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

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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. Page 64 of 66
Based on the Ellard case, the lot owners within Reg’d. Plan 757 do not have any claim to the ‘Beach’ area in front of their lots. The owners north of Reg’d. Plan 757 including the current Boundaries Act application for Duarte (discussed at para. 3.21) only have a claim to the land within the original Caston parcel, which was based on a metes and bounds description, with no indication of the parcel being riparian. Since the Caston parcel was always bounded on the north by the Road Allowance between Concessions 6 and 7, which now extends further west than the westerly boundary of Caston, I would argue that not of these properties are riparian, so have no claim to waterfront. I would expect that some equitable method for distributing the Caston land in front of the straight ‘High Water Mark’ shown on Reg’d. Plan 757 is supported by Andriet and several of the Boundaries Act decisions I have reviewed. Reg’d. Plan 779 is a different situation, with lots 4 through 96 all being shown with frontage on the straight line labeled ‘high water mark’. Lots 1 to 3 never had frontage of any type and they will remain as back lots. Lot 4 is only shown with 5.5m ‘frontage’, while the remaining lots have ‘frontages’ varying from 12.2m to 26.8m. Ronald Stewart O.L.S. has made a Boundaries Act application for Lots 42 through 45, Reg’d. Plan 779, under File B-1232. As with B-1176 he has extended the existing lot lines west to intersect with the 20.12m Reservation for Road Allowance from the J. Groessman Patent. Assuming that this application is successful, we would likely be left to proportion between Lots 4 through 41. If a legal decision is made supporting the notion that the Reg’d. Plan 779 lots do not end at the surveyed line on the plan, then some form of proportional distribution would need to be followed. A decision as to which lots should reasonably be included in those eligible for this distribution would needed, since some lots at the south end would be dramatically distorted by including Lots 4 through 11 in the distribution scheme. As I alluded to under Paragraph 6.4.7, the notion that the land between the lots in Reg’d. Plan 779 and Nottawasag Bay should be considered as part of these lots using the justification that the developer intended to use all of his available shoreline land may fail under judicial scrutiny. Walker succeeds because riparian land extends to the water. The land owned by the developer of Reg’d Plan 779 (originally the John Goemann Patent) never extended to Nottawasaga Bay, so that legal doctrine doesn’t directly apply. In a sense this is still the situation that Madame Justice Lauwers disagreed with in her decision regarding Ellard v. Township of Tiny. I’m not sure that it is certain conclusion that these lots should extend to the landward side of the reservation for road allowance, as contended by O.L.S. Stewart. If it is decided that the lots should be extended then I would suggest that the original layout for Reg’d. Plan 779 should be used as the model. Under that layout, Lots 1 through 3 and part of 4 are bounded by the Road Allowance between Lots 18 and 19 and have no claim to the ‘Beach’ area. Rather than bend the lot lines across the beach using a proportional approach, it might make more sense to extend all of the lot lines as done by O.L.S. Stewart has done: Lots 4 through 11 would extend only as far as the Road Allowance between Lots 18 and 19, while Lots 12 through 41 would extend to the Road Allowance Reservation. Page 65 of 66
Page 1 and 2:
Report of Research, Field Investiga
Page 3 and 4:
SURVEY REPORT File: 13-7508 Ontario
Page 5 and 6:
• Plan and Field Notes of Survey
Page 7 and 8:
• Surveyor’s Real Property Repo
Page 9 and 10:
3) Plan Review: 3.1 (Tabs 1, 2 and
Page 11 and 12:
3.3 (Tab 8) Reg’d. Plan 757 This
Page 13 and 14:
Of relevance to the present survey
Page 15 and 16: 3.16 (Tab 26) Plan 51R-35907 This i
Page 17 and 18: 3.24 (Tab 34) Field Notes by D.W. L
Page 19 and 20: 4) Title Search Review I obtained c
Page 21 and 22: 4.5 Lots in Reg’d. Plan 779 (see
Page 23 and 24: 4.9 Abstract for Lot 8, Reg’d. Pl
Page 25 and 26: 5.2 Site Description The subject ar
Page 27 and 28: 5.4 Field Procedures All field meas
Page 29 and 30: I also reviewed several of the plan
Page 31 and 32: 5.6 Centre-line Profile of Road All
Page 33 and 34: 6) Law Review 6.1 Relevant Statute
Page 35 and 36: 1. If intended in the original surv
Page 37 and 38: 6.2 Case Law Related to Surveys und
Page 39 and 40: 6.3 Case Law Related to Riparian Bo
Page 41 and 42: 6.3.4 Re: Brew Island (Tab 10) Mere
Page 43 and 44: 6.3.6 Red Deer v. Pitt (Tabs 12 and
Page 45 and 46: ascertained. Given this result, I n
Page 47 and 48: The trial judge observed that the l
Page 49 and 50: [60] This court finds that the desc
Page 51 and 52: 6.3.11 Clarke v. Canada (Tabs 28 an
Page 53 and 54: The Application was dismissed becau
Page 55 and 56: The use of this rationale is then c
Page 57 and 58: His response follows: C Extinguishm
Page 59 and 60: At Para 34 Justice Lauwers continue
Page 61 and 62: 6.4.9 Boundaries Act File B-1232 (E
Page 63 and 64: 6.5.2 Draft Memorandum to Council o
Page 65: Values are given monthly, and for p
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