Michnick v. Bass Road Beach Association, 2015 ONSC 1936

By H. Sachs, Hambly and D.L. Corbett JJ.
Ontario Divisional Court
Oct 04, 2015


Joan Michnick,  Applicant/Respondent on Appeal


Bass Road Beach Association.  Objector Appellant

R. J. Fenn & Izaak de Rijcke, for the Applicant/(Respondent in Appeal)

Jeff G. Cowan, for the Objector/(Appellant) 

IN THE MATTER OF an application for confirmation of the true location on the ground of the boundaries of the lands designated as PIN 33113-0293 (LT), being all of Lots 22 and 23, Registered Plan 509 in the Municipality of Northern Bruce Peninsula, in the County of Bruce, for the purpose of confirming under the Boundaries Act the true location, on the ground of the western, southern, the eastern, the northeastern and the northwestern boundaries of the aforesaid described lands.



[1]               This is an appeal from the decision of the Deputy Director of Titles (“DDT”) fixing the southern waterfront boundaries of two lots on a registered plan of subdivision in the Bruce Peninsula. In her decision, the DDT determined that the waterfront boundary of the two lots extended to the water’s edge instead of to the “high water mark” line shown on the plan.

[2]               The Appellant, an association made up of back lot owners on the plan, argues that the DDT exceeded her jurisdiction when she moved the boundary line from the line as shown on the plan. In addition, the Appellant argues that the DDT’s decision was unreasonable, as there was a complete absence of evidence from which she could infer that the original subdivider’s intention was to fix the boundary of the waterfront lots at the water’s edge as opposed to at the high water mark line.

[3]               For the reasons that follow, I would dismiss the appeal. The DDT’s decision is subject to deference. She reasonably interpreted her mandate and reached a reasonable conclusion that was supported by the evidence before her.

Factual Background

[4]               In 1856, a provincial land surveyor completed a plan of survey for the Township of Lindsay, County of Bruce. In 1894, the Crown granted two lots as described on this plan to Matthew Hennesey Smith. The original patent granting the lots, which were both waterfront lots, did not reserve to the Crown any strip of land along the shores of Lake Huron. All that was reserved was the right to the “free use, passage and enjoyment of, in, over and upon all navigable waters.”

[5]               In 1945, Donald McIvor became the registered owner of the lots in question.

[6]               In 1959, Mr. McIvor decided to register a plan of subdivision in relation his lands. To this end, Ivan Dinsmore, an Ontario Land Surveyor, prepared a survey of the proposed plan of subdivision setting out all of the boundaries of the lots and other areas within the plan. The plan contained a number of lots, some along the shoreline of Lake Huron and some that fronted on a back road. Included in the plan were two blocks of land that fronted on the lake that were given the designation of “public park.” The plan also included designated roads and lanes to give access to the waterfront.

[7]               The southern or waterfront boundary of the waterfront lots was marked on the plan as being at the “high water mark” instead of at the water’s edge. Thus, the plan shows a strip of land running between the water’s edge of Lake Huron and the southern outer boundary of the plan. The location of the high water mark is marked at various points through wooden stakes. In the strip running between the water’s edge and the southern outer boundary of the plan, the words “sandy beach” are written in front of some of the lots, one of which is owned by the Respondent.

[8]               The plan was registered as surveyed. The lots were transferred over the years. None of these transfers specifically referenced the lands lying between the water’s edge and the high water mark, although one transfer to Manley Forbes in 1961 contains a reference to conveying “all of the unsubdivided parts” of the lots in question.

[9]               When the lots were transferred on the registered plan (Plan 509), they were done so with a description that only made reference to the plan: “Lot Number #, Registered Plan 509.”

[10]           The evidence before the DDT established that when the survey for Plan 509 was prepared, the government of Ontario took the position that all lands between the water’s edge and the high water mark belonged to the Crown. Thus, surveyors who surveyed land during this period were required to perform any surveys of land adjoining navigable waters according to this principle. If they did not, their surveys would not be accepted by the land registration offices. It was only in the late 1980’s that the Office of the Surveyor General in Ontario finally conceded that the true boundary of a property that runs along the water is the water’s edge. This was some years after the Supreme Court of Canada had released its decision upholding Walker v. Ontario (A.G.),[1971] 1 O.R. 151 (Ont. H.C.); affirmed 1972 CanLII 31 (ON CA), [1972] 2 O.R. 558 (C.A.); affirmed 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78 (“Walker”).

[11]           Walker was a contest between the government of Ontario and the owners of waterfront properties. The owners asserted that they owned the land down to the water’s edge, which included an extensive sandy beach. The Crown disputed the owners’ ownership of the beach, asserting that it was Crown land. Looking at the original Crown patent that conveyed the land, and given that this patent did not reserve the area by the water’s edge (i.e. the sandy beach) to the Crown, the Court concluded that the land was not owned by the Crown.

[12]           In the case at bar, the DDT heard considerable evidence from a number of witnesses, which she summarized as follows, at pages 11-12 of her Reasons:

From the testimony of these twelve witnesses, called by the Objector, the Bass Road Beach Association, I came to the following conclusions:

Realtors listing Lots for sale in Plan 509 promulgated to purchasers the belief that a beach near Bass Road was a public beach that could be used by the public. These purchasers, including seven owners of ‘back lots’, that is Lots in Plan 509 with no ‘frontage’ on Lake Huron and three owners of ‘front lots’ confirmed that they had relied on the evidence of the vendors and realtors and had not obtained professional legal or survey advice about the status, ownership, location, or extent of the beach when they purchased their Lots.

Mr. McLay and Mr. Phillips believed that the beach was Crown land and area resident, Mr. Rouse, understood the beach had been open for public use since before the subdivision development of Plan 509.

All of the witnesses provided their own version of historical use of the beach and they all spoke of the importance of the beach to the value and enjoyment of their Lots. I found this information helpful in confirming that there is indeed uncertainty about the boundary between the ‘front’ Lots on Plan 509 and Lake Huron. I found that none of their evidence supported a conclusion that Mr. McIvor intended to retain a strip of land between the high water mark and the water’s edge when he created the lots on Plan 509.

The Applicant called Fred Lindsay in reply. He is 72 years old. He started visiting the area in 1962. He purchased Lot 27, Plan 509 on McIvor Drive from Manley Forbes in 1967 and he still owns it. He said that he had a discussion with Mr. Forbes about the beach in the area of Lots 22-24. He said it was a considerably smaller beach at the time. Mr. Lindsay asked Mr. Forbes who owned it and Mr. Forbes told him, whoever buys that Lot. Mr. Lindsay said that he knows Mrs. Michnick (the Applicant) and that in the 1970s on occasion he and his family would go to the beach with another family who had children the same age with permission from Mr. and Mrs. Michnick. He said that he assumed the wood stakes on his Lot 27 marked the side boundaries of his Lot.

[13]           There was no issue before the DDT that the high water mark, as shown on the survey for Plan 509, correctly delineated the location as it was originally surveyed. There was also no issue that at the time that Mr. McIvor, the original subdivider, decided to subdivide his lands, he actually owned all of the land to the water’s edge.

The DDT’s Decision

[14]           The DDT originally framed the issue before her as follows:

The Question

The main question of uncertainty with regard to the boundaries under [sic] application is: do the lake ward limits of the Lots created by Mr. McIvor on Plan 509 extend to the ‘High Water Mark’ as shown on Plan 509 or do they extend to the water’s edge of Lake Huron? (DDT’s Reasons, page 14)


[15]           She later refined the question:

The question more specifically: In locating and drawing the ‘High Water Mark’ on Plan 509 was Mr. Dinsmore [the original subdivider’s surveyor] surveying new boundaries to be created by the transfer of Lots on Plan 509 or was he retracing the boundaries between Mr. McIvor’s lands and Lake Huron? (DDT’s Reasons, page 18)


[16]           In answering this question, the DDT concluded that Mr. McIvor did not know that he owned the land between the water’s edge and the high water mark, as shown on the original plan of subdivision. He and his surveyor proceeded on the mistaken belief that this land was owned by the Crown.

[17]           On the evidence, the DDT also found that Mr. McIvor intended to provide access to the beachfront of Lake Huron to the public and the back lot owners, but that he did not intend this access to include the area between the high water mark and the water’s edge. The plan clearly designates both an area marked “public park” and also access points to the lake that were intended to provide back lot owners with the necessary access to the beach.

[18]           The DDT did not accept that the transfer to Mr. Forbes was a conveyance to him of the lands between the high water mark and the water’s edge. His deed did not contain a description that specifically described or referred to that space.

[19]           Further, the DDT found that there was conflicting evidence before her concerning the pattern of use of the land between the high water mark and the water’s edge. This evidence did not support a finding that Mr. McIvor intended to reserve that strip of land. Rather, the evidence supported the conclusion that Mr. McIvor intended to subdivide “all that he owned up to his boundary with Lake Huron without reserving any lands to himself or to others” (DDT’s Reasons, page 26).

[20]           Based on this conclusion, the DDT accepted that if Mr. McIvor had known that he owned all of the land up to the water’s edge, he would have mandated that the surveyor place the southern boundary of the Respondent’s lots at the water’s edge, and not at the high water mark. Having reached this conclusion, she accepted the Respondent’s surveyor’s approach as to how the southern boundary of those lots should be amended on the plan of subdivision.  

Legislative Framework for the DDT’s decision

[21]           Section 3(1) of the Boundaries Act, R.S.O. 1990, c. B.10 (the “Act”), provides:

Where doubt exists as to the true location on the ground of any boundary of a parcel, an application, in the prescribed form, may be made to the Director to confirm the true location of the boundary on the ground.


[22]           In s. 1 of the Act, a “parcel” is defined as meaning an “area of land shown on a plan.”

[23]           Under the scheme of the Act, an application to confirm the true location of a boundary may only be made by the owner of the parcel in question, the council of the municipality where the land is situated, a minister of the Crown, the Surveyor General of Ontario or Canada, or a surveyor on behalf of the owner of the land. In this case, the application was made by the owner.

[24]           If someone objects to the owner’s application, the DDT is required to hold a hearing to determine the validity of the objection. In this case, the Appellant objected to the Respondent owner’s application and a hearing was held during which the DDT heard evidence from one land surveyor who supported the Respondent’s application, twelve witnesses who were presented by the Appellant, and one witness that the Respondent called in reply.

[25]           Under s. 9 of the Act, the DDT is given the power to “dispose of any objection in such manner as he or she considers just and equitable.” The DDT may confirm the location of the boundaries as shown on a plan of survey or “may order that the survey and plan be amended in such manner as he or she may direct, in which case he or she may confirm the location of the boundary or boundaries as shown on the plan as amended.”

[26]           In this case, the DDT ordered that the registered plan be amended to conform with the plan of survey put forward by the Respondent’s surveyor who was called at the hearing.

[27]           The Surveys Act, R.S.O. 1990, c. S.30, is also significant for the purposes of this appeal. Namely, s. 54 of theSurveys Act states:

Every line, boundary and corner established by survey and shown on a plan of subdivision is a true and unalterable line, boundary or corner, as the case may be, with respect to such plan and shall be deemed to be defined by the original posts or blazed trees in the first survey thereof, whether or not the actual measurements between the original posts are the same as shown on the plan of subdivision or expressed in any grant or other instrument.


[28]           According to the Appellant, s. 54 precludes the DDT from doing what she did. According to the Respondent, s. 54 has no application, as the boundary in question was not one that was “established by survey.” Rather, it was the mistaken retracing of an outer boundary of the land that the subdivider owned.

This Court’s Jurisdiction

[29]           Section 12 of the Act provides that any party who is aggrieved by an order of the DDT may appeal the order to the Divisional Court. Under s. 12(2), the Divisional Court may decide the appeal or send it back for a trial of an issue.

Standard of Review

[30]           In Nicholson v. Halliday (2005), 2005 CanLII 259 (ON CA), 74 O.R. (3d) 81 (C.A.), the Ontario Court of Appeal established that the appropriate standard upon which the DDT’s decisions should be reviewed is reasonableness.

[31]           According to the Appellant, since the DDT’s decision was made without jurisdiction, the appropriate standard of review is correctness.

[32]           I do not accept that this case involves a true question of jurisdiction. . In France (Republic) v. Diab2014 ONCA 374 (CanLII), 120 O.R. (3d) 174, the Ontario Court of Appeal recognized that no court has found a true question of jurisdiction since the Supreme Court identified this category in Dunsmuir v. New Brunswick,2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190.  

[33]           In coming to the conclusions she did, the DDT was interpreting and applying the provisions of her home statute and, thus, deference is owed to her decision. Therefore, the analysis I will be conducting is to determine whether the DDT’s decision was a reasonable one. This requires asking whether the reasons are intelligible, justifiable, and transparent and whether the result falls within the range of possible and acceptable outcomes, given the facts and the law.

Issues Raised on this Appeal

[34]           There are two issues raised by this appeal.

[35]            First, did the DDT unreasonably misconstrue the question before her? According to the Appellant, s. 3 of the Act requires the DDT to determine whether the southern boundary, as drawn on the plan of subdivision, accurately reflects the location of that boundary on the ground. In the Appellant’s submission, the answer to that question was admitted to be “yes” and, therefore, the DDT was precluded by s. 54 of the Surveys Actfrom going any further.

[36]           In the alternative, the Appellant submits that the DDT unreasonably concluded that the evidence supported a finding that the original subdivider intended to convey all the land that he owned, resulting in the waterfront lot boundaries being at the water’s edge rather than at the high water mark. According to the Appellant, it would be reasonable to conclude that the original subdivider intended to reserve the area between the high water mark and the water’s edge for access by the back lot owners. Reserving this area made commercial sense for a waterfront subdivision where some of the lots were not located on the water.


               Did the DDT unreasonably construe the question before her?

[37]           The Appellant submits that the DDT unreasonably failed to appreciate that her jurisdiction under s. 3 of theAct was to confirm where the original lot lines on the registered plan of subdivision were established or laid out. She lacked jurisdiction to confirm where the original lot lines could or should have been established, especially because there is no doubt as to their original location on the ground.

[38]           The Appellant bases this conclusion not only on s. 54 of the Surveys Act, but also on the fact that the lots have descended to successive lot owners under the original lot lines, which were set in accordance with the commercial realities of waterfront plans of subdivision. In other words, the beachfront access provided for on the plan increased the marketability of the back lots.

[39]           The Appellant made the same submission before the DDT. The DDT rejected the argument that s. 54 of theSurveys Act prohibited her from altering the boundaries of the owner’s lots. According to the DDT:

Section 54 of the Surveys Act applies to any new boundaries created by a Plan of Subdivision. Section 54 does not apply to boundaries created before a Plan of Subdivision is registered. Typically some or all of the exterior boundaries on a Plan of Subdivision have already been created prior to the registration of the Plan of Subdivision. If they have already been created, the Plan of Subdivision illustrates these exterior boundaries as a retracement of existing boundaries.


[40]           Thus, the DDT found that the application of s. 54 of the Surveys Act depended upon whether the southern boundary, as shown on the original registered plan of subdivision, was intended by the subdivider to be the retracing of an already existing boundary or whether it was meant to be the establishment of a new boundary. In the end, on the basis of the evidence before her, the DDT found that it was intended to be the former and, therefore, s. 54 of the Surveys Act had no application.

[41]           In essence, the Appellant is submitting that the DDT had no jurisdiction to examine the intention of the original subdivider. She had to accept the boundary as drawn on the registered plan of subdivision, especially since there was no dispute as to the location on the ground of the high water mark boundary as drawn.

[42]           In making his submission on this point, the Appellant relies on the Divisional Court decision in Re Richmond Hill Furriers Ltd. v. Clarissa Developments Inc. (1996), 1996 CanLII 11805 (ON SC), 31 O.R. (3d) 529 (Div. Ct.) (“Re Richmond Hill Furriers Ltd.”). In that case, the respondent on the appeal had applied to the DDT for an order confirming the location of a boundary on his lot, which was on a registered plan of subdivision.  In that case, there was a discrepancy between the dimensions shown on the registered plan and the surveyor’s field notes concerning the stakes on the ground before the survey for the registered plan was completed. The DDT applied an evidentiary rule relating to the “priority of evidence” to be considered in establishing boundaries. He found that the proper boundary was the one reflected in the surveyor’s field notes as opposed to the boundary set out in the plan. The Divisional Court overturned the decision, but not, as the Appellant suggests, because the boundaries set out in a registered plan of subdivision are unalterable. Rather, the Court found that the DDT had confused an evidentiary rule with a substantive one. According to the Divisional Court, the task when determining a disputed boundary “is to ascertain the true intent of the grantors to the grant.” The evidentiary rule in question was not developed to determine the true intention of the grantors to the grant, but to assist in that determination.

[43]           Thus, the DDT reasonably found that Re Richmond Hill Furriers Ltd. did not stand for the proposition that the boundaries, as drawn in a registered plan of subdivision, had to be accepted unless there was a dispute about where they existed on the ground. Re Richmond Hill Furriers Ltd. supports the DDT’s perception of her task, which was to determine the true intention of the subdivider when he subdivided the land.

[44]           The DDT then turned to consider three recent Ontario decisions: Ellard v. Tiny (Township), 2012 ONSC 280(CanLII), 295 O.A.C. 44 (Div. Ct.) (“Ellard”), appeal dismissed on consent July 8, 2013 (C.A.); Tiny (Township) v. Battaglia2013 ONCA 274 (CanLII), 305 O.A.C. 372 (“Battaglia”); and, Lackner v. Hall,2012 ONSC 3951 (CanLII), 1 M.P.L.R. (5th) 283 (S.C.J.) (“Lackner”), affirmed 2013 ONCA 631 (CanLII),15 M.P.L.R. (5th) 16. All three cases concerned boundary disputes involving waterside lots that were part of registered plans of subdivision. In each case, land along the water’s edge fell outside of the boundary lines drawn on the surveys for the registered plans of subdivision. In none of these three cases did the Courts decide that they had no jurisdiction under the Act to amend the boundaries in question. All were decided on the evidence before the particular adjudicators.

[45]            In Ellard and Battaglia, the Courts decided that the boundaries in question should not be extended to the water’s edge. In Lackner, the Court decided that it should. In Battaglia, at para. 117, the Court of Appeal specifically referenced the question of whether or not a boundary on a registered plan of subdivision could ever be extended to the water’s edge:

Finally, I do not wish to be taken as having decided whether or not a boundary labelled as the high water mark or high water mark on a registered plan of subdivision may ever be extended to the water’s edge. I simply conclude that there is no justification for doing so on the particular facts of this case.


[46]           In Lackner, the plaintiffs were seeking a declaration that the boundaries of certain lots on a registered plan of subdivision extended to the water’s edge of the Ottawa River. In that case, as in the case at bar, it was agreed that the lands granted by the patent from the Crown extended to the water’s edge. There was also agreement as to the longstanding dispute in Ontario about whether the Crown’s title in the riverbed extended to the water’s edge or to the high water mark, a dispute that was settled by the Walker decision.

[47]           McNamara J.’s analysis in Lackner started, at para. 63, with the proposition that “[t]he Court’s fundamental objective in interpreting a plan of subdivision is to determine the intention of the original subdividers.” McNamara J. then went on to find that this was a case where extrinsic evidence could be admitted to reveal whether there was a latent ambiguity in interpreting where the waterside boundary should lie on the plan of subdivision in question. In doing so, he relied on the authority of the Court of Appeal in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (Ont. C.A.) (“Gibbs”), at p. 658, where Finlayson J.A. found that “[e]xtrinsic evidence may be introduced only in the case of a latent ambiguity for the purpose of ascertaining the intention of the grantor…”

[48]           McNamara J. then reviewed all of the evidence before him and found that it supported a finding that the intention of the original subdividers was to convey all of the land that they believed they owned and that the only reason they had drawn the boundary on the plan of subdivision at the high water mark instead of at the water’s edge was because of a mistaken belief that they did not own the land to the water’s edge. Therefore, McNamara J. found that the plaintiffs were entitled to a declaration that the boundaries of their lots extended to the water’s edge.

[49]           It is also worth noting that the Court of Appeal, in Lackner, addressed a submission that McNamara J. erred in focusing his analysis on the intent of the original subdividers. The Court held that the language of Gibbsquoted above makes it clear that determining the intention of the subdividers is a relevant factor on which to focus. Further, the Court agreed that in a situation such as in Lackner, which is similar to the situation in the case before us, it was appropriate to use extrinsic evidence to determine the boundary in question.

[50]           If the Appellant’s submission about s. 54 of the Surveys Act is correct, then McNamara J. would have been precluded from coming to the conclusion that he did in Lackner, a decision that was affirmed by the Court of Appeal.

[51]           For these reasons, I find that the DDT reasonably construed the question before her and reasonably interpreted her jurisdiction under s. 3 of the Act.

               Was there evidence to support the DDT’s decision?

[52]           The DDT analyzed the evidence before her in the context of the evidence in the three cases that she used to guide her decision: Ellard, Battaglia, and Lackner.

[53]           She concluded that, unlike in Ellard and Battaglia, the subdivider (Mr. McIvor) did not know that he owned the land between the high water mark and the water’s edge. While his surveyor (Mr. Dinsmore) did not testify, there was evidence that Mr. Dinsmore “…clearly illustrated on both Municipal Survey No 852 and on Plan 509 that the Lot 21, Con 7 and Lot 21 Con 8 township fabric extended only to the high water mark of Lake Huron” (DDT’s Reasons, pages 25-26). “Lot 21, Con 7 and Lot 21 Con 8” describes the land that Mr. McIvor had available to subdivide. These notes, combined with the evidence about Ontario’s position at that time with respect to waterfront land, support the DDT’s conclusion in this regard.

[54]           Similarly, there is no evidence of anything that would contradict this conclusion. The configuration of the plan itself does not support a conclusion that Mr. McIvor intended to reserve the area in question for himself. Unlike in Ellard and Battaglia, there is no clear naming of the space in between the water’s edge and the high water mark. There is merely a notation that there is sandy beach in that space. Further, unlike in Ellard andBattaglia, there were no conveyances or quit claims executed by Mr. McIvor concerning the space between the water’s edge and the high water mark. As already noted, the DDT did not accept the Appellant’s submission that the transfer to Mr. Forbes dealt with the space in question. The conveyance does not in any way specifically reference this space and the DDT had evidence that Mr. Forbes did not regard the space as his.

[55]           Thus, the DDT’s conclusion that Mr. McIvor did not know that he owned the space at issue is clearly supported by the evidence and is reasonable. 

[56]           The DDT addressed at page 26 of her Reasons the issue of whether, if he knew that he owned the space, Mr. McIvor would have reserved it for the back lot owners’ benefit:

Additionally the creation of Bass Road and Blocks A and B for Public Park, support a conclusion that Mr. McIvor intended to provide access to and enjoyment of Lake Huron for the benefit of the public and the back lot owners, but I could not conclude this intention extended to the beach in front of Lots 22-24. The intentional and clearly described creation of Block for Public Park and access points to Lake Huron at Bass Road and elsewhere at Beach Road and the Lane adjacent to Lot 33 supports the commercial context of a lakefront subdivision providing back lot owners with access to Lake Huron. I could not further extend the subdivision development commercial imperative to conclude an intention on Mr. McIvor’s part to reserve or except a space along the water’s edge.


[57]           The DDT’s conclusion on this issue is supported by the evidence and is reasonable.


[58]           For these reasons, the appeal is dismissed. In accordance with the agreement of the parties, the Respondent is entitled to her costs of this appeal, fixed in the amount of $7,500.00, all inclusive.


                                                                                                              H. SACHS J.


                                                                                                               HAMBLY J.


                                                                                                           D.L. CORBETT J.