





CITATION:
Lumme
v.
Eagle
Point L.L.C., 2011 ONCA 291



DATE: 20110413



DOCKET: C52803



COURT OF APPEAL FOR ONTARIO



Cronk, MacFarland and Rouleau JJ.A.



BETWEEN



Mark Lumme



Applicant/Appellant



and



Eagle
          Point L.L.C.



Respondent/ Respondent on Appeal



Libero C. Paci, for the applicant/appellant



J. Paul R. Cassan, for the respondent



Heard and released orally:  March 30, 2011



On appeal from the judgment of Justice W.L. Whalen of the
          Superior Court of Justice, dated September 10, 2010.



ENDORSEMENT



[1]

The appeal is dismissed.

[2]

It is clear from his Notice of Application that among
    the relief sought by the appellant was a declaration that he continues to be
    the absolute owner of the lands described in PIN 31451-0072.  His argument that the application judge did
    not have jurisdiction to decide the issue of ownership because there was no
    request to the judge to make a determination of ownership is without
    merit.

[3]

As the Deputy Director of Titles noted in his reasons,
    he was

not entitled to decide whether or not Mr. Lumme
    has acquired any interest in lands that are part of Lot 1, Concession 2,
    Registered Plan 8 Cuthberston Location as a result of any acts of possession he
    made in reliance on the Miller survey

[4]

And the Divisional Court
affirmed,
that in confirming the true location of the boundary on the ground, the Deputy
    Directors finding was not a grant of ownership or possession.

[5]

That said
,
there was ample
    evidence before the application judge for him to make the determination he did.
    The transfers by
which
the appellant acquired title
    only ever purported to convey part of Lot 4, Concession 2. No part of Lot 1 was
    ever part of any conveyance to the appellant and his title is limited
    accordingly. The Reference Plan relied on by the appellant does not convey any
    interest in property. It is a reference plan and only that.  Section 53(42) of the
Planning Act
does not alter this result.

[6]

If the appellant was purporting to make a claim of
    ownership to the disputed parcel of land based on possession, the time to do it
    was before the application judge.  On the
    evidence it is clear that the Miller survey was in error and the evidence of
    Surveyor Bolan to that effect was uncontradicted. The
Land Titles Act
only guarantees the quality of ones title, not the
    extent of it.  On the documentary
    evidence, including the deeds, transfers, abstracts and boundary decision, it
    is clear that the appellant had no interest in any part of Lot 1.

[7]

The effect of the decision made by the Deputy Director
    of Titles is to correct the location of the boundary which divides Lots 1 and 4
    from what is depicted on the Miller survey, which was an error.

[8]

The conveyance to the appellant only ever purported to
    convey part of Lot 4.  However, because the
    description contained in the deed was based on the erroneous Miller survey it described,
    in part, lands located on Lot 1. Such lands were never owned by the appellants
    predecessor in title and could not be transferred to him by deed.  Absent any claim to title by possession or
    use, the application judges determination of ownership was inevitable. It does
    not appear that any claim to some entitlement to title based on possession was
    ever part of the appellants case and, in any event, the affidavit of Ken
    Richmond sworn September 2, 2010 disproves any such entitlement.

[9]

We see no error in the decision of the application judge
    and the appeal is dismissed.

[10]

The respondent is entitled to its costs of the appeal,
    fixed in the sum of $5000.00, inclusive of disbursements and applicable taxes.

E.A. Cronk J.A.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.


