CITATION: Dickinson v. Krueger, 2019 ONSC 6965
DIVISIONAL COURT FILE NO.: 1096/18
DATE: 20191203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Glithero, D. L. Corbett and Favreau JJ.
B E T W E E N :
ANDREW MARK DICKINSON
Appellant
– and –
ANNETTE KRUEGER, NEIL SWANSON, AND DRAGO VINCEC, ESTATE TRUSTEE OF THE ESTATE OF JOE TKALEC
Respondents
Andrew Mark Dickinson, for himself
Annette Krueger, for herself
Neil Swanson, not appearing
Dennis G. Crawford, for the Respondents
Draco Vincec and Estate Trustee of the Estate of Joe Tkalec
Baaba Forson, for the A.G. Ontario
HEARD at Oshawa: June 20, 2019
FAVREAU J.:
Introduction
[1] The appellant, Andrew Mark Dickinson, appeals the portions of an order of the Deputy Director of Titles (the "Deputy Director"), dated May 25, 2018, determining the easterly and westerly boundary lines of his property. He also appeals the Deputy Director's dismissal of his request for costs.
[2] For the reasons that follow, the appeal is dismissed.
Background
The property and the application to the Deputy Director of Titles
[3] Mr. Dickinson is the owner of a property in the Town of Whitchurch-Stouffville. The property is marked as Lot 3 on a plan of subdivision registered in 1915 as Plan 142.
[4] Mr. Dickinson applied to the Director of Titles for confirmation of the southerly, northerly, easterly and westerly boundaries of his property, based on a report dated August 17, 2016, prepared by surveyor Ophir Dzaldov. In the survey, Mr. Dzaldov accepted the centre line of an existing cedar hedge between lots 2 and 3 as the best evidence of the location of the westerly boundary. He also accepted the centre of a frame structure that straddles lots 3 and 4 as the best evidence of the location of the easterly boundary.
[5] There were three objections by adjoining landowners to the application.
[6] The respondent, Neil Swanson, is the owner of Lots 1 and 2 on the plan of subdivision, and he objected to the proposed boundary for the westerly limit of Lot 3.
[7] The respondent, Annette Krueger, is the owner of Lot 4, and she objected to the proposed easterly limit of Lot 3.
[8] The respondent, Drago Vincec, is the estate trustee of the previous owner of the property to the south of Mr. Dickinson's property. He objected to the proposed southerly limit of Lot 3.
[9] At the hearing before the Deputy Director, Mr. Dickinson was represented by counsel and Mr. Dzaldov testified as an expert surveyor for the purpose of justifying the proposed boundaries and responding to the objections.
[10] None of the objectors were represented by counsel nor had they retained their own surveyors. However, they participated in the hearing and all relied on a number of earlier surveys of the properties.
The Deputy Director's decision
[11] In her decision dated May 25, 2018, the Deputy Director confirmed the boundaries proposed by Mr. Dickinson for the southerly and northerly limits of Lot 3. However, she rejected the boundaries he proposed for the westerly and easterly limits, and she established boundaries based on measurements she made on the basis of available earlier surveys and fieldnotes.
[12] The Deputy Director did not award costs, finding that none of the parties advanced a position that was “vexatious or obstructive”. Rather, she found that the issues were complex, involving contradictory surveys, and the parties should therefore each bear their own costs.
Positions of the parties
[13] Mr. Dickinson argues that the Deputy Director should have accepted Mr. Dzaldov's evidence that the boundary on the west side of the property was established by the cedar hedge and that the boundary on the east side of the property was established by the middle of the frame structure straddling Mr. Dickinson's property and the respondent Annette Kruger's property. Alternatively, Mr. Dickinson argues that the Deputy Director made a factual error in her application of the measurement method. He also argues that the Deputy Director should have awarded him costs of the hearing.
[14] Ms. Krueger attended the hearing before us and took the position that the Deputy Director did not make any errors with respect to the easterly boundary.
[15] Mr. Vincec, who was represented by counsel, appeared before us for the sole purpose of responding to Mr. Dickinson's appeal of the costs decision.
[16] Mr. Swanson did not respond to the appeal.
[17] The Attorney General participated in the appeal as an intervenor only for the purpose of submitting that boundaries cannot be established on consent under the Boundaries Act, R.S.O. 1990, c. B.10, in the event the parties reached an agreement that differs from the Deputy Director's findings.
Jurisdiction
[18] Section 12(1) of the Boundaries Act provides that an appeal from a decision of the Director of Titles lies to the Divisional Court.
[19] Section 12(2) of the Boundaries Act sets out the powers of the Court on an appeal as follows:
The Divisional Court, on an appeal from an order of the Director, may,
(a) where the appeal is from an order under subsection 9(1), 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; and
(b) where the appeal is from an order as to costs under section 11, annul or, with or without modification, confirm the order.
Standard of review
[20] In Nicholson v. Halliday (2005), 2005 259 (ON CA), 74 O.R. (3d) 81 (C.A.), the Ontario Court of Appeal held that the standard of review to be applied to decisions of a Deputy Director of Titles is reasonableness.
[21] In Nicholson, at para. 44, the Court of Appeal emphasized the expertise of the Deputy Director of Titles:
[T]he Director has particular expertise when contrasted with that of a court: he is a surveyor. His expertise is recognized by the Boundaries Act, which gives him independent authority to require certain information (s. 4(2)); to initiate a proceeding on his own initiative and to engage a surveyor (s. 5(1)); to determine whether to hold a hearing (s. 8(4)); and, most significantly, confers broad powers to dispose of the dispute (s. 9(1)). The difficulties inherent in boundary re-establishment, which will be canvassed in my later review of survey law, show the expertise required of the Director in weighing facts and balancing expert opinion. Indeed, the parties before the Director were surveyors and not the landowners. Given the application of appropriate legal principles, the determination of the running of a lot line or the re-establishment of a boundary are factual matters peculiarly within the knowledge and skill of those trained in surveying, which suggests a high degree of deference is owed to the Director's findings.
[22] In Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, the Supreme Court emphasized that reasonableness is concerned with the intelligibility and transparency of a decision, and also with whether the decision falls within a range of reasonable outcomes.
Statutory scheme and legal principles
[23] Section 3(1) of the Boundaries Act provides that:
3 (1) Where doubt exists as to the true location on the ground of any boundary of a parcel, an application, in the prescribed form, may be made to the Director to confirm the true location of the boundary on the ground.
[24] Where someone objects to an application, the Act requires the Director to hold a hearing.
[25] Section 9(1) of the Act sets out the Director's powers following a hearing:
9 (1) Upon the hearing convened under section 8, the Director may dispose of any objection in such manner as he or she considers just and equitable under the circumstances and may, by order, confirm the location of the boundary or boundaries as shown on the plan of survey, or, if he or she thinks proper to do so, may order that the survey and plan be amended in such manner as he or she may direct, in which case he or she may confirm the location of the boundary or boundaries as shown on the plan as so amended.
[26] Section 11(2) gives the Director the power to order costs to any party to a hearing.
[27] As recognized by the Assistant Director of Titles in this case, in Nicholson, at para. 28, the Court of Appeal described the hierarchy of evidence for re-establishing property lines as follows:
[28] The leading authority on boundary resolution is Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.). In that decision, Stortini D.C.J. cited an article by Lorraine Petzold, O.L.S., the Executive Director of the Association of Ontario Land Surveyors"The Survey and The Real Estate Transaction", which was presented to the Law Society of Upper Canada in its Continuing Legal Education Seminar of October 1983. That article notes the surveyors' "hierarchy of evidence", which ranks the evidence to re-establish a boundary from most compelling to least compelling as follows (at p. 2 QL):
(a) Natural boundaries;
(b) Original monuments;
(c) Fences or possession that can reasonably be related back to the time of the original survey;
(d) Measurements (as shown on the plan or as stated in the metes and bounds description).
[28] Finally, the role of the Director is to re-establish original property lines based on the best available evidence. Her role is not to assess potential claims for adverse possession based on the use of property over time.
Analysis
[29] In this case, it is not disputed that there are no natural boundaries and no original monuments. Therefore, the only potential sources of evidence for re-establishing the original boundaries are evidence of possession that can reasonably be related back to the time of the original survey or measurements based on the original plan. As referred to above, evidence of possession has priority over measurements.
[30] Mr. Dickinson argues that the Deputy Director erred in rejecting Mr. Dzaldov's evidence that possession established the boundaries, or, alternatively, that she erred in her application of the measurement methodology.
[31] In my view, the Deputy Director's decision on both these issues was reasonable.
Whether the Deputy Director's rejection of the evidence of possession was reasonable
[32] Mr. Dickinson argues that the Deputy Director improperly required “direct evidence” that the hedge on the west side of the property and the centre line of the structure on the east side of the property could be traced back to the original property lines. In making this argument, he relies on the decision in Nicholson, which he says makes clear that no direct evidence is needed.
[33] As referred to above, in Nicholson, at para. 28, the Court of Appeal described the third type of evidence in the hierarchy as "fences or possession that can reasonably be related back to the time of the original survey". Mr. Dickinson argues that the words "can reasonably be related back to the time of the original survey" make clear that no direct evidence is required. In addition, he points out that, as a matter of common sense, it is unlikely that there will be direct evidence of possession going back to 1915 as no one from that time period would still be available as a witness.
[34] In her decision, the Deputy Director did make reference to the lack of "direct evidence", when she described the approach to be taken in assessing evidence of occupation:
In order to accept the evidence of occupation, specifically the centre line of the cedar hedge located on the limit between Lots 2 and 3. Registered Plan 142 and the centre of the old frame structure straddling the limit between Lots 3 and 4, Registered Plan 142, as the best available evidence of the location of the original monuments along these lines, direct evidence is required to relate the physical evidence of occupation to the creation of or first running of the lines. (emphasis added).
[35] However, from the balance of this paragraph, it is evident that the Deputy Director focused on assessing whether the hedge on the westerly boundary and the midline of the structure on the easterly boundary provided her with sufficient evidence to relate the proposed boundary back to the original survey:
This evidence is required to show when the occupational lines were first established upon the ground, how they were located as they were, whether they were intended to represent boundaries and whether the adjoining owners had always accepted them as boundaries from the time they were first established upon the ground.
[36] The Deputy Director based her finding that there was insufficient evidence of occupation on the weaknesses in the evidence, and specifically the gaps in the evidence that did not allow her to find that the cedar hedge and structure could be related back to the time of the original survey.
[37] With respect to the hedge specifically, the Deputy Director found that it had been planted by 1961 based on a sketch in a surveyor's field notes. This is over 45 years after the lot was created. She found that there was no evidence that the hedge was planted with the intention of marking the original boundary between the properties. She concluded that "the presumption that the cedar hedge was planted when the original monuments were in place and well known is of a speculative nature, it is not proven or supported by facts of acceptance, and therefore, I conclude it is not a reasonable one".
[38] With respect to the structure, the Deputy Director reviewed the evidence available about whether the structure had been in place when the boundaries between the lots were set, and whether the midline of the structure was meant to reflect the location of the boundary. She found that the evidence on this point was speculative. While there was evidence that the structure had been in place in 1927, she found that there was no evidence that the midline of the structure was intended to reflect the boundary between the two properties. Most significantly, she found that using the midline of structure as the boundary would create a bend in the easterly lot line when there was no bend shown on the original registered survey.
[39] The Deputy Director's task was to assess the evidence to determine whether the hedge and midline of the structure could reasonably be related back to the original survey. While she may have made reference to the need for "direct evidence" in her decision, it is evident from her analysis that she reviewed all of the evidence available and found that there were significant gaps in the evidence that precluded her from finding that the hedge and midline of the structure were reasonably intended to reflect the original boundary. These are findings of fact. They are supported by the record. In my view, her conclusions on this issue are reasonable.
Whether the approach used by the Deputy Director to re-establish the westerly and easterly boundaries was reasonable
[40] Mr. Dickinson argues that the methodology used by the Deputy Director to re-establish the boundaries was unreasonable.
[41] At the beginning of the hearing, Mr. Dickinson sought to adduce fresh evidence to address this issue. This panel denied the request for reasons given at that time.
[42] In the absence of the fresh evidence, Mr. Dickinson argued that the Deputy Director made an error in her application of the measurement methodology because she erroneously relied on the location of an iron tube for the purpose of measuring off the boundaries for Lot 3. Specifically, Mr. Dickinson argued that everyone agreed that the metal tube showed the southerly boundary but not the westerly boundary.
[43] Contrary to Mr. Dickinson's submission, the Deputy Director’s reliance on the iron tube as establishing the southerly and westerly boundaries was based on his own surveyor’s evidence. This is reflected in the Decision and in the transcript from the hearing.
[44] At the hearing of the appeal, Mr. Dickinson essentially invited the Court to reconsider and reweigh all of the evidence. This is not the role of the Court on an appeal from a decision of the Deputy Direction. The Deputy Director made findings of fact based in part on Mr. Dzaldov’s evidence and all of the available historical surveys. Mr. Dickinson has not shown that there was no evidence in support of the Deputy Director’s findings. I am satisfied that her decision was reasonable.
Whether the decision on costs was reasonable
[45] Section 11(2) of the Boundaries Act provides that "the Director may order costs to be paid by or to any person who is a party to a proceeding under this Act".
[46] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, applies to hearings held under the Boundaries Act. Pursuant to section 17.1 of the Statutory Powers and Procedures Act, the Deputy Director did not have the power to order costs unless she was satisfied that “the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith”
[47] In this case, the Deputy Director ordered no costs, and in doing so made a finding that none of the parties acted in an obstructive or vexatious manner.
[48] Mr. Dickinson has not advanced any arguments that show any error in this finding. Rather, he argues that the other parties did not incur any costs because they did not retain a surveyor, whereas he incurred the costs of the surveyor and a lawyer.
[49] These are not factors that the Deputy Director was required to consider in deciding whether to order costs. We see no error in her decision on costs. Her decision was reasonable in the circumstances of the case.
Conclusion
[50] In conclusion, for the reasons above, I find that the Deputy Director's decision is reasonable and the application is therefore dismissed.
[51] The only respondent seeking costs on the appeal is Mr. Vincec. His lawyer provided a bill of costs for almost $10,000. In my view, this amount is excessive given that costs was the only issue at stake for Mr. Vincec and that, despite the lengthy factum filed on Mr. Vincec’s behalf, the Statutory Powers and Procedures Act, which provides a complete response to the issue of costs, was not referred to in the factum. I find that $1,000 in costs is reasonable in the circumstances.
[52] The application is dismissed. Mr. Dickinson is to pay costs of $1,000 to Mr. Vincec within 30 days of the issuance of this decision. No other parties are entitled to costs.
Favreau J.
I agree _______________________________
Glithero J.
I agree _______________________________
D. L. Corbett J.
RELEASED: December 3, 2019
CORRECTION NOTICE
Corrected decision: the text of the original judgment was corrected on December 4, 2019, and the description of the correction is appended:
In the style of proceedings the name of the respondent Joe “Taklec” has been corrected to “Tkalec”.
CITATION: Dickinson v. Krueger, 2019 ONSC 6965
DIVISIONAL COURT FILE NO.: 1096/18
DATE: 20191203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Glithero, Corbett and Favreau JJ.
B E T W E E N :
ANDREW MARK DICKINSON
Appellant
– and –
ANNETTE KRUEGER, NEIL SWANSON, and DRAGO VINCEC, ESTATE TRUSTEE OF THE ESTATE OF JOE TKALEC
Respondents
REASONS FOR DECISION
FAVREAU J.
RELEASED: December 3, 2019