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TITLE - Boundaries - Determination - By description in deed or Crown grant - Transfer document

Thursday, September 23, 2021 @ 1:47 PM  


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Appeal by three First Nations and the Attorney General of Canada from a decision that found the respondent estate was the owner of three islands located in Lake Katchewanooka. In treaties made in 1818 and 1856, the First Nations surrendered their title to a vast tract of land. The First Nations requested that any islands in the waterways within the surrendered land be excluded. In 1868, the province of Ontario, by Letters Patent, granted Lot 35 to the estate’s predecessor in title. The Letters Patent did not reference the islands. The application judge found that when Lot 35 was first surveyed in 1818, the islands were connected to Lot 35 and that since the islands subsequently separated from the mainland because of changes in water levels brought about by dams erected in the 1830s, the islands were included as a matter of law in the Letters Patent conveyance of Lot 35.

HELD: Appeal allowed. The application judge’s determination that the Letters Patent conveyed the islands as part of the conveyance of Lot 35 was not subject to deference because of extricable errors of law. The application judge failed to determine the meaning of the Letters Patent in accordance with the intentions of the parties, objectively ascertained from the language they used in light of the relevant factual matrix. He erred in treating a legal principle about the effect of sudden changes in water levels on boundaries between different owners as applicable and determinative. He failed to properly consider the Crown’s obligations to the First Nations in determining what the Crown intended to convey by the Letters Patent. Properly interpreted, the Letters Patent did not include any conveyance of the islands. As the predecessor in title did not obtain ownership of the islands when he received a conveyance of Lot 35 under the Letters Patent, the estate did not obtain ownership of them when it obtained ownership of Lot 35.

Herold Estate v. Canada (Attorney General), [2021] O.J. No. 4429, Ontario Court of Appeal, J.M. Fairburn A.C.J.O., B. Miller and B. Zarnett JJ.A., August 24, 2021. Digest No. TLD-September202021008