Report of Research, Field Investigation and Survey of Robert D ...

C.7 Pursuant to Volcanic Oil and Gas v. Chaplin, if the water rises to a level that crosses a fixed
rectilinear (formerly upland) boundary to the extent that a riparian parcel is completely
inundated, the riparian parcel is completely extinguished. In the event that the water
subsequently retreats, there is no longer any riparian parcel to which any new dry land can
attach.
C.8 In other words, as waters encroach onto upland geographic parcels, the boundaries
dividing those geographics disappear as the inundated lands on both sides of the former
boundary are consolidated with the bed of the lake.
On Page 13 of the decision, the Deputy Director writes: “When Tiny Township was first
surveyed in 1821/1822 the road allowances would have been projected to the water’s edge as
prescribed in Section 9 of the Surveys Act. Mr. Stewart explained that the level of Lake Huron
reached its highest point in 1838 at 187.1 metres. Mr. Stewart explained that in accordance with
the principles set out in Volcanic Oil and Gas the boundaries between the road allowances and
the adjoining lots would have been extinguished when they were covered by water. As the water
receded, the land being exposed is considered to be accretion and forms part of the land to
which it is attached. The principles set out in Paul v. Bates would apply to determine the location
of the boundaries as they cross the accretion. In summary, on the assumption that the current
topography is the same as, or the best available evidence of, the historical topography, the road
allowance boundaries would be projected to intersect the 178.1 metre contour line, which is the
extent of the accretion, and from that intersection would be perpendicular to the general line of
the shore at the water’s edge. A substantial bend would occur at the 178.1 metre contour line.
The water’s edge frontage of Lot 18, Concession VII can then be determined.
The decision was appealed (Ellard et al v. Township of Tiny [2012], ONSC 280), where Justice
Lauwers strongly disagreed with the Deputy Director regarding his interpretation that the
original subdivider had intended to develop all the land he owned near the shore and was simply
misinformed about what constituted his water side boundary.
Following a lengthy review of the facts from the Boundaries Act Hearing Justice Lauwers says at
Para 27 ‘In my view the Deputy Director went wrong when he concluded, as set out at para 11
above, that “it cannot be assumed that Mr. Kitching was aware that his deed described to the
“water’s edge” at the time he instructed Cavana about what he wished to subdivide, since at that
time he had not yet received a deed.” It is hard to imagine that a land developer, which is what
Mr. Kitching plainly was, would not know fully both what he was getting and what he was
selling in a project that took months to realize. In my view the Deputy Director overstates the
significance of the dates.’
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