CITATION: Lawrence Dale and Betty Dale v. The Corporation of the Township of Tiny, 2015 ONSC 7340

DIVISIONAL COURT FILE NO.: 520/13

DATE: 2015/12/03

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, D.L. Corbett and Baltman JJ.

BETWEEN:

Lawrence Dale and Betty Dale

Appellants

– and –

The Corporation of the Township of Tiny

Respondent

R.J. Fenn and I. de Rijcke, for the Appellants

J. Barzo, for the Respondent

HEARD at Toronto: October 15, 2015

H. Sachs J.

Introduction

[1] This is an appeal under the Surveys Act, R.S.O. 1990, c. S.30 (the “Act”) from a decision of the Surveyor General of Ontario in which she confirmed the location on the ground of a road allowance. The dispute giving rise to this appeal arises from the fact that the Appellants own property that they and their predecessors on title regarded as being waterfront property. The effect of the Surveyor General’s decision is that the road allowance is located on the portion of the Appellants’ property that borders on water.

[2] The Appellants, Lawrence and Betty Dale, are the current owners of Lot 12 of Concession 18 in the Township of Tiny. Since title was first granted by the Crown in 1866, the various owners of Lot 12 have worked under the assumption that the northwest corner of their property borders a small body of water in Lake Huron known as Thunder Bay.

[3] When this riparian status (i.e., the status when property borders a body of water) was first questioned in the late 2000s, the Dales, their neighbours and the Township began a dispute over the location of the road allowance between Concessions 18 and 19.

[4] This dispute eventually led to an application for a municipal resurvey of the road allowance under s. 48 of the Act. Led by the Surveyor General, interested parties presented expert surveying evidence concerning the location of the road allowance. Counsel for the Township and the Dales both informed the court that such an application has been not made in this province for about 30 to 40 years.

[5] The Dales’ surveyor, Ronald J. Stewart, relied on surveying work done by John Goessman in the early 1820s. The Township’s surveyor, John Goltz, relied on a later survey done by P. Burnet. Though the proposed locations of the road allowance only differed by about 50 metres, Mr. Stewart’s survey allowed Lot 12 to maintain riparian status, while Mr. Goltz’s survey did not.

[6] On October 24, 2013, the Surveyor General concluded that Mr. Goltz’s survey “accurately and truly” represented the location of the road allowance.

[7] The Appellants are now asking this court to set aside the Surveyor General’s decision on a number of grounds: the Surveyor General did not have jurisdiction to make the decision she did; the hearing conducted by the Surveyor General did not meet the standards required of a fair adversarial process and the decision she reached contained a number of errors.

[8] For the reasons that follow, I would dismiss the appeal.

More Detailed Factual Background Concerning the Road Allowance, the Dispute Surrounding its Location and the Surveyor General’s Decision

[9] The section of the road allowance at issue in this appeal is found between Concessions 18 and 19 of the Township of Tiny. This section of the road allowance crosses Lots 9, 10, 11 and 12. It extends westward from what is now Methodist Point Road, and it ends at the eastern shore of Thunder Bay.

[10] The rest of the road allowance continues westward from the western shore of Thunder Bay, as well as eastward from Methodist Point Road. The section of the road allowance moving eastward from Methodist Point Road crosses, among other properties, Lot 8.

[11] In the early 1820s, a surveyor by the name of John Goessman was instructed by the province to establish property lines in the area that would become the Township of Tiny. When tracing out the road allowances, his superiors instructed him to first lay down a north-south baseline. He was then required to run the east-west road allowances out from these north-south baselines.

[12] The north-south baseline for the road allowance at issue is now the aforementioned Methodist Point Road.

[13] Much of what we know about this original Township survey is gleaned from the detailed diary that Mr. Goessman kept during this period.

[14] According to the Surveyor General’s interpretation of the diary, after establishing the baseline that would become Methodist Point Road, Mr. Goessman did not follow his superiors’ instructions when he traced the road allowance between Concessions 18 and 19. Instead of running the road allowance out from the baseline, Mr. Goessman decided to run the road allowance into the baseline.

[15] Therefore, Mr. Goessman started on Thunder Bay’s western shore and walked across the frozen Bay towards Methodist Point Road.

[16] Even though he altered his surveying methods for this particular part of the project, Mr. Goessman still believed the road allowance not only formed a straight line, but that it met up with the section of the road allowance extending eastward from Methodist Point Road. In other words, he found there was no gap along the north-south baseline between these two sections of the road allowance, and so there was no “jog”.

[17] Since completing his survey in 1822, the Township of Tiny has been re-surveyed by at least six different surveyors. For the purposes of this present appeal, P. Burnet’s survey from 1872 to 1873 and C. Fitton’s surveys from 1881 and 1888 are of particular importance.

[18] According to the Surveyor General’s interpretation of Mr. Burnet’s notes, it seems likely that he attempted to retrace the original Township survey by way of the posts, cut trees and other surveying marks that Mr. Goessman left behind.

[19] However, when Mr. Burnet retraced the section of the road allowance between the eastern shore of Thunder Bay and Methodist Point Road, he found a jog in the line. While Mr. Goessman believed that both the east and west sections of the road allowance met at the same point on Methodist Point Road; Mr. Burnet found a 50 metre gap between the two lines. He therefore moved the west section of the road allowance 50 metres south to meet up with the east section. He also reapportioned the size of the lots that border both the road allowance and Methodist Point Road, i.e., Lots 8 and 9. Or, as the Surveyor General found:

… I think it’s more likely that Burnet didn’t record the original monuments, not because he was on a different line, but because he may never have intended to accept them as lot corners. I believe he had Goessman’s visible concession line to follow which he accepted, but having worked in the township extensively, and knowing the way the concession line was run in from the opposite direction, it’s likely Burnet would wish to restore an equitable distribution for the lot widths. Regardless of his reasoning we know Burnet proportioned the lots because the surplus in Lot 9 disappears.

[20] In 1881 and then again in 1888, Mr. Fitton also attempted to retrace the survey lines laid down by Mr. Goessman. In his 1881 survey, Mr. Fitton found that both sections of the road allowance met up at the same point along Methodist Point Road.

[21] However, when he resurveyed the area in 1888, Mr. Fitton noted a similar jog to the one Mr. Burnet found during his earlier survey. Much like Mr. Burnet, Mr. Fitton also found examples of Mr. Goessman’s survey work throughout the area now occupied by Concessions 18 and 19. These remnants include the original survey posts put down by Mr. Goessman in the early 1820s.

[22] Members of the Dale Family first took ownership of Lot 12 in the 1930s. This land was deeded to them by the provincial government, and the deed indicated that the property bordered Thunder Bay.

[23] In the 1950s, the Township built a road along the road allowance as conceived by Mr. Burnet. The road has never been built all the way from Methodist Point Road to the eastern shore of Thunder Bay, but the Township still maintains ownership of the necessary 66-foot clearance between the road allowance and the shore.

[24] Sometime before November 2007, the Dales and several of their neighbours became involved in a dispute over alleged trespassing taking place around the northwest part of Lot 12. This dispute eventually led the Dales to start an action alleging that the Township was “conspiring” with the neighbours to perpetuate this trespass.

[25] On July 5, 2010, this matter came before Madam Justice Allen. On consent, she stayed the action against the Township concerning trespass and directed the Dales to determine the true boundary of the road allowance between the neighbouring lots. Specifically, she ordered the Dales to commence an application under the Boundaries Act, R.S.O. 1990, c. B.10.

[26] Soon after the order of Allen J., the Dales filed an application under the Boundaries Act. On August 27, 2010, Mr. Stewart released a proposed survey plan in support of the Dales’ application. As mentioned above, Mr. Stewart’s findings relied heavily on the original survey done by Mr. Goessman, and so he concluded that Mr. Goessman’s original road allowance did not have a jog. This conclusion also meant that he interpreted Mr. Burnet’s amended road allowance to be “a new concession line”.

[27] Therefore, Mr. Stewart’s survey plan altered either the north or south boundary of every lot along the road allowance between the eastern shore of Thunder Bay and Methodist Point Road.

[28] When it learned of this proposed change, the Township passed a by-law that allowed it to file an application with the Minister of Natural Resources for a municipal resurvey under s. 48 of the Act. In support of the application, the Township noted that “issues relating to the location of the subject Road Allowance raise broader implications beyond the particular property that is the subject matter of the said Boundaries Act proceeding.”

[29] In response to the application, the Minister appointed Mr. Goltz. Mr. Goltz released his own survey plan about the road allowance on May 13, 2011. One of the stated purposes of his report was “to determine if Burnet’s line is in fact a new line or if [he] found the original line by Goessman.”

[30] Mr. Goltz’s concluded that there was a jog in the road allowance that Mr. Goessman set down in his 1822 survey and that Mr. Burnet had found the original line of the road allowance as laid out on the ground by Mr. Goessman. The Surveyor General accepted this conclusion. This finding means the road allowance is located on what the Appellants believed was the portion of their property that borders the water.

This Court’s Jurisdiction

[31] This is an appeal of a municipal resurvey that was requested under s. 48(1) of the Act and then confirmed by the Surveyor General under s. 48(2) of the Act. Section 49(1) of the Act provides that any person who objects “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.”

Standard of Review

[32] The wording of s. 49 of the Act is virtually identical to the right of appeal contained in s. 12 of the Boundaries Act. This latter provision states that the Divisional Court may “decide the matter on the evidence before it or direct the trial of an issue or may dismiss the appeal or order that the survey and plan be amended and confirm the location of the boundary or boundaries as shown on the amended plan…”

[33] Both the Divisional Court and the Court of Appeal have determined that decisions under the Boundaries Act are entitled to deference on a standard of reasonableness: see Nicholson v. Halliday, (2005), 2005 259 (ON CA), 74 O.R. (3d) 81 (C.A.) and Ellard v. Township of Tiny, 2012 ONSC 280, [2012] 290 (Div. Ct.).

[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”.

[37] For these reasons, I find that reasonableness is the applicable standard of review.

Did the Surveyor General Exceed Her Jurisdiction by Considering This Matter?

[38] According to the Appellants, by virtue of the Order of Allen J. dated July 5, 2010, the Respondent was estopped from bringing an application under the Act. To deal with this argument, it is necessary to provide a more detailed history of the events that preceded and postdated the consent order of Allen J.

[39] Initially, the Appellants were involved in a dispute with their immediate neighbours, the Days. This dispute resulted in the first Boundaries Act application. At the time of this application, the Appellant’s surveyor, Mr. Stewart, was not questioning the original location of the road allowance. Rather, he theorized that the shoreline had changed over time, through accumulation/accretion and that, on this basis, there should be a “deflection” of the road allowance in the proximate area between the Appellants’ property and that of their neighbours. This deflection would have resulted in an increase of the Appellants’ landholding, while the Days’ landholding would have decreased. In other words, the purpose of the Boundaries Act application was to determine the boundary between the two parties. After this application was commenced, subsequent evidence showed that Mr. Stewart’s initial theory was wrong and the application was withdrawn.

[40] The Appellants then commenced an action against the Respondent in which they were suing the Respondent for $10,000,000. The Statement of Claim in that action only dealt with the area near the water that affected the Appellants’ property and the Days’ property. It was in the context of this action that the Allen J. Order was entered into on consent.

[41] It was not until August 27, 2010, i.e., after the consent order was entered into, that Mr. Stewart asserted that the road allowance was in fact in the wrong location. This assertion affected not only the Appellants’ property and the Days’ property, but also a series of properties in Concessions 18 and 19. Thus, the dispute had gone beyond the one that was before the Deputy Director of Titles under the Boundaries Act.

[42] As a result, the Township decided to proceed under s. 48 of the Act to have a survey done for the purpose of fixing the position of the road allowance. Once the application was commenced, the Deputy Director of Titles issued a direction on March 22, 2011 in which he stated:

As the position of the road allowance is a critical component of the above noted application it would not be appropriate for the Boundaries Act tribunal to proceed and make a final determination until the mandatory procedure under the Surveys Act has been concluded and the location of the subject road determined. It is therefore necessary to hold the Boundaries Act matter in abeyance pending the final disposition in the proceeding under the Surveys Act. The Boundaries Act hearing can proceed after the process under the Surveys Act is complete.

[43] The Appellants received this direction and did not object. They then proceeded to participate in the process under the Act without ever challenging the jurisdiction of the Surveyor General to conduct that proceeding.

[44] In view of this history, it cannot be said that the Respondent was estopped by the Allen J. Order from proceeding under the Act.

[45] Nor can it be said that choosing to proceed under the Act was improper. While it may not have been used in the last 30 to 40 years, s. 48 of the Act was designed to deal with this kind of issue – namely where there are a number of land owners that may be affected by a dispute concerning the location or position of property lines, such as road allowances. At that point, it is perfectly appropriate for a council of a municipality to pass a by-law authorizing the Minister to, as stated in s. 48(1) of the Act, “cause a survey to be made under his or her direction for the purpose of fixing the position of the 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.”

[46] Once that survey is completed, s. 48(2) mandates that a hearing must be held.

Was the Process Used During the Hearing Procedurally Unfair?

[47] According to the Appellants, they were “gobsmacked” by the process that the Surveyor General used during the hearing. They thought that what was going to occur was a traditional “adversarial” process where they would be the objectors. As such, each party would lead evidence through witnesses and their counsel would cross-examine those witnesses.

[48] Instead, according to the Appellants, the Surveyor General conducted a “public inquiry”, something she had no jurisdiction to do. This was exemplified by the fact that in the hearing below, the Appellants’ neighbour, David Day, appeared as an interested party. He supported the position of the road allowance as it had been surveyed by Mr. Goltz. Mr. Day did not have counsel, but he did rely on the evidence of another surveyor, J. Chester Stanton. The Surveyor General allowed Mr. Stanton to give evidence, to cross-examine Mr. Stewart and to make submissions on behalf of Mr. Day. According to the Appellants, by doing so, the Surveyor General undermined the “adversarial” nature of the process and allowed this expert to become an advocate.

[49] In considering this submission, it is important to reference s. 48(2) of the Act and what it says about the nature of the hearing the Surveyor General is to conduct. It states:

(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 had 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 interest 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. (emphasis added).

[50] Thus, the only direction in the statute is to hold a hearing, to hear any interested person and to make a decision based on the evidence submitted. Neither the statute nor any rules or regulations passed under the statute specify that a particular procedure must be followed during the course of the hearing.

[51] At the commencement of the hearing, the Surveyor General set out how she conceived of the hearing as follows:

Before proceeding formally I would like to briefly review the procedures of this hearing for everyone in attendance. The purpose of the hearing is to consider the survey prepared and to provide an opportunity for any person who has knowledge of the line, boundary or corner in question, to make this information known to myself before a decision to confirm or amend this survey is made. Land surveyors in the Province of Ontario are subject to professional code of ethics and standards of practice that require them to be unbiased in their assessment of evidence before issuing a boundary opinion. The surveyor’s role is not to take sides or advocate for landowners. Despite the efforts of Mr. Goltz in this case, there may be additional evidence relevant to the location of the boundary that should be considered. The purpose of this hearing is to reveal that additional evidence for consideration, if it exists. To be clear, I have reviewed the survey prepared by Mr. Goltz; however, we’re here today to seek additional evidence that may not have been considered during Mr. Goltz’s preparation of the survey. This is a fact-finding process, not an adversarial process. The hearing will not address any issues of title or acquired interests in land. (emphasis added).

[52] Thus, the Surveyor General saw her task as allowing any person with knowledge regarding the location of the survey to make this information known to her. This interpretation was consistent with her statutory obligation to hear from any interested person, not just from parties who may be adversarial in interest to each other. Her conception of her role as a fact-finding or evidence gathering exercise was also consistent with her statutory mandate to gather evidence and to make a decision based on that evidence.

[53] In terms of how she allowed surveyors to participate in the hearing, the Surveyor General was clear from the outset that the “[e]vidence that is most useful and relevant to me in relation to the survey in question includes information that a surveyor would rely on when forming an opinion of a boundary location.” (emphasis added). Ultimately, the debate before her was one that turned on surveying principles, not legal principles. As she made clear, she was not addressing legal interests in land. Given this observation, there was nothing unfair or inappropriate about allowing surveyors to question each other. In this regard, it is important to note that she also allowed the Appellants’ surveyor to conduct cross-examinations.

[54] In the end, the content of the duty of procedural fairness turns on level of fairness required by the five factors set by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, namely: (1) the nature of the decision being made; (2) the nature of the statutory scheme and the terms of the statute to which the decision maker operates; (3) the importance of the decision to the individuals affected by it; (4) the legitimate expectations of the person challenging the decision; and (5) respect for the procedural choices made by the decision-maker.

[55] In this case, there is no suggestion that, as a result of the Surveyor General’s procedural choices, the Appellants were denied the opportunity to know the case against their position respecting the location of the road allowance and to meet that case by introducing evidence of their own. The Appellants did argue that they did not have access to Mr. Burnet’s historical notes until they were provided by Mr. Stanton during the hearing. However, the Appellants were able to have their surveyor review these notes overnight and did not request an adjournment to deal with this evidence.

[56] Given this, and considering the Baker factors, there was nothing unfair about the procedure engaged in by the Surveyor General. The nature of the decision she had to make was one concerning the accuracy of a survey; the statute she was operating under called upon her to hear from any interested person concerning any evidence they might have that spoke to that issue, all with an available appeal to the Divisional Court; the decision she had to make was important to the Appellants, but was not a determination as to title; she had not created an expectation in the Appellants’ mind that she was going to follow any different process (nor did the Appellants object to the process at the time) and her procedural choices are entitled to respect from this court. In summation, though the Appellants were owed a duty of procedural fairness that is not insignificant, this duty was met by the procedural choices made by the Surveyor General.

[57] With respect to the Appellants’ submission that the Surveyor General should have disregarded Mr. Stanton’s evidence because he stepped over the line from expert to advocate, it is important to remember that this concern is driven by the fact that experts must be independent and impartial, not hired guns.

[58] As her preliminary remarks indicate, the Surveyor General was alive to this concern. As she put it, “The Surveyor’s role is not to take sides or advocate for landowners.” She was looking for information that would speak to the location of the road allowance and Mr. Stanton had that information. Further, his opinion concerning the location of the road allowance was formed before the Appellants’ surveyor took the position he presented to the Surveyor General on that issue. In view of these observations, her decision to accept Mr. Stanton’s evidence was a reasonable one that is entitled to deference from this court.

Was the Surveyor General’s Decision Unreasonable?

[59] The Appellants submit that the Surveyor General erred in her analysis in a number of ways. In particular, while she purported to apply the “hierarchy of evidence” approach, she failed to adequately take into account the natural boundaries evidence that was before her from Mr. Stewart and, instead, inappropriately referred to some of Mr. Stewart’s theories as “pure speculation”. The Appellants also submit that she ignored the deed their predecessors in title received for Lot 12, as it described the property as riparian. Finally, the Appellants argue that she erred in her consideration of how erosion and accretion affected the location of the road allowance.

[60] When re-establishing a boundary like a road allowance, decision-makers use the “hierarchy of evidence” to rank different pieces of evidence from most to least compelling. This ranking system is described in Halliday, supra, at para. 28, as follows: natural boundaries are the most compelling pieces of evidence, followed by original monuments; “fences or possession that can reasonably be related back to the time of the original survey” and then measurements. As the least compelling pieces of evidence, measurements are described in Halliday as those “shown on the plan or as stated in the metes and bounds description.”

[61] With respect to the allegation that the Surveyor General failed to consider the natural boundaries, the Surveyor General’s reasons make it clear that she started with considering this evidence. In doing so she agreed that “[n]atural features might be useful to position the road allowance if they were tied in by Goessman and are still apparent today.” However, she found that there were only two natural features in the vicinity: Thunder Bay and a ridge. Thunder Bay offered little assistance as it has no unique features. She also found that the ridge was not a physical feature that afforded any certainty for the following reasons:

There was quite a lot of evidence presented about the ridge. Each surveyor considered ways of using the ridge to verify the location of the road allowance. If we recall that we are looking for evidence that we are least likely to mistake, I find that the ridge is not a feature that affords us any certainty. It’s clearly steep, but it runs on a 45 degree angle to our concession. If the line moved north, the distance from the baseline to the ridge would decrease, and conversely if the concession line moved south, the distance from the baseline would increase. As I believe the chainages in this township are measuring long, it would be risky to try to use distances to reconstruct what we find in the field notes, field notes that we have already established as being assembled together from a collection of field measurements. Had the concession line been running parallel to, or along the top of the ridge or had we had a short measurement to a rock face offset from our road allowance, then the ridge would have proven much more useful. In fact the variation of possibilities considered by the surveyors confirms that this feature is not helpful.

[62] Thus, the Surveyor General did not “ignore” the natural boundaries. She looked at the two that existed and found that they were not helpful, regardless of their position on the hierarchy of evidence. Her analysis and conclusions in this regard are reasonable and are entitled to deference.

[63] Having found that the evidence of natural boundaries was not reliable in this case, the Surveyor General then went on to consider the next most compelling form of evidence, the original monuments. When she did so she concluded that the original posts or monuments that Mr. Goessman used when he cut his survey line were still visible when Mr. Burnet performed his survey in 1872. In reaching this conclusion, she preferred the evidence of Mr. Goltz and Mr. Stanton to that of Mr. Stewart. According to the first two surveyors, the only way to interpret Mr. Burnet’s field notes (as no direction was recorded in those notes) is that Mr. Burnet was following Mr. Goessman’s line “which was still visible or apparent on the ground.” In contrast, Mr. Stewart testified that he did not believe the “original cut line would still be visible 50 years later.” In accepting the opinions of Mr. Goltz and Mr. Stanton over that of Mr. Stewart, the Surveyor General accepted the fact that there were many examples of original posts being found elsewhere in the Township 50 years after Mr. Goessman completed his survey. As she put it:

Mr. Stewart has no explanation for how the line was run, believing the notes don’t tell us, but he seemed unwilling to consider the possibility that Burnet was following evidence of a cleared line. I am not persuaded by Mr. Stewart’s evidence that cut lines would no longer be visible, when the same axe cuts used to mark stumps and trees and posts and blazes are so apparent elsewhere in the township at this time. Upon reviewing the evidence, I found several examples in Burnet’s other notes of this vintage in which he recorded bearings in his notes when he used them to establish the direction of a line. No bearing was recorded in this instance, so it’s unlikely a bearing was used to set the direction of the line.

[64] Again, the Surveyor General’s conclusion on this finding of fact is reasonable and entitled to deference.

[65] It is true that at one point the Surveyor General dismissed Mr. Stewart’s evidence as “improbable” and referred to it as speculative. However, she did so in the face of an admission by Mr. Stewart that the theory he was putting forward as to how Mr. Goessman ran his line was “pure speculation”. In this regard, all of the experts who testified, except Mr. Stewart, concluded that Mr. Goessman ran the concession lines by first running the baseline from north to south; he then proceeded west to run the road allowance; he crossed Thunder Bay and essentially proceeded in a loop back to the baseline. When he did so, the two sections of the road allowance did not match up.

[66] According to Mr. Stewart’s theory, notwithstanding the rough conditions of the day, Mr. Goessman would have travelled back and forth, expending time and energy to run an “exploratory line” to have his lines match up so as “to avoid the jog at the baseline.” The Surveyor General had this to say about Mr. Stewart’s suggestion:

I’m not persuaded by Mr. Stewart’s suggestion, as several things make it unlikely. I don’t believe Goessman would have taken the trouble to make the adjustments suggested by Mr. Stewart. If he did, I believe he would have recorded it in his diary. Additionally, there is no physical evidence of it. Mr. Stewart testified himself that his theory “was pure speculation.”

If Mr. Goessman tried to work his way westerly from the baseline back to his camp on Thunder Bay, he would have no compass direction to follow. To calculate a direction, he would have had to run the line easterly to the baseline, measure the distance by which he missed his point, calculate a compass bearing that would allow him to close on the desired point and finally rerun and recut the line on the new compass bearing. I believe it’s very unlikely he would have taken the trouble to do this. He was moving too fast. In three days he had traversed a 12 mile loop through the bush. He wasn’t stopping to perfect his work.

[67] The Surveyor General then went on to refer to other detailed entries that Mr. Goessman did make in his diary, including details of the difficulties he was having with his crew, the provision of supplies, etc. Thus, she found that if he had taken the trouble to make the correction that Mr. Stewart was asserting he made (an important detail), he would have noted it in his diary.

[68] These excerpts make it clear that, far from ignoring Mr. Stewart’s evidence, the Surveyor General considered it in light of the evidence as a whole and rejected it. Her reasoning and conclusions on this issue are reasonable and entitled to deference.

[69] During the course of the hearing, the Appellants made a submission that the Surveyor General erred in failing to consider the fact that the deed under which the Appellants’ predecessors in title were given their land clearly indicated that their land had riparian status. However, as the Appellants’ expert, Mr. Stewart, admitted on cross-examination, if a deed contains wording reflecting riparian status, but in fact on the ground it was not, then it simply is not riparian.

[70] On this issue the Surveyor General noted:

I also considered the original plan, notes and patents for Lot 12 and 13 as documentary evidence of the location of the road allowance.

Regardless of whether lot 12 was in contact with water or not when it was granted, the lands were patented according to the lots as laid out. Riparian rights flow from contact with water. If lot 12 stays in contact with water, it’s riparian, if it loses contact with water, it’s no longer riparian. The position and configuration of lot 12 and the adjacent road allowance is to be determined from the best available survey evidence and not from a desire to maintain riparian status.

[71] The Surveyor General then went on to consider whether the shoreline had changed due to accretion, erosion, inundation or reliction. The Surveyor General found that all the surveyors agreed that the topography of the shore had not changed significantly since Mr. Goessman did his survey, with the exception of a small amount of rubble that was placed on a portion of the road allowance in the 1950s to support the construction of a dock.

[72] The Surveyor General also found that all of the surveyors agreed that the water levels had changed over time. She then went on to find that she had to consider how to treat the road allowance as the water advances and recedes. In doing so, she found that Surveys Methods, R.R.O. 1990, O. Reg. 1029 (“Regulation 1029”) under the Act gave clear direction on this point. In this case, since her obligation was to retrace Mr. Goessman’s work and since he ran the road allowance across the ice of Thunder Bay, the appropriate method to adopt was set out in s. 24(2)3 under Regulation 1029, i.e., Method 47. This method requires the surveyor to re-establish an obliterated “boundary, baseline or concession line…by joining the nearest ascertainable points thereof as intended in the original survey.”

[73] Following this direction, the Surveyor General found as follows:

In this case the road allowance was run across the bay, so to retrace Goessman’s work by joining ascertainable points either side of the bay, the resulting road allowance limits trace over lands affects by the action of the water. The road limits extend the water’s edge as intended in the original survey, growing in length as the water recedes and shortening in length as the water advances, allowing the water’s edge in a natural state to fluctuate with the action of water.

[74] The Appellants submit that the Surveyor General erred when she resorted to the Act to deal with the issue of how to distribute any accreted lands. According to the Appellants, the Surveyor General’s approach violated the principles set out in the case law, principles that required her to do an equitable or proportionate distribution of those lands.

[75] The Surveyor General reviewed the case law provided by the Appellants and reasonably concluded that that case law did not provide that, in the event of accretion, the lands affected by that accretion had to be distributed on an equitable basis. There are cases where this is the remedy that the court has adopted, but the facts of those cases differ substantially from the case at bar.

[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”.

[77] The method chosen by the Surveyor General meets both of these ends. It respects the original lot fabric, as the lands are extended in accordance with a method that respects the original lot fabric. Furthermore, there is no necessity to keep doing a redistribution of accreted lands if the area of these lands changes over time due to the fluctuation of the water. Finally, the wording of Method 47 is applicable to the situation at bar. One of the original boundaries of the road allowance (i.e., the water’s edge) became obliterated, making it necessary that a surveyor re-establish that boundary.

[78] For all of these reasons, I find that this aspect of the Surveyor General’s decision was reasonable.

Conclusion

[79] The Surveyor General had jurisdiction; her process was fair, and her decision was reasonable. The appeal is dismissed. As agreed by the parties, the Respondent is entitled to its costs of this appeal fixed in the amount of $12,000.00

Sachs J.

D.L. Corbett J.

Baltman J.

Released: 2015/12/03

CITATION: Lawrence Dale and Betty Dale v. The Corporation of the Township of Tiny, 2015 ONSC 7340

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, D.L. Corbett and Baltman JJ

BETWEEN:

Lawrence Dale and Betty Dale

Appellants

– and –

The Corporation of the Township of Tiny

Respondent

REASONS FOR JUDGMENT

Released: 2015/12/03