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

7 Concluding Comments
My instructions from the Surveyor General’s office were that the two Road Allowances are to be
extended northerly and westerly, following the methods from the Surveys Act. I have not been
able to find Case Law which contradicts this approach, although two Boundaries Act
applications have bent Road Allowances and used perpendicular lines following Paul v. Bates.
Boundaries Act cases are not considered legal precedent setting, even according to the Deputy
Director with the Regulatory Services Branch of Service Ontario. The issue of bending a lot or
concession line has simply not been discussed by any of the numerous legal decisions I have
referred to.
There are four Alberta cases which have held that accretion ends at ‘ATS’ lines (township lot
fabric), although it isn’t clear whether these lines were side lines or ‘front ‘lines in all cases.
There is a sketch with Andriet which seems to indicate that the ATS sideline was also respected.
Clearly in Johnson v. Alberta, the Court placed a high status on the ATS lines, regardless of
whether they had previously been surveyed or not.
In his document of additional information for the Deputy Director in Boundaries Act File B-
1212, Ron Stewart O.L.S. claims that underlying geographics (lot lines) are extinguished when
water levels increase and then recede at a later date. O.L.S. Stewart claims that Volcanic Oil
and Gas v. Chaplin determined that once up-land becomes part of the bed of the lake and then
re-appears the pre-existing boundaries disappear, and that once this happens, the accreted lands
should then be distributed according to Paul v. Bates rather than the Surveys Act. I do not see
this from my reading of the case, since I tend to focus on the facts of the case and what is
actually written by the court, rather than trying to read behind the lines. This issue may
ultimately need to be determined through a judicial review. Given the lack of legal support for
bending original Township fabric, as compared to the certainty of the instructions for how to
proceed contained in the Surveys Act I believe we have good reasons for using the Surveys Act
methods.
Johnson v. Alberta, and to a lesser extent Pitt v. Red Deer, Andriet v. Strathcona No. 20 and
Lack v. Alberta all support the relatively higher status of ATS lines, which I would equate with
Ontario’s lot and concession lines. In both cases there are clear statutory instructions for how
such a line should be run, unless better evidence is available. In Johnson especially, the trial
judge ruled that deviating from the ATS lines would give the plaintiff land they were never
intended to have, and that whether or not a line had actually been surveyed, the methods under
the Surveys Act gave clear instructions for how they could be determined. It seems to me that
given the authority the Minister has under the Surveys Act (as delegated), as recognized by
Dennison v. Chew and by Zone v. McDowell, and given the clear method for setting these Road
Allowance boundaries (as compared to the lack of clear direction from specific legal decisions),
it is appropriate to use the Surveys Act method I explain under Section 6.1.2.
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