ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-48766
DATE: 2012/07/23

BETWEEN:

Garry Lackner, Linda Lackner, Eric Thomson, Susan Desjardins and Patricia Tite Applicants/Plaintiffs – and – Shane Hall, 2219160 Ontario Limited, Stanley Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, Wayne Morris, and Vikki Storie Respondents/Defendants

John Parr Telfer and Margot Leduc Pomerleau, for the Applicants/Plaintiffs

James L. Shields and Thomas S. Finley, for the Respondents/Defendants

HEARD: April 2, 3, 4, 10, 11, 12 and 13, 2012

REASONS FOR JUDGMENT

McNamara J.

[ 1 ] In this action the Plaintiffs seek a declaration that the boundaries of certain lots, shown on a plan showing the subdivision of parts of Lots 11 and 12 of Concession 6 in the then Township of Torbolton registered as Plan number 418, extend to the water’s edge of the Ottawa River.

Overview

[ 2 ] The Plaintiffs are owners of waterfront residential lots on Plan 418 registered in the Land Registry Office for the City of Ottawa. The properties all front on the Ottawa River.

[ 3 ] The Defendant Shane Hall is an individual residing in the city of Ottawa in the province of Ontario. The corporate Defendant, 2219160 Ontario Limited, is a corporation with its head office located in Ottawa, Ontario.

[ 4 ] At the heart of the dispute between these parties is the ownership of a strip of land between the most northerly limit of the lots as shown on Plan 418 and the edge of the water.

[ 5 ] The historical background of this matter is important. Broken Lot 12, Concession 6 in the then Township of Torbolton was granted by way of Crown Patent dated September 18, 1839. There is no dispute that the grant provided by the Patent extended to the Ottawa River and then “following the water’s edge” to a point. It is also common ground that the Patent contains no reservation with respect to the bed of the river, nor any reservation with respect to a distance up onto the shore from the water’s edge.

[ 6 ] On May 29, 1920, the subject lands were conveyed to two brothers, John Thomas Armitage and Godfrey Duckworth Armitage, as tenants in common. Sometime in 1930 or 1931 the brothers retained Mr. N.B. MacRostie, Ontario Land Surveyor (“O.L.S.”), to prepare and register a plan of subdivision that included some of the lands included in the Crown Patent. That plan was registered on September 10, 1931, as Plan number 418, Torbolton. There is no issue that the plan as registered shows a strip of land between what is best described as the waterfront boundary of the lots shown on the plan and the “shoreline, June 13, 1931.” A reduced copy of the plan of subdivision is attached as Appendix “A”.

[ 7 ] Over the years that followed the lots were sold and, at least initially, mostly cottages were erected. As the years went by many of those cottages were replaced with permanent homes.

Primary Issue

[ 8 ] The various Plaintiffs are some of the successors in title to those who purchased certain of the waterfront lots on Plan 418. The Defendants are the present-day successors in title to any interest the Armitage brothers may have in the strip of land between the lots, as shown on Plan 418, and the edge of the river. It is the position of both the Plaintiffs and the Defendants that, in law, they are the owners of that strip.

Evidence at Trial

[ 9 ] Several property owners gave evidence to provide some background.

[ 10 ] The Plaintiff Garry Lackner and a witness, Barbara Moffett-Ware, reviewed pictures that were placed in evidence. They established through that evidence that, depending on the year and the particular time of the year, some, and occasionally all the disputed land is under water for periods of time. The witness Moffett-Ware testified that she has been on their family property, initially as a child during the summers and now as a full-time resident, since the late 1950s. It was her evidence that from her childhood until recent times she had understood the disputed land to be Crown land that they and others were free to use.

[ 11 ] Another witness, George Kennedy, also gave evidence. He is a gentleman in his eighties and was a most impressive witness. He has been a resident in the area, in one fashion or another, since he was a boy in the 1930s. In fact his father and an uncle put on a plan of subdivision in this same general area, registered as Plan 420, on or about February 18, 1932. That plan was also prepared by Mr. MacRostie. Plan 420 shows a similar strip of land between the waterside boundary of the lots shown on it and the edge of the river. Mr. Kennedy testified it had always been his understanding that the waterside boundary of the lots was drawn at the high water mark, and the land between the high water mark and the water’s edge was the property of the Crown. Interestingly, one of the signatories on this Plan who executed it as Reeve on behalf of the Township of Torbolton is John Armitage who evidence would suggest is the same John Armitage that with his brother retained Mr. MacRostie to prepare Plan 418.

[ 12 ] The Plaintiffs also called as a witness Dr. Roland Armitage. Dr. Armitage is a gentleman in his mid-eighties and is the son of Godfrey Armitage, one of the original owners who commissioned Mr. MacRostie to prepare Plan 418.

[ 13 ] Dr. Armitage was also a very impressive witness. He fought during World War II and was wounded in action. On his discharge from the service, he went away to veterinarian college and qualified to practice veterinary medicine in 1951. For the next 20 years he practiced in Shawville, Québec.

[ 14 ] Subsequent to that he returned to the West Carleton area and became involved in horse racing from a farm property that had been left to him by an uncle. He has continued in the horse racing business right up to the present time. He also was involved in politics and for a period of time was the mayor of West Carleton.

[ 15 ] Like other members of his family with land fronting on the Ottawa River, in 1969 he had a plan of subdivision prepared by H. R. Farley, O.L.S. It was registered as Plan 838. Like many other plans in the area it shows a strip of land between the northerly limit of the lots as shown on the plan and the Ottawa River.

[ 16 ] This witness was asked whether when he sold the lots on this plan of subdivision he was of the view that he was selling what might be described as the beach area shown on the plans. He answered in the negative and advised that it had always been his understanding that that strip was public land owned by the government. It was there to permit neighbours to walk along the waterfront beyond the limits of the lot owners’ property or so a boat in distress could pull in without being on someone else’s property. He went on to indicate that he believed he was selling all he owned and that he certainly did not retain title to the strip of land.

[ 17 ] The Plaintiff Susan Desjardins also testified. She indicated that in August 2009, she was contacted by an individual named Nichol purporting to represent the Armitage Group whom he described as the owners of the property in front of her home down to the water’s edge. He enquired whether she and her husband were interested in purchasing their part of the beachfront property. He discussed terms with her and suggested that she email him after she had had a chance to speak with her husband. The witness testified that she was of course surprised by all of this as she had had no prior indication that the property in question was privately owned. This led in time to a meeting involving herself and some of the neighbours who were all equally concerned. The group then met with a lawyer representing, at that point in time, the purported owners of the strip of land, and the lawyer confirmed their ownership and that the property was for sale. The next thing they knew surveyors began to appear on the beach area, and this led to a decision to retain counsel and seek advice as to their rights.

[ 18 ] Each side called two expert witnesses.

[ 19 ] The first of the surveyors qualified to give opinion evidence was Izaak de Rijcke, who was called by counsel for the Plaintiffs.

[ 20 ] This witness’ curriculum vitae , which was filed in evidence, recites his credentials. He obtained a B.Sc. – Surveying from the University of Toronto in 1976. In 1981, he graduated from the University of Windsor with his LL.B. and obtained his LL.M. in real property law from Osgoode Hall Law School of York University in 2011. He was commissioned as an Ontario Land Surveyor in August of 1978 and was called to the Bar of Ontario in 1983. He is a certified specialist in real estate law. He was a sessional instructor at the University of Guelph in the land surveying course and was an Adjunct Professor at the University of Toronto from 1994 to 1998. From 1983 to present he has been engaged in the full-time practice of law, with primary focus on boundary disputes, surveying, and related matters. Attached to his curriculum vitae is a four-page list of various publications and presentations that he has been involved in, many relating to boundary disputes. He was the co-author in 1996 of a book ‘Legal Aspects of Surveying Water Boundaries’. He does not practice survey work in the field in the usual sense of that word, but rather the survey work he does do is in conjunction with his law practice in advising clients on boundary disputes and problems with surveys. He has testified on numerous occasions in the Superior Court of Justice and before various tribunals.

[ 21 ] This witness began his evidence by providing some historical background in order to provide a perspective as to why problems have arisen over the years when the boundary of a lot fronts on water.

[ 22 ] Mr. de Rijcke testified that Crown grants of waterfront property did not provide specifics as to what a grant of land to the water’s edge meant. In the early 1900s, however, as a result of a court decision that held that a Crown grant of an upland parcel of land was presumed to include the riverbed to the centre of the river, the government of Ontario, in 1911, passed the Beds of Navigable Waters Act . That legislation in essence provided that, if a body of water was navigable, there was no title to the riverbed included in the grant to the upland owner. The legislation did not, however, provide a definition of what constituted the riverbed.

[ 23 ] By 1916, the Department of Lands and Forests was advocating a policy that the bed of a river extended to the high water mark. That was to allow for Crown ownership and control of the beach. That same policy was adopted by the Director of Legal Offices and the Surveyor General for the province of Ontario.

[ 24 ] In 1940, as a result of push-back from some surveyors to the effect that it was hard to determine the high-water mark and survey same, the Bed of Navigable Waters Act was amended to include a definition of the high-water mark. That, however, was a failure, and, in 1951, the amendment was repealed. Things then reverted back to what they had been prior to the 1940 amendment.

[ 25 ] The witness next provided his opinion with relation to the preparation of Plan 418.

[ 26 ] Firstly, he provided some background about the surveyor, Mr. MacRostie, who prepared the plan.

[ 27 ] His research disclosed that Norman MacRostie graduated as a Civil Engineer from Queen’s University in 1911. He then qualified as an Ontario Land Surveyor. Prior to World War I, he worked in the Engineering Department of the City of Ottawa and then went overseas during the war serving with the Canadian Engineers. At the end of the war, he went into private practice and remained in practice until his death in 1950. After his death, the Annual Report of the Association of Ontario Land Surveyors contained a biographical summary which described Mr. MacRostie as “long one of Canada’s leading surveyors and consulting engineers.”

[ 28 ] This witness next moved on to Plan 418 itself. He described it as typical of the type of subdivision survey dealing with waterfront property as they were prepared at that point in history. The plan identified by way of a dashed line the shoreline of the river as of a particular date (in this case June 17, 1931). That dashed line was separate and distinct from a series of straight line segments that are monumented and mathematically defined by bearing and distance and intended to show the waterside boundary of the lots. In Mr. de Rijcke’s opinion, this monumented series of straight line segments represented the surveyor’s approximation of the high-water mark. That would be consistent with the Ontario Department of Lands and Forests’ advocated use of the high-water mark in defining a water boundary, the notion being that such a boundary was considered to be more reliable than the fluctuating boundary of an ambulatory water’s edge. He testified that, while there was no strict legal basis for the assumption, the fact of the matter was that in the era in which this plan was prepared the high-water mark was generally assumed by Ontario surveyors to be the legally defined boundary of the bed of a navigable river.

[ 29 ] Mr. de Rijcke testified that it was also the policy of the day of the Registry Office authorities that a plan of subdivision would not be accepted for registration without an acceptable version of the high-water mark to reflect the Crown title in the river bed to the high-water mark. The net result of that policy would be that when waters were at levels other than the high-water mark, the beach area would be available for use by the general public. He offered the opinion that his view in this regard was further reinforced by the fact that the lanes and roads showing on Plan 418 all extended to the strip of land in question. It was his opinion that this was entirely consistent with the view that this was Crown land that the public could enjoy together with access provided to both the beach and the river itself.

[ 30 ] Based on all of the evidence, it was the opinion of Mr. de Rijcke in both his viva voce evidence and his two reports that were filed as exhibits at the trial, that the water boundary shown on Plan 418 by way of a dashed line was in fact the approximate position of the water’s edge and even in 1931 served as the legal boundary. It was not, however, something that could be utilized in a practical sense due to the fact that Mr. MacRostie would not have been able to register the plan in the Land Registry Office at Ottawa as it would not have been in the form required by the Registry authorities. Accordingly, he complied with the administrative requirements of the Crown and showed the subdividers as only owning to what he then identified as the high-water mark. Based on his review of plans in the area, Mr. MacRostie had done this both before and after the preparation and registration of Plan 418. In Mr. de Rijcke’s opinion, there was no evidence of any intention on the part of the subdividers of Plan 418 or Mr. MacRostie to retain a dry land strip between the lots laid out on the Plan and the water’s edge of the Ottawa River.

[ 31 ] On cross-examination, Mr. de Rijcke conceded that at no place on Mr. MacRostie’s plan do the words ‘high-water mark’ appear. Rather only the words ‘shoreline as of a particular date’. When it was suggested that during the era when Mr. MacRostie did this plan the terms ‘shoreline’ and ‘high-water mark’ were used interchangeably, the witness did not agree with that proposition. Some words were used interchangeably to mean the same thing, such as ‘shoreline’ and ‘water’s edge’, but he was confident the reference by Mr. MacRostie to ‘shoreline’ did not refer to the high-water mark. He reiterated his view that in his opinion the straight line segments shown on the waterside boundary of the lots on Plan 418 were Mr. MacRostie’s approximation of the high-water mark. It was his evidence that surveyors of the day were not terribly concerned about words like ‘shoreline’ or ‘water’s edge’ because, then, that was not important. The high-water mark was, however, of significant importance having regard to the directions the surveyors were receiving from the Department of Lands and Forests and the Registry Office authorities. He confirmed that there was no basis in law for the assumption that the Crown owned the land below the high-water mark, either as a result of legislation or jurisprudence, but as a practical matter that was what surveyors were being instructed.

[ 32 ] The witness conceded that he does not have anything in writing that confirms that it was a policy of the Registry Office authorities that they would not accept a plan of subdivision for registration without an acceptable version of the high-water mark to reflect the Crown’s title in the riverbed. He testified that he has come to that opinion based on extensive research he has done for this and other cases and on various papers he has written.

[ 33 ] Mr. de Rijcke did confirm that one of the items he considered in coming to his conclusions were Mr. MacRostie’s field notes. He also conceded that there appeared to be some confusion caused by the date of those notes and the fact that the date shown would support an argument that the field notes were prepared well after the fact. While acknowledging that the dates shown were out of sync with the date of the plan, he also offered the view that there was no doubt they were the correct notes for Plan 418. He referenced the stations shown on Plan 418 and confirmed that they correlate with what is contained in the notes.

[ 34 ] It was suggested to the witness by counsel for the defendants that the straight line segments shown on the waterside boundary of the lots were not drawn in that fashion to approximate the high-water mark, but rather because the grantor wished to reserve a title in that strip of land. Mr. de Rijcke disagreed with that proposition and offered his opinion that, if that were indeed the intent, then the area in question would be shown by block number or lot number on the plan to show it as an identifiable separate parcel. He also indicated there would be some reference to the width of the strip.

[ 35 ] Mr. de Rijcke was asked, if indeed the straight line segments were an approximation of the high-water mark, what would be the precise location of the high-water mark? The witness indicated in response that because a high-water mark does not lend itself to exact location, the straight line segments would take into account that the actual high-water mark could be five feet away from what’s shown, one way or the other.

[ 36 ] The next witness to testify was Mr. John Goltz, O.L.S. Mr. Goltz’s curriculum vitae and his evidence confirm that he is a practicing surveyor of great experience. He qualified as an Ontario Land Surveyor in 1965 and has practiced in that field to the present day. For many years he had his own firm in Perth, Ontario, with a branch office in Pembroke. Both these geographical areas contain many lakes and rivers, and he testified that he has significant experience in dealing with waterfront properties. He was qualified to give opinion evidence in the area of surveying.

[ 37 ] Like Mr. de Rijcke, Mr. Goltz provided some historical context. His research and his own experience confirmed that, as far back as the turn of the last century, it was difficult for surveyors to determine waterfront boundaries because of the wording used in grants from the Crown of land bordering on navigable waters. Words such as ‘along the bank’, ‘along the shore’, ‘along the water’s edge’, ‘along the front of the bay’, ‘along the front of the back’, and many more were used. This led to surveyors’ associations and certain governmental authorities recommending the use of the high-water mark to determine the waterfront boundary. To demonstrate the point, he appended to his report an extract from the 1899 report of the Association of Ontario Land Surveyors. In it the Land Surveying Committee of the Association, in addressing a question to the Committee about the custom of land surveyors in fixing the shoreline of a lake or river, responded “to take the high-water mark, which is the line of vegetation.” Along the same lines was included a page from a leading text in 1913 entitled ‘Descriptions of Land’ by R. W. Cotley. At para. 21 of that text the following appears:

21. In the case of lands fronting on seas, lakes or considerable rivers the high-water mark is the only proper boundary to adopt, the object being to ensure that the land shall include the water frontage and the high-water mark being the only possible boundary having flexibility enough to allow for changes in the actual waterfront due to encroachment or recession of the water.

[ 38 ] Mr. Goltz confirmed that when he was training to qualify as a surveyor in the 1960s he was taught the same thing.

[ 39 ] As part of his evidence this witness had been asked to review a series of registered plans from the same general area as Plan 418, some plans prior to it and others after, and to provide his comments. He went through each of the plans and provided comments in both his viva voce evidence and his report that was filed as an exhibit. He provided several general comments about these plans.

[ 40 ] First, he confirmed that they disclose significant differences in the way they were prepared compared to the way plans are prepared today. He also pointed out that there were differences in the plans made prior to 1930 and those made after. Prior to 1930, none of the plans defined the boundary adjacent to the river as a rectilinear boundary. Subsequent to 1930, all of the plans he examined did show the lot boundary adjacent to the river as rectilinear. In terms of an explanation for that change Mr. Goltz had a couple of theories. First, he pointed to a letter written in July 1929 by L. V. Rorke, Surveyor General for the Province of Ontario. It contained a comment that for surveying purposes there was no such thing as a low-water mark, in essence suggesting that, since that could not be used to define the upland boundary, the high-water mark should be used. In terms of a second possible explanation, he enclosed with his report an extract from the 1928 Annual Report of the Association of Ontario Land Surveyors. In it the Land Surveying Committee, of which, interestingly, Mr. MacRostie was a member and present at the meeting, makes the comment that the boundary of lots bordering on water “should be more definite as required by subsection 3 of section 81 of the Registry Act .” Mr. MacRostie himself seconded that motion. He points out that it was subsequent to that that Mr. MacRostie’s waterfront plans begin to show a rectilinear boundary, which of course was a “more definite” boundary.

[ 41 ] In this witness’s expert opinion based on his knowledge of the general approach to shorelines which surveyors of that era displayed, he was confident in saying that the high-water mark was the conventional wisdom and in fact remained so up until the 1970s. He also opined that it was clear that the surveyors of that era did not consider any land below the high-water mark as being capable of being privately owned. In his view, the evidence for that statement is overwhelming. As he indicates towards the end of his report, “the fact that almost all of the subdivisions considered show lanes and streets extending out to the beach areas of the land lying below the high-water mark, suggests very strongly that they thought these areas were public lands. If these lands were privately owned, why then would a public street or lane be created to access them?”

[ 42 ] The first witness called on behalf of the defence was Jeffrey Shipman. Mr. Shipman is a qualified Ontario Land Surveyor having received his commission in 1990. He received his certificate of authorization in 1993. He has practiced as an Ontario Land Surveyor in Cadastral Surveys since 1991. From 1993 to the present time he has been the President and principal of H. A. Ken Shipman Surveying Ltd. here in the city of Ottawa. Throughout the course of his practice he has had occasion to perform numerous water boundary surveys in eastern Ontario, and specifically has performed numerous surveys along the Ottawa River.

[ 43 ] Mr. Shipman was initially retained on behalf of the Defendants to prepare Plan 4R-2005 which purports to depict in detail the area between the waterside boundary of the lots on Plan 418 and the normal water’s edge. His retainer was later expanded to provide his opinion with relation to certain of the matters commented upon by the experts retained by the Plaintiffs.

[ 44 ] It is the opinion of Mr. Shipman that the rectilinear boundary on the water side of the lots shown was never intended to be taken as an approximation of the riparian boundary as it was defined and understood by the surveyors at the time Plan 418 was created. Rather the rectilinear lines were drawn the way they were in order to reserve a space to the grantor between the rear of the lots and the water’s edge. That conclusion, of course, is what led him to draw his R-Plan the way it is drawn.

[ 45 ] The first thing the witness pointed to in support of his opinion is the fact that, if it were the intention of Mr. MacRostie to show the waterside lot line of the lots as extending to the water’s edge, that boundary would have been drawn using a sinuous line rather than a straight line. It was his view that by labelling the shoreline as a sinuous, dashed line, that was intended to demonstrate it was the riparian feature and indicative of an adjacent or underlying limit distinct from the straight lines which were intended to delineate the waterside boundary of the lots on the plan.

[ 46 ] Next he points to the fact that there is no information shown on the plan to indicate that the solid, rectilinear line is intended to be riparian. It is his view that it was not typical at the time Plan 418 was prepared to depict a riparian boundary in the fashion suggested by the Plaintiffs’ experts. In this regard he points to Plan 412 which was prepared by Mr. MacRostie some two years prior to Plan 418. On it he testified it appears the lot sidelines intersect the sinuous line representing the riparian boundary, and he further points to a note on the bottom of the plan which states that all lots fronting on the Ottawa River extend to the shoreline. No such note appears on Plan 418.

[ 47 ] Next he disputes the suggestion that the solid rectilinear line shown on Plan 418 was intended to depict the approximated high-water mark. He testified that today there are trees and other vegetation that are located between the rectilinear boundary as drawn by Mr. MacRostie and the edge of the river at its historic average elevation. He quotes with approval from the text Legal Aspects of Surveying Water Boundaries that was co-authored by Mr. de Rijcke and which indicates at page 104 as follows: “A line marked on old trees is well above any ‘line of vegetation’; such a line is in fact a flood line and hardly fits the general view expressed on the matter at the time.” Based on his visit to the site and certain photographs he took, he suggested they make it clear that there is terrestrial vegetation and old trees with water marks on them and that these by definition would be above the high-water mark. The vegetation and trees are, however, in some areas, a considerable distance away from the waterside lot lines as shown on Plan 418, albeit he conceded his observations were made 80 years after the fact.

[ 48 ] The witness also conceded that in certain of the photographs filed by the Plaintiffs, the water is shown at levels well above the trees and vegetation, but he pointed out that the high-water mark has never been defined as being when the water is at an extreme level, including high levels caused by the annual spring run-off. It is his theory that Mr. MacRostie was depicting the high-water mark at what he described on the plan as the shoreline because back in that era those two terms were used interchangeably.

[ 49 ] The witness testified that he reviewed a whole series of plans of subdivision in the area, some prior to Plan 418 and some drawn after. Both before and after, some showed sinuous-lined boundaries and some showed rectilinear. Some plans were labelled to designate a riparian feature and others were not. In a nutshell, there appeared to be no rhyme or reason to the way the lot line in question was drawn.

[ 50 ] Next to testify, after being qualified as an expert in surveying, was Lorraine Petzold. Ms. Petzold was originally a schoolteacher but after a number of years of assisting her husband in his surveying firm she qualified as an O.L.S. in May of 1969. She then became a partner in her husband’s firm and performed field and office survey work until 1974.

[ 51 ] She taught surveying between 1974 and 1976 and then became the Executive Director, Registrar and Standards Officer of the Association of Ontario Land Surveyors between 1976 and 1992. In those capacities she undertook the review of complaints from the public, reviewed standards of surveyors throughout the province, and prepared disciplinary proceedings. She testified that she has appeared as an expert witness at 34 disciplinary hearings. She has also lectured and written extensively in the field of surveying. In 1995, she gave up her certificate of authorization and worked mainly as a consultant on surveying issues from that point forward. Interestingly, she co-authored a paper with the Plaintiffs’ expert, Mr. de Rijcke.

[ 52 ] The thrust of Ms. Petzold’s evidence is that she disagrees on virtually every point of the Plaintiffs’ experts’ evidence.

[ 53 ] It was her evidence that registered Plan 418 is quite clear in what it depicts. It contains measurements and monuments which define each lot. It does not define any of the numbered lots as having a “water boundary”. Specifically there is nothing that suggests that the strip of land, which in some areas is substantial, existed at the time the plan was prepared just as it exists today. The northerly limit of the lots on Plan 418 are not shown as being contiguous with the water’s edge. Rather the plan clearly shows that the lots do not extend to the river. She specifically disagrees with Mr. de Rijcke’s opinion that the northerly boundary of the lots on the plan were Mr. MacRostie’s approximation of the high-water mark. While she concedes that at the relevant time a number of terms were used synonymously to show the boundary of the water’s edge, the term or designation ‘high-water mark’ is not shown on Plan 418 and in her opinion is thus not relevant to this case. Furthermore, she offered the opinion that a water boundary is never a series of straight lines as depicted on Plan 418 but rather is always shown as an undulating limit. Thus, with there being no note or indication on the plan that Mr. MacRostie intended the northern or rear limits of the lots to be the high-water mark, the absence of a sinuous line along that boundary is evidence to the contrary. In her opinion what is shown on the plan as the shoreline, which is a sinuous line, was what Mr. MacRostie thought to be a high-water mark, again keeping in mind that those words on occasion were used interchangeably during that era.

[ 54 ] In her opinion, Plan 418 then and now clearly shows a dry strip of land between the lots and the water’s edge and any and all purchasers of those lots would have had notice of that fact.

[ 55 ] Ms. Petzold also disagreed with some of the conclusions of the expert John Goltz.

[ 56 ] Firstly, she disagreed with his conclusion that all surveyors during the era Plan 418 was prepared were of the view that the boundary of waterfront property was the high-water mark. It was her opinion, based on a review of a number of surveys prepared in southern Ontario during the relevant timeframe, that there wasn’t unanimity in the survey profession on this issue at that time.

[ 57 ] In terms of Goltz’s indication that since almost all of the plans of subdivision he considered showed lanes and streets extending out to the beach area, that was suggestive that the surveyors thought these areas were public lands, Ms. Petzold stated firstly that that conclusion does not suggest that the lands are owned by the abutting subdivision landowners but might suggest they are public lands. She offered the further comment, however, that she could find no documentary evidence that the Crown had ever claimed these lands or maintained them.

[ 58 ] Ms. Pelzold made some brief comments about the notes prepared by Mr. MacRostie relating to Plan 418. She indicated that they were of limited assistance because they were prepared so long after the fact. Where they are helpful, from her point of view, is that they confirm the existence, at the time, of the piece of land between the waterside boundary of the lots and the shoreline. They also suggest, by some of the comments in the notes, that there were trees located between the water’s edge and the waterside boundary of the lots, and she was of the view that trees are never located below the high-water mark.

Position of the Parties

[ 59 ] The Plaintiffs argue that the evidence demonstrates that at the time Plan 418 was registered on title, Ontario Land Surveyors of the day assumed that the bed of a navigable river extended to the high-water mark and the land between the water’s edge and that high-water mark was public land. They also submit that the evidence demonstrates, on a balance of probabilities, that the surveyor’s monumented straight line segments on the water side dimension of the lots on Plan 418 were his approximation of the high-water mark. Finally, they argue that since the clarification of the law, commencing with the Supreme Court of Canada decision in Ontario (Attorney General) v. Walker , 1974 3 (SCC) , [1975] 1 S.C.R. 78, it is generally understood that without an explicit reservation or exception, a waterfront property extends to the water’s edge notwithstanding the plan of subdivision is an approximation of the high-water mark. In a nutshell they submit the evidence supports the conclusion the original subdividers intended to sell the extent of the waterfront they believed they owned and could convey.

[ 60 ] The Defendants argue that the Plaintiffs’ case hinges entirely on the premise that the rectilinear waterside lot boundary of Plan 418 was drafted to represent the high-water mark, and as such the Armitage brothers intended to subdivide all they owned. The Defendants submit, however, that the evidence establishes that that premise is incorrect for several reasons. First, Plan 418 is unambiguous and does not support a finding or interpretation that the boundary lines in issue were intended to be an approximation of the high-water mark. Next they submit that the physical characteristics of the waterfront land and the actual location of the rear lot boundary do not support an interpretation that it was an approximation of the high-water mark, nor is it consistent with the understanding amongst surveyors at the time. Finally, they argue that there is insufficient evidence to establish that the original subdividers intended to subdivide all of the land they owned.

The Issue

[ 61 ] Clearly the factual issue is whether Plan 418 was intended by the proprietors and their surveyor to reserve or exclude the strip of property between the water’s edge and the waterside boundary of the lots, or whether the lots were intended to be riparian and thus extend to the water’s edge in accordance with the present law. The Defendants do not dispute that where the original Crown Patent gave title to the water’s edge and the evidence establishes the intention of the original subdivider was to subdivide all the land he or she owned, then all of the land was subdivided notwithstanding a mistaken belief that the Crown owned up to the high-water mark.

Analysis

[ 62 ] The parties here agree that the lands granted by the Patent extended to the water’s edge. There is also agreement that in Ontario there was for many years a longstanding dispute whether the Crown’s title in the riverbed extended to the water’s edge or to the high-water mark. The determination of that issue was made in Ontario (Attorney General) v. Walker , 1970 953 (ON SC) , [1971] 1 O.R. 151 (H.C.J.). Both the Court of Appeal and Supreme Court of Canada approved the following comment of the trial judge at page 181 of his decision:

It appears to me, therefore, that I am driven to this conclusion, that any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water, then it establishes that boundary as at the water’s edge and not upon any bank or high water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water’s edge.

[ 63 ] The Court’s fundamental objective in interpreting a plan of subdivision is to determine the intention of the original subdividers. In terms of interpreting deeds and Crown grants, extrinsic or parol evidence may only be used where there is a latent ambiguity on the deed, Crown grant, or plan of subdivision itself. Where the ambiguity is patent or there is no ambiguity, the use of extrinsic or parol evidence to aid interpretation is inappropriate. Finlayson J.A. of the Ontario Court of Appeal put it as follows in Gibbs v. Grand Bend (Village) (1995), 1996 2835 (ON CA) , 26 O.R. (3d) 644 (C.A.), at p. 658:

A description in a deed may contain either a patent or a latent ambiguity. A patent ambiguity is one that is apparent on the face of the deed. A latent ambiguity is one that arises only when the deed is applied to the land it purports to describe. Thus while a patent ambiguity is found in the deed itself, a latent ambiguity is revealed through extrinsic evidence. Parol evidence is inadmissible to explain a patent ambiguity. Extrinsic evidence may be introduced only in the case of a latent ambiguity for the purpose of ascertaining the intention of the grantor [...]

[ 64 ] I am satisfied on the facts of this matter that there is a latent ambiguity. The ambiguity arises from the need to determine whether the transverse line which forms the waterside boundary of the lots on Plan 418 was intended by the original subdividers to be the natural boundary between their subdivision and the bed of the river, or not. Putting it another way, was it their intent to create a row of lots that extended to the Ottawa River, or was it their intention to create lots that fronted on a beach to which title was retained.

[ 65 ] What then does the evidence indicate was the intention of the original subdividers, the Armitage brothers, and their surveyor in 1931? The evidence establishes a number of things.

[ 66 ] A review of some of the plans prepared in the same area around this same point in time combined with the historical insight provided by some of the expert witnesses is helpful. That evidence satisfies me that in the 1920s and 30s the understanding of Ontario land surveyors practicing in this part of the province was that the high-water mark was the upland extent of the bed of a navigable body of water. That notion, in my view, is reflected in a number of the plans of subdivision prepared by this same surveyor in the years immediately prior to Plan 418. Plans 410 and 411 are illustrative. Plan 410 is dated December 10, 1926 and Plan 411 is dated December 15, 1927. Both plans show the water’s edge depicted by a dashed line, then on the waterside the lots show an unlabelled sinuous line and then more or less parallel to that, a straight line labelled “building line”. The sinuous line is in my view the approximation of the high-water mark. Support for that view is found in R-plan 5R11774 prepared with relation to one of the lots on Plan 410 in 1988. That R-plan shows the water’s edge, a beach area, then the waterside lot boundary with the reference “normal ordinary high-water mark per registered Plan 410”. Interestingly, that boundary on the R-plan is drawn as a straight line. Further into the lot and parallel to the lot line is a second straight line with the descriptor “shore transverse line per registered Plan 410”. Clearly this surveyor some 50 years after Plan 410 was registered interpreted these lines shown on the waterside of Plan 410 the same way I do.

[ 67 ] We then have Plan 418 dated July 15, 1931. It shows a dashed shoreline and then the rectilinear waterside lot boundary line. If it was intended to be the high-water mark, why does it not have two lines as do Plans 410 and 411? In this regard I accept the evidence of the witness Mr. Goltz that the likely explanation for this change is that Plan 418 was prepared subsequent to the meeting of the Land Surveying Committee in 1928, of which Mr. MacRostie was a sitting member, and where it was agreed that the boundary of lots bordering on water “should be more definite as required by subsection (3) of section 81 of the Registry Act .” A single rectilinear boundary would certainly be a more definite boundary.

[ 68 ] Having been satisfied, then, that it was a common practice in this area to use the high-water mark as the upland boundary, is that what the Armitage brothers and their surveyor intended, and did they intend to convey all the land they believed they owned?

[ 69 ] On the evidence as a whole, the only logical conclusion is that they did intend the rectilinear water boundary to represent an approximation of the high-water mark and believed that the land between there and the shoreline was public land.

[ 70 ] In terms of some of the evidence that leads to that conclusion, I start with the plan itself. A more legible copy of that plan was filed at the trial through the witness Mr. Shipman, and is signed by both brothers certifying that Mr. MacRostie prepared the plan on their behalf. Further, John Armitage also signed the plan as Reeve of the Township of Torbolton. In my view, it can reasonably be inferred from that, that both brothers were aware of the existence of this strip of land. I accept the evidence of Mr. de Rijcke that if it were the intent of the brothers to reserve ownership of that visible strip, the area in question would have been shown with a block or lot number on the plan to indicate it as an identifiable, separate parcel.

[ 71 ] Next, again on the plan, there is the presence of the roads and lane leading to the strip of land. That is consistent with an understanding that there was public ownership of the beach and a public right to get there to enjoy it.

[ 72 ] Additionally, the township records from 1935 show that Plan 418 was entered on the tax rolls as a waterfront plan. The lots on the plan that had been sold were assessed a value of $150, confirming the 1938 minutes of the Court of Revision where it was indicated that all waterfront lots in Torbolton were assessed at $150 per lot.

[ 73 ] Then there is the evidence of Dr. Roland Armitage and George Kennedy. They are the children of fathers who commissioned plans of subdivision, and in the case of Dr. Armitage his father was one of the two brothers who retained Mr. MacRostie to prepare Plan 418. Both men were alive at the time of these long ago events, and both testified that it had always been their understanding that the strip of land between the waterside boundary of the lots and the water’s edge as shown on the two plans they spoke of, were public lands.

[ 74 ] Also entered in evidence was an old ad from the Ottawa Citizen dated July 8, 1932. In it George Armitage and George Kennedy Sr. advertise lots for sale, Horseshoe Bay, Township of Torbolton, featuring a “good beach” and shade.

[ 75 ] There was no evidence at this trial of any occupation or possession of the strip by the brothers, nor was there evidence they ever purported to deal with the title to the strip of land during their lifetime. There is no evidence of them paying taxes on the strip of land. All of that is consistent with a view that they did not believe they owned the beach. Furthermore, what commercial value would there be to this strip? The Plaintiffs’ photos make it clear that at times of the year this strip of land is completely under water.

[ 76 ] I am satisfied on a totality of the evidence that the intention of the original subdividers was to subdivide all of the land they owned based on the mistaken belief that the strip in dispute was public land. As such, the Plaintiffs are entitled to a declaration that the boundaries of the lots in issue extend to the water’s edge.

Costs

[ 77 ] With relation to costs, if counsel are unable to agree they may make brief (three pates) written submissions.

The Hon. Mr. Justice James McNamara

Released: July 23, 2012

Appendix “A”

COURT FILE NO.: 10-48766

DATE: 2012/07/23

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Garry Lackner, Linda Lackner, Eric Thomson, Susan Desjardins and Patricia Tite Applicants/Plaintiffs – and – Shane Hall, 2219160 Ontario Limited, Stanley Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, Wayne Morris, and Vikki Storie Respondents/Defendants REASONS FOR JUDGMENT McNamara J.

Released: July 23, 2012