also noted that the fence was "reasonable as a limit of occupation" of the respondent's property. We see no error in the application judge's interpretation of White's field notes.

[4] Second, the appellants say the application judge failed to give proper consideration to White's plan of the property, which identified the lot line in a location other than the fence. Given Williams' evidence that White's plan reflected improper survey practice and failed to give sufficient consideration to the location of the fence, it was open to the application judge to conclude that "it would be a remarkable coincidence if the fence, being so close to the White line, had not been erected as a boundary marker. … The proximity of that fence to the surveyed lot line (an extension of the White line) over that distance is unlikely to be a coincidence. Rather, it strongly suggests that the fence was built to mark the boundary."

[5] The application judge found, on the basis of the evidence before him, including Williams' evidence, that White erred in not using the fence line. He did not, however, accept Williams' reasons why the court might accept the "White line" as the boundary, preferring the reasons Williams gave for treating the fence line as the best evidence of the boundary. These findings of fact were open to the trial judge on the basis of the evidence that he accepted.

[6] Third, the appellant contends that the application judge failed to apply proper legal principles in establishing the boundary. We see no basis for this complaint. The application judge identified the leading cases of Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.), and Nicholson v. Halliday (2005), 74 O.R. (3d) 81 (C.A.). He applied the principles expressed in those cases that in the absence of natural boundaries or original monuments, "fences or possession that can reasonably be related back to the time of the original survey" are more compelling evidence of the boundary than measurements.

[7] There was, therefore, both an evidentiary basis and a legal basis for the application judge's rejection of the "White line" and his acceptance of the fence line as the more reliable evidence of the boundary.

[8] Fourth, the appellant makes the broad assertion that the application judge's location of the boundary was not based on the facts. As indicated above, there was evidence to support the judge's findings of fact, and the inferences he drew from the facts.

[9] We do not accept the appellants' submission that the application judge conflated adverse possession with survey principles. He expressly observed, at para. 44, that "[T]he decision on the location of the boundary is based on surveying principles, not on adverse possession." He was entitled to have regard to historical possession in establishing the boundary. His use of the word "occupation" is to be understood in that context.

[10] The parties left it to the application judge to choose between the reasonable alternative locations for the boundary identified by Williams. The option he selected was reasonable, practical and fair, for the reasons he identified.

[11] In summary, none of the findings of fact identified by the appellants are clear errors, let alone palpable and overriding ones. The application judge's findings were based on his assessment of the evidence, or inferences that he was entitled to draw from the evidence. That evidence included uncontradicted expert evidence of a land surveyor, some of which the trial judge accepted and some of which he rejected, for reasons that fell within his province. His findings of fact are entitled to deference.

[12] The appeal is dismissed, with costs to the respondent in the amount of $20,000, inclusive of disbursements and all applicable taxes.

"G.R. Strathy C.J.O."

"R.G. Juriansz J.A."

"Grant Huscroft J.A."