Court File and Parties

Citation: Bailey v. Barbour, 2013 ONSC 7397 Court File No.: CV-10-0249 and 10-1309 Date: 2013-11-29 Superior Court of Justice - Ontario

Re: Angelina Bailey, Possessory Claimant And: Gerald Harry Barbour, Objector

Before: The Hon. Madam Justice S.E. Healey

Counsel: I. de Rijcke and S. Fairley, Counsel for the Possessory Claimant J.E. Streisfield, Counsel, for the Objector

Heard: March 4-8, May 13-14, 17, 24, 27, June 26-27, July 10, 2013

Reasons for Judgment

Healey J.

Nature of the Proceeding

[1] This is an appeal by Mr. Gerald Barbour pursuant to s. 26 of the Land Titles Act, R.S.O. 1990, c. L.5, from the Decision and Order of the Deputy Director of Titles Rosenstein dated February 9, 2010. In that proceeding, the Deputy Director of Titles granted possessory title to Mrs. Angelina Bailey of certain lands located on the shore of Nottawasaga Bay in the Township of Tiny, lands to which Mr. Barbour holds paper title pursuant to an earlier order made under the Boundaries Act, R.S.O. 1990, c. B.10.

[2] This is the second such appeal hearing, the first having been determined in 2011 (the “first trial”) and successfully appealed in 2012. The Court of Appeal set aside the order of the trial judge and ordered a new trial (2012 ONCA 325).

[3] As directed by the order from the Court of Appeal, this is also the rehearing of an Application commenced by Mrs. Bailey as Barrie Court File No. 10-1309.[^1] In that Application Mrs. Bailey seeks, as an alternative to possessory title, an interest over the lands in question, or any part thereof, in the nature of a prescriptive easement or right of way arising from and as a result of implication, necessity, doctrine of lost modern grant, or proprietary estoppel.[^2]

[4] Both the appeal and the Application were heard over a protracted period, with several mid-trial rulings being required on issues of evidence and procedure.

[5] From the commencement of the Boundaries Act application, this trial has been eleven years in the making.

Description of the Disputed Land

[6] Tiny Island is located a short distance off the shores of the Tiny Beaches area of Georgian Bay in northern Simcoe County. Depending upon the fluctuating levels of Nottawasaga Bay, which is a part of Georgian Bay in Lake Huron, Tiny Island has historically been partially, or totally, surrounded by the waters of Georgian Bay.

[7] Mrs. Bailey is the registered owner of Tiny Island, which is shown as Part 1 on the draft Reference Plan of John W. Hiley, O.L.S., dated July 17, 2006 (the “Hiley Plan”)[^3].

[8] Mr. Barbour is the registered owner of the mainland property opposite Tiny Island (the “Barbour property”). His land is designated as Lot 10, shown on an unregistered plan of subdivision prepared by W.E. McMullen, O.L.S. on January 15, 1914 of Lot 21, Concession 13, Township of Tiny (the “McMullen Plan”)[^4]. Mr. Barbour’s lot is the southernmost lot on the McMullen Plan. The McMullen Plan divides Lot 21 into 10 lots bordering beachfront known locally as Addison Beach.

[9] The Application under the Land Titles Act is for a determination of Mrs. Bailey’s rights relating to ownership to or access over the part of the Barbour property designated more or less as the Part 2 lands shown on the Hiley Plan. This consists generally of a portion of the beachfront in front of Mr. Barbour’s mainland property, and to the east of Mrs. Bailey’s Tiny Island, including part of an isthmus that joins Tiny Island to the mainland when it is above water. The parties agree that the term “more or less” is apt because of the ever-changing ambulatory nature of the two water’s edge limits of Part 2. Indeed, in times of high water when the isthmus between the island and the mainland is under water, such as occurred in the mid to late 1980s and late 1990s, those two limits collapsed and merged into a single limit bordering on a channel of varying widths, forming part of Nottawasaga Bay that separated Tiny Island from the mainland. When above water, this area of land connecting Tiny Island to the mainland is referred to throughout these Reasons as “the isthmus”.

[10] Immediately to the north of Mr. Barbour’s property is Lot 9 on the McMullen Plan, which was formerly owned by Nancy Rice, now deceased (the “Rice property”). A strip of land running east-west at the north end of Lot 9 is shown as Part 6 on the Hiley Plan, referred to locally and by the parties as the “Cut”. The Cut leads to the Woods Road, from which the concession road is accessed. Part 6 is subject to rights of way providing access to Nottawasaga Bay, including a right of way in favour of Mrs. Bailey.

[11] Mrs. Bailey also has a registered legal right of way from Part 6 and leading to, but not crossing, Part 2 on the dry mainland, designated as Part 5 on the Hiley Plan. Mrs. Bailey also owns Part 8, which is a parking spot behind the Rice property. She has a right of way over Part 7 to pass from the parking spot through a gate, and is the deeded owner of Part 4, and also has a deeded right of way over Part 3.

[12] For the purpose of a visual overview, the Hiley Plan is attached to this ruling as Schedule A.

[13] In this trial witnesses have referred to the area to the south of the isthmus as the “south beach”, to distinguish it from the beach on the north side of the isthmus, which is noted to be the more desirable area for swimming due to soft sand on both beach and lake bottom. The south beach has been described as more rocky, with dark, gritty sand.

[14] Situated to the south of the Barbour property is another subdivision. This subdivision is known as Pennorth, and some of its landowners are members of the Pennorth Beach Association. Mr. Barbour belongs to the Pennorth Beach Association, as opposed to the Addision Beach Association formed by his neighbours to the north. His nearest neighbour to the south is Charlene Lowes.

[15] Both Tiny Island and the Barbour property were converted to the Land Titles system on September 10, 2001.

[16] Also, throughout this ruling reference is made to Exhibit 6, which is an enlarged version of the Hiley Plan, superimposed on a Google map of the relevant land.[^5] Another survey completed by E.L. Cavana, O.L.S.[^6], which is referred to extensively throughout these Reasons, is also superimposed on Exhibit 6. The Cavana survey in its proportions resembles the shape of a whale, with roughly the front half of the whale encompassing Tiny Island. In this proceeding, what has been referred to as the “tail of the whale” includes a portion of Part 2. The parties are in agreement that almost all of the fluke of the “tail of the whale” encroaches on the Part 2 area. The Cavana survey is also outlined on Schedule A.

Decisions of the Tribunals Below

The Boundaries Act Hearing, 2002-2003

[17] The formalities of the parties’ dispute began with an application by Mr. Barbour under the Boundaries Act for the purpose of determining the true locations of the northerly, westerly and southerly boundaries of PIN 58409-0016 (LT) in the Land Registry Office for Land Titles Division of Simcoe (No. 51), being part of Lot 21, Concession 13 in the Township of Tiny, County of Simcoe, of which he is the registered owner. In that proceeding, Mrs. Bailey objected to the westerly boundary under application, which is the boundary that abuts Tiny Island, being PIN 58409-0288 (LT).

[18] Deputy Director of Titles Jack Keat released his decision and order in August 2003 (the “Boundaries Act Decision”), denying Mrs. Bailey’s objection and confirming that the true location on the ground of the westerly boundary of Mr. Barbour’s land would be as set out in the draft Boundaries Act plan dated May 3, 2002 and signed by R.J. Stewart, O.L.S. This plan of survey was registered on October 15, 2004 as Plan BA-2608[^7]. This Boundaries Act Plan (the “BA Plan”) contains a note which says, “The ambulatory water’s edge of Lake Huron constitutes the natural boundary subject hereon”.

[19] The Boundaries Act Decision confirmed that Mr. Barbour holds paper title to Part 2, with the west and south boundaries being ambulatory and changing with the water’s edge of Nottawasaga Bay.

[20] The Boundaries Act Decision also confirmed a boundary that crosses the isthmus as illustrated on the BA Plan and Schedule A. It is agreed that Mrs. Bailey has fee simple title to any dry lands on the Tiny Island side of that boundary, and Mr. Barbour has fee simple title to any dry lands on the mainland side of that boundary, including the Part 2 lands.

[21] It is the position of Mr. Barbour that the Boundaries Act Decision and the BA Plan are final and binding with respect to all matters pertaining to boundaries, ambulatory or otherwise, water’s edge, and accretion.

Land Titles Act Proceeding, 2004-2010

[22] In 2004 Mrs. Bailey initiated her proceeding under the Land Titles Act, in which she claimed possessory title to Part 2, or, in the alternative, a prescriptive easement over Part 2. Deputy Director of Titles Rosenstein conducted an eight-day hearing, and found on the evidence and the law that Mrs. Bailey had successfully established possessory title to Part 2 (the “Land Titles Decision”).

Trial de Novo

[23] Section 26 of the Land Titles Act provides for an appeal of a decision or order of the Director of Titles to the court, and that the appeal shall be by way of new trial. "Court" is defined in the Land Titles Act as the Superior Court of Justice. As explained more thoroughly in this court’s endorsement released June 27, 2013 (2013 ONSC 4451), the Rules of Civil Procedure apply to this appeal and to the Application, and the evidence taken during the trial is applicable to each.

[24] As a new trial, it is not for this court to consider the applicable standard of review regarding findings of fact or determinations of law as set out in the Land Titles Decision. Although Mr. Barbour’s Notice of Appeal sets out multiple alleged errors of fact and/or law on the part of Deputy Director Rosenstein, and Mr. Streisfield has submitted during the course of the trial that this court “stands in the shoes of the Deputy Director”, the plain meaning of s. 26 of the Land Titles Act is that this court’s jurisdiction is to approach Mrs. Bailey’s claim, and Mr. Barbour’s objection, by way of a completely fresh hearing.

[25] Except as set out in my procedural order made on January 17, 2013, which made specific provision for the acceptance of prior evidence of expert and deceased witnesses, the trial has proceeded as a “trial de novo”, or new trial.

[26] Two of the issues raised by the parties are as follows, which I choose to deal with from the outset of these Reasons:

1. Are findings of fact and the application of law made by Deputy Director of Titles Keat arising from the Boundaries Act hearing binding on this court, and if so, are there any such determinations that would affect the findings to be made in this case?

2. Are findings of fact and the application of law made by Deputy Director of Titles Rosenstein arising from the Land Titles Act hearing binding on this court, and if so, are there any such determinations that would affect the findings to be made in this case?

Findings of Fact and Law in the Hearings Below

[27] Section 3(1) of the Boundaries Act provides:

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.

[28] The powers of the Director to make orders in such a proceeding are prescribed by s. 9(1) of the Boundaries Act, which provides:

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.

[29] In accordance with the governing legislation, the Boundaries Act Decision clarified the location of Part 2 and its position within PIN 58409-0016 (LT), with the ultimate result being the BA Plan. That decision accomplished the purpose of a hearing under the Boundaries Act. It confirmed the true location on the ground of the boundaries of Part 2 which, as a result of the parties’ dispute, were in doubt.

[30] Mr. Streisfield submits that certain findings made by Deputy Director Keat are binding on this court, including a statement in the Reasons that “(t)he evidence that was presented concerning user was not consistent with ownership of the land shown on the Cavana survey but only with ingress and egress to the island itself…”.

[31] I disagree with this submission. There is nothing in the Boundaries Act that permits the Director to determine the location of boundaries between parcels of land that may have been established as a result of adverse possession or prescription. The purpose in hearing evidence regarding use during that proceeding was to shed light on the location of the boundary of Tiny Island relative to the boundary of the Barbour property. Given that it was not within the jurisdiction of the Director under the Boundaries Act to consider or determine possessory or prescriptive claims, any findings of fact made concerning the evidence given in that proceeding cannot give rise to an issue estoppel, as argued by Mr. Streisfield. The jurisdiction of the Director in a Boundaries Act hearing was confirmed in Nicholson v. Halliday (2005), 74 O.R. (3d) 81, 2005 259 (Ont. C.A.), at para. 70, where Lang J.A. noted that the “Director was alive to his obligation to set a boundary, not to determine a case of adverse possession”. At para. 71 of Nicholson the significance of evidence of possession in a Boundaries Act hearing was discussed:

Possessory evidence is relevant to set the boundary. Only once the boundary is set can any issue arise about adverse possession. Moreover, possessory evidence is a specific component of the surveyor's third indicator of boundary in the hierarchy of evidence. As Stortini D.C.J. said in Thelland at 2:

If no original monumentation is in existence, the next acceptable evidence is evidence regarding the original positions of the monumentation or evidence regarding the original running of the line, including possessory evidence. The first establishment of the line need not have been done by a surveyor. Evidence of possession which relates back to the first survey or first establishment of the line would be the best evidence of where the line was originally located.

[32] As a result of the Boundaries Act Decision, the northerly boundary between Lot 20 and 21 extends to the water’s edge of Nottawasaga Bay, and the westerly boundary of Part 2 is likewise the water’s edge. The Decision also determined that the boundary between Part 1 and Part 2 is as created in 1913 by a conveyance involving predecessors in title, when Tiny Island was an island in fact and the natural boundary of both it and the mainland was the water’s edge. The Boundaries Act Decision determined that, with the water levels lowering or receding and the isthmus emerging, the fairest way of apportioning the additional accreted lands was to determine the lowest or first point of contact between the two portions of land and to locate a line perpendicular to the shoreline that passes through the above point of contact on the isthmus.

[33] In this proceeding, Mrs. Bailey does not challenge the location of the boundary between Part 2 and Tiny Island as determined by the Boundaries Act Decision. Nor does she contest the fact that Parts 1 and 2 are riparian parcels, the boundaries of which alter over time. She also does not contest the fact that since the Boundaries Act Decision and registration of the BA Plan, there is more land above water than was the case as of May 3, 2002; Parts 1 and 2 have effectively “grown”.

[34] Mr. Streisfield also argues that Deputy Director Keat found that the changes in water level have been slow and imperceptible, thus making the law of accretion applicable. I have read the Boundaries Act Decision carefully and cannot agree that such a finding was made. Deputy Director Keat wrote, at page 24 of his Decision “I agree with the submissions of Mr. Streisfield and the methods of OLS Stewart on the establishment of the low point of the isthmus and the apportionment of the accreted lands” (emphasis added). However, at the top of page 24 of his decision, he notes that Mr. de Rijcke had not argued the contrary point, being that the law of accretion was not applicable. At no point does Deputy Director Keat review evidence that could lead him to make a finding that the changes in water level have been slow and imperceptible, and in fact refers to the natural state of the peninsula having been altered by the placement of fill. Although he refers to the “accreted lands” at several points in his Reasons, it appears to have been an unsubstantiated conclusion that he simply adopted. I reach this determination even being aware that Deputy Director Rosenstein’s Reasons also refer to the “finding” of Deputy Director Keat that fluctuations in the water level in the Bay were slow and imperceptible, thus making the law of accretion applicable.

[35] Accordingly, I reach the conclusion that there are no aspects of the Boundaries Act Decision that are binding upon this court, other than the determination of the boundaries of the land in question, and that Mr. Barbour currently holds registered title to Part 2 on the Hiley Plan. Thus, this is not a case that attracts the principle of issue estoppel as urged upon this court by Mr. Streisfield.

[36] With respect to the Land Titles Decision, there are no aspects of Deputy Director Rosenstein’s evidentiary rulings, her findings of fact, or her interpretation and application of law that are binding on this court. Whether or not this court ultimately agrees or disagrees with the Land Titles Decision, it does a disservice to the parties to adopt any aspect of it without independent analysis of the evidence presented in this trial, and would negate the statutory requirement that a new trial be held.

The Evidentiary Record for this Trial

[37] One pre-trial order and another mid-trial order were made concerning the evidence to be taken during this trial. Because of the extensive history of this matter, for the sake of clarity I will outline what was, and what was not, allowed to be entered into evidence for my consideration in this proceeding.

[38] By consent order dated January 17, 2013:

(i) All documents that were admitted into evidence in the Boundaries Act hearing, the Land Titles Act hearing, and at the previous trial in the Superior Court of Justice were admissible, with the parties being entitled to make submissions as to weight;

(ii) The evidence of three expert witnesses from prior hearings would be tendered by way of admission of transcripts from those hearings and the filing of the expert reports, with the parties being entitled to make submissions as to weight. These experts were: Chester Stanton, O.L.S.; John Hiley, O.L.S., and Ronald Stewart, O.L.S. The parties were allowed to have these experts provide additional viva voce evidence in relation to matters not covered in a prior proceeding, subject to limitations set out in the order;

(iii) The evidence of Neil Lackie would be tendered by filing transcripts from prior hearings, as he was deceased by the time of this trial;

(iv) Chris Van Aller and Heidi Lauridsen, whose affidavits are included in the documents referenced in paragraph 1(a), would be made available for viva voce evidence and cross examination at trial.

[39] Neil Lackie testified in the Land Titles Act proceeding. The affidavits of Chris Van Aller and Heidi Lauridsen were statutory declarations that were provided for the Land Titles Act proceeding because those two witnesses reside in the United States and were not available at that time to travel to Canada, and for the reasons explained by Deputy Director Rosenstein, their declarations were permitted to be taken as evidence in that proceeding and marked as exhibits. During their oral testimony given by Skype at this trial, they affirmed the contents of those affidavits.

[40] In a subsequent ruling made by this court on May 14, 2013 (Bailey v. Barbour, 2013 ONSC 2828), for the reasons explained therein, this court excluded from its prior order the transcripts of evidence taken at the hearing under the Land Titles Act. Unbeknownst to this court at the time it made its January 17, 2013 order, those transcripts had been marked as exhibits during the previous trial in the Superior Court. The ruling of May 14, 2013 also provided that the evidence of all lay witnesses, including the parties themselves, was to be given by oral testimony during this trial. As set out in the reasons, this formal order followed a directive given by me on January 17, 2013, but not made part of the formal order at that time, that I wanted to hear all of the evidence of lay witnesses by oral testimony.

[41] The May 14, 2013 ruling also provided that:

(i) Transcripts of a witness’ evidence from a prior proceeding could only be used to impeach credibility;

(ii) Other than transcripts, the January 17 order continued such that all exhibits marked at a former hearing would be made exhibits at this trial without formal proof;

(iii) Former testimony given in a prior proceeding by a now deceased witness could be tendered by filing transcripts;

(iv) Affidavits or statutory declarations from witnesses now deceased would be given the weight deemed appropriate by this court, giving due consideration to all the facts, including whether there had ever been opportunity to cross-examine the deponent.

[42] With respect to (iii) above, the only person to whom this applies is Nancy Anne Rice, who has passed away since the Land Titles Act hearing, and Neil Lackie, as previously stated.

[43] With respect to (iv) above, this applies to statutory declarations given by Rebecca Van Aller, Nancy Rice and John Harvey.

[44] As a result of the above rulings, there are several documents that were not considered by this court that are contained in the Book of Documents filed on consent in this trial.[^8] These include: all transcripts of evidence of Gerald Barbour and Charlene Lowes, and affidavits of W. Miller, Judith Skelton Grant, Gerald Barbour, and Angelina Bailey.

Issues to be Determined

[45] The parties agree that the following issues are to be determined by this court:

1. What weight, if any, should be given to the evidence provided by Mr. Ron Stewart, O.L.S., or should his evidence be deemed inadmissible?

2. Has Mrs. Bailey met and satisfied the test of adverse possession in respect of claiming ownership to all or part of Part 2, the title to which is riparian and the natural boundary of which ambulates?

3. In the alternative, do the uses of Mrs. Bailey and her predecessors in title give rise to a prescriptive claim to an easement over all or part of the disputed lands, the title to which is riparian and the natural boundary of which ambulates?

4. In the further alternative, does an easement exist over all or part of Part 2 in favour of Mrs. Bailey by reason of necessity, implication, the doctrine of lost modern grant, and/or proprietary estoppel, again, given the nature of the lands?

5. What effect, if any, has the amendment to the Bed of Navigable Waters Act, R.S.O. 1937, c.44 from 1940 to 1951 had on Mr. Barbour’s ownership and Mrs. Bailey’s claim?

6. Can a possessory or prescriptive claim succeed in relation to lands that are covered by water from time to time by virtue of the riparian nature of the property?

7. Are any or all of Mrs. Bailey’s claims statute barred or otherwise barred by reason of the equitable doctrine of estoppel and/or laches?

Burden of Proof

[46] With respect to all claims advanced by Mrs. Bailey in CV-10-0249 and 10-1309, she bears the onus of proof on a civil standard. As confirmed by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, at para. 49, in all civil cases the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. At para. 46, that Court stated:

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency…

[47] During this trial and my subsequent deliberations I have fully and carefully reviewed and considered all of the available evidence, both oral and documentary, in order to reach my decisions.

Title History of Barbour Property, Tiny Island, and Rice Property

1. 1911 – Lot 21 was owned by George Carriveau – described as 20 acres more or less

2. 1912 – Carriveau transferred the south 200 feet of Lot 21 to Emery Brunelle

3. 1913 – Carriveau transferred to Peter Addison Lot 21, described as 20 acres more or less, except the part sold to Brunelle

4. 1913 – Emery Brunelle transferred to Peter and William Addison the south 200 feet of Lot 21 except the parcel detached from the mainland known as Tiny Island

5. 1914 – The McMullen Plan was prepared dividing Lot 21 into 10 lots, the total acreage of which is 20 acres more or less

6. 1915 – Original grant of Tiny Island to Emery and Alexander Brunelle, being registered instrument No. 189, which describes the land as:

"all that Parcel or Tract of Land, situate, lying and being in the Georgian Bay, in the Township of Tiny, in the County of Simcoe, in the Province of Ontario, in our Dominion of Canada, containing about Two acres be the same more or less, composed of Tiny Island Situate to the South of a peninsular in the Southerly part of Lot Twenty-one (21), Concession Thirteen (13) of the aforesaid Township of Tiny".

7. 1935 to 1943 – William Kynoch rented Tiny Island from the Brunelle brothers for summer cottage use, excluding the area on the lower side occupied by the Brunelle brothers for a commercial fishing operation

8. 1940 – Bed of Navigable Waters Act[^9] (Ontario) was amended , such that boundaries of lots fronting on navigable waters were deemed to have always been the high water mark

9. 1942 – Survey of Tiny Island prepared by E.L. Cavana, O.L.S. showing separate high water marks for Tiny Island and for the mainland parcel; showed Tiny Island parcel as including the isthmus attaching it to the mainland and part of the mainland beach (including where Part 2 is located); showing mutual right of way crossing the beach and connecting to the Cut

10. 1943 – Emery and Alexander Brunelle transferred Tiny Island to William Kynoch except the part occupied by the Brunelle brothers for their fishing operation on the south-east side of the island, which was described with a metes and bounds description written from the Cavana Plan

11. 1949 – Addison conveyed Lot 10 on the McMullen Plan to Mr. Barbour; the land conveyed was described with a metes and bounds description that included the water’s edge as the west boundary and as containing 1.15 acres more or less; it also referred to the land being “distinguished as Parcel 10”, which could only be a reference to the Subdivision Plan. In 1949 Mr. Barbour could not own the beach beyond the high water mark; as a result of the Bed of Navigable Waters Act it was then owned by the Province

12. 1951 – 1940 amendment to Beds of Navigable Waters Act repealed

13. 1956 – Alexander Brunelle transfers his interest in Tiny Island to Alderic Brunelle

14. 1958 – Alderic Brunelle transferred his interest in Tiny Island to William Kynoch by description that was written from the Cavana Plan

15. 1958 – Addison transferred Lot 9 on McMullen Plan to Kynoch

16. 1961 – Interest of Alderic Brunelle in Tiny Island transferred to Kynoch by reference to the Cavana Plan. Upon completion of this transfer, William Kynoch owned all of Tiny Island

17. 1966 – William Kynoch died

18. 1969 – Kynoch estate transferred Lot 9 to Nancy Rice, daughter of William Kynoch

19. 1971 – Kynoch estate transferred Tiny Island to Rebecca Van Aller, daughter of William Kynoch; referred to in the deed as “all of the island...known as ‘Tiny Island’”

20. 1976 – Mr. Barbour built his home and became a permanent resident

21. 1988 – Rebecca Van Aller transferred all of Tiny Island to Angelina Bailey, together with a right of way over the Cut and over a road leading from the Cut to the concession road; Ms. Van Aller provided a statutory declaration that the land shown on the 1942 Cavana survey, when above water, was used and possessed by her family as part of the island property since 1943

22. 1990 – Nancy Rice transferred to Angelina Bailey an easement permitting parking of vehicles on part of her land

[48] As set out in the above title history, it is agreed that Tiny Island as a separate entity from the rest of Lot 21, Concession 13, was created by way of an exception to the conveyance from Emery Brunelle to the Addison brothers in 1913[^10]. That conveyance referred simply to “the parcel thereof detached from the Main Land, known locally as ‘Tiny Island’”, although there is a separate Federal Crown grant to Emery and Alexander Brunelle in 1916 of “Tiny Island”.[^11] This Federal Crown conveyance was redundant and unnecessary. However, the description in this grant became the foundation for all of the conveyances to William Kynoch flowing from the survey of E.L. Cavana, O.L.S., dated November 19, 1942 (the “Cavana Plan”).[^12] As set out above, the Crown grant described the parcel as being about 2 acres, situated to the south of a peninsula in the southerly part of lot 21.

[49] The history shows that Dr. William Kynoch purportedly received title to three pieces of property associated with Tiny Island between 1943 and 1961. In 1943 he acquired the bulk of Tiny Island from the two brothers, Emery and Alexander Brunelle. They were local commercial fisherman from whom Dr. Kynoch had been seasonally renting the island since 1935. The 1943 deed includes, as an attachment, a copy of the 1942 Cavana Plan. In addition to the bulk of Tiny Island, the Brunelle brothers purported to transfer additional land as depicted in the Cavana Plan. The Cavana Plan and deed purport to create a mutual right-of-way across this land, a feature referred to by the parties as the “tail of the whale”, and leading back across the mainland beach to the Cut, which provides eventual egress to the concession road. While the parties have agreed to the facts in this and the preceding paragraph, this final fact is confirmed by the 1943 deed from the Brunelles to Dr. Kynoch, which includes a clear easement or right-of-way specifically described as

"together with the right-of-way over the above excerpted portion of Tiny Island as colored in yellow on the survey hereunto attached".

[50] Furthermore, the description continues with the language,

"and subject to a right-of-way over that portion of Tiny Island herein conveyed as colored in yellow on the survey hereunto attached: the said two rights-of-way to form a mutual right-of-way for the use of the owners and occupants from time to time, of the hereinbefore described proportions [sic], their servants and agents, at such times when ingress and egress to the respective properties is rendered impossible by reason of high water".

[51] This right-of-way colored in yellow is labelled on the Cavana Plan as "Mutual R.O.W. Road”, and corresponds to a pathway labelled as a “track” on the BA Plan. This appears to have been an express grant of a right-of-way as contemplated in 1943, which included the “tail of the whale” lands that extend over what is now Part 2. As on the Cavana Plan, the roadway on Exhibit 6 is marked in yellow and is referred to hereafter as “the yellow roadway”.

[52] This 1943 deed was registered on title as Instrument 231 in 1943. Instrument 231 and the right-of-way referred to above is specifically referenced in the subsequent conveyance in 1956 by Alexander Brunelle to Alderic Brunelle to an undivided one half interest in portions of Tiny Island, excepting that part conveyed to Dr. Kynoch by Instrument No. 231. This conveyance left Dr. Kynoch, together with Alderic Brunelle, as the owners of complementary halves of Tiny Island.

[53] Two years later, Alderic Brunelle conveyed by deed dated September 16, 1958 his half of Tiny Island to Dr. Kynoch by deed registered as Instrument 89619. The final portion of Tiny Island was ultimately conveyed to Dr. Kynoch by Instrument 137551, being a deed dated July 27, 1961. Therefore, by 1961, Dr. Kynoch had purportedly been conveyed the balance of Tiny Island and all of the “tail of the whale”. The metes and bounds description contained in the deed registered as Instrument 137551 is noteworthy in two respects:

i) the deed makes specific reference to the Cavana survey plan attached to Instrument No. 231, being the original conveyance of a portion of Tiny Island to Dr. Kynoch;

ii) the metes and bounds description no longer makes any specific reference to the "mutual right-of-way" as a "together with" or a "subject to" as in previous conveyances.

[54] The reason that there is no longer a reference to a right-of-way, it is submitted by Mr. de Rijcke and this court accepts, is because one cannot have a right-of-way over one's own land. Dr. Kynoch now owning the entirety of Tiny Island including the tail of the whale over which the right-of-way had originally traversed, by reason of merger the right-of-way ceased to exist.

[55] Therefore, between 1943 and 1961 Dr. Kynoch had a deeded right-of-way to Tiny Island, and thereafter was deeded title to the land over which it had crossed.

[56] Following the death of Dr. Kynoch in 1966, title to Tiny Island came to be vested in his daughter, Rebecca (“Betty”) Van Aller, by deed registered as Instrument No. 371332 in October 1971. She subsequently conveyed to Mrs. Bailey.

[57] Mrs. Bailey’s Agreement of Purchase and Sale that preceded her conveyance from Betty Van Aller contained a photocopy of part of the 1942 Cavana Plan, which referenced Tiny Island as including all of the “tail of the whale”. The relevant term in the Agreement of Purchase and Sale is clause (f) on page 1:

The vendor agrees to provide purchaser with the original survey or copy from 1942 or thereabouts together with vendor’s statutory declaration that outlined in red on Schedule B attached hereto was, when above water, at all times occupied and possessed as part of the island property by her or her family since 1935.

[58] Although Mrs. Bailey agrees that she did not see a copy of the full version of the Cavana Plan until after the closing of the transaction in December, 1988, she testified that when she and Mr. Bailey visited the island prior to signing the Agreement of Purchase and Sale, she was assured by Betty Van Aller that the property being sold included all of that depicted in the “tail of the whale”. In fact, Ms. Van Aller’s reference to the size of the land led Mr. and Mrs. Bailey to believe that the land included in the Cavana survey extended all the way east over the beach to the treeline.

[59] Mrs. Bailey did not obtain a survey because her lawyer had not urged her to do so. However, upon closing her lawyer did obtain a statutory declaration from Betty Van Aller dated December 12, 1988, which contained the same sketch of Tiny Island including the “tail of the whale” that had been incorporated into the Agreement of Purchase and Sale. In this document she declared:

4. My predecessors in title and I have occupied the said Tiny Island being more particularly shown outlined in red continuously for more than 40 years. The land to which my statutory declaration of possession (dated the date hereof) relates is the parcel more particularly shown outlined in red on the sketch attached as Exhibit “A”.

5. Although part of the said Island is under water, depending upon the level of the Georgian Bay, from time to time, my family has occupied that part of Tiny Island above the water level entirely and continuously for more than 40 years.

[60] Prior to closing the purchase transaction for Tiny Island, Mrs. Bailey had a copy of Mr. Barbour’s “water’s edge” deed. Mr. Barbour’s deed describes the lands conveyed as being composed of part of Lot 21 together with a description of the parcel extending to the water’s edge, “containing one acre and one hundred and fifty-five thousands of an acre more or less and distinguished as Parcel Ten”.

[61] Between 1940 and 1951, any vested interest that Mr. Barbour may have attempted to assert in Part 2 was affected by the legislation then in effect, namely the Bed of Navigable Waters Act, R.S.O. 1937, c.44 as amended by the Statute Law Amendment Act, S.O. 1940 c.28. That statute had the effect of deeming the boundaries of lands on navigable waters to have always been the high water mark. The legislation was repealed in 1951. However, as a result of that statute, between 1940 and 1951 the provincial Crown owned all of the land between the water’s edge of Georgian Bay and the high water mark, which includes Part 2. At the time when he obtained his deed in 1949, Mr. Barbour could not have owned Part 2, despite the legal description in his deed. He owned only as far west as the high water mark on the westerly edge of Lot 10.

[62] The parties have agreed that, if it is assumed that at the time of his purchase in 1949 Mr. Barbour was disentitled to obtain a conveyance to the water’s edge because the bed of Lake Huron was deemed to come up to the “high-water mark” according to the Bed of Navigable Waters Act, that limitation lapsed in 1951 when the amendment was appealed. This resulted in the conveyance to the water’s edge then becoming effective.

[63] This state of affairs was confirmed by the Boundaries Act decision, which as previously described, confirmed a boundary that crosses the isthmus as illustrated on the BA Plan. Again, as a consequence of the Boundaries Act ruling, the parties agree that Mrs. Bailey has fee simple title to any dry lands on the Tiny Island side of that boundary, and Mr. Barbour has fee simple title to any dry lands on the mainland side of that boundary, including the Part 2 lands.

Prior Surveys

[64] Excluding the Cavana Plan for the moment, the surveys that were prepared prior to the Boundaries Act hearing contain noteworthy aspects in relation to the right-of-way and Tiny Island.

McMullen Survey, 1914[^13]

[65] As earlier referred to, this is the unregistered plan of subdivision of Lot 21, Concession 13, owned at the time by the Addisons. There are no available field notes. No roadway appears along the beach in front of what eventually became the Rice or Barbour properties.

Erwin Survey, 1939[^14]

[66] No roadway appears on the plan, and his field notes do not refer to one.

O’Dale Survey, 1960[^15]

[67] Entitled “Plan of Survey showing Right of Way as Used on Part of Tiny Island in Georgian Bay", the survey prepared by C.P. O’Dale, O.L.S. indicates the location of the right-of-way on part of Tiny Island. The survey shows that the island is separated from the mainland by a channel. The used right-of-way indicated on the survey stops at the northeast side of the island at the water's edge, and is not shown to continue on the mainland on the other side of the water.

Harvey Survey, 1982[^16]

[68] John Harvey, O.L.S. surveyed the right of way over the strip of land lying to the north of Nancy Rice’s property, designated as Part 1 on Reference Plan 51R-11640 (the Cut) and extending to the high water mark. His field notes do not show any markings of a roadway or path extending beyond the Cut. In his statutory declaration sworn October 31, 1991 he refers to the Cut as being used by the owners of Tiny Island for more than 30 years. Despite having personal knowledge of this access, he does not reference any roadway leading to the island beyond the Cut.

Evidence of the Witnesses

Angelina Bailey

[69] Mrs. Bailey's primary residence is in Toronto, where she resides with her husband Stephen Bailey. They have five children now ranging in age from 28 to 41.

[70] Before purchasing Tiny Island, the Baileys were owners of a cottage at Balm Beach in Tiny Township, which they owned from 1983 to 1988. When they decided to relocate to a new cottage, their realtor, Marguerite Rideout, helped them search for a suitable cottage. There were certain criteria that the Baileys required be met: due to a personal security issue that had arisen regarding one of their daughters, they wanted security and privacy; they wanted to be able to access and use it in all seasons; and it had to have vehicular access, as Mrs. Bailey is terrified of water and boats.

[71] It took three years to locate the Tiny Island property. Mrs. Bailey was not familiar with the property before learning that it was for sale.

[72] Ms. Rideout arranged for the Baileys to view the property, which they did in May or early June of 1988. They parked Ms. Rideout's vehicle in the woods by the Rice Property, and Mrs. Bailey described in her testimony how they walked along the Cut. They then walked along what is shown on the Hiley Plan as Part 5, and walked across the beach over Part 2, following the yellow roadway shown on Exhibit 6. On cross-examination she indicated that they seemed to follow a natural, delineated path, but that was not what she was focused on at the time, but rather on her conversation with Ms. Rideout. She could not recall whether she noted tire tracks on the pathway. She described that the route that they walked was sandy and hard-packed and rubbley. Where the curve in the yellow roadway begins as shown on Exhibit 6, the ground was rocky and the sand was wet. She does not recall walking in water and recalls that she kept her shoes on during the walk. The Baileys’ initial impression was that the property met some of their needs as it was elevated, private, secluded, and had a sandy beach and shallow lake bottom. Yet it was not winterized and the main cottage, being an old, rustic log cabin, had to be upgraded. On this first occasion they met Betty Van Aller, but no discussion was had with respect to price or the size of the property.

[73] The Baileys arranged through Ms. Rideout to view the property on a second occasion. On this visit they again parked in the woods and walked along the same route as on the previous occasion, which they identified as the yellow roadway, including crossing Part 2. Mrs. Bailey described this route as the "path of least resistance", as there was no soft sand or dunes and the surface was hard-packed. The sand was once again wet, and she noted some puddling.

[74] On this occasion, Betty Van Aller described how her father, Dr. William Kynoch, had owned an International Scout four-wheel-drive vehicle, by which he drove to the island. They also learned that Betty Van Aller’s mother was an artist who held painting classes on the island. They also learned that Betty had a four-by-four vehicle, that her daughter owned a Jeep and that her nieces all had four-wheel-drive vehicles that they used to drive to the cottage. Mrs. Bailey understood from that conversation that there was no impediment to driving to the island, and that it was possible to drive right up to the stairs leading to the cottage. On cross-examination she conceded that she did not see a vehicle on either of her initial two trips to the island.

[75] In terms of the scope of the land, Betty Van Aller “expansively described” it to the Baileys, and they understood as a result of where she was pointing that the land extended back over Part 2 as far as the tree line at the back of the beach, and over to an ancient fence post marked by red, which they understood to mark the southerly boundary of the Rice Property.

[76] Mr. Bailey then met with Marguerite Rideout to put together an offer to purchase Tiny Island. The price that they offered took into consideration the fact that they would have to buy a four-by-four vehicle for driving across the beach. Appended to the Agreement of Purchase and Sale as Schedule "B" was a reduced copy of the Cavana Plan, which depicted Tiny Island as well as the isthmus, a portion of the beach adjacent to the island, and the travelled path that the Baileys identified as the yellow roadway. Mrs. Bailey saw this document for the first time sometime prior to closing when Mr. Bailey brought it home one day. She did not see the full-sized Cavana Plan itself until after the closing, but understood that they were purchasing the island and the adjacent beach to the tree line along the front of the Rice and Barbour properties. She later realized through the surveys and litigation process that the Cavana Plan did not extend to the tree line, and accordingly, that what she believed to be her property ended to the west of the treeline.

[77] The Baileys took possession of the property in November 1988. They went there that first winter, travelling the same route as taken in the summer, as they found that the prevailing winds blew the snow off of the beach and roadway. They moved some furniture to the island by truck in the spring of 1989. They purchased an Isuzu Trooper four-wheel-drive vehicle and drove to the island, parking at the base of the stairs leading up to the cottage. This vehicle was replaced in 1993 by a Suburban.

[78] Once the Baileys took possession of Tiny Island they undertook improvements. It was Mrs. Bailey's evidence that all of the contractors, delivery, and service vehicles drove directly to the island, travelling the same route as depicted by the yellow roadway on Exhibit 6. These improvements included electrical upgrades, phone installation, and the installation of a replacement transformer that was delivered by a flatbed hydro truck. A concrete base had to be built for the transformer, which involved bags of concrete being brought to the island, and underground wires installed. They purchased a new washing machine, dryer and stove and bedroom and living room furniture. They re-plumbed, rewired and insulated the lower cabin, along with installing a new roof and maple floors. They dug out the basement, installed forced air electric heating and a UV septic water filtration system and large water heater. The refurbishment included an entire new kitchen, a new deck and sliding doors on three sides of the cottage. They installed over forty limestone steps leading to the main cottage. Granite countertops and new windows were installed, as well as a new cedar roof on the main cottage. Much of this work was undertaken during the first winter that they owned the cottage. The contractor used trucks and a tractor to clear the road of snow through the woods. She and her husband checked on progress at the cottage regularly, and noted that the service vehicles parked all over the lower island by the stairs. Mrs. Bailey estimated that they spent just over $300,000 on improvements in their first year of ownership, and subsequently at least another $200,000.

[79] Mrs. Bailey was clear in her evidence that they would not have purchased Tiny Island or improved it without having access across the beach.

[80] At no time while any of this work was going on did they receive objections from any of their neighbours. Mr. Barbour did not object to them, or the service and contractor’s vehicles, driving over Part 2. Additionally, a septic service truck has attended every two years for service.

[81] Included in the improvements was work done on the isthmus, which required work permits from the Ministry of Natural Resources. The first such permit was issued on October 27, 1992, permitting clean rocks to be placed in the water as shown in the schedule to the permit.[^17] The schedule is a copy of the Cavana Plan with particulars of the work to be conducted. The schedule indicates that water had broken through at the narrowest point of the isthmus, and washed out sand and gravel, and that rocks were also to be placed in approximately the middle of the “tail of the whale” on Part 2. Mrs. Bailey testified that they undertook this work because they found in the spring of 1992 that the road was damaged by either snow or waves and was unstable.

[82] Another application for a work permit was made on October 7, 1993, requesting permission for a dump truck and backhoe to raise a concrete well casing, and to back fill and repair the roadway in areas depicted on the schedule to that application[^18]. Again, the schedule to the application is a copy of the Cavana Plan, on which the work to be undertaken is described, including repairing the roadway with clean washed fieldstone on at least one, if not two, locations on Part 2. This work was completed between October 18, 1993 and November 30, 1993 in accordance with the permit. The concrete well casing was also brought in along the yellow roadway across Part 2.

[83] On both of these occasions in 1992 and 1993, Mr. Barbour did not complain of the work being undertaken or the travel over Part 2.

[84] Ten photographs were purportedly taken of the work being done under the second work permit, suspected to be taken in 1993 because they show the delivery of the well casing.[^19] These were introduced into evidence by Mr. Streisfield on cross-examination, and Mrs. Bailey identified them as depicting Tiny Island, where that piece of land is shown in a given picture. However the photographer is unknown, and there is no direct evidence of the time, date or weather conditions when these photographs were taken, whether they were taken by Mr. Barbour, or whether he was aware of the work being done as depicted in the photographs. More will be said about photographs later in these reasons.

[85] Starting in June 1989, it was the Bailey's routine to take their children out of school two weeks early, and to start living at the cottage from June 15 onward, remaining until the week after Labour Day. During the other months of the year, the Baileys used the island on weekends and over Christmas. Although all of their children have now moved away from home, Mr. and Mrs. Bailey still continue with this schedule, which has not altered over the years.

[86] Mrs. Bailey testified that occasionally there would be some ponding of water in the middle of Part 2, which would sometimes freeze over in the winter. In the winter they had the Woods Road and the Cut ploughed, as well as the entire yellow roadway.

[87] In terms of other uses made of the property, the Baileys would entertain guests and family. Their two older children wind surfed from the beach off of Part 2. They would also swim from the beach located on Part 2, because it is the sandiest spot. They would sit on Part 2 to watch the sunset, and left their deck chairs on the beach on Part 2 for the entirety of the summer. On the May long weekend they set off fireworks from the beach on the Part 2 lands. In the summer the children rode their bikes, practiced golf, had bonfires and played ballgames on the hard-packed sandy area of Part 2. They placed a shade tent on Part 2 for two seasons. During the winter they cross-country skied across the beach and into the woods, snow shoed, and skated where the water pooled and froze on Part 2.

[88] When guests come, they are encouraged by the Baileys to park in the designated spot behind Nancy Rice’s cottage. However, the Baileys usually drive to the island because they typically have groceries, baggage, and like to have a vehicle close for emergencies and for picking up guests. They still hire someone to keep the roadway to Tiny Island, including that which extends over Part 2, ploughed during the winter.

[89] Photographs taken by Stephen Bailey show both their Trooper and their Suburban parked on Part 1, and Mrs. Bailey testified that some depict the yellow roadway travelled to cross Part 2. A photo that she identified to have been taken in 1989 shows Mrs. Bailey and her two daughters on the beach at the west end of the Cut, showing the Trooper parked in the distance on the isthmus. Another photo that she identified as being taken in 1993 or later, shows the Suburban parked in front of the steps to the cottage. She recalled that the Suburban replaced the Trooper in 1993 because that was the year the Bailey’s oldest son was in an accident with the Trooper. She identified in the photographs metal stakes with fluorescent paint on top that she and her husband placed on Part 2 at the time that they obtained the permit to do the work on the road. Her evidence is that they placed the stakes to mark the roadway because they once almost drove into the Bay in the dark. The stakes have never been moved and remain there today. These photos, where they are oriented toward Part 2, show a relatively flat, sandy area of land riddled with rocks and grasses to the east toward south beach and approaching or on Part 1. Some reveal a very obvious roadway, which Mrs. Bailey identified as the road travelled by them to access their cottage from the Cut. One of the photographs shows an aluminum boat that came with the cottage; there were originally two but one blew away. She testified that she does not know what Betty Van Aller used the boats for, and that the Bailey family has never used those boats to access the island.

[90] Further photographs show that Mr. Barbour had birdhouses in the area of his tree line to the east of the Part 2 lands. Photographs also depict sandbags, as well as a shade tent placed in the area of the tree line in front of Mr. Barbour's house on the mainland. Mrs. Bailey testified that she assumed that Mr. Barbour had chosen to locate those items where he did because that was his property. Another photo shows a shade tent erected by the Baileys, which Mrs. Bailey indicated they had for a few years until it blew down, but when erected, was located on the sandy part of Part 2. Another photo indicates deck chairs, which she identified as being placed on Part 2. Throughout these photos, either Mrs. Bailey or members of her immediate or extended family are shown in various locations over Part 2.

[91] Additional photographs were provided of the Bailey's eldest daughter's wedding in 1998. Mrs. Bailey testified that at that time there was water throughout Part 2, and a rental Jeep was used to drive people from the Woods Road. She described that the water could have been 3 to 4 inches deep, coming up a bit over the bottom of the vehicles’ tires. Pictures from that event show that there was still a sufficient amount of land in front of the cottage stairs to park a vehicle without it standing in water.

[92] Mrs. Bailey testified that she did not see Mr. Barbour using the Part 2 lands other than on one occasion after the legal proceedings had begun. On that occasion he placed a chair on the north beach on the Part 2 lands, which was the only time that she had ever seen him sit there. She saw him swim a couple of times, but when he did so it was on the south side of the isthmus, on south beach.

[93] At one point the Baileys erected a “no trespassing” sign, when the Addison Beach Association recommended that owners install one. She testified that the sign was in the middle of what they thought was their property on the “lower island”, which she now understands to be on Part 2. This sign was knocked down one night and never re-erected. They put up the sign so that they could have something to point to, if a trespasser remarked that there was no posted sign. Occasionally they asked people to move along when they came on to the beach, if it appeared that they planned to stay, and Mrs. Bailey had a particular recollection of a large group having a fire and barbeque on the Part 2 lands, and asking them to leave. Another time they had to contact the police for assistance.

[94] Mrs. Bailey testified that the year that the water was the highest was 1998, the year of her daughter’s wedding, and the only time that water made access “awkward”. She has noted fluctuations in the water levels, with highs and lows in certain seasons. She testified that even when there is water over the isthmus, it has never been so high as to deny them access to the island by vehicle. On cross-examination she confirmed the same testimony: in the early years she had to walk or drive through some water in early spring, but could not recall the last time that she had to drive through water; that prior to closing she did not walk through water, although it was wet and rocky and had puddles; that the following year they put a small plank down but she could not recall walking through water; and she believes that 1998, the spring of her daughter’s wedding, was the last time that they had to walk or drive through water. She confirmed that there was some water separating the island from the mainland at that time. It was deep enough that it came up to “an inch or two over the tires”.

[95] Mrs. Bailey testified that if the island had been surrounded with water as appears to be depicted by an ariel photograph dated May 1988[^20], she would not have been comfortable buying it. She said that she has never seen all of Part 2 under water. Her evidence was that the water was the highest in 1998, and that sometime around 1993-1994 it was also high. Photographs from that era, when the Trooper was still owned, show water in and around the area of the isthmus, but also show the Trooper parked by the island, indicating that it was still accessible. Referencing one photo in particular, taken, she thought in 1993[^21], Mrs. Bailey testified that the water in that photograph was higher than when they first viewed the island. It shows children playing in water on the northeast side of the isthmus on what is likely Part 2, or possibly south beach.

[96] She testified that the Bay’s water level fluctuates constantly, and she recalls calling Mr. Barbour once when a huge storm blew in and the beach was covered in water to the tree line. Mr. Barbour told her not to worry, that that was the nature of the Bay. She described it being like a “surge”, coming on suddenly, and that Mr. Barbour told her that in the next hour it was gone.

[97] As previously stated, at the time of closing Mrs. Bailey’s lawyer obtained a statutory declaration and a declaration of possession from Betty Van Aller, both dated December 15, 1988.[^22] These were deposited on title. The declaration of possession attached the Cavana Plan, and Betty Van Aller declared that the lands to which her statutory declaration of possession related was outlined in red on the attached Cavana sketch. In the declaration of possession, Rebecca Van Aller declared that her family had owned Tiny Island for more than 40 years, and that she had personally occupied Tiny Island for part of each year for more than 40 years. She indicated that her predecessors in title and she had occupied Tiny Island entirely and continuously for more than 40 years, although part of the island was under water depending upon the level of Georgian Bay from time to time.

[98] In the statutory declaration, Betty Van Aller declared that she was the absolute owner in fee simple in possession of that land and that she had personal knowledge of the use and possession of the lands by herself or her father from the time that her father first acquired an interest in Tiny Island in 1943, that the mutual right-of-way shown on the Cavana Plan is an extension to and along the water’s edge of the right-of-way granted to her by Nancy Rice over the Cut, that the mutual right-of-way was used by her and her family for 40 years prior to her declaration for both pedestrian and vehicular access to Tiny Island, that for more than 20 years prior to her declaration her family and her seasonally, continuously, openly without objection placed a dock on the mainland opposite the island for the purpose of boat access to the island, and that to the best of her knowledge there is no dispute as to the boundaries of the lands, and she had never heard of any claim or easement affecting the lands.

[99] Betty Van Aller's sister, Nancy Rice, also provided a statutory declaration dated December 1, 1988, in which she declared that the northerly 15 feet of her land lying between the high water mark and the water's edge of Georgian Bay had been used as a right-of-way by her sister, and by her predecessors in title in ownership of Tiny Island for more than 40 years.

[100] Another statutory declaration was secured from Nancy Rice on October 10, 1991. Mrs. Bailey explained that the lawyer who acted for her on the purchase of Tiny Island was very thorough, and this was an undertaking that she had obtained through the lawyer acting for Betty Van Aller. In that declaration, to paraphrase, Nancy Rice stated that she has been familiar with the ownership, use and access to Tiny Island since 1943, and that for more than 50 years, access to Tiny Island by the owners of Tiny Island from time to time has been gained by travelling westerly along the Cut, and "travelling southerly along the beach to Tiny Island". Last, she indicated that the owners from time to time of Tiny Island had been driving from the right-of-way designated as Part 1, Plan 51R-11640 (the Cut) to Tiny Island across the beach adjacent to Georgian Bay. Prior to World War II ordinary passenger vehicles were used to drive across the beach because the beach was wide and consisted of very hard packed sand. Since World War II four-wheel-drive vehicles had been used to drive across the beach. Attached as exhibit A to her affidavit is what is noted to be a plan made from the McMullen Plan, on which is drawn a winding roadway across the Cut and over Part 2 leading to Tiny Island.

[101] The Baileys first became aware that Mr. Barbour was making a claim to the Part 2 lands when he posted a note to their door on or around September 15, 1995. In that letter, Mr. Barbour indicated that he had instructed a local lawyer to draw up the necessary papers that would protect his interest in, and allow the Bailey's passage over, the strip of beach from a line drawn from the fence between Nancy Rice and his property to the water’s edge and continuing to the island. The letter went on to state that the annual fee for such use would be one dollar per year. He indicated that the papers would be ready for signature in two weeks' time. Mrs. Bailey's reaction was to telephone Mr. Barbour that very night, and to tell him that she had a survey indicating that she was the owner of the land, referring to the Cavana Plan. Ultimately Mrs. Bailey provided a copy of the Cavana Plan to the lawyer acting for Mr. Barbour sometime in 1996, following which there was no follow-up from Mr. Barbour's lawyer or objection from Mr. Barbour for another four years. The Baileys did not change their use of the land, and Mr. Barbour was silent with respect to this issue until the year 2000.

[102] In the summer of 2000 there was another exchange of letters between Mr. Bailey and Mr. Barbour's lawyers, but that exchange of letters did not resolve the issues and accordingly Mr. Barbour proceeded with his Boundaries Act proceeding.

[103] The only time that the Baileys have altered their access to Tiny Island is after the release of the decision following the first trial. They now pass over Part 4 on the Hiley Plan and walk to the island on the south side of Part 2, on what Mrs. Bailey described as the west side of the roadway, although she could not accurately say where on Part 2 they are now crossing.

[104] Her property assessment notice issued by Municipal Property Assessment Corporation (“MPAC”) indicates that she is being taxed on 4 acres of land. In contrast, Mr. Barbour’s MPAC assessment shows that his tax assessment is based on an area consisting of 1.15 acres.

Stephen Bailey

[105] Stephen Bailey confirmed that Mrs. Bailey would not have considered a cottage on an island having only boat access. He confirmed her evidence that they wanted something more private than their cottage at Balm Beach, and Mr. Bailey was looking for a property that he could renovate. Marguerite Rideout was the person who first told him about Tiny Island, and piqued his interest by saying that it was an island to which one could drive.

[106] The first time that he and Mrs. Bailey saw the cottage was from the end of the 14th Concession road, approximately 1,500 feet away from the island, and he testified that he could see a level flat area going to the island.

[107] On their first visit to view the cottage and Tiny Island, he confirmed that Ms. Rideout drove and parked behind Nancy Rice's lot. He stated that Ms. Rideout was driving a car, as opposed to a four-wheel-drive vehicle.

[108] They walked to the island, following the route shown in yellow on Exhibit 6. The walk took approximately ten minutes. He noted that the yellow roadway turns to avoid the sand dunes, and that he and his wife just followed Ms. Rideout.

[109] When asked whether they walked through water, his response was that it was a little wet in the middle, and there were puddles to the west of the roadway.

[110] He testified that they met Betty Van Aller on that first visit, who spoke about her family's use of the island. He came to understand from her that her parents, the Kynochs, had used the island and cottage since Betty was a girl. They did not obtain any documents on the first visit, or discuss the size of the property, and he noted that there was no vehicle parked at the island. Mr. Bailey confirmed that Betty Van Aller kept a rowboat on her property, which was there when they arrived. He did not ask her what use she made of the boat.

[111] On the second visit taken by he and Mrs. Bailey, they parked in the same spot and walked along the same route. He described it as being a well-worn path with the turns being “natural". He described the water level as being much the same as during the initial visit, with puddles here and there. He did not see a vehicle parked by the island on the second visit, and stated that they did not discuss the extent of the land that was for sale. However, by the end of the second visit he had no concerns as to whether they could drive to the island.

[112] Mr. Bailey testified that Mrs. Bailey had initially formed the impression that they would have to walk to the island, and so was initially not in favour of its purchase. However, he confirmed with Marguerite Rideout that they could drive to the island, who told him that Betty Van Aller drove there, and her parents before that.

[113] On further consideration, Mr. Bailey had a third meeting with Betty Van Aller, for the express purpose of speaking to her to confirm the access. They were the only two individuals at that meeting, which again occurred at the island. He testified that Betty told him that she always came by car even as a child, and that she had a four-by-four vehicle which she used to drive to the cottage. He understood from her that she travelled over the yellow roadway on Exhibit 6. She talked about her father travelling to the island in the International Scout, and that he had owned several over the years, and that she had a four-wheel-drive vehicle also.

[114] Mrs. Van Aller took Mr. Bailey to the top of the steps leading to the cottage, which he estimates to be a rise of forty feet, and pointed to where her land started in front of her sister's property and across to Mr. Barbour's residence. They walked to the bottom of the stairs and she pointed to an electric utility pole in front of Nancy Rice's property and said that her property extended to the far shore. She described it as being 4 acres in size. Mr. Bailey explained that at that time there was less beach existing than is shown on Exhibit 6, however, he pointed out on that exhibit that he understood that the land extended as far north as the top of Part 4, in line with a telephone pole, and then crossed in front of Mr. Barbour's property. He indicated that he was surprised to learn that it was 4 acres in size, not initially thinking that the property was that large. At the end of that third meeting he was satisfied with access, as Betty Van Aller had been very clear that she accessed the island with her vehicle.

[115] Betty Van Aller told him that she had a property survey, but it was with her lawyer, Mr. Hacker. Marguerite Rideout obtained a copy of the survey from Mr. Hacker, after which she met Mr. Bailey to review it. Mr. Bailey went to Ms. Rideout's office, where he saw a copy of the Cavana Plan.

[116] The agreement of purchase and sale that was submitted by the Baileys contained the following provision:

The vendor agrees to provide purchaser with the original survey or copy from 1942 or thereabouts together with vendor's statutory declaration that outlined in red on schedule B attached hereto was, when above water, at all times occupied and possessed as part of the island property by her or her family since 1935.

[117] Schedule B, referenced in that clause to be from 1942 or thereabouts, is the Cavana Plan. Mr. Bailey described the purpose of requiring the statutory declaration as being to ensure that the use was as described by Betty Van Aller. The purchase price for the Tiny Island property was $350,000, which Mr. Bailey described as their limit, because they knew that they needed to make extensive renovations.

[118] The copy of the Cavana Plan that was attached to the agreement of purchase and sale, being the same copy that Mr. Bailey had seen prior to submitting the agreement of purchase and sale, has the words “INST. #189. TINY ISLAND. 2.1 AC.” written on that portion of the Plan on which the island itself is located. Mr. Bailey confirmed on cross-examination that this is the only document that he had seen prior to closing that described the lands being purchased. Mr. Bailey testified that his lawyer did not recommend that they obtain an updated survey. The original Cavana Plan was given to Mr. Bailey by Ms. Rideout on the date of closing.

[119] Mr. Bailey described that he went back to the island three times after the offer was submitted but before the transaction closed. On the first occasion he took a copy of the Cavana Plan that Marguerite Rideout had given to him, and found that it was impossible to decide where the property started and stopped. The second time he took his children to show them the property, and the third time he went to measure the main cabin to do a design layout for the renovations. He does not recall crossing through water to reach the island on any of those occasions. On cross-examination he indicated that he never got his feet wet, as there was enough sand and rocks to step on to avoid any water.

[120] Mr. Bailey was cross examined with respect to his testimony in a prior proceeding with respect to evidence given of water levels at the time that they first viewed the cottage. The transcript reads as follows:

Q. … Now, our information is that this aerial photograph was taken in May of 1988, and that there was, according to this photograph, water in the channel between the mainland and island. Does that accord with your recollection?

A. It could well be. The only, the only thing is when you say water in the channel, does that mean, do you know what depth that water is? Because water in the channel was there when I was there but it was only an inch or so, so the sand was quite high, just under the surface of the water.

Q. But you had to get your feet wet in order to get to the island.

A. When we first viewed it we did, yes.

Q. And in 1988?

A. No, because I think somebody had put a plank across and you could just walk across.

Q. So other than if you hadn't, if the plank hadn't been there you would have had to have gotten your feet wet.

A. You would have had to jump from rock to rock, yeah.

Q. And if you hadn't jumped from rock to rock you would have gotten your feet wet?

A. Probably.

[121] Mr. Bailey confirmed that these answers were truthful when given, although clarified that he had never seen the property prior to 1998, and that any suggestion in the prior proceeding that he had done so is as a result of him being not good with dates.

[122] Mr. Bailey was asked on cross-examination whether he took any photographs on the six occasions that he saw the property before closing, and he confirmed that he did not.

[123] He confirmed that they purchased an Izusu Trooper in 1988 for the purpose of driving to the island. Photographs entered into evidence show both that vehicle and subsequent vehicles owned by the Baileys parked close to the stairs leading to the cottage, on what they described as the Part 1 lands. Mr. Bailey identified these photographs as being taken by him from 1989 onward.

[124] He recalls seeing the statutory declarations and declarations of possession that were prepared in 1988 at the time of closing, and was satisfied with their contents. He was unable to say why the statutory declaration of Nancy Rice that was sworn on October 10, 1991 was provided, but, like Mrs. Bailey, confirmed that he was not aware of any challenge to the access in 1991.

[125] Mr. Bailey described the same recreational use of the property by the family in the years after its acquisition. Because Mr. Bailey was operating a business in Toronto, he was typically there on weekends and for two weeks during the summer. During the first winter, when the main cottage was being extensively renovated, he came up every weekend to make sure that the contractors were doing their jobs. He hired an individual to plough the snow, who cleared it from the end of the 14th concession, beside Nancy Rice's property, and down the yellow roadway right to the steps going up to the cottage.

[126] With respect to the photographs showing the heavy equipment[^23], Mr. Bailey confirmed that they show the work being done on the roadway and the property in 1993. He was not present when the work was being performed. He stated that he could not recall driving through water in that time period. In response to Mr. Streisfield’s questioning, he indicated that the nature of this property is that "one day you're driving through water, the next day, sand". He confirmed that he has driven through water many times since buying his first four-by-four vehicle.

[127] Mr. Bailey described the same extensive renovations to the lower cabin and main cottage that were described by Mrs. Bailey, and estimated the cost of the improvements to be between $500,000 and $600,000. During this time no one objected to the work that was being done or the fact that contractors were driving on the roadway across the beach to the cottage, including the large flatbed to deliver the new transformer. Mr. Bailey also described the work done to the roadway requiring the Ministry permits in 1992 and 1993, confirming that fill and clean rocks were placed on the lower part of Part 2.

[128] Mr. Bailey estimated that Mr. Barbour's house is between 1,000 to 1,200 feet away from the main cottage on the island.

[129] Mr. Bailey's evidence was that it was an unwritten rule that anyone could walk across the beach. However from time to time they had to ask people to leave, and he described that Mrs. Bailey became polished about asking them to move on, particularly if it was a larger group. Fencing the land was never a consideration for him.

[130] He described the use made of Part 2: driving over it; walking over it; bike riding on it; windsurfing from it; skating on it; making campfires on it; swimming from it. The family came up every year for Christmas, and made use of it on weekends throughout the winter.

[131] Mr. Bailey observed Mr. Barbour using Part 2 on only one occasion, when he brought over his deck chair and umbrella to north beach and the two of them had a verbal altercation. He believed that this occurred after the Boundaries Act decision. He testified that any other time, Mr. Barbour used the waterfront on the south beach in front of his own residence. He observed Mr. Barbour doing this in the first 10 to 15 years after they purchased Tiny Island, but as he aged, he was not seen to go out as often. He testified that Mr. Barbour had his water pipeline to the Bay drawn from the south beach, to the south east of Part 2.

[132] Mr. Bailey confirmed that prior to receiving Mr. Barbour's letter in 1995, they had never received a complaint from him about being on Part 2. The weekend before the letter was posted, the Baileys had socialized with him under Mr. Barbour's white canopy, and he had not mentioned the topic. The day after they found the letter, Mr. Barbour responded to Mrs. Bailey's late-night telephone call by coming over in the morning, but he did not have a survey with him and left quickly, explaining that he could not discuss the matter at the time because he had a golf game scheduled.

[133] Mr. Bailey testified that nothing occurred after the exchange of correspondence in 1996, until Mr. Bailey wrote a letter to Mr. Barbour on July 31, 2000. He testified that he did so because he and Mrs. Bailey did not like the fact that the dispute was unresolved. Nothing changed in their use of the property between 1996 and 2000. He testified that nothing has changed about any of their use between the time of acquisition and the time of trial, although on one occasion after the first trial they did not follow the road on Part 2. However, they still had to cross Part 2 closer to the water to access the cottage.

[134] On cross-examination, he indicated that it was not possible to drive along the water's edge to the island from Part 3, as it is all rocky shore to the north of the island. The safest route is to across the Part 2 lands, and he feels the road is needed for emergencies.

[135] Mr. Bailey also described fluctuating water levels. He noted one incident in particular where he watched the water level drop one and a half feet in one minute. It was his understanding that this was due to wind conditions. He has also seen the water "come in" very quickly. He believes that storms have a big effect, but finds that wind seems to be the number one factor in altering the water level. He has seen it rise and fall within an hour to an hour and a half. His testimony was that there was never an occasion that they have not been able to access the island because of the height of the water. He has never seen all of Part 2 under water, testifying that there was always land visible on the east side of Part 2.

[136] He stated that the beach area is now much bigger than it was in 1988.

[137] Like Mrs. Bailey, he confirmed that they would not have bought the property if they could not drive to the island.

Natasha Bailey

[138] Natasha Bailey is Stephen and Angela’s daughter, now 29 years old, and therefore was 4 years of age when the island was purchased in 1988. She has been going to the cottage continuously since she was 5 years old.

[139] Like her father, Natasha is a graphic designer, and was involved in the creation of Exhibit 6. She confirmed that no lines were altered and nothing distorted when the images were superimposed.

[140] She also testified that her family drove to the island along the yellow roadway shown in Exhibit 6, and that the only time that they did not was when snow made it impassable. She spent every summer there from June to August while she was growing up, and the family went up every weekend, including during winters.

[141] Natasha described that the activities of she and her siblings took them all over Part 2 and beyond, to the forest and as far south as a large rock referred to as “Gull rock”. She was close to Nancy Rice and her two granddaughters, and the activities of the three girls were carried out on Part 2, and Natasha walked or rode her bike to go between the Bailey and the Rice cottages.

[142] Natasha has observed changes in the water level of the Bay, testifying that there can be noticeable changes depending on the weather. When there are storms, typically a surge occurs and water is sucked out of the Bay. She recalled finding it novel to run out on the sandy area that was usually covered with water. When a storm would be coming inland, she would notice a surge with heavy winds and waves and the water level would rise noticeably. She described this change is being perceptible over a matter of hours. Natasha indicated that the waves could push the water as far as the dune area by a tree that sits on the east side of Part 2.

[143] Natasha recounted her sister Santhos’ wedding, at which time she would have been 14 years old. She described that the guests walked or her brother Jeremy picked them up in a four-by-four that had been rented especially for the occasion, travelling along the entirety of the yellow pathway on Exhibit 6. When asked whether she recalled whether there was water between the mainland and Tiny Island when the wedding occurred, she indicated that she believed there was, but it did not prevent the guests from coming to the island.

[144] Natasha recalled that there was a rowboat at the property. She believed that it has been under sand now for years, and was not ever used by anyone in the family.

[145] She described that the shorelines are different on either side of the isthmus, with the south beach having gravelly sand on it, and a rocky beach, and the north side having a sandy beach and bottom. She learned to swim from the north beach.

[146] She confirmed that when members of the public try to come to the beach, her family sometimes asks them to leave to use the public beach, and she herself has asked people to move on.

[147] She spoke about the birdhouses, identifying them to be Mr. Barbour's, and testifying that she believed them to be positioned on the edge of his lot line. She also confirmed that she has seen a black pipe leading from Mr. Barbour's property to the water outside the southeast corner of Part 2.

[148] She was never asked by anyone to leave the beach, and does not recall ever seeing members of her family being asked to leave the beach. She grew up knowing that the entire beach behind Tiny Island belonged to her family.

[149] She recalls having seen someone paddle a canoe between the island and the mainland sometime over 10 years ago. She has never seen anyone else paddle or drive a boat between the island and the mainland since then. She testified that she has seen water higher from one year to the next, but not for a long time. She was unable to say for sure whether there was water separating the island from the mainland in more than a single year.

Heidi Lauridsen

[150] With the consent of Mr. Streisfield, Heidi Lauridsen gave her evidence remotely from New Hampshire via Skype.

[151] Heidi Lauridsen is the daughter of Nancy Rice and the niece of Betty Van Aller. Her grandfather was Dr. Kynoch, who rented and then purchased Tiny Island from the Brunelles. Ms. Lauridsen was born in 1950 and spent her entire summers on Tiny Island until the time that she turned 16. Thereafter she was unable to spend the whole summer, but would come for a week or more from 1966 onward. After her mother built her own cottage on Lot 9 in 1969, she spent her time at her mother's cottage.

[152] When asked how she would get to the island before her mother's cottage was built, she indicated that most of the time they walked. If they had a load of items, which they often did when they first arrived, they would drive over in her mother's Jeep Wagoneer, which she purchased in the mid-60s specifically for the purpose of being able to drive to the island. When they walked, they would park in the woods behind where the Rice cottage is now, and would travel down the private beach road, across the beach in front of that cottage and over to the island. When they drove, they would drive up as close as they could get to the base of the island; it was only a short walk to the steps of the island once they parked the car. Ms. Lauridsen confirmed that the route travelled was the same yellow roadway shown on Exhibit 6 that has been identified by the Baileys. On cross-examination she indicated that the driving was done on a path that had been used for quite some time, and did not necessarily occur next to the water's edge.

[153] When asked whether there was ever water that prevented her from getting to the island, she indicated that on occasion there was water that impacted their travel. On those occasions they would wade or walk through the water. In explaining the situation, she stated:

A. I think probably my mother was not, was somewhat worried that we might get stuck and just didn't want to risk it, even though it may not have been something that she should have worried about, she probably did worry about it.

[154] She has never heard of any objections from Mr. Barbour or anyone else about the route travelled to the island.

[155] She recalled that there was one occasion, which she thought might have been around 1985, when it was simply impossible to get to the island because of the height of the water. On cross-examination she was unable to recall whether there was water separating the island from the mainland in August 1988.

[156] Ms. Lauridsen has also observed fluctuations in the water level such as in 1985 when the water was high, and she has seen it recede to points where it is now, which she described as being quite far out. She does not remember either of those conditions lasting a long time.

[157] Ms. Lauridsen had the opportunity to observe other family members carrying out activities in and around the island. She described that they would generally swim, sail and fish, and just enjoy the environment, typically down at the bottom of the stairs at the island, and "on the beach there in the front". When asked whether they used any other areas around Tiny Island, her response was "no".

[158] A statutory declaration sworn by Ms. Lauridsen on March 6, 2008, the contents of which she confirmed to be true, contains the following information: she recalls her aunt, Rebecca Van Aller, having ownership of a four-wheel-drive vehicle, such as an International Harvester Scout, which she used to reach Tiny Island from the mainland over the years from the early 1960s until the 1980s; sometimes her aunt would drive her vehicle to Tiny Island and leave the vehicle there for short periods before returning it to the mainland and parking in the woods behind her mother's property; her mother, Nancy Rice, also owned a number of Jeep Cherokees or Wagoneers, four-wheel-drive vehicles purchased specifically so that she would be able to drive them to Tiny Island when she and her family visited her aunt and grandparents on Tiny Island; delivery people, service people and other visitors or guests of her aunt and her grandparents would also use vehicles to reach Tiny Island from the mainland by driving along the beach out to Tiny Island; she does not recall anyone objecting to or raising an obstruction for such vehicular traffic reaching Tiny Island during the years 1950 to the 1980s.

[159] On cross-examination Ms. Lauridsen indicated that by 1985 her aunt would get to the island by walking down to the beach as far as she could go, and that she put her belongings in a small boat and walked them over to the island, pulling rather than rowing the boat.

[160] As between herself and her cousin, Chris Van Aller, she stated that he spent more time at the island than she did.

Christopher Van Aller

[161] With the consent of Mr. Streisfield, Christopher Van Aller gave his evidence remotely from South Carolina via Skype.

[162] Dr. Van Aller is the son of Betty Van Aller, and was born in 1956. He confirmed that his mother inherited the island from her father, Dr. Kynoch, and that she vacationed there basically most of her adult life. He also swore a declaration dated March 6, 2008, and confirmed that the statements made in the declaration remain true. In that declaration he stated: he would travel with his parents on a regular basis to Tiny Island during the summertime; they used different devices to carry groceries from the car in the woods out to the island, but from 1966, which is when his mother bought an International Scout, his parents would drive right out to Tiny Island and park there; this was the first of three Scouts that the family bought for this purpose; when his family lived in Toronto and Barrie, they would also visit the island in the fall and in the spring, parking on the island during their time there; that the water goes up and down in Georgian Bay; his mother was somewhat timid and avoided driving the Scout through the water which, at most, was relatively shallow between the island and the mainland; whenever the isthmus was clear of water, she would drive the vehicle over; and that the Scout as well as other vehicles like trucks were used to bring heavy appliances out to Tiny Island, including the kitchen refrigerator.

[163] Dr. Van Aller testified that he, his sister and his mother would live at the cottage every summer for the months of July and August. They engaged in beach activities such as sailing, being on the beach, water skiing, and reading, which they would do on the island as well as on the adjoining shore. He explained that for most of his youth the island was connected to the shore by a sand isthmus, and that isthmus was very much a part of their fun. He indicated from the time that he was a small child until university level, a period of almost 20 years, he remembers the isthmus being visible. After Dr. Van Aller went to university and graduate school in the 70s and 80s, he went to the island for periods of two weeks to a month at a time during the summer. His mother and sister Lisa basically lived at the island every summer until it was sold.

[164] He indicated that they drove their vehicle on the beach to deliver items such as groceries because it is about a 300 yard walk from where they would park their vehicles to the cottage kitchen. His first recollection of driving to the island was about 1966, because that was when his mother bought her International Scout. He recalls very distinctly the occasion where his mother went to the dealership and said that she was buying the Scout to drive to her island.

[165] In describing the route of the travel that would be taken, he indicated that one would travel on the Woods Road to the back of his aunt's cottage, and then, if one had a four-wheel-drive, would continue down that road onto the beach, crossing in front of the Rice cottage, crossing the isthmus and parking on the island. They would park their vehicle as close as they could to the bottom of the stairs leading up to the cottage. They would travel this route to get to the island about once every other day. He indicated that because his father was absent, it was important to his mother to have the International Scout to bring things across because she was the only adult to do that chore.

[166] After the purchase of the Scout in 1966, Dr. Van Aller's evidence was that it was not necessary to drive through water to reach the island. He indicated that all through the 1960s and early 70s he recalled playing constantly on the "big" isthmus, and that it was not until sometime in the 1970s that water covered the isthmus. He indicated that when it was above water, the isthmus was a low-lying, sandy piece of land on which one could not drive a regular car without getting stuck. With the Great Lakes going up and down, sometimes the isthmus would even get washed away in storms, but it would always re-form when the Bay was low. He estimated that the isthmus disappeared in about 1974 when the water became quite high, and then remained under water until the mid-1980s when he believes that it formed again. When the water was high he built a dock off the lower cabin, which he estimated occurred in 1976 or so.

[167] Water levels would change on an hour-to-hour or day-to-day basis as a result of a big storm. He indicated that it was not a question of the water level changing, but sometimes a big storm would push the waves right through the isthmus. It would always re-form as long as the water was low enough.

[168] His family continued to go to the cottage during the periods of high water, through a combination of both the Scout or boat. They would drive their Scout or one of his aunt’s vehicles down the beach to a boat, which they kept for that purpose, and would unload groceries and supplies and bring the boat over to the island. They would row it or pull it, even through the deepest water. The water never went over about 5 feet. They would come diagonally from his aunt’s cottage, and avoiding the rocks on the shoreline and isthmus, would bring the boat into a sandy area right in front of the lower cabin on the island. He testified that his family was famous for going to the island in all kinds of weather, and after his mother moved to Canada full-time in 1986, they sometimes went to the island in the wintertime as well as summer. They never took a boat from anywhere else to reach the island, such as a marina or any other location.

[169] Once the water receded in the mid-1980s they again used the Scout to access the island. He testified that by then his mother's health was not very good and she was a little more timid about driving on the beach. However, other family members continued to drive on the beach, and anyone with a four-wheel-drive vehicle would use the route on the beach.

[170] Dr. Van Aller was never aware of any objection to the route being travelled the way that he described.

[171] Dr. Van Aller recalled that Mr. Barbour would also walk around the isthmus. He recalled seeing canoeists go between the island and the mainland when the water was high. He also recalled seeing someone drive a motor boat between the island and the mainland on a couple of occasions when the water was really high. He believes that he saw someone water-ski between the island and the mainland once.

[172] He also saw Mr. Barbour swimming from the isthmus and testified that he swam either on “his" side of the isthmus or “our" side of the isthmus. To the best of his knowledge no one asked Mr. Barbour not to access the water from either of those locations.

Gerrard Maurice

[173] Mr. Maurice has resided in Tiny Township for 50 years, and was born in 1951. He is not related to any member of the Bailey family, and has no particular interest in this proceeding. Although he has been paid by the Baileys to provide snow removal services to the island, this happened on only four occasions, approximately three years ago.

[174] Mr. Maurice was familiar with the area of Tiny Island before meeting the Baileys. He testified that his father owned property by Concession 14, and his uncle owned another nearby parcel. Mr. Maurice’s father and uncle operated a sawmill in the area. During the summers he went swimming and had picnics with his family in the area of Tiny Island. He testified that they would park on the beach in the area of Part 6, and play on Part 2, and would swim up to the island. He believes that these activities were carried on primarily throughout the 1960s.

[175] When Mr. Maurice performed the snow removal for the Baileys, he indicated that he was already familiar with the roadway across the beach. He was able to identify that route by pointing along the yellow roadway on Exhibit 6. He has also performed work on that road, by taking away a foot of sand in the area of the beach.

[176] He had been on Tiny Island when it was owned by the Kynochs, and saw them drive their jeep to the island. He could not recall what year this occurred, but stated that he was there very often in the 60s and recalls seeing Mrs. Kynoch drive through water to get to the island at that time. His testimony was that they travelled along the same route that he had indicated as the yellow roadway on Exhibit 6. His brothers used to deliver firewood to the island, driving it there. He also observed guests of the Kynochs parking at the island end of the roadway. He testified that he always assumed that the owners of the island could drive there.

[177] It was his evidence that the water was higher in the 60s and 70s than it is now. He testified that he has seen the water levels rise and fall, and that Tiny Island used to be an island, but it has been connected to the mainland for the past 20 years. It was his observation that the water level goes up and down. He recalled that at one time when the water level was high, there was water between the beach and the island, and the Kynochs waded through the water during that time. Under cross-examination he drew a line in red on Exhibit 6 where he observed that the water level would be when the water was high. The red line drawn by him does not extend as high as the tree line or come anywhere near to indicating that the water would have inundated all of Part 2. He testified that he had no occasion to go Tiny Island from the mid-70s onward.

Nancy Ann Rice

[178] Nancy Rice is now deceased; portions of her transcript from the Boundaries Act hearing were read in as evidence at this trial. During that proceeding she confirmed that her declarations sworn on December 1, 1988 and October 10, 1991 were accurate and true. She testified that she had been going to Tiny Island since 1935, when she was 10 years of age, her parents first renting seasonally and then acquiring the land. She was there every summer from that point on. When her father bought the island in 1942, it was her understanding that that comprised everything but the Brunelle’s fishing cabin, and a right-of-way for them to drive over to reach their cabin. The Kynoch family accessed the island by parking in the woods behind a little gate, and then walking along the beach, carrying their belongings with them. In getting to the island in 1935 for the first time that summer, they did not walk through water to reach the island, but just along the beach. In 1942, when she was 17 years old and her father bought the property, there was no water between the island and the mainland. Between 1935 and 1942 the Brunelle brothers continued to come to the island a couple of times a week to fish, and accessed the island across the beach. She also testified that in that seven year period from 1935 to 1942, the neighbouring farmer Joe Mayo came across the beach in a wagon with his horse to deliver milk.

[179] After her marriage in 1949, Mrs. Rice moved to Massachusetts and came back to the island for a month in the summer, up until 1958. Within the period of 1949 to 1958, she recalled that water separated the island from the mainland on only one occasion, lasting for a few years. During that period, she indicated that the water was very shallow and they waded across, or rowed over in a rowboat or canoe. On cross-examination she explained that after 1976, she began to stay at her cottage, which she built in 1969, for between two to five months each summer. During the entirety of the time that she had been coming up to the area, she could recall seeing Tiny Island fully surrounded by water only twice. During those periods, occasionally she would see a rowboat or a sailboat go through the space between the island and the mainland.

[180] During her testimony she confirmed that after World War II ended she and her sister began getting four-wheel-drive vehicles, so by the early 50s they drove across the beach and left the vehicle near the lower cabin on the island. Sometimes they would unload their vehicle and return to park in the woods. Mr. Barbour did not raise any objection to them driving to the island.

[181] Mrs. Rice testified that the affidavit sworn on December 1, 1988 was prepared for the purpose of the sale of the island to Angelina Bailey, and because she would need to have a right-of-way across the Cut to get to the beach, just as Mrs. Rice had provided access to her sister Betty following their father’s death.

Neil Lackie

[182] In accordance with the order of January 17, 2013, the evidence of Neil Lackie was adopted as being that of his prior testimony given in the Land Titles Act hearing. He testified on March 20, 2008.

[183] Neil Lackie described himself as Mr. Barbour’s friend. Mr. Lackie was born in 1944 and spent all of the summers of his childhood at his family’s cottage, which was located to the south of Charlene Lowe’s property, part of the Pennorth subdivision. At age 16 he obtained a summer job, so spent less time there than he had previously, but was still there on summer weekends. During the 1950s he would be over at the island every couple of days and spent time with Mrs. Kynoch, from whom he took painting lessons, or spent time with the Kynoch’s grandchildren and their babysitters. He recalled using the Kynoch’s rowboat, and repairing and painting it for them on one occasion.

[184] He indicated that the Kynochs accessed the island by wading across to it, or by row boat. The Kynochs parked their vehicles in the woods and walked down to the row boat, which they would use to access the island. When walking, they would walk along the shoreline on the dry land side of the water. He also observed Betty Van Aller walking to the island. He was unaware of whether Betty Van Aller owned a vehicle.

[185] He testified that he spent time swimming on the north beach, where Mrs. Barbour taught him to swim, and in the sandy areas off of Part 2. At times there was a large group of young people swimming from the beach area on Part 2. They swam in that area because the water was shallower, and therefore warmer, than in the beach area in front of his cottage. He also used to canoe around the entirety of the island, and occasionally would take his little motor boat around the island. He explained that there were a lot of rocks between the island and the point in front of Mr. Barbour’s cottage, so he did not go through there very often. He once saw his brother water ski between the island and the mainland.

[186] He observed Mr. Barbour golfing on the beach “up on his point”, and also down in front of the Lackie cottage.

[187] He testified that he has seen the island separated from the mainland by water. He believed this was in the 1950s, because that is when the Kynochs would wade over to the island. He testified that even in the ‘60s there was some water between the island and the point.

[188] He was not aware of anybody driving to the island in the ‘50s or ‘60s, although agreed that that could have occurred when he was not looking. He did not recall anything like a pathway leading to the steps going up to the Kynoch cottage, and testified that it was very rocky in that area. It was his evidence that the Baileys removed those rocks in order to be able to drive a vehicle in that area. The first people who he saw driving to the island were the Baileys, and he described it as being a novelty, and that the water would be up to the running boards of their truck.

[189] Mr. Lackie was living out of the province in the 1980s, but would return to Ontario once a month in the summer, spending those return visits at his family’s cottage.

[190] Mr. Lackie was referred to two photographs[^24], which could have been taken by him, although he was not sure. He placed them as having been taken in the 1990s, when he testified that the water was high. In the first, taken close to his cottage, he noted that sandbags had been put by his cottage to protect against the possibility of a storm washing sand away from the beach. Referring to the second photograph, which shows sandbags in a line placed against the grass line located on the mainland in front of the trees, he testified that the water never came up to the sandbags, but the action of the waves did. Another photograph[^25], which he identified as being of the island taken from the perspective the deck of his cottage, but which he could not date, showed the island to be separated from the mainland by water. Another photograph[^26], identified by Mr. Lackie to have been taken in the 1990s and showing a birdhouse that he erected, was used by him to show that a rock shown to be sticking above the water in the photo, was, at the time of his testimony, wholly out of the water. Another photograph[^27] showed the island at sunset, which he believed to have been taken in the late 1980s because it showed his neighbours’ sailboat, which he recalled being purchased in the time period. In relation to that photo, he testified that it showed the island separated from the mainland by water. The only photograph that Mr. Lackie testified that he was certain that he took was one taken of the lower cabin on the island, which he recalls taking during the year when the water was the highest that he had ever seen[^28]. The photo appears to show the water coming right up to the deck of that cabin. He said the deck structure washed away when the water was rough. He did not know what year the photograph was taken, but stated that it could have been the early 1980s. Another photograph, which he identified as having again been taken from his deck, he testified as showing extremely high water, as high as he had ever seen it. The island appears to be separated by water from the mainland.

[191] Mr. Lackie testified that he had suggested to Dr. Kynoch the possibility of building a suspension bridge from the island, as he and his father had been involved in building one in the past at a boy scouts camp. This conversation occurred in 1959, or even earlier, and nothing came of it other than a passing reference with his father.

[192] It was his evidence that the amount of sand in the 50s and 60s was considerably different than the amount that was there at the time that he was testifying, as the sand has been building up over time. In the area of part 2, the gradient of sand is very gradual from the beach area. Mr. Lackie agreed on cross-examination that that feature is what made the water warm, and why big waves would develop, and why everyone would gravitate to the north beach for swimming.

[193] If the water dropped a foot in that area by the island, it was his evidence that the water’s edge could recede “a long way out”, which he said could be 30 to 40 feet.

[194] He agreed that from the 50s to the 90s all of the local residents would walk up and down the beach without any concern or challenge. Water sports that were engaged in – swimming, boating, skiing – were typical for those that shared the beach. It was in the 1990s that awareness increased of liability problems related to others walking on property, which in part he attributed to the “Rowntree Beach” decision (Ontario (Attorney General) v. Rowntree Beach Assn. (1994), 17 O.R. (3d) 174, 1994 7228 (Ont. Ct. Gen. Div.) [“Rowntree Beach”]).

[195] Mr. Barbour did not express concern to him about either the Kynochs or the Van Allers walking along the beach to get to their island. Mr. Barbour likewise did not say anything to him about the Baileys using the beach area to get to their island.

Charlene Lowes

[196] Ms. Lowes was the only living lay witness called by Mr. Barbour to give evidence. Ms. Lowes resides to the south of Mr. Barbour, but does not have deeded access to the water. Mr. Barbour owns the beach between her property and the water’s edge, and he allows her to use it.

[197] Ms. Lowes has been a cottager in the same location all of her life, beginning in 1947. This included spending July and August of every summer, and weekends throughout the remainder of the year. She explained that when the plan of subdivision was registered for Pennorth, her father severed property and built a cottage in 1973, which they used until 2002. She explained that she has now built on to that family cottage, and has lived there full-time since 2002.

[198] From the location of her cottage, the island is not visible because the view is obscured by trees, but she explained that there were not as many trees blocking the view, and that it was a good view, when she was a young person and teenager.

[199] She indicated that she “lived” on the beach as a young person and teenager, and her favourite place to swim was on the north side of the island. It was, and remains, common knowledge that that is the best place to swim. She has done that on countless occasions, and the last time that she used that area of the beach was last summer.

[200] Ms. Lowes knew Betty Van Aller and the Kynochs. It was her evidence that she never saw the Kynochs drive to the island, but also does not remember a lot about how the Kynochs gained access to the island. She explained that in the 1960s there was a peninsula between the island and the mainland, and after that they used a rowboat. She did not recall when Betty Van Aller inherited the island. She recalled seeing Betty walk down to the shoreline and walk along the shore, or recalled her putting things in a boat and walking along the sand bar pulling the boat behind her. She also recalled seeing Betty drive her four-wheel-drive vehicle once or twice in order to unload it, but could not recall this occurring more than one or two times. On cross-examination, she conceded that it was possible that someone drove to the island but she did not see it happen. She indicated that as a teenager she had a part-time job working 20 to 24 hours a week at a local grocery store. She also agreed on cross-examination that just because she saw Betty Van Aller drive to the island on only one or two occasions, does not mean it did not occur more frequently.

[201] It was her evidence that Betty Van Aller did not use the area at the end on the "tail of the whale", and she cannot recall the Kynochs using that area either.

[202] Ms. Lowes testified that Betty Van Aller's access was different than the Baileys', in that she went along the water's edge to the far side of the island. In contrast, the Baileys come down the same Cut, but come to the deep sand and access along what she described as "our" side of the island. It is her evidence that the roadway that now leads to the island was not there before Mrs. Bailey purchased the land. There was no sign of the travelled path from Part 6, and no visible signs of tracks when it was purchased by the Baileys. On cross-examination she agreed that those who travelled to the island would be in a better position to talk about the route they took to get there than she would be, and agreed that Betty Van Aller would still have been on Part 2 land even if walking on the water's edge. She agreed that if Betty Van Aller said that she accessed the island by vehicle and parked there, she would be in a better position to know that than herself. She agreed that there was no reason for her to think that Betty Van Aller was not telling the truth. Ms. Lowes also knows Heidi Laurisden, and confirmed that Ms. Laurisden would be in a better position to know about access than she was.

[203] She agreed that if the Baileys were not allowed to cross Part 2, that would be a difference compared to how she has seen people access the island over the years. On cross-examination she confirmed that it was her understanding that service vehicles travel overland to reach the island, and she confirmed that there are no marinas close by the area from which the island could be accessed by boat.

[204] From the location of either her childhood cottage, which was set back a couple of feet beyond her current residence, and from her present residence, she agreed that she did not have a view around the bend to the beach where the yellow roadway was said to be accessed; there is only a view of the isthmus and the island.

[205] She described that the Baileys have used the property as much more of a year-round residence than its former owner. The latter used it during the summer months, although Ms. Lowes stated that when Betty Van Aller lived locally, she may have been there more frequently. She confirmed that she did not know Betty Van Aller well. To the best of her knowledge it was not a road access cottage initially, but stated that the Baileys turned it into a road access cottage by bringing in dump trucks of rock. It was her evidence that they were all amazed when they saw the Baileys drive to the island because they were going through deep sand, and even when the water was deep they would drive right through the water to the island. She testified that the route shown in yellow on Exhibit 6 is through heavy deep sand that no one wants to walk in. It was her evidence that there were times when the water was coming halfway up the doors of their vehicles. She had not seen a vehicle parked at the island before the Baileys started to do so.

[206] It is her evidence that over the years she saw Mr. Barbour sitting on the beach and that he walked the beach two times each day, to the south. He also boated off the beach and used to golf all over the beach in front of his cottage in the 1970s and 1980s.

[207] She testified that all of the local property owners allowed others to walk along the beach, and the property owners would swim anywhere. Occasionally the beaches were also used by members of the public. She testified that the birdhouses and trees that Mr. Barbour planted were close to his tree line. She testified that Mr. Barbour kept his boats on the south beach, as well as a shade tent.

[208] Speaking to the water levels, Ms. Lowes indicated that Tiny Island was completely an island up until sometime in the mid-60s, and then the isthmus filled in. She has never seen as much sand in the location of the isthmus as now exists. She indicated that she took a Hobicat sailboat between the island and the mainland in around 1981 or 1982. She believes that 1987 or 1988 was the highest water level. She recalled that it was very windy for a whole weekend and watched the waves go halfway up the lower cabin on the island, which had a deck on it, and the deck came off as a result of that storm. She also recalled periods of high water that did not involve the storm event. It was her evidence that most of the time the water has been higher than it is now. As a result of looking at a photograph which she was able to identify as depicting a boat bought by her family in 1984, it was her testimony that in 1984 the island was an island in fact. It was her evidence that when the water is high, no rocks can be seen in the water between the island and the mainland. Sandbags had been placed in front of Mr. Barbour's residence in the late 1980s when the water was very high. She agreed that she has seen the water fluctuate, and that one of the pictures shown to her revealed the water as being abnormally high. She observed that situations like that would not last long. When water levels were high, Tiny Island was still used by the occupants.

[209] She and Mr. Barbour are both members of the Pennorth Beach Association, and she has always been on the board of directors. She is familiar with Rowntree Beach, and confirmed that it was a "hot topic" for property owners in Tiny Township. It was her understanding that Rowntree Beach confirmed that property owners own to the water's edge. She and Mr. Barbour discussed the decision, and were pleased because it meant that their beaches could be private. After that decision was published, she testified that some people started deterring the general public off their beaches. It was her evidence that she only saw the Baileys move members of the public from using of Part 2 after the dispute began with Mr. Barbour, and she only noticed them put chairs on the beach after the dispute started. Ms. Lowes confirmed that Mr. Barbour would have had a view of the island from his property. She testified that she had understood that the Baileys had renovated, and she saw the trucks coming and going. She understands that they have invested a lot of money into their property.

[210] Ms. Lowes attended Santhos Bailey’s wedding and was aware that their guests parked in the woods, and guests were forayed across the beach to the island in four-wheel-drive vehicles.

[211] Mr. Barbour told her that he was concerned that the Baileys were crossing his land, but did not say when such a concern was voiced to her.

Gerald Barbour

[212] Gerald Barbour did not testify in this proceeding, although was present in the courtroom every day of the trial. Before the court was informed that he would not be testifying, his counsel was invited to alert the court to any accommodation that might assist in making him more comfortable during his testimony, given that he was using a walker and appeared to have some difficulty with mobility. No impediments to him testifying were brought to the court’s attention at that time, and therefore I infer that it was by choice, rather than circumstance, that he did not testify.

[213] The limited evidence provided by him was contained in the parties’ Agreed Statement of Facts.[^29] There is no evidence from him with respect to his understanding of the extent of the lands owned by him at any point in time, his use of the lands in question, or his knowledge of the use made by the Baileys or their invitees of the Part 2 lands, or by their predecessors in title.

[214] Mr. Barbour is now 96 years old. After he was demobilized from the Canadian Navy after the Second World War, he began to look to purchase a “little piece of Canada”. Through word of mouth he learned that Peter Addison was prepared to sell him the southernmost lot of the family subdivision, being Lot 10. He confirmed with the vendor’s wife, Ottelyn Addison, that the westerly limit of the property was the water’s edge of Nottawasaga Bay. He has always understood this to be the case and denies that it was something that came to his attention as a result of Rowntree Beach, which is located a concession south of his property. Although he paid $1,200 for the purchase in 1949, his deed was not registered until the mid-1950s when he and his wife were divorcing. The registered deed confirms Mr. Barbour’s title to the water’s edge.

Expert Witnesses

John Hiley

[215] At the time of his testimony in the first trial, Mr. Hiley had been commissioned as an Ontario Land Surveyor for 31 years. Since 1979 he has been involved in completing boundary surveys in the Muskoka area, topographical surveys and water boundaries on the inland lakes. The bulk of his work involves surveying seasonal residential properties, carrying on business from a firm located in Bracebridge, Ontario.

[216] He was qualified to give opinion evidence on surveys, boundaries, and the scope of work done by land surveyors. As earlier indicated, Mr. Hiley has authored the Hiley Plan in support of Mrs. Bailey’s application for absolute title to Part 2, together with a survey report.[^30]

[217] Mr. Hiley reviewed all of the conveyances beginning with the 1911 conveyance to Carriveau, and came to the opinion that, by the time of the 1961 conveyance from Alderic Brunelle to Dr. Kynoch, the land mass entity being transferred was all of the lands shown in heavy outline on the Cavana Plan.[^31] This is referred to as Tiny Island on the Cavana Plan, and referenced an area of 2.1 acres. Rebecca Van Aller then received “all of an island in front of Lot 21 Concession 13 known as Tiny Island”. This, along with the two rights-of-way, being Parts 6 and 9 on the Hiley Plan, was exactly what was transferred to Angelina Bailey. All of these deeds were registered in the registry office.

[218] It was his view that when McMullen prepared his subdivision plan, he surveyed lot 10, not to the water’s edge, but to a feature such as the bottom of the bank. He was able to conclude such by relating some of the measurements on the McMullen survey to measurements on other survey plans, such as the Nicholson survey. It was his opinion that in surveying Tiny Island in 1942, Cavana was surveying to the high water mark, and that Cavana’s easterly boundary of the island on the mainland portion corresponded to what he believed to be the high water mark identified by McMullen, which marked the westerly limit of the subdivision lots. Mr. Hiley suggested that Cavana surveyed a portion of the “tail of the whale” along a line that could be identified by a change in the character of the sand, presumed to be created by the action of the water. Ultimately, Mr. Hiley opined that “based on what we see today at the property, it appears that Cavana used what he considered to be the legislated “high water mark” for the boundary of Lot 10 and generally illustrated the same; however, “we can only surmise that his rear limit of the tail of the whale was set using some change in elevation evident at the time, which allowed him to enclose the approximate acreage to which Brunelle likely felt that he was entitled”. The acreage referred to was the 2.0 acres referred to in the Crown patent.

[219] On cross-examination he agreed that Mr. Cavana was inconsistent in his application of high water mark, and that his survey was confusing. Later in cross-examination he qualified this by stating that the Cavana Plan does not make sense based upon the conditions that he saw in 2004 when he was on location. On re-examination it was clarified that he felt it was not unusual in the situation where the island is joined topographically with a dry isthmus to have two high water marks.

[220] On cross-examination he agreed that at the time of the 1913 patent, Tiny Island was surrounded by water and its boundaries likely were the edge of the water. Similarly, at that time the boundary of the mainland parcel was the water’s edge. The Cavana Plan altered that boundary, bearing in mind that he was operating under a different legislative definition of boundary prescribed by the Bed of Navigable Waters Act. He agreed that he had no information from the survey notes or other documentation confirming that Cavana knew what legislation he had to apply, but his assumption was that, as a surveyor, Cavana would apply the legislation then in force.

[221] Mr. Hiley was referred to Mr. Barbour’s deed, where the description of his lands begins and ends at the water’s edge. The same was true for Addison’s 1917 deed that created parcel 10.

[222] He maintained that McMullen was not measuring to the water’s edge, but to the bottom of the bank, although he agreed that this was speculation. He agreed that the highest priority must be given to the natural boundary of the water’s edge, and with water’s edge fluctuating, the size and area of Mr. Barbour’s property would change.

[223] His evidence was that he believed that Cavana placed two stakes in the ground at the time of his work. One is shown on the Cavana survey as being at the northerly tip of the whale’s tale, and the second stake is at a midpoint across the fluke of the whale’s tale,[^32] based upon the figures on the plan which designate a survey post. He did not locate any posts in those locations during his own work.

[224] He referred to the fact that the description on Mr. Barbour’s deed, showing acreage of “one acre and 155/1000ths of an acre” was consistent with the McMullen survey plan. In the BA Plan prepared by Mr. Stewart, Mr. Barbour’s land is shown on the plan to be a total of 3.6 acres. The historical area of the parcels, until Mr. Stewart’s survey, has always documented the Bailey lands as twice the size of Mr. Barbour’s property. In his survey, Mr. Hiley’s measurements of the Part 2 lands, together with the acreage of Part 1, total 3.39 acres. He noted that Mrs. Bailey’s MPAC notice bases her taxes on 4.0 acres, whereas Mr. Barbour’s MPAC notice refers to an area of 1.15 acres.

[225] In his report Mr. Hiley referred to seven aerial photographs, which he found to assist in showing evidence of historical facts and change over time. He found it important to do so in this case because his background reading led him to an understanding that the local cottagers considered the Tiny Township beaches to be “dynamic beaches”. He agreed on cross-examination that the aerial photographs of May 1988 and June 1989 showed Tiny Island as an island in fact.

[226] He gave evidence about reviewing the historical water level data with a view to determining the number of years that water covered the isthmus, based on his theoretical calculations, between the years 1918 to 2001. He stated that he could not necessarily rely on the accuracy of those conclusions, however, because of the annual changing nature of the beach. Taken through the documentary evidence, he identified instances where it appeared that the island was an island in fact, including 7 aerial photographs and a shore damage survey from 1973. When asked to consider the evidence that he had seen as a whole, including the photographs shown to him [^33], he agreed that there was no ten-year period where, at some point, there was not water between the island and the mainland “whether it be for five minutes or whatever”. Accordingly, he agreed that there was not a ten year period in which Mr. Barbour owned all of the Part 2 lands, as when under water Part 2 was owned by the Crown.

[227] On re-examination, he made clear that in respect of the photographs shown to him, while they appeared to show water between the island and the mainland, he could not say for certain. Nor could he say that the water shown in some of the pictures was not from wave action.

[228] When he visited the beach to prepare his survey, he was able to see an evident wheel track. It was his evidence that tracks could probably be blown over because of the light sand, but the terrain flows naturally such that the next person would take more or less the same route to get to the island. He did not overlay the yellow roadway shown on the Cavana survey onto his plan, but anticipated that the driveway is in much the same position. He agreed that there was no reference to a roadway on the Erwin survey, or in Mr. Cavana’s field notes.

[229] He agreed that the 1942 deed describes the right-of-way in such a way that it was known that the passage would be inaccessible at points in time by reason of water.

[230] He agreed that the additional areas shown on his plan that lie outside the tail from what is shown on the Cavana survey have come into existence through accretion.

Chester Stanton

[231] Mr. Stanton is an Ontario Land Surveyor, and a Canada Land Surveyor, who prepared a survey report dated September 20, 2010. He was commissioned as an Ontario Land Surveyor in 1984, having had 8 years of summer work in the field prior to that, and has worked with the firm of Dearden & Stanton in Orillia since 1984. His experience in matters of surveying is extensive, and he has been involved in doing surveys for Boundaries Act and Land Titles Act hearings. He has also appeared as an expert before a court on 15 to 20 occasions, including other proceedings involving waterfront property boundaries in Tiny Township. He estimated that 10 to 20% of his work is along waterfront of the Great Lakes.

[232] He was qualified at the first trial to give expert testimony on surveys, boundaries and what the survey plans depict.

[233] Dearden & Stanton Limited has been the custodian of the field notes of Mr. Cavana.

[234] Mr. Stanton was not involved in the two tribunal decisions. He was retained by Mrs. Bailey prior to the first trial to provide an opinion on Cavana’s survey work, and specifically what Mr. Cavana was tying in as he carried out his field work, and his usual practices.

[235] As part of his methodology, Mr. Stanton looked though the plans and field notes of Mr. Cavana and all the other surveyors that his firm carries the notes and records for, in relation to the properties involved. He attended on the site to see what it looked like, and compared it to the survey plans and records that he had. He had the plans that were prepared by McMullen, Nicholson and Hiley as well.

[236] Mr. Stanton gave evidence of Mr. Cavana’s methodology, which was to do initial work in the field, draft that on to the vellum, take a paper copy of that, and then go out to the site with that paper as a working copy, make further notes on that copy, then go back to the office and update the vellum. So at the end of the day there may be only one vellum, but there may be two or three paper prints that he marked up and kept in the file, which Mr. Stanton considered to be part of Cavana’s field notes.

[237] Referencing Cavana’s field notes, Mr. Stanton testified that Cavana conducted a registry office search. He noted that the field notes referenced instrument #189, being the Indian Land Sale Grant. The island was initially part of Lot 21, so was not considered an island in fact with respect to its registered entity at the registry office. The grant refers to it as composed of Tiny Island situate to the south of the peninsula in the southerly part of Lot 21, Concession 13, in the Township of Tiny.

[238] Cavana’s survey was the first survey of the island, other than the original survey of the Township. He testified that McMullen did not survey Tiny Island, because there is no information on the plan suggesting that he did surveying work, such as bearings and distances.

[239] It was his opinion that Cavana first attended the site sometime before November 19, 1942, as his first draft is signed on that date. He then went back to the location on November 21, 1942, and his final version of the plan was prepared from that field trip. Mr. Stanton noted that Cavana made notes on his first version about the position of the road right-of-way, which he adjusted on the final version. On cross-examination he agreed that there was no remark about the roadway in his field notes from Cavana’s first attendance. Cavana also indicated on the working copy that he planted a survey monument, which was an iron post. Mr. Stanton was of the view that Cavana’s recording of the roadway was his effort to tie in something that already existed, as opposed to laying out something that was proposed. It was his belief that it would make no sense for Cavana to attempt to tie in something that was not visible. The final Cavana Plan is a result then, of more than one trip to the field, with modifications being made in the recording of features that he identified as a result of his measurements and record-taking.

[240] In total, Cavana set seven monuments on the subject land in 1942. The round black dots on the Cavana Plan indicate monuments: there are two at the “nose” and “chin” of the whale; two by the cabin; one in the middle, east of the narrowest point of the whale’s tail; one at the north-most point of the whale’s tail; and one that appears to be exactly in the middle of the tail at the very east side. Cavana was not consistent in labelling his monuments, sometimes not doing it at all, so it is not known whether he used a wooden or iron post. However, he testified that it is a fact that the post he planted in the middle of the whale’s tail was an iron post, even though it does not say “IP” on the plan. On cross-examination, he confirmed that even though the field notes refer to only three of the seven monuments, that was not unusual in those days, and the fact that they were shown on the final survey was enough to satisfy Mr. Stanton that they had been placed, together with the fact that some were located by Mr. O’Dale and Mr. Nicholson.

[241] Mr. Stanton was aware that the Cavana survey was being prepared as part of the sale of the island to Dr. Kynoch in 1943, save the portion retained by the Brunelles. It is his opinion that Mr. Cavana wrote the legal description appearing on that deed, which was common practice for Mr. Cavana, and is supported by a notation made on his working copy of the plan. Barely visible on the plan, but still discernible, is the red outline placed by Cavana to delineate that portion of the lands that were retained by the Brunelles at the time of the transfer. The entity that he was surveying was the registered description for the property at the time, as found on instrument #189, being a peninsula of land in Lot 21 and its lands above the high water mark, being the entirety of the “whale”.

[242] It was Mr. Stanton’s opinion that Cavana was surveying the area of the island above the high water mark. In referencing the dashed line showing the high water mark to the east of the lands being surveyed, he did not find it unusual, but rather in accordance with Cavana’s practice, to show the high water mark as the limit of the property on surveys on Georgian Bay. At the time that he was creating this survey, the high water mark was the limit between the Crown land and private ownership. However, he did testify that it was unusual to have two high water marks such as these in close proximity, and that it would take a unique circumstance for that to be the case along the shores of Georgian Bay. In cross-examination he explained that this was such a unique situation, with a peninsula sticking out from the lot and concession, and Cavana was showing the high water mark for the peninsula. His opinion is that it was rational for Cavana to show two high water marks for the topography that he may have found to exist in 1942. He testified that Mr. Cavana did a lot of work not only on the Great Lakes, but on the inland lakes and rivers, and he would have a clear understanding of high water mark and what he was surveying to. It was his testimony that Mr. Cavana was an exceptionally good surveyor, and Mr. Stanton has had reason to retrace thousands of his surveys. It was typical of him to tie the high water mark into his surveys, which he did thousands of times throughout his surveys. Mr. Stanton himself has seen situations where there are two high water marks shown on a beach, in situations similar to this, where a portion of the land is dry at low water times, and separated when there is high water or some huge storm that separates them into two pieces of property, each with a high water mark.

[243] It is Mr. Stanton’s opinion that the Cavana Plan is the best evidence that we have to re-establish the boundaries of Tiny Island, since Cavana was the surveyor who was there to see the topographical features as they existed in 1942. He agrees that the Boundaries Act decision is final and binding, however, with respect to what are now the boundaries of Tiny Island.

[244] In May, 1947 Mr. Cavana returned to survey a piece of property for Mr. Lackie. His field notes dated May 12, 1947 show the peninsula as a topographical feature. His field notes from this period also show the fence that is just up from the high water mark on McMullen’s plan, on lot 9. This feature is also shown on the Erwin survey of 1939. He agrees that the Erwin survey only shows one high water mark, and farther back toward the timberline, Erwin labelled the timber line and top of bank.

[245] Cavana went back again in 1957 to survey the lands outlined in red on his 1942 survey, and excepted in the deed from Brunelle to Kynoch. At that time he found his monument in the middle of the whale’s tail, and added one monument. His field note makes a notation of the water’s edge as of 1957, and underneath wrote “all Sand in 1942”. This was done in the year prior to Brunelle transferring his excepted portion of the island to Kynoch, so Mr. Stanton assumed that Cavana was retained by either Brunelle or Kynoch or both. Mr. Stanton’s opinion was that Cavana did not produce a different plan in 1957 because he must have felt that the previous one was still a correct depiction of the property, even though he had different information about the water’s edge in 1957. In all of his field notes he tied in both the water’s edge and the high water mark. Mr. Cavana had the McMullen Plan in his file, so Mr. Stanton believed that he would take that into consideration, and that he tied the high water mark from the McMullen survey, shown as a solid line running diagonally across the page along Nottawasaga Bay, to the high water mark for Tiny Island. He testified that the McMullen Plan and the Cavana Plan correlate in respect of the lot corner tie in the northeast corner of Lot 21 being shown on both, and the high water marks. Under cross-examination, he maintained his position that Cavana had knowledge of the McMullen subdivision plan, even though neither his field notes nor surveys referred to it, because a copy of it was found in the file created by Cavana. In terms of the feature that Cavana would typically use for the high water mark, Mr. Stanton testified that it could vary; sometimes it was where it changed from sand to vegetation, being grass or bush, or it could be a rise in the bank and he would tie in the top of the bank. In his field notes from 1942 he had 17 to 20 places where he had measured to and tied in the high water mark. Having been to the site, Mr. Stanton testified that there is nothing along the back of the whale’s tail today that would be discernible as what Mr. Cavana saw in 1942 as the feature showing the high water mark.

[246] Mr. Stanton also reviewed the plan and field notes from the 1960 O’Dale survey, which are also held in his firm’s custody. It was his opinion that O’Dale was commissioned for the purpose of showing the position of the travelled right-of-way on the lands, rather than as a full survey of all the property that Dr. Kynoch owned, based on the face of the plan. Mr. O’Dale found some of the Cavana survey posts, and specifically the one in the middle of the whale’s tail, which he found in water. This iron post was also found by Nicholson. It was his testimony that iron monuments sometimes have to be located under water, but anything over one foot below water makes it impractical. It is also his testimony that O’Dale found the iron posts planted by Cavana at the back of the whale’s tail, because he marks them on his survey even though he did not indicate in his field notes that they had been found. He believed that the O’Dale survey was commissioned to show the right-of-way as used, and was not meant to be a survey of the whole island. O’Dale showed two sections of the right-of-way, one starting by the steps on the island and running along in a sort of sweeping north-easterly direction until reaching water, and then east from the beach to the Cut. He noted that the portion of the roadway at the south end of the island is in a different spot from that found on the Cavana survey, but the portion to the north was the same. He opined that O’Dale was tying in something that was there on the ground, based on measurements in his field notes and the fact that the plan is titled ‘Showing Right-of-Way as Used”.

[247] Mr. Stanton agreed that Erwin and Harvey do not reference a roadway across the beach in front of the Rice property, travelling to the island. He noted that O’Dale’s survey shows it at one end and the other, being at the island and the Cut. His explanation is that the roadway is not always visible due to the season, spring run-off, wind, rain, flooding of the beach, and other natural factors. He agreed that it was likely that there were times when the road has been obliterated.

[248] It was Mr. Stanton’s opinion that a survey plan such as Cavana’s conveys to the landowner, by reference to survey monuments and other physical features, the extent of the property that they own. A person possessing the Cavana and O’Dale surveys would be able to orient themselves to the extent of their land through the iron monuments placed by Cavana, and by the fence shown on the Erwin survey. He had no evidence that anyone had ever seen the survey posts when they were placed, or thereafter, but it was his opinion that if someone was looking for them, they would find them.

[249] It was his opinion that the statutory declarations of Rebecca Van Aller and Nancy Rice were consistent with the Cavana and O’Dale surveys, and what he himself had seen at the site.

[250] Had an updated survey been done in 1988, it likely would have been done by one of the local surveyors who, at that time, were still surveying to the high water mark. As a result, he testified that such survey would have looked much like the Cavana survey. If Mr. Stanton had been asked to do it, he would not have been surveying to the high water mark at the time, but would have reconstructed Cavana’s survey from the measurements shown on that plan, with the end result looking much like the Hiley plan. Even if there was water between the island and the mainland, he would mark the same instrument number on both sides of the water, indicating that ownership was intact on both sides of the water.

[251] Mr. Stanton’s understanding is that when the property size increases with accretion that is natural, slow and imperceptible, then the area accreted is added to the legal geographic description, and a survey is not needed to validate it. Similarly when water levels go up and the size of the parcel changes, there is no need to resurvey the property.

[252] His testimony is that there was nothing that arose in cross-examination that would cause him to alter the opinions expressed in his report.[^34]

[253] Mr. Stanton also gave evidence that Tiny Island was being dealt with through conveyance prior to the Indian patent.

David Brubacher

[254] Mr. Brubacher is an Ontario Land Surveyor who is designated as a Geographic Information Manager. He defined that sub-specialty as involving surveyors who are conversant in managing, acquiring and analyzing spatial data. He identified the printed excerpt from the website of the Association of Ontario Land Surveyors, of which he is a member, which described Geographic Information Management as a specialized aspect of information management for geographic data involving geospatial technology. He is not a cadastral surveyor, like all of the other surveyors who testified.

[255] He has published in the journal created by the Association for Ontario Land Surveyors, and has been on the board of that governing body for six years, currently as past president.

[256] Mr. Brubacher’s expertise lies in collecting, managing and analyzing information within software systems. From 2010 to 2012, he was the senior information management specialist for a project that involved a massive amount of data pertaining to ground and surface water elevations, which involved building software to assist a team of water modellers. He has worked with data sets in the range of 250 million records. As part of his analysis, he is able to determine statistically significant outliers in the data. His formal education is not in statistics, but he has extensive experience with the variability found within large data sets. In the project where he worked with water modellers, the software that he helped to develop was tested by his peers, and he had to understand statistics to the extent that it could be embedded in the software. He testified that he does not have experience dealing with ambulatory water boundaries, but does have experience with respect to the behaviour of physical bodies of water and their shorelines.

[257] The purpose of his testimony was to assist the court in determining whether water level readings taken at gauges located at the Collingwood and Parry Sound water level stations in Georgian Bay are reliable predictors of water levels at Tiny Island. This evidence was needed for the purpose of helping the court to understand the evidence as it related to the inundation of Parts 1 and 2 by water from time to time, and whether changes in water level at Tiny Island can be considered slow, gradual and imperceptible.

[258] Mr. Brubacher was qualified by this court to provide expert testimony with respect to managing and performing calculations and analysis of geographical and spatial data as it relates to land, water topography and other physical attributes of land, including statistical sets of water level data, including their management, analysis, and evaluation. He was not permitted to provide evidence as to whether water level changes occurring or not occurring at Tiny Island may be perceptible on an individual level, as he has no particular expertise in the study of human perception or behaviour.

[259] Mr. Brubacher’s method was to first acquire the data regarding water levels from the two water level stations, which is maintained by the Canadian Hydrographic Service. He estimated that the stations are approximately 100 km apart and equidistant from Tiny Island, in a triangular fashion. He felt that it was important to determine whether there was a relationship between the data from the two stations. Using a software program, he was able to group the data on a daily, monthly and annual basis to determine the daily, monthly and annual minimum, maximum and average water levels, and then the standard deviation of that average.

[260] The results show that on an annual basis, from the years 1980 to 2012, the maximum and minimum water levels have changed only by a few centimetres in that 22 year period. 1986 is shown as the year of highest average water levels at both Collingwood and Parry Sound, and 2012 the lowest. Collingwood water levels appear to be marginally higher than Parry Sound levels, on an annual basis. On an annual basis, the standard deviation of the averaged data showed that there was no statistically significant “outlier” in either set of data. Mr. Brubacher performed a T-test analysis on the data from both stations, which is used to determine if two sets of data are significantly different from one another. The resulting percentage is an indicator of how statistically identical the data is; the higher the percentage the greater the degree of confidence that the data is comparable. In this case, the T-test performed on the annual average resulted in an 83% confidence that those averages came from identical data sets.

[261] The same exercise was repeated for monthly averages between the data collected from the two gauges. The result was to reveal short term volatility in the month-to-month water levels at both Collingwood and Parry Sound, which is not revealed in the annual averages. The resulting chart showed a great deal of movement in the vertical water level throughout the year when viewed on a monthly basis. In other words, the minimum and maximum water levels are such that the standard deviation found in the monthly averages is high. Not surprisingly, the T-test result showed a confidence of 49% that the minimum and maximum water levels have come from data with the same average; the average water levels at Parry Sound and Collingwood are not closely related.

[262] The same exercise was repeated for the daily data. The results show a significant daily variability between minimum and maximum water levels for the month of September, 2002. The T-test, with a result of .00397%, confirms that the daily minimum and maximum at these stations do not come from data with the same average. His evidence is that this shows that predicting water levels at Tiny Island is not possible by using the data from either of these two water stations.

[263] It is Mr. Brubacher’s testimony that these results reveal that changes in water level in Georgian Bay are not slow and imperceptible, nor able to be predicted by the recorded water levels at the two closest stations. In other words, what was occurring on a daily basis at the shoreline of Part 2 cannot be predicted from the data collected at another station.

[264] On cross-examination Mr. Brubacher confirmed that the highest water levels recorded between 1980 and 2012 occur in 1986, with average annual water levels appearing to be rising between 1982 and 1986. The averages then appear to drop after 1986 to 1990, and then increase to approximately 1993. In 1996/97 the average level is at its second highest in the 22 year period examined by Mr. Brubacher, and then drops thereafter, remaining low from the 1990s forward. In concrete terms, the water level after 2000 is about 2 ½ feet lower than in the 1980s. He again confirmed that because these are annual averages, they do not give an indication of what was occurring at Tiny Island in those years.

[265] Mr. Brubacher also plotted the daily data from Collingwood (on average the higher of the two stations) for the month of September, 2002, and the hourly data for September 10, 2002. The significance of this date is that it closely corresponds with the date of a topographical plan completed on September 9, 2002 by Mr. Nicholson, O.L.S. Mr. Brubacher plotted, using different coloured lines, the location of the minimum and maximum water levels found at Collingwood in September 2002, assuming that that data could be applied to the Tiny Island location. He testified that the plotting of the two water levels reveals a “movement in the shore” due to the slope of the beach as water rises and falls. Even at the highest level, the isthmus is shown to be revealed.

[266] This evidence was given to refute the opinion provided by Mr. Barbour’s expert, Mr. Stewart, O.L.S., in a report dated October 4, 2007. For the purposes of that report, Mr. Stewart used the same raw data collected by the Canadian Hydrographic Service. It was Mr. Stewart’s evidence that, using the same contour information shown on Mr. Nicholson’s survey, that Tiny Island was an island in fact almost constantly from 1991 to 1998, being separated from the mainland by a channel of water.

[267] Mr. Brubacher did not examine survey plans or aerial photographs because he was interested in examining vertical dimensions of water, not boundaries.

Ronald Stewart

[268] Mr. Stewart was first contacted by Mr. Barbour in August 2001 for the purpose of requesting a survey of his property. The evidence shows that at that time, Mr. Barbour also alerted Mr. Stewart to the fact of a disagreement existing with neighbours. Mr. Barbour subsequently delivered correspondence to Mr. Stewart in which he outlined the history of his use of his property, and of his dispute with the Baileys. In a responding letter dated October 5, 2001, Mr. Stewart provided Mr. Barbour with the following opinion: “With regard to the owners of Tiny Island, I believe you are correct in saying that you have title to the beach”. Mr. Stewart’s evidence was unclear about how much investigative work he had done by that point to reach such a conclusion.

[269] Mr. Stewart testified at the Boundaries Act hearing for the purpose of delineating the boundary between Tiny Island and the mainland portion. As earlier indicated, Deputy Director of Titles Keat accepted Mr. Stewart’s methodology and opinion as to the location of the lowest point on the isthmus, being where the island parcel and the mainland parcel would first come into contact, and used that point of contact as the boundary between Parts 1 and 2 as now shown on the BA-Plan.

[270] At the Land Titles Act hearing, Mr. Stewart offered his opinion, as he does in this proceeding, that there was never a ten or twenty year period during which Part 2 was not covered with water. When covered by water, it is owned by the Crown pursuant to the Beds of Navigable Water Act and could not be subject to possession by Mrs. Bailey during those periods. Mr. Stewart prepared a report for that hearing, dated October 4, 2007, for the purpose of providing expert testimony as to what periods of time Tiny Island was separated from the mainland.

[271] As earlier indicted, Mr. Stewart’s opinion in that report is that Tiny Island was an island in fact “almost constantly” for the period 1991 to 1998. He reached this conclusion by using recorded water levels of Lake Huron, and determining the “maximum monthly mean” conditions for each of the eight years. What are then referred to as “annual maximum monthly means” were translated into contour lines placed on the Hiley Plan, using the contour information found in the Nicholson Plan. There is no indication that this evidence was accepted or rejected, but ultimately Deputy Director Rosenstein did not find evidence of water levels to be of great significance given the case law that she found applicable to the situation.

[272] A further report dated November 29, 2007 and indicated as being updated on March 1, 2011, became an exhibit at the first trial. It states that the area designated as Part 2 was completely or mostly covered by water for significant periods of time – sometimes for entire years – especially through the 1970s and 1980s, and at certain times in the 1990s. The statement is unsupported given that the rest of the statements in the report are crossed-out.[^35]

[273] Mr. Stewart prepared a further report dated January 10, 2008, indicated as being updated on March 1, 2011, which became an exhibit at the former trial. In that report he opines that the water’s edge boundaries of Mr. Barbour’s property and Tiny Island are subject to the doctrine of erosion and accretion. Accordingly, any land that was covered by water encroaching in a slow and imperceptible manner, whether by higher water levels or erosion of alluvium, belonged to the Crown and not Mr. Barbour or Mrs. Bailey.

[274] After the release of the Land Titles Act Decision, Mr. Stewart prepared a report dated November 12, 2010. This was a response to the Stanton report dated September 20, 2010. In that report, his penultimate conclusion is twofold: that Tiny Island was an island surrounded by water at the time of the 1913 conveyance from Brunelle to Addison, and that secondly, Tiny Island was detached or attached to the mainland as the water levels of Lake Huron rose and fell, respectively, over the years. Since neither of these are disputed facts, the report does not assist in this respect.

[275] His report goes on to conclude that it was unreasonable for a purchaser to rely on the 1942 Cavana Plan in completing a purchase in 1988. A new survey was required, he opines, because a) it is an important part of a real estate transaction; b) it is a well-known fact that water levels change significantly over time and so “things change on the ground over time”; and c) a purchaser would have been advised of the problems with the Cavana Plan, as were revealed in the Boundaries Act hearing. He prepared a five-page long file memo on November 22, 2010 to summarize his thoughts on why Mrs. Bailey should have obtained a new survey in 1988, entitled “ ‘Red Flags’ pointing to necessity of up-to-date-survey in 1988”.[^36] On cross-examination, however, he conceded that any survey obtained in 1988 would likely have only shown the boundary of Mr. Barbour’s property as the high water mark, not the water’s edge, as surveyors in the locale of Tiny Township were still carrying on the practice of surveying waterfront properties to the high water mark in that period.

[276] Also of note from this report are two statements of importance to an issue that will be discussed later, which is that Mr. Stewart, although integrally involved in this proceeding, did not interview any neighbours or individuals who would have had knowledge of the history of these properties. In commenting on Mr. Stanton’s remark that the Cavana survey was “passed on from owner to owner up to and including the current owners”, Mr. Stewart wrote: “I do not know how he could know this”. He also comments that, with respect to the road shown on the Cavana Plan, which Mr. Stanton noted to be a travelled road, that “there is no evidence that a road existed across the beach at that time”.

[277] Similarly, in his report of January 10, 2008, Mr. Stewart comments that Mr. Hiley’s conclusion that Mrs. Bailey and her predecessors in title have used and treated Parts 1, 2, 3 and 4 as their own land is not supported by evidence.

[278] Subsequent to that report, Mr. Stewart delivered an e-mail to Mr. Streisfield dated November 18, 2010, relied upon by Mr. Barbour in this proceeding. In it he indicated that by the time of the 1958 and 1960 transfers to Dr. Kynoch, both a 1957 survey by Cavana and the 1960 O’Dale survey would have shown Dr. Kynoch “a completely different picture of Tiny Island”. He seems to be saying that the O’Dale Plan stood in marked contrast to the 1942 Cavana Plan, and so Dr. Kynoch should have known that he was not purchasing the land as depicted on the Cavana Plan. His opinion is thus even though both the 1958 and the 1960 conveyances were completed with reference to the Cavana Plan.

[279] In formulating his opinions, Mr. Stewart testified both in the first trial and before this court that he relies on aerial photography obtained from the National Air Photo Library.

[280] Mr. Stewart testified at the first trial that the BA Plan confirmed, but did not fix, the natural boundaries of Mr. Barbour’s land in position; rather, it confirmed the ambulatory nature of those boundaries. His evidence is that water’s edge boundary is a natural boundary which will ambulate or move horizontally from time to time, depending on two factors: one would be a change in water level which is slow and imperceptible; or accretion or erosion of the sand or the beach area which would also be slow and imperceptible. The water’s edge is in fact the monument identifying the boundary. As the water’s edge moves outward, the new dry land accretes to the upland and becomes part of the upland. As the water level drops sufficiently that the island is joined to the mainland, at that point the boundary is no longer ambulatory, but rather fixed in position. In his examination-in-chief he gave the opinion that the ambulatory boundary of Part 2 is probably moving on a daily basis, based upon water levels and accretion.

[281] Exhibit 69 in the first trial was a chart labelled by Mr. Stewart as the monthly mean water levels in Lakes Michigan and Huron from 1918 to 2001. The data was obtained from the Canadian Hydrographic Service’s public records. His evidence on cross-examination confirmed that the data contained therein is a compilation of data taken at various gauges in Lake Michigan and Lake Huron, from as far away as Sarnia and Little Current. Mr. Stewart testified that he determined that a water level of 176.50 metres was the level at which the two points of land became separated by water. Anything lower meant that the isthmus existed; anything higher meant that Tiny Island was surrounded by water. He depicted the latter situation by placing boxes in the chart around the months in which the water levels met or exceeded 176.50 metres. It was his evidence that his findings confirmed the evidence heard in this proceeding, such as what can be observed in photographs that have been referred to as the “Grant photos” or the “canoe photos”. These measurements, he opines, show that in May 1988 the isthmus did not exist, nor had it for several years prior. His findings include that from April 1969 to August 1988, with the exception of a few months, Tiny Island would have been surrounded with water, and again continuously for the period May 1996 to August 1998.

[282] Exhibit 70 from the first trial is a compilation prepared by Mr. Stewart that purports to show water levels during various months that correspond to various documents that he considers to be significant in forming his opinion: plans of survey, air photography, and photographs. In that exhibit he shows, to a tenth of a metre, the water levels during the month corresponding to the document in question. His evidence was the water levels shown on exhibit 70 might not remain at that same level throughout the day or month, but that it would be close. He testified that he was looking for a pattern. He agreed that he had not determined the standard deviation to investigate how much fluctuation takes place in the water level readings within a 30 day period.

[283] On cross-examination he also agreed that another important factor to consider in considering the impact of the 176.5 meter water level is the amount of sand on the isthmus, and the underlying rock stratum. The existence of rock, evident in many photographs taken in the area of the isthmus, was not mapped. His evidence is that even with a shift in sand due to high water levels or storm events, the change in elevation within the isthmus would only be three-tenths of a meter at most. He does not explain how he reached that number.

[284] He agreed that rising water encroaching on the area of the isthmus is not smooth and regular, and with retreating water, there are areas that dry before others, resulting in a ponding effect. He testified that a vertical change in water level of one foot would correspond with a horizontal displacement of the water’s edge by a factor of 30 or 40 because of the slope of the shore by Tiny Island. To this extent, his evidence accords with that of Neil Lackie, who testified that he observed that a drop of one foot vertically could result in a horizontal displacement of water away from the shoreline by as much as 30 or 40 feet.

[285] Mr. Stewart also prepared a report dated May 12, 2013, in response to Mr. Brubacher’s report.[^37] Mr. Stewart expressed the opinion that he has more experience dealing with Lake Huron water levels than does Mr. Brubacher, and that based on his experience, he believes that the monthly water level data is useful in determining the position of where the water’s edge would be at any given time. He opined in his testimony that, particularly looking at the aerial photography and other evidence in the case, including photographs, that nothing in the water level data was inconsistent with the reality observed by others. He referred again to the chart of the Lake Michigan-Huron monthly mean water levels[^38], noting that the monthly mean level for May 1988 corresponds to what is depicted in the aerial photograph from that same month, purporting to show water covering the isthmus. It was his belief that monthly means were the most appropriate data to use, as they will approximate the level at any location on the lake under normal weather conditions, and show a clear indication of historic trends. It is his evidence that the best evidence of water’s edge as of May 11, 1988 (the date of the aerial photograph) is the chart to which he referred. It remained his opinion that all of the Part 2 lands were covered by water and owned by the Crown on May 11, 1988, and that Angela Bailey had not provided any survey evidence to show the location of the water’s edge of the Part 2 lands or the Part 1 lands for any period of time prior to her purchase in December 1988.

[286] Just as he did in the former trial, Mr. Stewart testified with respect to a photogrammetric map[^39]. This was prepared by a photogrammetrist in his office of MMM Group by taking stereo images of aerial photography dated May 11, 1988. It was his evidence that he overlaid the 1942 Cavana Plan, and the 1960 O’Dale Plan on the photograph to find out how much of the Part 2 lands were covered by water at the time of the photography in 1988. The purpose of the exercise was to show that the tail of the whale was covered by water in May of 1988. It was his evidence that this photogrammetric map showed that all of Part 2 was under water. Again, this is at odds with the evidence of the Baileys when they walked the roadway on Part 2 in May, 1988. As a result, it was his opinion that Mr. Barbour did not own Part 2 in 1988, but nor did Mrs. Bailey. His thesis is that all of Part 2 was owned by the Crown in May 1988 because it was inundated with water. Matching this evidence with his evidence of the historic water levels, in May, 1988 the water level was 176.7 metres, only 2/10s of a metre higher than his 176.50 benchmark.

[287] In cross-examination it was revealed that the photogrammetric map was not prepared by Mr. Stewart, but rather by a technician in his office. He had never before prepared a photogrammetric drawing, and it was a photogrammetrist in his office that did the mapping involved. Mr. Stewart’s involvement was to look through the stereo plotter, and look at the images at the time the map was prepared. His evidence was that he has reviewed many such drawings in the past, and knows what to look for, and what they tell him. His evidence was that one could not tell from looking with the naked eye at the aerial photographs, from which the photogrammetric map was prepared, where the sand was wet or dry.

[288] In his cross-examination Mr. Stewart explained that the water level was likely even higher than 176.7 metres, even as deep as one foot over the isthmus instead of the 2/10 of a metre revealed by the May 1988 recorded water level. This would be so because there had just been a period of very high water levels in the 1980s, so most of the sand would probably be washed out. He agreed that he did not have any measurement of the bathymetry of Georgian Bay in this area, on which to base his opinion. He had available the topographical map prepared by Mr. Nicholson in 2002. He agreed that every year, due to the changing nature of the isthmus, that the elevations would differ, although the general configuration would be the same.

[289] In his testimony Mr. Stewart indicated that it was part of a surveyor’s mandate to look for evidence of possession in order to establish boundaries. His testimony at the first trial was that there was no evidence of possession on the sand beach. He testified that he did not see anything in the historical records indicating a “laneway”, and that he does not have a record of it crossing Mr. Barbour’s beach prior to 1988 or 1990 when the Baileys started using such a pathway. He noted that it was not on the aerial photography from May, 1988. Mr. Stewart was equivocal on that point during the first trial, acknowledging that there was contradictory evidence and that he was unable to say for sure whether the existence of the driveway pre-dated Mrs. Bailey’s ownership. He did note that a driveway was shown on the Cavana survey, stating that it “did show the driveway, or at least the proposed driveway, or maybe it was an existing driveway, I can’t say for sure.” He noted that there was nothing in the 1939 Irwin survey to indicate a road feature in this area, and that it was part of his job to identify any such physical features. With respect to the 1960 O’Dale plan, he surmised that the partial roadway shown, interrupted by the water between the island and mainland at the time, was to show the access route to get to Dr. Kynoch’s stairs, but on that point he stated that he was speculating.

[290] He confirmed that Rowntree Beach was a decision that was known to many of the local residents, and many beach associations were following it closely. He denied that it informed his conclusions in this matter from the outset of his initial opinion to Mr. Barbour.

[291] Mr. Stewart confirmed that easements that end at water’s edge do not require another deed to obtain ownership of land that emerges when waters recede and thereby elongate the end point of the easement. He agreed that whatever the characterization of the parcel’s ownership, it enlarges with accretion or reduces with reliction or inundation.

[292] He agreed that on the Cavana Plan, Mr. Cavana was attempting to represent to the Brunelle brothers that they owned the beach all the way up to what we now know to be the southern portion of the Rice property.

The Positions of the Parties

Mrs. Bailey

[293] Mrs. Bailey’s position is that Part 2 has always been occupied, used and enjoyed by her and her predecessors in title as their own property, including for access to Tiny Island, to the exclusion of Mr. Barbour.

[294] She always understood that she purchased all of the land shown on the Cavana Plan, together with an easement established by that part of the roadway leading to Part 2, which is consistent with the historical transfers of the property.

[295] Her counsel argued that she has established by a preponderance of evidence that she has established a claim of adverse possession, or alternatively, for an easement by prescription. The fact that the isthmus and some of Part 2 has been under water at various times does not defeat either her possessory or prescriptive claims; rather, the riparian character of the title and unique physical features of this waterfront property mean that a possessor only needs to possess and occupy in the same manner as would a person who owns the paper title.

[296] Further, Mrs. Bailey argues that Mr. Barbour has not insisted on his strict legal rights, and that permitting him now to do so, after years of silence, would result in an unconscionable outcome.

Mr. Barbour

[297] Mr. Barbour’s position is that fundamentally, Mrs. Bailey’s claim fails because the boundary of Part 2 is ambulatory, and she was unable to establish a possessory interest until the boundaries of the land in question were established by survey, which did not occur until the Boundaries Act hearing. Also, it was unreasonable for Mrs. Bailey, and her predecessors in title, to rely upon the Cavana survey given all of the historic information registered on title and available for review, including Mr. Barbour’s deed.

[298] Further, Mr. Barbour has never been excluded from Part 2, and there is insufficient evidence to establish that he has been. There is also insufficient evidence of continued use and occupation for the prescribed periods, and that Mrs. Bailey is required to prove, in respect of her possessory claim, that all of Part 2 on the dry land side was used. There is no evidence of a period of 10 years, let alone 20 years, when all of Part 2 was above water. When any portion of Part 2 was covered in water, it was owned by the Crown pursuant to the Beds of Navigable Waters Act, which would interrupt any limitation period that was running against Mr. Barbour. The statutory time periods would have to begin anew each time Part 2 became dry land. It is argued that the statutory declarations deposited on title were documents manufactured to fuel a possessory claim. Mr. Barbour asserts that no roadway existed before Mrs. Bailey purchased the island.

[299] If a prescriptive period ever began running, it was interrupted in 1995 when Mr. Barbour put his note on the Baileys’ door.

[300] It is Mr. Barbour’s position that Mrs. Bailey has not discharged her burden of proof with respect to all of the elements of her claims.

Assessment of the Evidence

Lay Witnesses

[301] This court accepts the veracity of the testimony provided by Angelina, Stephen and Natasha Bailey in all respects. They each provided their evidence in a straight-forward manner and without embellishment. They conceded reasonable points, and were careful to indicate when they had no knowledge of something, or were unable to remember. Strikingly, even though this was the fourth time that Angela and Stephen Bailey have testified regarding these matters, while they did appear understandably fatigued by eleven years of litigation, their evidence was presented in a candid and unrehearsed fashion. None of their testimony was undermined in cross-examination in any material respect. In addition to their extensive testimony of how they have used and enjoyed Part 2 over the years since taking occupation of the island, and their understanding from Betty Van Aller as to how the island had always been accessed, their testimony was pivotal in establishing how they arrived at an understanding of the scope of the land purchased by them in 1988. All testified as to rapid fluctuations in the water levels on the shoreline in the area of Part 2.

[302] Heidi Lauridsen and Christopher Van Aller were helpful witnesses to provide first-hand knowledge of events that they had personal experience with and knowledge of during the time that they were seasonal residents of Tiny Island and vicinity. Neither of these individuals has an apparent interest in this claim, and neither was shown to have any personal relationship with any of the Baileys. Conversely, there was no evidence to suggest that either would have a motive to fabricate evidence that would detract from Mr. Barbour’s position on the issues in question. They both had a good recall of events and neither was shown to have a faulty memory.

[303] Gerrard Maurice was an independent witness who has first-hand knowledge of, in particular, the use made of the roadway to the island in the 1960s era. His testimony was of assistance in developing a broader picture of the use of the roadway by those other than the owners of the island, or their family members and guests.

[304] Nancy Rice is an invaluable witness, as the person with the historically oldest testimony of the matters in question. Only certain portions of her evidence from the Boundaries Act hearing were read into the record for this trial. However, I reviewed the entirety of her evidence from that hearing, in order to assess her reliability overall. That review revealed her to be a witness who, despite her age of 77 at the time of testifying, had an excellent recall of the events to which she was testifying and was unshaken on cross-examination. Again, there was no evidence to suggest that she would have a motive to fabricate evidence to assist either party. She confirmed the accuracy of her two statutory declarations. Most importantly, she gave evidence of use of the roadway to access the island from as early as 1935, from her own personal observations and experience.

[305] Betty Van Aller was 81 years of age at the time of the Boundaries Act hearing and did not testify, and so her evidence comes by way of her statutory declaration made in 1988. I have no evidence as to why neither party called her to testify in the Boundaries Act proceeding, although her age suggests that health may have been a factor. As a result of her death, Mr. Streisfield has obviously been deprived of an opportunity to cross-examine on that evidence. Yet the content of Mrs. Van Aller’s statutory declaration is central to the issues in this litigation. This begs the question, then, as to why the only living person who might have knowledge of these same matters going back to 1949 did not testify, if there was contrary evidence to be given. The fact that Mr. Barbour did not do so leads me to infer that he did not have evidence that would refute the information provided by Mrs. Van Aller. It goes uncontested. Such an inference does not reverse the onus in this case; it simply acknowledges the burden upon any litigant who asks the court to reject the credibility and reliability of evidence, as Mr. Barbour is asking this court to do – if a litigant has a different version of events, he or she might wish to present it for consideration.

[306] The evidence of Neil Lackie and Charlene Lowes was also valuable, as residents who have or had lived in the vicinity of Tiny Island their entire lives. Yet where their evidence conflicts with that of the other witnesses in respect of the use made of Part 2, I prefer the evidence of the witnesses who have lived or do live at the island. These latter individuals would have more reason to recall the use made by them of the land in question, and the experiences of Mr. Lackie and Mrs. Lowes are limited only to what they themselves were able to participate in and observe. As their cottages are some distance from the island, it is common sense that they would not have always had an opportunity to observe what the occupants of the island were doing, and the time spent by each on the beach was somewhat curtailed by their jobs as teenagers. Their lack of direct knowledge was evident in their testimony about vehicles. Mr. Lackie was unaware of whether Betty Van Aller owned a vehicle, while the preponderance of evidence is that she did. Similarly, Ms. Lowes did not know Mrs. Van Aller well, and she could not recall how the Kynochs accessed the island.

[307] In contrast to any other witness, Ms. Lowes gave evidence of the Baileys driving through deep sand, on a route differing from the one used by prior owners. Again, this is contradicted by the preponderance of evidence, and defies common sense that the Baileys would choose a more cumbersome path. Her evidence that she never saw a vehicle parked at the island prior to the Baileys’ ownership also stands in marked contrast to that given by the prior occupants themselves, whose knowledge of such events would be more reliable. With respect to the issue of access from the Cut to the island, I prefer the testimony of those witnesses who had reason to use the roadway, over that of Mr. Lackie and Ms. Lowes, for the very reason that both conceded in their testimony – it was possible that people were using the roadway when they did not observe them doing so. Accordingly, where Mr. Lackie testified that he did not know of anyone driving to the island in the 1950s or 1960s, and where Ms. Lowes testified that she never saw the Kynochs drive to the island, and Betty Van Aller on only two occasions, I am unable to give that testimony any weight, as compared to the testimony of those having greater familiarity with access to the island. Further, their evidence that the Baileys added or removed rocks to “create” the roadway is not supported by the preponderance of evidence, nor their evidence that the Bailey family was the first to drive across the beach regularly.

Expert Witnesses

Mr. Stanton

[308] Mr. Stanton’s evidence was clear, careful and precise, and this court had no difficulty following his testimony or his reasoning. As the expert most familiar with Mr. Cavana’s work, he provided valuable insight into the 1942 Cavana survey, and field notes from which it was derived. This court agrees with his comment that, had Deputy Director Keat had the benefit of his testimony to explain Cavana’s methodology, a different conclusion may have been reached at the Boundaries Act hearing.

[309] The most important aspects Mr. Stanton’s evidence that I accept, which impact on the questions to be resolved by this court, are as follows:

i) that Cavana placed seven monuments during his 1942 survey, one of them being an iron pipe or post in the middle of the very east end of the “whale’s tail” and one being an iron post or pipe in approximately the middle of the back of the whale. I accept that Cavana found the latter monument when he went back in 1957. Further, O’Dale located at least four of these iron posts in 1960, one being that at the back of the whale’s tail. I accept that Nicholson located at least one of them in 2002, being the one in the middle of the tail. Based on his familiarity with Cavana’s work, and based upon the location of iron posts years later, which I find as a fact were originally set by Cavana, I accept the evidence of Mr. Stanton that the solid dots shown on the Cavana plan represent the placement by him of monumentation in those locations. Three of those monuments were placed on what is now shown as Part 2 on the Hiley plan;

ii) I agree with Mr. Stanton’s conjecture that Mr. Brunelle, Dr. Kynoch, or both, would have gone out to inspect the location of the iron bars at the time of, or shortly after, the surveying work was done. I agree with his common sense logic; if a landowner goes to the trouble of having a survey done, such individual will at least go out and inspect the results on the ground. This would be particularly true where the land is being surveyed for the first time, as I accept was the status of the Cavana survey. The fact that there is no information on the earlier McMullen plan suggesting that McMullen surveyed the island in any detail leads to the conclusion that McMullen was not surveying the island per se;

iii) I accept his opinion that a survey plan such as Cavana’s conveys to the landowner, by reference to survey monuments and other physical features, the extent of the property that they own. Even if the monuments themselves are no longer visible, the measurements from the Cavana survey, together with the total land area of 2.1 acres, would permit a landowner to recreate a close approximation of the boundaries first surveyed by Cavana;

iv) I adopt Mr. Stanton’s expert view, which accords with common sense, that Cavana’s depiction of the roadway was an effort to tie in a feature already existing on the ground, as there would be no reason for him to tie in something not visible. Also, the fact that he went to some trouble to change the location of the road between his first draft and final plan suggests that he turned his mind very specifically to the location of the roadway, and common sense suggests that this would have been unnecessary effort for a pathway that was mere speculation;

v) I also adopt Mr. Stanton’s view that O’Dale was commissioned for the express purpose of producing a survey of the roadway as it existed in 1960. Again, common sense suggests that a landowner would not trouble themselves to obtain a survey of something not in existence. I accept Mr. Stanton’s opinion that O’Dale was tying into his plan a feature that was there on the ground to see, based on measurements in his field notes and the very obvious fact that the he titled his plan “Plan of Survey showing right of way as used on part of Tiny Island”;

vi) I accept Mr. Stanton’s evidence that the entity that Cavana was surveying was the property described on instrument #189 as referenced in his field note, being “that parcel or tract of land, situate, lying and being in the Georgian Bay, in the Township of Tiny...containing about two acres be the same more or less, composed of Tiny Island Situate to the South of a peninsular in the southerly part of Lot Twenty-one...”. He was therefore surveying a peninsula of land in Lot 21 and its lands above the high water mark, being the entirety of the “whale”, comprised of approximately 2 acres;

vii) The evidence of Mr. Stanton leaves no doubt as to why Cavana showed two high water marks on his survey, and I accept that this occurred because of the unusual situation of this island frequently being joined to the mainland, and the need to show the high water mark for the peninsula given that it was Cavana’s practice, and in keeping with the legislation at the time, to show the high water mark as the limit between private ownership and Crown land on waterfront. At the time of his survey the island was attached to the mainland. He explained that the second high water mark to the east of the beach was to show the westerly limit of the lots in Concession 21. I agree that Cavana was in the best position to show the topographical features of the island as they existed in 1942, and accept that his high water mark at the back of the tail of the whale designated what he observed to be a physical feature that delineated a change in the topography of the beach. I also accept that it makes rational sense that Cavana had the McMullen Plan available to him at the time, since what was probably a hand-drawn copy was located in his file, and that he tied in the high water mark on the McMullen Plan with that on his own survey. None of this changes the boundaries of Part 1 and Part 2, but it does serve to explain why it may have been rational for Brunelle and Kynoch, and their successors in title, to accept and rely upon the Cavana survey.

Mr. Hiley

[310] Mr. Hiley’s evidence was similar in many respects to Mr. Stanton’s, and to the extent that they do correspond, I find Mr. Hiley’s evidence useful. Like Mr. Stanton, his opinion was that Cavana’s easterly boundary of the island on the mainland portion corresponded to what he believed to be the high water mark identified by McMullen. His evidence was fair in stating that we can only surmise that his rear limit of the tail of the whale was set using some change in elevation that was evident at the time, which allowed him to enclose the approximate 2 acres set out in the Crown patent. Like Mr. Stanton, his opinion was that it was not unusual to have two high water marks in the situation where the island is joined topographically to the main land by an isthmus.

[311] In addition, I accept the following from his evidence:

i) That Cavana would apply the legislation in force at the time that he prepared the 1942 survey, especially since it was his practice, as testified to by Mr. Stanton, to survey to the high water mark, and he made consistent efforts to do so at the time of the 1942 survey;

ii) that the 1942 deed from Brunelle describes the right-of-way in such a way that it was known that ingress and egress to the island would be impeded at points in time by reason of water;

iii) the description on Mr. Barbour’s deed, showing acreage of “one acre and 155/1000ths of an acre” is consistent with the McMullen Plan.

[312] On cross-examination Mr. Hiley was led to make conclusions based upon photographs put to him, including aerial photographs. One such conclusion was that there was not a ten year period in which there was not water surrounding the entirety of the island, and therefore no ten year period when Mr.