Land title- Ellard v. Tiny (Township) 2012 ONSC 280

By ASTON, PEPALL, LAUWERS J.J.
Ontario Divisional Court
Jul 12, 2012
IN THE MATTER OF an application for confirmation of the true location on the ground of the boundaries of the lands designated as PIN 583-99-0010(LT) for the purpose of confirming, under the Boundaries Act, the true location on the ground of the Limits of the lands designated as PIN 58399-0010(LT) being Lot 8, Registered Plan 773, Township of Tiny, County of Simcoe.
 

B E T W E E N:

EDWARD RICHARD ELLARD and DEBORAH JEAN ELLARD

Izaak De Rijcke, for the Applicants

 (Respondents in Appeal)

- and -

TOWNSHIP OF TINY)

Objector

(Appellant)

Jeff G. Cowan, for the Objector

HEARD at Toronto: January 9, 2012


REASONS FOR DECISION

 LAUWERS J:

 [1] The Applicants, Respondents in Appeal, are the owners of a cottage property on Lake Huron, described as Lot 8 in Plan of Subdivision 773, which was registered in 1931. Lot 8 is oriented in an east-west direction. It is bounded on the east by a laneway and on the west by the beach. The Plan comprises 46 cottage lots, 23 of which front on the beach (the “beachfront cottage lots”) and the balance of which are to the east of the beachfront lots (the “back cottage lots”). The westerly boundary of the Plan is depicted on the survey as a straight line of monuments to the east of the “Sand Beach”, at distances varying between 40 and 75 feet from “the waterline.” A photo-reduction of the original plan of survey is attached as Appendix “A.”

[2] The Applicants sought an order from the Deputy Director of Titles, J.S. Cotterill OLS, OLIP, under section 9 of the Boundaries Act, R.S.O. 1990, c.B.10 fixing the western boundary of Lot 8 at the water’s edge. The Objector, Appellant in Appeal, the Township of Tiny, opposed.

[3] The Deputy Director issued the following order: “I do hereby confirm the westerly boundary of Lot 8 to be the water’s edge of Lake Huron as it exists from time-to-time.” The Township appeals from this decision under section 12 of the Boundaries Act. The effect of the Deputy Director’s decision would be to extend the beachfront lots to the water’s edge, raising the prospect that access to the beach by the back cottage owners and the public could be denied or limited in the future.

[4] For the reasons that follow I would allow the appeal.

The Standard of Review

[5] In Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, the Supreme Court noted at paras. 57 and 62 that it is not necessary to repeat the deference analysis in cases where prior jurisprudence has decided the issue. The Deputy Director acting under the Boundaries Act is entitled to deference on a reasonableness standard within the area of his expertise: Nicholson v. Halliday 2005 CanLII 259 (ON CA), (2005), 74 O.R. (3d) 81, at para. 46, Nightingale v. Brooks, [2008] O.J. No. 2603, at paras. 20-21.

The Factual Context

[6] Many of the essential facts were agreed upon between the experts. They were also accepted by the Deputy Director and set out in his decision:

1) Registered Plan 773 (Tab 5 Exhibit 1) is a subdivision of part of the north half of Broken Lot 18 Concession VIII on the Township of Tiny.

2) The 1821 Crown Survey of the Township of Tiny (Tab 3 Exhibit 1) creates lakefront lots that extend to the waters of Lake Huron. They are riparian lots.

3) The Crown patent for Lot 18 concession VIII (Tab 4 Exhibit 1) to George Kidd, dated 21 August 1866, conveyed the whole lot together with other lands reserving “free access to the shore of Lake Huron, for all vessels, boats and persons”. The patentee received title to the water‘s edge of Lake Huron.

4) George Kitching received a deed to part of the north half of Broken Lot 18 Concession VIII in the Township of Tiny (Tab 12 Exhibit 1) which was dated 6 December 1930 and registered as instrument 13821 on the 19th day of June 1931. The lands therein conveyed are described as extending “…to the water’s edge of the shore of Georgian Bay – thence along the water’s edge of said short northerly to the southerly limit of the road allowance between Concessions 8 and 9…”. The experts agree that Mr. Kitching received title to the water’s edge of Lake Huron.

5) A survey and plan of subdivision was prepared by E.L. Cavana, Ontario Land Surveyor. The Surveyor’s Certificate on the plan is dated 5 December 1930. The plan (Tab 6 Exhibit 1) was registered 4 August 1931 as Plan 773. Lots 1 to 23, both inclusive extend to the west to a monumented straight line having a bearing of N 0 degrees 30’ E and labeled “reference line” and “High Water Mark”. The monumented straight line is shown to be east of the “present water line” by varying amounts from 40 feet to 75 feet. Between the “present water line” and the “High Water Mark” is labelled “SAND BEACH”. The plan has an “OWNER’S CERTIFICATE” signed by Geo. Kitching signifying that the plan is laid out in accordance with his instructions and a certificate signifying the consent of the municipal council. The coloured outline indicating the limits of the subdivision runs along the “reference line”/”high water mark” line indicating that the sand beach is not included in the lands being subdivided.

6) George Kitching sold lots in accordance with Plan 773. He reserved the northerly 10 feet of Lot 9 and the southerly 7 feet of Lot 19. In the sale of “back lots” he granted them together with a right of way over northerly 10 feet of Lot 9 and southerly 7 feet of Lot 19 presumed to be access to the beach. No conveyances included any right of way over or rights to use the area identified as the beach.

7) The heirs of George Kitching executed a conveyance to the Township of Tiny dated 15 November 1960 and registered as Instrument 127122 (Tab 18 Exhibit 1) on 28 December 1960. The document reveals that George Kitching died 24 April 1934. The conveyance includes that part of Block A that had been used as a road together with the part of Lot 18 Con VIII immediately to the east of the plan, also used for road. In addition the document conveys the strips of land over which rights of way had been created. Significant to this matter, the document conveys in Parcel 7 “All the Grantor’s right, title and interest in that part of Lot 18 in the Eighth Concession of the Township of Tiny lying to the west of the lands shown in Plan 773 and to the east of the waters of Georgian Bay”. The Township claims title to the lands shown as sandy beach on Plan 773 as a result of this conveyance.

8) Both experts accepted that the surveyed line that is labelled “reference line” and “high water mark” is a straight line. They agree that it is unlikely that the high water line as a natural feature would be straight. The contour along this line is not consistent and it was accepted that even at its highest levels the waters of Lake Huron were not likely to have extended this far inland. It was accepted that this straight line probably approximates the edge of upland vegetation at the back of the sand dunes. (Sic) (Pages 2-3)

[7] Part of the legal and factual context was a longstanding dispute about whether the Crown’s title in the land under a body of water in Ontario extended to “the water’s edge” as quoted in Mr. Kitching’s deed, or to the “high water mark.” The determination that “the water’s edge” was the correct boundary was finally made in Walker v. Ontario (A.G.), [1971] 1 O.R. 151 at 181 at para. 56; affirmed [1972] 2 O.R. 558 (C.A.); affirmed 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78.

[8] The Deputy Director discussed the issue:

It was Mr. Stewart’s observation [the Respondents’ expert land surveyor] that the “high water mark” theory was prompted by the Crown lands officers from an early date (evidence in the Walker v. Attorney General of Ontario indicates from as early as 1890 until after 1970) even though that definition was only sanctioned by legislations between the implementation of the definition of “bed” and “high water mark” as in the Statute Law Amendment Act 1940 (Ont.) c.28, section 3, and the repeal of those subsections by the Beds of Navigable Waters Amendment Act 1951 c.5. Mr. Stewart observed that many surveyors accepted the high water mark as the boundary between private owners and the Crown without question for considerable period until after the courts dealt with the matter in the appeal from Walker v. Attorney General of Ontario in 1975. (Page 3 )

The Decision Under Appeal

[9] The Deputy Director framed the issues before him in these terms:

This application presents two issues for the Tribunal. The first is to determine the extent of registered Plan 773 based upon an examination of the intent of the owner who registered this plan. In the event that this tribunal agrees that the intention of the developer of Plan 773 was to create lots extending to the boundary between his lands and those of the Crown, the tribunal will be required to confirm the boundaries of the applicant’s lands as it crosses the beach.

The applicant claims that the developer of Registered Plan 773 intended to create waterfront lots. Notwithstanding that the lots are illustrated to the “high water mark” the intention was to convey lots that included the full extent of the developer’s title to the shore of Lake Huron (Nottawasaga Bay). It is the opinion of the expert for the applicant that the waterfront lots extend to the water’s edge and therefore the heirs of the developer had no title to convey to the Township when they purported to convey the beach at a later date.

The objector claims that the developer intended to reserve the beach between the “high water mark” and the water’s edge of Lake Huron (Nottawasaga Bay) for public use. His heirs were entitled to convey the beach together with other remainder lands to the Township.

In resolving the second issue it will be necessary to determine that the location of the sidelines of lot 8 as they cross the beach comply with the principle of equity and the other principles set out in case law. (Page 2) [Emphasis added.]

[10] On the first issue, the Deputy Director made the following observation:

The ambiguity in this matter comes from the need to determine whether the monumented straight line labelled “reference line” and “High Water Mark” was understood to be the boundary between the lands of the Crown, being the bed of Lake Huron, and the upland owner, Mr. Kitching. Inherent in that determination is the need to interpret Plan 773 in order to determine whether it was Mr. Kitching’s intention to create a row of lots that extended to Lake Huron or whether it was his intention to create lots that fronted upon a beach to which he retained title. (Page 8) [Emphasis added.]

[11] After considering the expert evidence on Mr. Kitching’s possible intention, the Deputy Director made the following pertinent findings:

It is clear from the surveyor’s certificate on Plan 773 that Mr. Cavana completed all of the work necessary to survey these lots and complete the plan illustrating them prior to 5 December 1930. As the deed to Mr. Kitching is not dated until 6 December 1930 I conclude that it cannot be assumed that surveyor Cavana was aware of the description contained in the deed when he commenced to run the boundaries of the subdivision. For the same reason, I conclude 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. (Page 8)

[12] On whether Mr. Cavana’s practice as a surveyor was to “invariably establish that boundary along what he identified as the “High Water Mark””, the Deputy Director commented:

The experts agreed that Mr. Cavana was not alone in this practice and it has been clearly illustrated in the evidence filed at this hearing and in numerous court proceedings that many surveyors followed this practice and that this practice was actively promoted by officials in the Crown Lands Office from as early as the end of the 19th Century until after the appeal of Walker…I am satisfied, on a balance of probability basis, that Mr. Cavana established this straight “reference line”/”High Water Mark” boundary of lots 1 to 23 at what he perceived to be the boundary between the lands of Mr. Kitching and the Crown lands being the bed of Lake Huron. I am satisfied that Mr. Cavana believed that the beach was owned by the Crown and he prepared his survey accordingly. (Page 8)

[13] The Deputy Director dismissed evidence that the practice of the Township was to refuse to register Plans of Subdivision that did not provide public access to the beach. He went on to say:

What Mr. Kitching believed and what his intentions in the matter were, is not clear. The only clue that we have must be gleaned from an examination of his actions subsequent to the registration of the plan. The sale of lots on the plan were together with a right of way over that part of Block A that was required for road access. The sale of rear lots was together with a right of way over the northerly 10 feet of lots 9 and/or the southerly 7 feet of lot 19, the title to both of which strips of land he retained. These conveyances of rights of way would be consistent with his intent to provide access to the beach which he perceived to be public lands vested in the Crown. In fairness, it would also be consistent with intent to provide access to a beach, the title to which he retained for the use of purchasers of lots. If the latter is the correct inference, we are left with the unexplained question of; why did he not grant rights of way over the beach if he intended to retain title in it and at the same time make it available for public use? It is illustrated that he carefully conveyed rights of way over his other retained lands where they were required for public access, why did he not convey rights of way over the beach? During his lifetime, Mr. Kitching never dealt with the title to the beach. This would be consistent with the belief that he did not own the beach notwithstanding the description in his deed that recites his boundary as the water’s edge. (Page 9) [Emphasis added.]

[14] The Deputy Director discussed the knowledge of the surveyor, Mr. Cavana:

There was considerable discussion about whether Mr. Cavana’s perception in the matter of the boundary between upland and Crown lands has relevance. It was suggested by Mr. Stanton and Mr. Cowan that Mr. Kitching knew, because of the description in his deed, that he owned to the water’s edge and that he, as evidenced by the owner’s certificate, instructed Cavana as to where to set the lot lines. Mr. Stanton suggested that Mr. Kitching instructed Mr. Cavana to create lots that did not include the beach in deference to Township policy. I have already commented upon that theory. None of Mr. Kitching’s actions subsequent to registration of the plan would suggest that he knew he owned to the water’s edge or that he intentionally reserved the beach. If he gave instructions to Mr. Cavana as to how the lots were to be located those instructions would necessarily have been issued before the survey and plan were completed and without knowledge of the description in the deed since the deed was not written until after all of Mr. Cavana’s work on the subdivision was finished. In light of Mr. Cavana’s consistent adherence to the “High Water Mark” approach to establishing the boundary between upland owners and the Crown it is inconceivable to me that Mr. Cavana would intentionally include lands that he perceived to belong to the Crown within the subdivision lots even if Mr. Kitching had instructed him to do so. It is quite conceivable to me that Mr. Kitching would rely on Mr. Cavana as the expert in the extent of title and ownership and in the establishment of boundaries to locate his boundary with the Crown.(Page 10)

[15] The Deputy Director also discussed the knowledge of Mr. Kitching’s lawyer, Mr. Hewson, who did the conveyancing in 1931 and in 1960:

I accept that Mr. Hewson was aware that the deed to Mr. Kitching transferred lands that were described to the water’s edge of Lake Huron and that Plan 773 appears to subdivide only to the “High Water Mark”. From the fact that he drew the deed to the water’s edge it is evidence that Mr. Hewson understood,in 1930, that the common law limited the Crown’s title in the Bed of Lake Huron at the water’s edge even though the officers of the Crown Lands office were still arguing for “High Water Mark” at the appeal in Walker as late as 1975 and many surveyors were admittedly unsure of the matter until that appeal was finally dealt with. If his purpose in drawing this deed to the Township was for the heirs of Mr. Kitching to dispose of any interest in lands that might be left upon the sale of all the lots in Plan 773, all of which appears to have been required for public use, he was being safe in including the beach in the conveyance. In as much as in Parcel 6 the deed [in 1960] purports to convey lands that Mr. Kitching never owned, it is apparent that Mr. Hewson did not confirm that the heirs to Mr. Kitching actually had an interest to convey in all of the lands included in the document. (Page 11)

[16] The Deputy Director turned his mind to the meaning of the location of the “monumented straight line” labeled “reference line,”” which is “located some distance inland from the “present water line” as it existed at the date the subdivision was surveyed.” He concluded that the location of the “monumented straight line” was to provide “mathematical closure” to the survey.

Both expert witnesses accept that in the matter at hand, the Crown grant included the lands to the water’s edge, notwithstanding that the term water’s edge is not mentioned in the patent document. Both expert witnesses also accept that the subsequent grant to George Kitching included the lands to the water’s edge because the words of the deed describe it so. Both expert witnesses also agreed that the monumented straight line labeled “reference line” is a line that can be easily located upon the ground and that it is located some distance inland from the “present water line” as it existed at the date the subdivision was surveyed. It is also located inland from where the water’s edge would be located today. The question I must answer is “Does the monumented “reference line” so clearly delineate the boundaries of the lots on this plan as to clearly except or reserve to the subdivider a space between the lots granted and the water’s edge?” I might be drawn to this conclusion if it were not for the label “High Water Mark”. Under the circumstances I am led to conclude that the monumented straight line is a “reference line” upon which reference monuments were planted to locate the various side lines of the lots and to provide mathematical closure. In my mind, the only purpose to adding the note “High Water Mark” was the intention that the lots extend to some “Natural boundary” which was perceived to be the “High Water Mark”. This intention would clearly confirm to the Crown Lands policy discussed earlier. Does it indicate an intention to reserve the beach? There is no further notation upon the plan that indicates any intention to reserve the sandy beach and there is no dedication of the sandy beach to the Township in the owner’s assessed taxes on any reserved beach area. There are no registered dealings with the beach area by Mr. Kitching during his lifetime. These circumstances are consistent with an acceptance of the Crown Lands policy by both the Township and Mr. Kitching and with the belief that the beach was public land under the jurisdiction of the Crown Lands office. What then is the significance of a labeled “high water mark” separate from the “Water’s Edge”? I am inevitably led to the conclusion that the only purpose of a “High Water Mark” is Mr. Cavana’s attempt to comply with the Crown Lands claim of ownership of the bed of the lake inland to this line. The court cases since 1906 have been consistent in their rejection of this Crown Lands claim. The courts have consistently ruled that the boundary between the Crown as owner of the bed of a non-tidal lake and the adjoining upland owners is the water’s edge notwithstanding any words in the patent indicating a boundary along a high water mark or upon any bank. Both of the experts in this matter have agreed that the boundary between the Crown and the upland owner is the water’s edge. (Page 11-12) [Emphasis added.]

[17] The Deputy Director concluded:

I am inevitably led to the conclusion that if Mr. Kitching retained title to the beach area he was not aware of it. With this in mind, I conclude that Mr. Kitching’s intent, when creating lots 1 to 23 on Plan 773 was that the extent to his boundary with the Crown, which the courts have directed is the water’s edge. The extent of Plan 773 includes the sandy beach to the water’s edge. It follows that there was no land left between the lots on Plan 773 and the water’s edge, therefore there is no extent to Parcel 7 [ie, the beach] in instrument 127122.

[18] This conclusion required the Deputy Director to attend to the second issue, which was to set the boundaries for Lot 8 and the rest of the beachfront lots in Plan 773 between the high water mark and the water’s edge. He was forced to adjust considerably the boundaries of neighbouring lots within Plan 773. He prepared an elaborate plan that he called a “Scheme of Equitable Division of Beach Area at the Front of the Registered Plan 773.” A photo-reduction is attached as Appendix “B”.

Analysis

[19] The Deputy Director’s focus on Mr. Kitching’s intent is appropriate. As Corbett J. noted in Re Richmond Hill Furriers Ltd. and Clarissa Developments Inc. reflex, (1996), 31 O.R. (3d) 529, [1996] O.J. No. 4363 (Div. Ct.) at page 535, para. 18:

18 The purpose of the evidentiary rule [that posts govern] relied upon by the Deputy Director in ascertaining a disputed boundary is to ascertain the true intent of the grantor or parties to the grant. Neither surveyor's monuments nor surveys, as such, create boundaries. Boundaries are created by the legal action of an owner by operation of law whether under statute or at common law or by order of the court.

He added at page 538, para. 28: “In our view, the "evidentiary" rule that posts govern does not apply where the intention of all parties is clear and manifest as to the boundary...” In my view, the grantor’s intent is to be determined from all of the evidence, including the evidence about the commercial context.

[20] As noted, the standard of review is “reasonableness,” as interpreted by the Supreme Court in Dunsmuir at para. 47:

…certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[21] The outcome in this case, if the Deputy Director’s decision is left undisturbed, is that the beachfront cottage lot owners get title to the beach. I find that this outcome, as a matter of construing Mr. Kitching’s intent, to be unreasonable, for a number of reasons.

[22] First, the Deputy Director acknowledged at different places in his decision that in his view Mr. Kitching did not think that he owned the beach. If that is true, then it cannot have been his intention to convey the beach to the beachfront cottage lot owners.

[23] Second, the outcome by which the beachfront cottage lot owners get title to the beach would make no commercial sense in the context. Mr. Kitching would not have been able to market the back cottage lots if the owners were not to have any right of access to the beach. The only reasonable inference to draw from the fact that rights of way to the beach from the back cottage lots are provided in the Plan is that both Mr. Kitching and those purchasing the back lots fully expected to have unlimited access to the beach. It is clear that the one result that neither Mr. Kitching nor his back lot purchasers would have accepted is that the beach belonged exclusively to the beachfront lot owners, which is precisely the result that the Deputy Director reached. His decision raises the prospect that access to the beach by the back cottage owners could be denied or limited in the future. Such a result is not consistent with the commercial reality of Mr. Kitching’s enterprise. I note in passing the observation of Miller Co. Ct. J. in Carpenter v. Smith, [1951] O.R. 241 at 251: “All the lots were sold for summer cottages and without the beach they would be valueless.” Even if the back cottage lots would not have been entirely “valueless,” self-evidently they would have been worth much less and Mr. Kitching would have realized a lower return on their sale.

[24] Third, the outcome would not be consistent with Mr. Kitching’s design of Plan 773. The road allowances that bound the north and south limits of the plan allow access to the beach. As illustrated by “Scheme of Equitable Division of Beach Area at the Front of the Registered Plan 773” found in Appendix “B”, the angles of the allowances form a wedge aimed at the beach. The Deputy Director concluded that the lot lines could not run straight to the waterline. The Scheme was his effort to effectively shoe-horn the lot lines into the wedge. The Scheme shows a remarkable design that Mr. Kitching is most unlikely, given his need to market both the beachfront and the back cottage lots, to have ever accepted; the Scheme became necessary once the Deputy Director made his imputation of intent to Mr. Kitching. I find that the Scheme shows graphically why the Deputy Director’s reasoning is fatally flawed.

[25] Fourth, it was wrong to draw an inference about Mr. Kitching’s intention from the fact that he did not reserve the beach or rights of way over the beach for the back cottage lots. The Deputy Director did so against the interests of the back cottage lot owners. But the necessity for such a reservation only came about as the result of the decision of the Supreme Court of Canada in Walker in 1975 that forced the title issue. To read that result back into Plan 773, which was registered in 1930, would be to commit the logical fallacy of anachronism.

[26] Fifth, I understand that the conveyances of the cottage properties have consistently made reference to the lot numbers on the Plan, in which the beach is clearly not included. This is visually apparent both on the Plan, and on the ground where the westerly boundary is shown by the straight monumented line. The reasonable expectations of those who brought properties through the years, including the Applicants, was that the western boundary line to their lots is as depicted on the Plan and found on the ground. The pattern of conduct of the cottagers and the public over the years reinforces the arrangement under which the beach belongs to the Township and public access is permitted. The Deputy Director’s decision to extend the beachfront lot line to the water’s edge puts this settled arrangement into doubt. Settled arrangements should not lightly be disturbed.

[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.

[28] I repeat, for convenience, the timing of the relevant documents. Mr. Cavana’s surveyor’s certificate on Plan 773, is dated December 5, 1930, and states: “I hereby certify that this plan accurately shews (sic) the manner in which the land included therein has been surveyed and subdivided by me and that the said plan, is prepared in accordance with the provision of the Registry Act, and of the Survey Act.” It was prepared by him before that date.

[29] Mr. Kitching acquired title by deed dated December 6, 1930, which described the western boundary of the property as “the water’s edge at the shore of Georgian Bay.” The deed was registered on June 19, 1931.

[30] Plan 773 clearly identifies a space between the westerly boundary of the plan and the water’s edge. The evidence of the surveyor Chester Stanton, the Township’s expert, in his survey report dated March 29, 2010 at para. 21 is not disputed:

I have reviewed the coloured original [of registered Plan 773] at the Land Registry Office. The westerly limit of the subdivision is shown as the straight line boundary monumented by Mr. Cavana. The beach, road allowances and 20-foot strip along the easterly side of the subdivision are not included within the coloured portion.

[31] Mr. Kitching’s owner’s certificate on the Plan states: “I hereby certify that the property shewn (sic) on this plan has been laid out in accordance with my instructions.” Mr. Hewson attested Mr. Kitching’s signature by affidavit set out on Plan 773 dated June 6, 1931. The Plan was registered on August 4, 1931.

[32] With respect to the Deputy Director, as a surveyor Mr. Cavana was not qualified to render any legal opinion so that his opinion, belief or intention are of marginal, if any, relevance as to what Mr. Kitching understood. It is not clear to me why the Deputy Director concluded that “Mr. Kitching would rely on Mr. Cavana as the expert in the extent of title and ownership and in the establishment of boundaries to locate his boundary with the Crown,” rather than on his lawyer, who, the Deputy Director conceded, knew the truth and attended to the conveyancing. Mr. Hewson was qualified to give legal advice and either drafted or obtained Mr. Kitching’s deed in clear, unambiguous language which provided that Mr. Kitching owned the land to the water’s edge, and Mr. Hewson also signed certification of the Plan of Subdivision.

[33] In my opinion the Deputy Director glosses over and essentially ignores the reasonable, if not compelling, inferences to be drawn from these direct facts and the contextual facts referred to above.

[34] The only reasonable inference to draw from the constellation of facts is that Mr. Kitching intended to convey the land to the beachfront cottagers down to the monumented straight line and no further. I note that the Deputy Director comes close to conceding this point at page 12 where he says: “I might be drawn to this conclusion…” The result most consistent with Mr. Kitching’s design of Plan 773 is that he intended to except or reserve the land between the monumented line and the water’s edge for the use of the back lot cottagers, the beachfront lot cottagers and the public.

[35] It was unreasonable, in short, for the Deputy Director to conclude that Mr. Kitching’s intent in creating lots 1 to 23 on Plan 773 was to extend the lot lines of the beachfront lots to the boundary with the Crown, if the boundary was the water’s edge and not the monumented line. That is not an arrangement that would have been effective for Mr. Kitching’s commercial purposes. The fact that the law was settled retrospectively and forced the issue does not mean that the court or the Deputy Director must come to an unreasonable decision. I note the words of Stark J. in Walker at para. 56:

56 It appears to me, therefore, that I am driven to this conclusion, that any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water, then it establishes that boundary as at the water's edge and not upon any bank or high water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water's edge. [Emphasis added.]

The underlined words apply with necessary modifications to the identification of the beachfront lots western lot line on Plan of Subdivision 773, and the identification of the clearly depicted and labelled “Sand Beach” area beyond it.

[36] Cases over many years have shown that land titles in cottage country were sometimes left in a somewhat messy state, especially when measured against modern land use planning and conveyancing laws and practices. Courts must do the best we can with what we have to reach an equitable, practical and just result in the circumstances of each individual case.

[37] I find that the decision of the Deputy Director is unreasonable and does not fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law,” per Dunsmuir at para. 47. I would allow the appeal, set aside the decision of the Deputy Director of Titles, and confirm the boundaries of Lot 8 as depicted on Plan of Subdivision 773.

[38] During argument the parties agreed that the successful party would receive costs in the amount of $7,500.00 all-inclusive. So ordered.

  

Justice P.D. Lauwers

 Justice D. Aston

 Justice S. Pepall

 Released: July 12, 2012

 ellard-tiny-beach