COURT FILES: C18-0007; C19-0002

DATE: 2021-10-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gail Elsie Walker

Applicant

– and –

Director of Land Titles

Respondent

AND

BETWEEN:

Brian Bainborough

Applicant

-- and –

Gail Elsie Walker, Randall Riles, Helen Riles, John Michael Ball and Claus John Hoyer

Respondents

B. Allison, for Gail Walker as applicant and as respondent on the Bainborough application

The Director of (Land) Titles has been removed as a party

J.S.G. Macdonald, for Helen Riles and Randall Riles, who were granted standing to oppose the Walker application, and as respondents on the Bainborough application

Applicant B. Bainborough, representing himself

Respondents J.M. Ball and C.J. Hoyer did not participate

HEARD at Gore Bay: August 23, 2021

DECISION ON APPLICATIONS

A.D. KURKE J.

Overview

[1] In 2010, the Director of Titles converted the recording of title to the lands in Gore Bay, Ontario from the land registry system to the land titles system. Title to the land is now recorded as Land Titles Conversion Qualified in accordance with the principles and practice of the Ontario Land Titles Act, R.S.O. 1990, c. L.5. On this conversion, some lands apparently in Lot 16 Concession 10 in the Township of Gordon, District of Manitoulin were registered in favour of Randall Riles and Helen Riles (the “Riles”) as joint tenants and sole owners. Gail Elsie Walker (“applicant Walker”) claims that this registration divested her of a portion of her land, as she lays claim to all of Lot 16 Concession 10.

[2] There are two applications before the Court.

[3] One is brought by applicant Walker, who seeks to vest in herself title to all of Lot 16, Concession 10 in the Township of Gordon, District of Manitoulin, including PIN 47107-0155. Applicant Walker brought her application naming the respondent as the “Director of Land Titles”, though that administrator’s title is actually the “Director of Titles”. The Director has been removed as a party to the proceedings, but the application goes forward. The Riles, a parcel of whose property – PIN 47107-0155 – applicant Walker claims as her own, were granted standing to oppose applicant Walker’s claim. They assert that the proper northern boundary between their property and Walker’s property, which is also the boundary that delimits Lot 16, Concession 10 from Lot 16, Concession 9, is an antique fence in various states of disrepair. Therefore, the disputed property does not fall within Lot 16, Concession 10.

[4] The second application is that of Brian Bainborough, who asks the Court to determine the boundary of lands in Lot 16, Concession 9 in the same Township, and in particular to declare the boundary at the Northeast corner of those lands as being a rail fence situated thereon. Applicant Walker opposes that application and claims for her own the property on which Bainborough has built a sugar shed and is tapping maple trees, which she asserts lies within Lot 16, Concession 10.

[5] The fence is the common element in these applications, as it extends across the Lot, and the Riles and Mr. Bainborough seek to rely upon it as the boundary between their lands and the Walker lands, and between Concession 9 and Concession 10. Accordingly, these two applications were heard on the same day in Gore Bay, one after the other. The onus is on the applicant in each case to satisfy the Court of the correctness of her or his position.

[6] On the agreement of the parties who were present at the hearing, given the overlapping issues, I offer these as the reasons for both applications.

Facts

[7] In his affidavit in this proceeding, Jeffrey W. Lem, Director of Titles for the Province of Ontario, opposed any suggestion by applicant Walker that the Riles are only the registered owners of the property that they claim as a result of administrative error that occurred in the conversion from the old Registry Act system to the Land Titles system. He asserts that: “The proper administrative conversion process was followed here.” Lem also sets the tone for these applications by pointing out that s. 140(2) of the Land Titles Act provides that the description of registered land is not conclusive of the boundaries or extent of the land, and that those dealing with land must take steps to ensure that the description is accurate.

[8] The situation that generated the controversy in these applications is described in evidence offered in the Survey Report of Robert D. Halliday, O.L.S., C.L.S., dated March 14, 2019. Mr. Halliday, a very experienced surveyor, whose qualifications to offer opinion evidence at this proceeding were never challenged, produced a survey and a report at the request of the Riles and Bainborough. Mr. Halliday noted in his Report that the Township of Gordon was originally surveyed in 1870. It was divided into sections and lots, and the sections normally consisted of 10 lots of 100 acres each, thereby comprising a total of 1000 acres per section. The problem is that only the section boundaries were actually surveyed; none of the interior lines was physically surveyed. At issue in this case is the “blind” line between Concessions 9 and 10, which was never surveyed until two Plans of Survey attempted to do so in the 1970s. And in fact, contrary to common practice, the east and west ends of the un-surveyed concession lines were not even marked with posts.

[9] The Riles, applicant Walker, and Bainborough all assert good chain of title for their land.

The Riles lands

[10] Randall Riles and Helen Riles (the “Riles”) claim to be the legal and beneficial owners of parcels of land described as part of Lot 16, Concessions 9 and 10, being Parts 4 and 5 of Plan 31R-550 identified as PIN 47107-0155 (“Part 4” and “Part 5”) and part of Lot 17, Concession 9, being Part 3, Plan 31R-550 identified as PIN 47107-0449 (“Part 3”)(collectively, the “Riles lands”). They have been the registered and beneficial owners of those lands under the Land Titles Act registration system since they purchased the Riles lands from Kathleen Stelzner and Charles Stelzner for $110,000 on October 10, 2013. They occupy a cabin on Part 3 and use Parts 4 and 5 for outdoor recreation and boat storage.

[11] The outlines of the Riles lands were described on two Plans of Survey prepared and deposited on title by Ontario Land Surveyors in 1972 and 1976. William E. Bolan prepared a Reference Plan of a survey 31R-278 in 1972 (“1972 Plan”). L. Emon prepared a Reference Plan of a survey 31R-550 in 1976 (“1976 Plan”). Those plans are consistent in describing the relevant parcel as a parallelogram of which an eastern triangular portion appears to poke up into Lot 16, Concession 10 from Lot 17, Concessions 9 and 10. The eastern boundary of the parallelogram is indicated on the 1972 Plan as a “snake rail fence”. The northern boundary is also marked as coinciding with a fence on that Plan.

[12] Lot 17 (including what would become Part 3 on the 1976 Plan) was the subject of a Crown patent in 1886, and eventually came to be owned by George Strain in 1913. In 1921 Strain sold to Maude Platt portions of Lot 17, which became Part 1 in the 1976 Plan. The 1921 deed, and a correcting deed in 1922 described the parcel in question by reference to its distance from a fence north of Part 1 that was described as the northern boundary of Lot 17, Concession 9. Strain sold the “southerly five rods” of Part 1 to Myrtle Couden in 1926. In 1926, Strain transferred another parcel immediately north of the Platt Part 1 parcel to Florence Rogers. That land became Part 2 in the 1976 Plan.

[13] In 1928, Strain sold another parcel to Platt, which later became Parts 3, 4, and 5 on the 1976 Plan, lying immediately adjacent to Parts 1 and 2 on the 1976 Plan. This was accomplished by Instrument GR 1809, which I find Halliday inaccurately concluded had conveyed only Part 3 on the 1976 Plan. On March 9, 1977, Instrument T25568 was registered on title to clear the cloud created by Marjorie Wightman’s erroneous 1974 claim to what would become the Riles lands, which I will consider below. In that bundle of statutory declarations was one from Clarence Edward Purvis, who was quite clear in explaining that what would become Parts 3, 4, and 5 on the 1976 Plan had all belonged to Maude Platte, Myrtle Couden, “and now Kathleen Burckhalter”. The fact that both the 1972 Plan and the 1976 Plan document the same outline of the property further confirms the more expansive interpretation of GR 1809.

[14] In deeds relating to these various transactions from 1921, 1922, 1926, and 1928, there is mention that “the fence on the north boundary of the said lot” represents the Concession boundary (that is, of Lot 17, Concession 9). This is powerful evidence of what one of the earliest owners believed, and of what was apparently accepted by Maude Platt, Florence Rogers, and Myrtle Couden as well.

[15] Platt bought Rogers’ Part 2 parcel at a tax sale in 1933 and sold it to Norman Wightman in 1935. Mr. Wightman transferred this land to himself, his wife Marjorie, and Chester and Muriel Clarke in 1945. Myrtle Couden transferred her “southerly five rods” of Part 1 to Warren Crabbe in 1962. Crabbe purchased the rest of Part 1 from Platt in 1963. Platt transferred the Riles lands to Kathleen Couden Burckhalter in 1972.

[16] The 1972 Plan was registered on title on 14 February 1974. Subsequent to that deposit, it appears that Marjorie Wightman erroneously claimed title to the Burckhalter land, stating in a registered statutory declaration that the Wightmans had enjoyed undisturbed possession since 1933 or 1934 of Parts 2, 3, and 5 on the 1972 Plan. In another statutory declaration in 1974, Warren Crabbe declared that the boundaries of his land were described as Part 1 and Part 4 of the 1972 Plan, and that he had enjoyed undisturbed possession of the lands since taking possession in 1962.

[17] The 1976 Plan, according to Halliday, was intended to correct erroneous inferences about the configuration of properties in the 1972 Plan. After the 1976 Plan was deposited, Marjorie and William Wightman registered a Quit Claim in 1980 for Parts 3, 4, and 5 of the 1976 Plan in favour of Kathleen Burckhalter. One Lydia Crabbe, evidently a relative of Warren Crabbe, also Quit Claimed Part 3 of the 1976 Plan in favour of Burckhalter in 1980. These Quit Claims clarified the title of Kathleen Burckhalter to these parcels.

[18] Kathleen Couden Smith (formerly Burckhalter) transferred the Riles lands (Parts 3, 4, and 5 of the 1976 Plan) to herself, her relative Kathleen Stelzner and Charles Stelzner as joint tenants in 1996. In 2005, after Burckhalter’s death, the Stelzners remained as the sole tenants, and they sold the lands to the Riles October 10, 2013.

[19] Prior to the sale to the Riles, the land was converted in 2010 from Registry Act to LT Conversion Qualified and assigned PINs 47107-0155 (Parts 4 and 5 of the 1976 Plan) and 47107-0449 (Part 3 on the 1976 Plan). The Riles hold these properties.

[20] Both the 1972 Plan and the 1976 Plan set out boundaries around the Riles lands that have not changed since they were prepared. The 1972 Plan noted the Riles lands “as occupied,” and noted fencing around it. Both surveys note the boundaries of an original road allowance separating Part 3 from Parts 4 and 5.

The Walker lands

[21] Applicant Walker’s chain of title begins with a conveyance to Clarence Walker in 1948 of part of Lot 15 and all of Lot 16, Concession 10: land over which Clarence Walker had held an oil and gas lease since around 1920. The land passed to Violet Alma Walker by executor’s deed dated 9 December 1954, registered as Instrument GR2499 in 1955.

[22] An Executor’s Deed dated 30 April 1976 conveyed title to William Walker. What is conveyed purports to be land “composed of Lot number Sixteen (16) Concession 10…and Lot Number Fifteen (15) Concession Ten (10)” in Gordon Township.

[23] In 1997 the Estate of William Walker conveyed title to applicant Walker, his widow. The Transfer Deed describes the land as “Lots 15 & 16, Concession 10, Township of Gordon, District of Manitoulin.” The boundaries of the land are described in the Deed by feet measurements and landmarks (iron stakes).

[24] In 2010, the land was converted from Registry Act to LT Conversion Qualified. Applicant Walker’s land became PIN 47107-0153.

[25] Applicant Walker was examined December 10, 2019. She did not know the legal description of her land and had not reviewed Robert Halliday’s March 2019 survey. She did not know where the Concession line was or where her land’s western boundary was located. She had not been to the southerly portion of her land in years and did not know what was in Part 4 of the Riles’ land (according to the 1976 Plan). She knew of no dispute between her husband William Walker and Burckhalter in relation to boundaries between their lands. It appears clear that Brent Walker, applicant Walker’s son, is the moving force behind the application.

[26] In an affidavit, Brent Walker states that his father William Walker, applicant Walker’s husband, had become aware of “a possessory dispute that had arisen with respect to part of his land and to part of the neighbouring farm owned by” Brent Walker’s uncle Floyd, William’s brother. However, there was never any issue between the brothers. Brent Walker also claimed that in the summer of 1976 he helped his father William put up a barbed wire fence running north-south along the west boundary of Walker’s property, along the East side road allowance between Lots 16 and 17. The fence started at an iron bar planted at the NW corner of Walker’s property (from the 1976 Plan), and ran down to another iron bar planted in the SW corner of Lot 16, Concession 9. This would have had the effect of cutting off Parts 4 and 5 from Part 3 on the 1976 Plan. No further evidence of the existence of this fence is before the Court. According to Brent Walker, Floyd Walker and Floyd’s son John were present when this fence was put in place.

[27] Brent Walker recounts that William and Floyd Walker both understood that the boundary line between their farms was shown properly on the 1976 Plan. According to Brent Walker, William Walker was prepared to defend his title to what was shown as Part 4 on the 1976 Plan. Correspondence attached to Brent Walker’s affidavit indicated that counsel for William Walker engaged in negotiation with counsel for the Wightmans, who promised to prepare a Quit Claim for the property represented as Part 3 on the 1972 Plan. That Quit Claim was registered in 1978. As I have already set out, Wightman also issued a Quit Claim over Parts 3, 4, and 5 on the 1976 Plan in favour of Burckhalter. It is clear that Part 3 on the 1972 Plan, roughly coextensive to Part 4 on the 1976 Plan, was not Wightman’s to grant to William Walker, and her Quit Claim did not accomplish that.

[28] Brent Walker also claimed that his father William was “keenly aware” of the boundaries between his own and Floyd Walker’s land, even though the brothers lived and worked harmoniously. Brent Walker claims to have cut timber on the area marked as Part 4 of the 1976 Plan and asserts that William Walker spoke of tapping the maple trees on Part 4 of the 1976 Plan, though he did not do so. Brent Walker states that throughout his life there was never any question that his father’s farm included Part 4 on the 1976 Plan. Brent Walker claims as well that Kathleen Couden Smith (formerly Burckhalter) was aware that William Walker owned Part 4 even when she purported to transfer it to the Stelzners. Brent Walker’s affidavit includes a June 1978 letter from William Walker’s counsel to Burckhalter’s disputing ownership of any property by Burckhalter in Lot 16, Concession 10. There is no response to that letter before the court to show how the dispute concluded, but the absence of any Quit Claim by Burckhalter on title, or judgment in favour of Walker, speaks volumes. The Stelzners then sold the land to the Riles. No notice was ever given to the Walkers about these transfers.

[29] In his cross-examination, Brent Walker acknowledged that it appeared that his father William would have known about Burckhalter’s claims to ownership and possession of what became the Riles property at least by 1978, and that Gail and William Walker and Burckhalter nevertheless remained friends after that time. Indeed, Brent Walker acknowledged that William Walker had in his possession the 1976 Plan, accepted it as a fact, and showed it to Brent. Brent Walker was aware of the 1980 Wightman Quit Claim on title in favour of Burckhalter and of the transfer of the lands to the Stelzners in 1996, before William’s death in 1997 and the transfer of title of the Walker land to applicant Walker.

[30] Brent Walker met with Robert Halliday during his survey work. Brent Walker claims to have shown Halliday the location of the boundary and survey bars with respect to the boundary as shown on the 1976 Plan. He also claims to have shown Halliday fences on his mother’s land and explained the history and purposes of those fences. However, in his cross-examination, Brent Walker was quite obviously evasive concerning the existence of the fence that Bolan and Halliday noted at the north boundary of the Riles lands and he unconvincingly sought to deny its existence and its use. Moreover, although Brent Walker acknowledges the Stelzners as family friends, he denies having been aware of their claim to ownership of Parts 4 and 5 on the 1976 Plan. That is simply not believable.

[31] It does not enhance Brent Walker’s reliability on this proceeding that he is contradicted about things he considers essential by those with no reason to lie. In his own affidavit, Brent Walker’s cousin John Walker, Floyd’s son, contradicts Brent and asserts the existence of an old post and rail fence as delineating the boundary between his father Floyd’s land and William Walker’s land. Nor does John Walker recall his father Floyd or he himself assisting William and Brent Walker with the building of any fence or agree that there ever was a fence where Brent claims. In his own affidavit replying to the evidence of Brent Walker, Mr. Halliday denies seeing any indication of the fence that Brent claimed to have assisted in erecting. Mr. Halliday also denies even going out on site with Brent Walker or being shown any fences by him; they only met at the Walker home.

[32] Brent Walker listed applicant Walker’s health problems in his affidavit. I am left with the strong impression that in so doing, Brent Walker was attempting to minimize Gail Walker’s harm to her case because of her ignorance of its issues and to have that account for Gail Walker’s lack of knowledge. Thus, he states that she has vision in only one eye, and because of mobility issues she spent little time visiting the land shown as Parts 4 or 5 on the 1976 Plan. She has severe tinnitus and uses a hearing aid and does not properly hear or comprehend all that is said to her. Nevertheless, applicant Walker herself never denied a very important conversation that Bainborough claims to have had with her, which is set out below.

The Bainborough lands

[33] On April 4, 2005, applicant Bainborough and respondents Ball and Hoyer purchased property legally described as Part of Lots 14, 15, and 16, Concession 9, with the exception of Part 5 of the 1976 Plan, Township of Gordon, District of Manitoulin, as described on Instrument T-29900. This land became PIN 47107-0150 (LT Conversion Qualified) in 2010. Bainborough has been familiar with the property for many decades. He bought the property from Bernadette and Floyd Walker, the brother of William Walker. Floyd told him to walk the fences to determine the boundaries of the property before buying it.

[34] In his Survey Report Halliday describes the chain of title of the Bainborough property. Lots 14, 15 and 16 were sold to Elizabeth Sloan in 1882. She sold Lots 14, 15, and 16 in 1913 to William Linley. The lands were transferred by William Linley to William Linley the Younger in 1927. Parts of the property passed from William Linley Jr. to Joseph Charles Hester in 1964. Part of the land was expropriated to allow for the widening of Highway 540. In 1968, Margaret Linley transferred some of the land to herself as executrix of the estate of Joseph Linley. The Agricultural Rehabilitation and Development Directorate of Ontario (“ARDDO”) acquired the land from Margaret Linley in 1969. Instrument T-29900 described the transfer in 1979 of Part of Lots 14, 15, and 16 from ARDDO to Floyd and Bernadette Walker.

[35] Bainborough has always treated the fence north of his property as the northern boundary of his property. He taps some 70 maple trees for sap on his side of the fence. The trees are from 40 to 60 feet in height, and Bainborough estimates them to be between 50 and 100 years old. No one prior to Brent Walker’s interaction with Bainborough in 2018 had ever challenged Bainborough’s right to tap these trees.

[36] In 2011, Bainborough built a 10’ x 12’ structure on the property that he uses as a sap collection station, or sugar house. This structure has a concrete floor, wood covered sides and a steel roof. No one ever challenged his right to erect such a structure, though it sits within Lot 16, Concession 10 according to applicant Walker. Brent Walker claims first to have noticed it and complained about it in 2014. Bainborough asserted that Floyd Walker had maintained a camper trailer in much the same location where one of the Bainborough sugar houses is currently located, in the area presently under dispute.

[37] Bainborough recounts that in 2012 he spoke with applicant Walker about tapping trees on her property. She told Bainborough to only tap trees on his side of the fence, with which direction Bainborough has always complied. There is no evidence on this application contradicting Bainborough’s account, and I find that his account accurately sets out their conversation about this point.

[38] On November 21, 2018, while he was in the sugar house, Bainborough observed Brent Walker nearby. The two spoke, and at the time Brent Walker was adamant that the property was not Bainborough’s. I accept Bainborough’s dating of the dispute to 2018.

Surveys of the area and the fence up to Halliday

[39] In his Survey Report, Ontario Land Surveyor Robert D. Halliday described what he asserts is the correct location for the line between Lot 16, Concession 9 and Lot 16, Concession 10. The 1972 Plan and the 1976 Plan both attempted to set the Concession line, and both placed the Concession line at different locations. It is Halliday’s view that neither of the predecessor plans accurately described the Concession line.

[40] Rather, Halliday concluded that a very old post and wire fence was the best evidence for the location of the boundary line between Concessions 9 and 10. He described this fence as an “old fence in varying conditions of repair…mostly an old wood rail fence but in places there is also old barbed-wire”. In warmer weather, Halliday was able to observe remains of an old fence running east-west at the north end of Concession 9. It was mostly old wood rail, but in places there was barbed wire that had become embedded in trees to which it was attached. Vegetation was different to the north and south of this fence. To the south was hardwood, while north of the fence was heavy evergreen growth, and most of the trees to the north did not appear to be of great age.

[41] The fence begins well east of Lot 16 and runs west until it reaches a limestone bluff where it begins a gentle sweeping curve and then runs straight to the shores of Julia Bay, in Lot 17. Although the fence was not completely intact, Halliday found “most definitely traces of it throughout.” In sum, according to Halliday, the fence traced the northern boundaries of the Riles lands (Parts 3 and 4 on the 1976 Plan) and the Bainborough lands and carried on to Lot 17 and Julia Bay. At the easterly boundary of Part 4, Halliday discovered and surveyed the remains of a post and wire fence that are coincident with and mark the boundary between the Riles lands and the land owned by Bainborough to the east.

[42] Halliday found all of the survey monuments shown in the 1972 Plan and the 1976 Plan. He determined that the monuments were in their correct original locations. A corner of the same fence was accepted as the true NE corner of Lot 16, Concession 9 in the 1976 Plan, and a survey monument was placed there. Easterly from there, the fence heads generally due east. To the west the fence extends 180 metres until it crests a hill and then heads northwest. It runs to the road allowance and then to the lakeshore.

[43] On Halliday’s construction, in which the fence is the northern boundary of Concession 9, applicant Walker does own the lands in Lot 16, Concession 10, and the Riles and Bainborough lands in Lot 16 sit securely within Concession 9, over which Walker has no claim.

[44] Halliday viewed the fence as better evidence of the boundary line between Concessions 9 and 10 than the proportional distancing used in the 1972 Plan or the “Due West Astronomic” of the 1976 Plan, neither of which methods accords with the Surveys Act. Halliday chose the fence as representing the location of the boundary line in the opinion of the local landowners “for close to and possibly more than 100 years.”

[45] In the 1972 Plan, Bolan based the northerly and easterly boundaries of property in Lot 17, Concession 9 on fencing, which he observed separating the Riles lands from the rest of what he found to be in Lot 16, Concession 10. However, he had then used a proportional method to establish the NW corner of Lot 16, Concession 9, and disregarded the easterly extension of the same fence for use as the northern boundary of Part 3, which involved also rejecting its use as boundary evidence for the line between Lot 16, Concession 9 and Lot 16, Concession 10. Bolan determined the boundary line by proportioning distances along road allowances.

[46] In the 1976 Plan, Emon retained Bolan’s monuments for the outline of the lands being surveyed, but reconfigured interior boundaries. He too disregarded the fence near the NW corner of Lot 16 in the vicinity of the north boundary of his Part 4 as being evidence for the location of the original boundary. He did use the fence at issue as evidence for the NE corner of Lot 16. The distance south from that corner to the SE corner of Lot 16 was thereby 3236 feet, only 64 feet less than the nominal 3300-foot distance based on the original Township survey. This in fact strengthens the argument for the significance of the fence.

[47] The 1972 Plan identified fencing along the northern boundary of what is now Parts 3 and 4 in the 1976 Plan. The boundary runs along the course of a “fence”. The easterly boundary of Parts 4 and 5 of the 1976 Plan follows the same course as a fence described in the 1972 Plan as a “snake rail fence”. The 1976 Plan does not refer to fences, but the fences described in the 1972 Plan were located by Halliday in his surveying.

Local custom

[48] Halliday also based his opinion on his experience and knowledge as a surveyor and from surveying in the area.

[49] Halliday’s earlier work surveying around this area taught him that there was “a general tendency toward a lack of concern about the precise location of boundaries for the properties in this area when they were being created.” Rather, there was what Halliday referred to as a “handshake mentality” when parcels were first sold off, in order to obviate the expense of bringing in a surveyor. He had also had occasion to note the use of fences as the best evidence for the original establishment of the line between Lots. Fences were built by agreement of adjacent property-holders, who lived up to those boundaries. It was modern and accurate surveying methods that showed how poorly done were attempts by early settlers to delineate the properties.

[50] Halliday also explained that through speaking with Emon and working with another surveyor, William Keatley, he learned that their approach, acquired at a time that was more reliant on the Surveys Act, was less respectful of the evidence offered by old fences and more focused on mathematical solutions. This caused such surveyors often to simply dismiss a fence that did not align with boundaries calculated using mathematical precision as “a fence of convenience” or a “cattle fence”.

Interactions of landowners

[51] Mr. Halliday also attempted to gather an historical record of the views of landowners in the area. While his conversations with these persons include unsworn assertions and historical recollections, in attempts to define and understand local history, strict reliance only on evidence that would satisfy courtroom standards would be misplaced.

[52] Halliday spoke with Howard Linley in 2014 and 2019 and Evelyn Hamilton in 2019. They are the children of a prior owner of the Bainborough land, William John Linley. Both clearly remembered the fence in question, and that it marked the boundary between their land and the Walker land. Howard Linley had moved away from the farm in 1956, and Evelyn Hamilton remembered the fence from more than 60 years earlier.

[53] Howard Linley walked the fence before pasturing cattle, saw the fence while partridge hunting, and remembered that the forestation was different on either side of the fence; on the Linley side there was hardwood, while north of the fence there was mixed cedar and conifer. I bear in mind that these comments by Mr. Linley and Ms. Hamilton are hearsay, though I find their recollections compelling and reasonably reliable as communicated through Mr. Halliday, whose neutral independence I completely accept. Mr. Halliday also independently confirmed Howard Linley’s observation about the different types of forestation on either side of the fence.

[54] Moreover, the claims of Howard Linley and Evelyn Hamilton are confirmed by John Walker, the son of Floyd Walker and nephew of William Walker. In his affidavit evidence, John Walker described being raised on the current Bainborough property at Lot 16, Concession 9, Gordon Township. He states that an “old post and rail fence” was the boundary between Floyd’s property and William Walker’s. This fence was the undisputed boundary between the lands “at all times that I can remember up to the point that my parents sold the property” to Bainborough.

[55] Kathleen Burckhalter Stelzner affirmed an affidavit November 22, 2019. She had been the owner of 232 Smith Bay Road, Gordon Township, being Parts 3, 4, and 5 on the 1976 Plan. Before selling the property to the Riles on October 13, 2013. Stelzner traces her family’s ownership of these lands back to her great-aunt Maude Platt in 1935. As I have set out above, title deeds and statutory declarations confirm Stelzner’s recollections.

[56] Stelzner’s mother Kathleen Couden (Burckhalter) described to Stelzner her family visiting there every summer and that her mother and uncles Earle and Albert Couden were directed as children by their great aunts Pearle and Maude to only play within the confines of the fencing. As long as Stelzner had known the property, the fencing located on the northerly boundary of Part 4 has always been there and marked the boundary between her property and “Bill” and Gail Walker’s property. Stelzner recalls “officially marked stakes” on the northerly boundary of Part 4 of her property. Stelzner herself played within the confines of the fencing since 1947, as did her children and her sister’s children. Since at least the early to mid-1970s Burckhalter and Stelzner paid property taxes for the Riles lands. Stelzner’s mother built their cottage in 1976 and transferred it to the Stelzners in 1996.

[57] According to Stelzner, her mother Kathleen Couden Burckhalter became acquainted with applicant Walker and William Walker in the 1970s. Her mother shared a copy of the 1976 Plan with the Walkers to avoid any confusion, and the Walkers and her mother remained friends until her mother’s death in 2004.

Halliday’s conclusions

[58] Based on all the evidence, Halliday concluded that the old fence represented the location of the original establishment of the line between Lot 16, Concession 9 and Lot 16, Concession 10. Early Instruments referred to the fence along what is the northerly boundary of what became Parts 2 and 3 on the 1976 Plan as being on the north boundary of Lot 17, Concession 9. George Strain was evidently convinced that the fence marked the Concession 9/10 line, and that view remained over time, through the Linley years. The fence also accords with that marking the northern boundary in the 1972 Plan of Bolan. Halliday as well noted the change in forestation north and south of the fence, as had Howard Linley.

Gordon Keatley’s critique of Halliday

[59] In his report prepared for applicant Walker, surveyor Gordon Keatley, O.L.S. (“Keatley”), opined that the Concession line between Concessions 9 and 10 was where Emon had placed it in the 1976 Plan. To Keatley, the issue was “a boundary that was established by the completion of the plan of the Township of Gordon.” Keatley did not believe that anything on title in Lot 17 could have any bearing on issues relating to Lot 16. Given that the fence noted by Halliday continues across the Lots, I find this a serious failing in Keatley’s methodology.

[60] Keatley noted, as had Halliday, that the line between Concessions 9 and 10 was not surveyed in the original survey of the Township of Gordon, and no posts were placed upon it. Keatley points out that the earliest survey that he found relating to the area in dispute is a 1964 survey relating to Highway 540. It does not show any fence running easterly between Concessions 9 and 10 in Lot 16. The 1972 Plan by Bolan does show a fence running close to east-west on the concession line, but Bolan placed no monuments on the line. Bolan did not show a fence running easterly from the NE corner of his survey. In the 1976 Plan, Emon did plant survey monuments along the Concession line, apparently not accepting the fence as the boundary. I do not see that the decisions by previous surveyors not to note down or give effect to the evidence of the fence can be determinative of this issue, particularly in the context of Halliday’s explanations about survey practice.

[61] Keatley observed some of the fencing described by Halliday in his survey. Concerning the wire grown into trees, Keatley opined that the barbed wire appears to have been attached to the trees 30 or 40 years earlier. The fence at points runs along a rock ledge, and parallel to a creek below and to the south.

[62] It is Keatley’s view that the fence in Lot 16, so directionally at variance with fencing delineating boundaries on adjoining farms, does not represent a boundary, but rather a barrier for livestock to keep them away from local hazards. This explanation, however, is equally consistent with the placement of the fence as a boundary marker, as the enclosure of lands below the rock ledge and crossing the creek would have resulted in a small strip of land below the ledge being attached to the lands above the ledge to no purpose. By marking the property boundary at the ledge, the landholder below would have the benefit of usable land beside the rest of the lot below. I note as well that the change in direction of the fence allows the boundary to run at a perpendicular to the lake, which fact offers further justification for the change.

[63] Keatley dismisses Halliday’s assertion that the fence could represent evidence of a boundary, because he finds no evidence of acceptance of the fence as a boundary by “both abutting landowners.” To the contrary, Keatley notes that applicant Walker opposes that fence as the boundary. Instead, Keatley conjectures that Floyd and William Walker, doubtless aware of the 1976 Plan, ceased to maintain the fence “when the property was no longer used as pasture”: hence, a fence of convenience. Keatley’s argument applies just as well if the fence had been a boundary marker, as the two amicable brothers would also have had no need of demarcating the bounds between their properties.

[64] In my respectful view, gaps in the historical record over such a long period of time are only to be expected. There is in this case the evidence of Stelzner confirming that William Walker and applicant Walker were aware of the Burckhalter and Stelzner claims to the Riles lands. No substantial legal issue, court decision or Quit Claim ever came of it. Indeed, William Walker’s efforts with the Wightmans demonstrate that he was not shy about confronting nearby landowners with threats of litigation should they claim as theirs what he felt was rightfully his. No judgment against Burckhalter or Quit Claim from her seems to have been generated by William Walker’s demand to Burckhalter. Stelzner reported no difficulties from the Walkers.

[65] Keatley opines that for the 1976 Plan William Walker was closely involved and would have told Emon that the northern fence represented the Concession 9/10 boundary if it had been one, and that Emon would have reflected that on the 1976 Plan. I find this to be pure speculation and of no assistance on the issue.

[66] There is, quite simply, no evidence of any real dispute over the fence as the boundary line until the evidence of Brent Walker in these proceedings, which I am unable to find to be reliable for the reasons I have already discussed. William Walker’s dispute with Ms. Wightman and her Quit Claim in his favour over Part 3 in the 1972 Plan did nothing more than did the Wightman Quit Claim in favour of Ms. Burckhalter. Those Quit Claims acknowledged that the Wightmans, at least, were not claimants to the property. In my view, the absence of evidence of a litigated dispute or Quit Claim between the Walkers and Burckhalter or the Stelzners is, in the circumstances of this case, evidence of acceptance, or at least acquiescence, by William Walker, applicant Walker, and their predecessors that the fence represented the boundary between the properties.

[67] Keatley also notes that no posts were set on the blind lines in Gordon Township to mark boundaries in the original township surveys. Accordingly, there were no monuments marking the boundary between Concession 9 and 10. It is Keatley’s opinion that fences cannot serve as evidence of boundaries unless those who built the fences were relying on monuments that marked the boundaries. Accordingly, such fences must merely be fences of convenience. Respectfully, this view seems counterintuitive. If early neighbours had no monuments to rely upon, it rather stands to reason that they would themselves seek to establish the boundaries in an on-the-ground, mutually acceptable fashion. If these boundaries later turn out to be at variance with the mathematical precision achievable by modern surveyors, that does not render useless the evidence of such do-it-yourself monuments. That at least is the view of jurisprudence from our Court of Appeal and elsewhere.

[68] Keatley acknowledged that he had not himself prepared a plan of survey on the properties in question and knew of no survey of the boundaries of Gail Walker’s land. Keatley assists in raising various issues for consideration, but his cautions do not detract from Halliday’s conclusions. Indeed, the failure by applicant Walker to present a survey of her property that would include the Riles lands as her own and establish a definitive Concession boundary other than the fence line proposed by Halliday, detracts from her ability to meet her onus on her application.

Law relating to boundary issues

[69] The burden of proving that there should be a change in the possession of land lies on the person asserting that change: Gall v. Rogers, 1993 5446 (ON SC), [1993] O.J. No. 2285 (O.C.(G.D.)), at para. 12. The Ontario Court of Appeal has directed that a rigorous analysis should be undertaken by a court where a party proposes to vest someone else’s property in themselves, as a request to vest one person’s right in another necessarily requires that a person’s right be extinguished. As the nature and strength of the interest increases, the vesting of the right in another requires greater justification. Vesting someone else’s fee simple interest in land in another would require justification that would be difficult to imagine, unless there be consent or some other agreement: Third Eye Capital Corporation v. Dianor Resources Inc., [2019] OJ No. 3211 (C.A.), at paras. 102-109.

[70] s. 140(2) of the Land Titles Act, R.S.O. 1990, c. L.5, states that “[t]he description of registered land is not conclusive as to the boundaries or extent of the land.” The parcel description of a property is not definitive of the boundaries or extent of the land. Boundaries can only be determined on the ground by way of an up-to-date survey: MacIsaac v. Salo, 2013 ONCA 98, at paras. 44-48.

[71] In practice, the determination of boundaries is much more focused on what has actually happened on the ground than on the measurements in a registered deed. So, in Gall v. Rogers, at paras. 13-15, the Court approved the following principles from the practice of land surveyors:

a. Deed descriptions in metes and bounds are merely evidence to be considered. The description of the originating parties in describing the land boundary is paramount;

b. The description has to be applied to the ground in a way that is consistent with what has happened on the ground;

c. The usage of conveyed lands by abutting landholders establishes the boundary as a fact on the ground, even if that differs from the description on the deed;

d. A boundary position is best governed by the expressed intention of the originating parties. If that intention is uncertain, the subsequent behaviour of the parties pursuant to any such express or implied intention can determine the boundary;

e. A “bound” is what is intended to set a limit to the extent of a boundary. What constitutes a “bound” for any particular boundary is a question of law.

[72] Where a boundary is in issue, courts may be guided by a ranked “hierarchy of evidence” to be used in determining the issue, a hierarchy developed by surveyors. Measurements are the evidence of last resort. As stated in Nicholson v. Halliday (2005), 2005 259 (ON CA), 74 O.R. (3d) 81 (Ont. C.A.), at para. 28: “in the absence of natural boundaries and original monuments, the surveyor would look for fences or possession before resorting to measurement.” In the same paragraph, the Court reproduces the surveyor’s hierarchy, from most compelling to least compelling, as adopted from Thelland v. Golden Haulage, [1989] O.J. No. 2303 (Dist. Ct.). That hierarchy is as follows:

a. Natural boundaries;

b. Original monuments;

c. Fences or possession that can reasonably be related back to the time of the original survey;

d. Measurements (as shown on a plan or as states in the metes and bounds description).

[73] At para. 30 of Nicholson, the Court of Appeal found the focus on what was done on the ground to be particularly applicable to land on Manitoulin Island, as original deeds conveyed lots, but did not offer the particulars of lots, since surveys were scarce:

Where a line was accepted as a boundary and relates to the original survey, the surveyor will re-establish that line as the boundary. The reasons for this basic principle are evident from earlier authorities. When lands such as the bush lands of Manitoulin Island were settled, the original deeds only conveyed lots: particulars of a lot's description were not available. Not only were there no existing surveys, purchasers were not in a financial position to retain a surveyor; the expense of a survey would often have exceeded the value of the land at issue.

[74] Indeed, the Court of Appeal in Nicholson, at paras. 31-36, goes on to describe that life on the ground required alternatives to strict measurement in determining boundaries. Neighbours who could not see the value in hiring surveyors or afford to do so would agree to a satisfactory boundary line between their lands, and landholders would erect fences to represent their inexact understanding of boundaries, “even though such a boundary was not in accordance with survey measurements.” So, at para. 32, the Nicholson Court noted that: “The settler determined his own lot line by locating the original monument, or otherwise determining the location of the lot limit, and, using a compass, following and marking a lot line either by blazing a trail along its length or by erecting a fence.” And it has been the business of the courts to protect landholders who have relied upon such imperfectly set boundaries from the chaos that would ensue as a result of their correction by later exact measurement: Kingston v. Highland (1919) 1919 854 (NB SC), 47 N.B.R. 324 (K.B.), at 329-30.

[75] Fences are unique as evidence of the original intention of those seeking to establish boundaries. Given the passage of time, the fence often offers the only evidence of the intention of landholders from the distant past. Parties are not required to call direct or clear evidence of the fence-builder’s purpose. The history of the fence, as known from other facts, and the acceptance of the fence by subsequent landholders, is the evidence from which the original purpose of a fence can be inferred. A boundary line that has long been acquiesced in by adjoining parties is better evidence of where the actual boundary line lies than any after-the-fact survey made once original monuments have disappeared: Nicholson, at paras. 58-59, 66-67.

Findings

[76] The law in this area could not provide a stronger endorsement of Halliday’s opinion in the circumstances of this case.

[77] I find that the fence that Halliday indicates as the northern boundary of Lot 16, Concession 9 and of the Riles lands and Bainborough’s property is indeed that boundary. In particular, I note the following:

a. In deeds relating to various transactions in relation to lands sold by Strain from 1921, 1922, 1926, and 1928, the bounds of those lands are described with reference to a “fence on the north boundary of the said lot” (that is, Lot 17, Concession 9), as representing the northern boundary of Concession 9. This is clear evidence of what one of the earliest owners believed, and of what was apparently accepted by purchasers Maude Platt, Florence Rogers, and Myrtle Couden as well.

b. There is evidence that the same fence that serves as the northern boundary of Concession 9 in Lot 17 continues generally easterly across Lot 16 as well until it joins to the geometrical boundary at the NE corner of Lot 16, Concession 9.

c. There is no evidence of any dispute brought by owners north of that boundary until William Walker’s confrontation of the Wightmans, who had no title to the Riles lands in any event. William Walker’s claim in relation to Burckhalter went nowhere. The fence was at least acquiesced in by the Walkers as the boundary between the properties.

d. Kathleen Burckhalter Stelzner had been the owner of Parts 3, 4, and 5 on the 1976 Plan. Before selling the property to the Riles on October 13, 2013. Stelzner was able to trace her family’s ownership of these lands back to her great-aunt Maude Platt in 1935. Stelzner recalled the fence being the boundary of her property. Her explanation aligns with the recollections of other landholders, and she offered recollections as far back as 1947.

e. It was the view of the Linleys, Floyd Walker’s predecessors in title, that a fence, which can only be the fence documented by Halliday, marked the boundary of their property that lay to the south of the fence.

f. John Walker, nephew of applicant Walker and cousin of Brent Walker, confirms that the Linleys’ understanding of the fence as boundary was also his own.

g. Bainborough himself had for decades been familiar with the property that he now owns before he himself bought it from Floyd Walker. His recollection, which I accept, is that the fence marked the northern boundary of the property to its south. When Bainborough decided to buy that property, Floyd Walker told him to walk the fences to determine the extent of the property that he was buying.

h. Floyd Walker kept a camper trailer where Bainborough now locates a sugar shed. This area is located south of the same fence that Halliday tracked and included on his survey. It is this area whose ownership Brent Walker incorrectly disputed.

i. In 2012, applicant Walker told Bainborough that he must not tap her trees, that he was to stay on his side of the fence. This is a telling admission against her interest that applicant Walker understood the fence to mark the boundary between her land and Bainborough’s, and therefore of Bainborough’s predecessor in title Floyd Walker: R. v. Evans, 1993 86 (SCC), [1993] 3 SCR 653, at para. 24.

j. The different type of forest growth north and south of the fence, and the fence’s location along a ledge on the land, offer an explanation for the choice of location of the fence, as coextensive with the flow of land and forestation.

[78] Applicant Walker can offer little against the Riles’ claim to their property. She does not know the location of her southern boundary and offers no survey of her own lands in evidence. She relies rather on blind lines that were never properly surveyed until long after the fence in question had been erected. Brent Walker’s evidence concerning his familiarity and use of the Riles lands is not sufficiently reliable to establish applicant Walker’s claims.

[79] I do not accept Keatley’s opinion that the fence at issue was merely a fence of convenience, as contradicted by the fence’s pre-eminent place in the deeds from the 1920s, the recollections of the Linleys, the Stelzners, and John Walker, Bainborough’s recollections of the property line, and applicant Walker’s admission to Bainborough concerning the fence as the line that marked the southern bound of her property. Keatley’s view gives pride of place to measurement, which stands on the lowest rung in the surveyor’s ladder of hierarchy, and ignores the local practice that Halliday sets out and that our Court of Appeal has endorsed.

[80] I agree with Halliday that Bolan and Emon in the 1972 and 1976 Plans were in error in disregarding the fence as marking the boundary line. The local Manitoulin custom at the time that the fence was built was for landowners on the ground to establish their boundaries based on local conditions in the absence of initiating surveys of Lots and Concessions. If the fence that marks the northern boundary of the Riles property and of Bainborough’s land veered significantly off the true blind line between the Concessions, that boundary was relied upon by subsequent owners and cannot in fairness be ignored or “corrected” now.

Real Property Limitations Act and adverse possession

[81] s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 states:

No person shall … bring an action to recover any land or rent, but within ten years next after the time at which the right to … bring such action, first accrued to some person through whom the person … bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right … to bring such action, first accrued to the person making or bringing it.

[82] The Ontario Court of Appeal has ruled that this provision creates a ten-year limitation period for actions to recover land, which includes actions “to obtain any land by judgment of the court”: Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, at paras. 31-32.

[83] Statutes that create limitations also create exceptions. There is an exception to s. 4 of the RPLA in s. 5(1):

Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in respect of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rents were so received.

[84] In this case, the Riles lands were possessed by other owners to the exclusion of applicant Walker and her predecessors at least since the 1972 Plan and the 1976 Plan. That property was, according to the 1972 Plan, surrounded by fencing that served as a line of control by Burckhalter. William Walker, according to the evidence of Brent Walker and Stelzner, was aware at least of the 1976 Plan around the time that it was registered on title and had his lawyer write to Burckhalter’s lawyer about Part 4, but apparently took no steps to have a court vindicate his rights to any of the Riles lands, property that he and his predecessor in title were not possessed of since at least 1972. I find that William Walker and applicant Walker were also aware of the transfer of the Riles lands to the Stelzners in 1996. Even if the Walkers had erroneously believed that the Wightman Quit Claim in their favour stopped the encroachment of neighbours over Walker property, they should at least have moved to prevent the Stelzner encroachment in 1996.

[85] In such circumstances, where I have no reliable evidence to substantiate William Walker’s or applicant Walker’s prior actual possession of or dispossession from the property that the Riles now own, and since the Walkers should have known of Burckhalter’s claim to the Riles lands since at least the 1976 Plan, and must have been aware of the transfer of the Riles lands to the Stelzners in 1996, the statute has run and applicant Walker is statute barred from claiming entitlement to the Riles land.

[86] Given my conclusions concerning the fence identified by Halliday as the true boundary between Lot 16, Concessions 9 and 10, and the effect of the Real Property Limitations Act, I need not consider the argument from adverse possession that has been raised by the Riles.

Conclusions

[87] For the above reasons:

a. Applicant Walker’s application is dismissed.

b. This Court declares that the remains of the old post and rail and barbed wire fence documented in the Plan of Survey of R.D. Halliday, dated March 14, 2019, is the true boundary line between Lot 16, Concession 9 and Lot 16, Concession 10, Municipality of Gordon, District of Manitoulin. That fence marks the northern boundary of PINs 47107-0155 and 47107-0150 at the Land Registry Office for the District of Manitoulin.

[88] If the parties are unable to agree on costs, they may file written submissions of no more than five double-spaced pages within 30 days.

A.D. Kurke J.

Released: October 21, 2021

COURT FILES: C18-0007; C19-0002

DATE: 2021-10-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gail Elsie Walker

Applicant

– and –

Director of Land Titles

Respondent

AND BETWEEN:

Brian Bainborough

Applicant

-- and –

Gail Elsie Walker, Randall Riles, Helen Riles, John Michael Ball and Claus John Hoyer

Respondents

DECISION ON APPLICATIONS

A.D. KURKE J.

Released: October 21, 2021