CITATION: Cook v. Corporation of the Township of Strong, 2020 ONSC 4194
DIVISIONAL COURT FILE NO.: 19-2016 DATE: 20200708
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Kristjanson and Favreau JJ.
BETWEEN:
BRANT COOK AND LEANDRA RUTTAN
Appellants
– and –
THE CORPORATION OF THE TOWNSHIP OF STRONG
Respondent
Conner Harris, for the Appellants
Michael F. Sirdevan, for the Respondent
HEARD at Toronto (by videoconference): June 25, 2020
Swinton J.:
Overview
[1] This is an appeal from an order of the Surveyor General of Ontario dated June 20, 2019 confirming, with amendments, a survey plan for the purpose of fixing the position of a concession road allowance and part of a shore road allowance across Lot 19 of the Township of Strong (the “Township”). For the reasons that follow, I would dismiss the appeal, as the Surveyor General made no error of law or palpable and overriding error of fact.
Background
[2] The Appellants are the owners of a property located on Broken Lot 19, Concession 2 of the Township. They have both a home and a cottage, as well as outbuildings, on their property.
[3] Pool Lake bounds the property to the south and east. A concession road allowance bounds the property to the north. Concession 3 is to the north of the road allowance. In 2016 the Appellants obtained two surveys prepared by Peter Raikes. He retraced the road allowance between Concessions 2 and 3 and the shore road allowance, locating the shore road allowance in a different location from that shown on previous surveys.
[4] As a result, the Township passed a by-law in 2017 authorizing an application to the Minister of Natural Resources and Forestry to determine the position of the concession and shore road allowances in relation to the Appellants’ property pursuant to s. 48(1) of the Surveys Act, R.S.O. 1990, c. S.30 (the “Act”). Subsection 48(1) states,
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.
[5] A survey was carried out by Ontario Land Surveyor J.C. Stanton in 2018. He fixed the concession road allowance between Concessions 2 and 3 across Lot 19 and part of the shore road allowance in front of Lot 19. His survey placed the buildings on the Appellants’ property partly within the shore road allowance. Because of objections to the survey report, the Surveyor General held a two day hearing in February 2019, in which the Appellants and others participated, including land surveyors Stanton and Raikes.
[6] On June 20, 2019, the Surveyor General issued her decision confirming the Stanton survey with amendments regarding the inner limit of the shore road allowance. She did not accept Mr. Stanton’s view that the inner limit should be measured from the current water level, as she concluded that the water level had risen since the original Beatty survey of 1876. Instead, she concluded that a short standard iron bar (“SSIB”) by Coote, Hiley, Jemmett marking the southeast corner of Part 1-42R-15839 was the best evidence of the inner limit of the shore road allowance (Reasons, p. 1).
The Appeal
[7] An appeal lies to this Court on a question of law or fact pursuant to s. 49 of the Act.
[8] The standard of review on this statutory appeal is the appellate standard of correctness with respect to an error of law and palpable and overriding error with respect to questions of fact or mixed fact and law where there is no extricable legal error (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37).
The Issues
[9] The Appellants raise two issues on this appeal:
Did the Surveyor General err by disregarding an original monument that demonstrated the inner limit of the shore road allowance around Pool Lake?
Did the Surveyor General err by concluding that the best evidence of the inner limit of the shore road allowance was a standard iron bar with bronze cap on the south side of the concession road allowance where it met the shore road allowance?
Analysis
Did the Surveyor General err by disregarding an original monument that demonstrated the inner limit of the shore road allowance around Pool Lake?
[10] The Appellants take the position that there is an original monument on their property dating to the first survey conducted by Walter Beatty in 1875 and examined in 1876 (the “Beatty survey”). They claim that at one time there was a post in a cairn in the vicinity of the old family cottage. The rotten wood of the post was replaced with an iron bar by E.J. Williams in a 2015 survey. The Appellants argue that this monument marks the intersection of the centre line of the concession road allowance and the inner limit of the shore road allowance. The Raikes survey had treated this as an original monument. However, the Surveyor General concluded that this was not an original monument in its original location.
[11] The Appellants argue that the Surveyor General erred in law by failing to follow the legal principles that govern a survey. In particular, they emphasize that a surveyor is to respect a hierarchy of evidence. Here, the Surveyor General should have considered the original monument as evidence of boundaries, and she erred by instead relying on conflicting evidence from subsequent surveys.
[12] I see no error of law on the part of the Surveyor General. She carefully set out the common law principles to be applied at p. 10 of her Reasons, stating,
The courts have provided surveyors with clear direction on what constitutes the hierarchy of best evidence and the rigour they must use when retracing boundaries. Though the exact wording varies in the caselaw, in general terms, surveyors are to give the most weight to those things that are least likely to be mistaken, being natural features, original monuments in their original location, evidence of lines run and marked on the ground, and finally measurements made by the original surveyor in his original notes.
Her statement of the legal principles is consistent with what the Divisional Court said in Richmond Hill Furriers Ltd. v. Clarissa Developments Inc. (1996), 1996 11805 (ON SC), 31 O.R. (3d) 529 at pp. 273-74.
[13] However, the Appellants submit that while the Surveyor General may have set out the proper principles, she then failed to apply them properly. In effect, they say, she worked backwards, looking at subsequent surveys, particularly the retracement survey of F.C. McKergow in 1959, rather than work forward from the original monument.
[14] I disagree. The first evidentiary question for the Surveyor General, as she properly pointed out at p. 3 of her Reasons, was whether the disputed monument was an original Beatty monument in its original location. She found as a fact that the disputed monument was not an original Beatty monument.
[15] To overturn this finding of fact, the Appellants must show that the Surveyor General made a palpable and overriding error. They have failed to do so. The Surveyor General gave careful and detailed reasons explaining why she did not find, on a balance of probabilities, that the disputed monument was an original Beatty monument. For example, she examined the instructions given to Mr. Beatty, which required him to plant wooden posts where a concession road met the shore allowance and to place stones around the posts only at the corners of the township, if stones could be found. She considered Mr. Beatty’s notes as to the way the concession line was run, as well as subsequent surveys, from 1910 through to 2018. She explained that the “first surveyors were obligated to find the work of Beatty and to re-establish Beatty’s lines as originally surveyed on the ground using the principles of best evidence” (Reasons at p. 5).
[16] The Surveyor General did not accept that Mr. Beatty had built a cairn on the Appellants’ lot, given his instructions, his notes and the speed with which the survey was being carried out. She rejected Mr. Raikes’ opinion that the monument was original because of Mr. Raikes’ failure to consider conflicting survey evidence in the presence of a “clear ambiguity”. She noted that a surveyor who finds a monument “must assemble and record corroborative evidence sufficient to prove the validity of his or her adoption of the monument as both authentic and its being in its original location” (Reasons at p.10).
[17] The Surveyor General also agreed with Mr. Stanton’s opinion that earlier surveyors would have looked for original monumentation, and those surveys “fit quite well with each other, and they relate to Beatty’s work extremely well” (at p. 11). She also explained why the McKergow survey was significant, because it retraced the Beatty line, while the use of the disputed monument would have resulted in a centerline located over 57 metres from that line.
[18] She also explained why she did not accept the Cook family evidence that this was an original monument. She then concluded (at p. 12):
Given the evidence of how Beatty ran the line, the absence of any contemporaneous evidence that the cairn was an original monument, the inconsistency between what Beatty set as monuments and the cairn that we find today, on a balance of probabilities, I am unable to accept the Disputed Monument as an original monument in its original position.
This was a conclusion that she was entitled to reach on the evidence and the application of the governing legal principles.
[19] The Appellants also argue that the Surveyor General gave too much weight to the McKergow survey, because she failed to address the discrepancies between McKergow’s measurements and those in the original survey. In effect, the Appellants are asking this Court to reweigh the evidence. That is not appropriate. The Surveyor General explained that she found the McKergow survey to be significant because it retraced the original Beatty line. I see no error in her treatment of the McKergow survey.
[20] Accordingly I would not give effect to the first ground of appeal.
Did the Surveyor General err by concluding that the best evidence of the inner limit of the shore road allowance was a standard iron bar with bronze cap on the south side of the concession road allowance where it met the shore road allowance?
[21] The Appellants submit that the Surveyor General made a palpable and overriding error of fact when she concluded that the best evidence of the inner limit of the shore road allowance was a standard iron bar with bronze cap on the south side of the concession road allowance where it met the shore road allowance. She found that this bar had been placed by D.E. Magee in a 1969 survey.
[22] The Appellants argue that she erred, as there is no SSIB with a bronze cap in that place. They point out that the 2001 survey by Hiley and the 2007 survey by Harris-Herr did not show such a monument on the south side of the concession road allowance. Williams’ field notes in 2013 and 2015 showed an SSIB and an SSIB with bronze cap on the west and east sides of Bernard Drive.
[23] The Appellants also point out that the monument identified as the Magee monument in the Stanton Plan is shown in photos. However, it does not appear to have a bronze cap.
[24] The Township argues that the Appellants improperly raise this issue for the first time on appeal. During the hearing, they did not raise the issue of whether the bars shown in the photos in the Stanton Plan did or did not have bronze caps.
[25] I do not accept the argument that there is a palpable and overriding error here. Even if the standard iron bar at the south side of the concession road does not now have a bronze cap, and that is an error by the Surveyor General, this is not a palpable and overriding error that is sufficiently significant to vitiate a key finding of fact. There is evidence she could and did accept that Magee placed a standard iron bar at that location in 1969.
[26] Moreover, her analysis respecting the shore road allowance must be read as a whole. She explained why she rejected Mr. Stanton’s measurement of the shore road allowance from current water levels, as she accepted the evidence showing the water level had increased over the years, particularly after the installation of culverts between Bernard and Pool Lakes.
[27] Ultimately, she concluded,
I find that the inner limit of the road allowance as established by Mr. Magee during his 1969 survey and retraced by Coote, Hiley, Jemmett in 2001 represents better evidence of the original limit of Pool Lake as surveyed by Beatty in 1876 (at p. 15).
She also stated that “[d]ates, topographic information and the way the road allowance was originally run by Beatty and retraced again by McKergow factor highly in my reasoning” (at p. 16).
[28] Her findings of fact are supported by the evidence. There is no basis for appellate intervention.
Conclusion
[29] Accordingly, the appeal is dismissed. The parties have agreed on costs, and so no costs order is made.
Swinton J.
I agree _______________________________
Kristjanson J.
I agree _______________________________
Favreau J.
Released: July 8, 2020
CITATION: Cook v. Corporation of the Township of Strong, 2020 ONSC 4194
DIVISIONAL COURT FILE NO.: 19-2016 DATE: 20200708
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Kristjanson and Favreau JJ.
BETWEEN:
BRANT COOK AND LEANDRA RUTTAN
Appellants
– and –
THE CORPORATION OF THE TOWNSHIP OF STRONG
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: July 8, 2020