



COURT OF APPEAL FOR ONTARIO

CITATION:

Tiny (Township) v. Battaglia, 2013 ONCA 274

DATE: 20130430

DOCKET: C54910

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

The Corporation of the Township of Tiny

Applicant (Appellant)

and

Darick Battaglia and 1737118 Ontario Inc.

Respondents (Respondents in Appeal)

and

Burgar Rowe Professional Corporation and James Innes McIntosh

Interveners

M. Jill Dougherty and Raivo Uukkivi, for the appellant

Scott R. Fairley and William Brennan, for the respondents

Sean L. Gosnell, for the interveners

Heard: July 17, 2012

On appeal from the judgment of Justice Anne Mullins of
    the Superior Court of Justice, dated December 23, 2011.

Epstein
    J.A.:

A.

overview

[1]

This appeal concerns the ownership of the southern part of a stretch of
    beach property along the shoreline of Georgian Bay in the appellant township,
    the Township of Tiny. The ownership issue involves determining whether the
    beach is part of property identified as Block B within a plan of subdivision, registered
    as Plan 656.  The answer to that question depends on whether the westerly
    boundary of Block B is the high water mark, as shown in Plan 656, or is the
    waters edge, as found by the application judge.

[2]

In 1921, Plan 656 was registered on part of Broken Lot 27, Concession 1,
    in the Township by the joint owners of the lands, Jonathan Tripp and Wilfred
    Aldridge.  As can be seen from Plan 656, a colour copy of which is attached to
    these reasons and marked as Schedule A, the westerly boundary of the Plan is
    shown as the western edge of a parcel identified as Block B and labelled High
    water line. The land to the west of Block B extends to the waters edge and is
    identified as BEACH (the Beach).   It is agreed that the coloured outline
    on the Plan depicts the limits of the subdivision. The coloured outline
    indicates that the Beach is not included in the lands that were subdivided by
    Plan 656.

[3]

The question of the ownership of the southern part of the Beach (the South
    Beach) turns in part on the determination of the location of the westerly
    boundary of Block B on Plan 656. The boundary issue affects both the South
    Beach and the northern portion of the Beach. The application judge was advised
    that land owners adjacent to the lands in question [were] served with notice of
    the proceedings.

[4]

For many years, there was no activity that brought the westerly boundary
    of Block B or the ownership of the Beach into question.  Then, for reasons I
    will later explain, in 2001, the Township transferred Block B to itself.   In
    2006, the Township passed a bylaw re-zoning the Beach as public open space. The
    respondent, Mr. Battaglia, who owned one of the waterfront lots on Plan 656,
    appealed this re-zoning to the Ontario Municipal Board.

[5]

The OMB appeal was settled on a basis that included the Townships agreement
    to transfer Block B to the heir of Mr. Aldridge. The relevant transfers,
    registered in May 2008, describe Block B according to reference plans that
    depict Block B as including the Beach.  Also in May 2008, Mr. Battaglia, through
    his company, the respondent, 1737118 Ontario Inc. (173), purchased Block B
    from the Aldridge heir in a transfer referring to the same reference plans that
    show Block B as including the Beach.

[6]

Subsequent events led the Township to realize that the westerly boundary
    of Block B and the issue of the ownership of the Beach had to be resolved.  The
    Township therefore brought an application under rule 14.05 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, seeking relief including declarations
    that, if granted, would have the effect of establishing that the westerly
    boundary of Block B is not the waters edge, and that the heirs of the other
    co-developer of Plan 656, Mr. Tripp, own the South Beach.

[7]

Before the application judge, the parties consented to the granting of
    intervener status to Burgar Rowe Professional Corporation and James Innes
    McIntosh, the law firm and lawyer who acted for the Township in connection with
    the conveyance by the Township of Block B to itself in 2001 and in connection
    with the Townships May 2008 conveyances.

[8]

The application judge dismissed the Townships application in its
    entirety.  She concluded that the westerly boundary of Block B is not where it
    is shown on Plan 656  the high water mark  rather, it is the waters edge. 
    Since 173 had purchased all of Block B from the Aldridge heir, it owned the
    Beach, with the exception of specific parcels that Mr. Aldridge had conveyed to
    two owners of waterfront lots on Plan 656 and that Mr. Tripps heirs had
    conveyed to the Township.

[9]

Notwithstanding the fact that the respondents sought no relief in the
    proceeding, the application judge made a series of declarations in their
    favour.  Significantly, she declared  in effect  that 173 had acquired an
    indefeasible title to the majority of the Beach. The judgment declares that 173
    has acquired indefeasible title to Part 1 on Reference Plan 51R-35342, save and
    except Parts 1 and 2 on Reference Plan 51R-36043. These plans are discussed
    below.

[10]

For
    the reasons that follow, I would allow the Townships appeal.  The application
    judges conclusion that the westerly boundary of Block B is the waters edge
    rests on her factual finding that the original developers intended to include
    the Beach within the registered plan of subdivision.  For reasons I will
    explain, I am of the view that this finding is based on a misapprehension of
    the evidence and an erroneous reliance on four reference plans that different
    surveyors deposited on title. The various conveyances of Block B did not affect
    the ownership of the Beach. I also conclude that the application judge erred in
    holding that the doctrine of estoppel operates to vest title to the majority of
    the Beach in 173.

B.

The Factual Background

[11]

The
    factual background is complicated.  A lengthy history is therefore necessary.

(a)

Title History Behind Plan 656

[12]

Two
    relevant conveyances occurred prior to the registration of Plan
656
.

[13]

On
    February 28, 1901 Henry and Anne Argue transferred to Jonathan Tripp the north
    part of Broken Lot Number twenty-seven in the first concession of the Township
    of Tiny  containing forty-four acres. The deed included no metes and bounds
    description of the lands conveyed.

[14]

On
    August 12, 1921 Jonathan Tripp conveyed to Wilfred Aldridge part of the north part
    of Lot 27 (the Aldridge lands). The metes and bounds description of the
    Aldridge lands describes the westerly boundary of the property as running along
    the waters edge of  Georgian Bay.  A sketch prepared by an Ontario land surveyor,
    A.G. Ardagh, dated May 14, 1921, is attached to the deed.  The sketch shows
    Georgian Bay as the natural boundary on the westerly side of the Aldridge
    lands.  Mr. Tripp retained the southerly portion of the original 44 acres
    obtained in 1901 f
rom the Argues (the Tripp lands).

(b)

Ontario Crown
    Policy on Water Boundaries

[15]

To
    understand the historical origin of the boundary dispute in this appeal, it is
    necessary to explain the use of the term high water mark as a matter of
    provincial Crown policy. From the 1900s and for many decades onwards, the
    government departments responsible for Crown lands took the position that the
    Crown owns the beds of navigable waters extending to the high water mark. Any
    area of dry land between the waters edge and the high water mark belonged to
    the Crown. This position conflicted with common law authority that the boundary
    between land and non-tidal waters is the waters edge.

[16]

There
    was much confusion amongst surveyors about how to locate the high water mark. 
    In 1940, the province enacted a statutory definition of the terms bed and
    high water mark by amending the
Bed of Navigable Waters Act
, S.O. 1911, c. 6.
[1]
The amendments also gave statutory effect to the Crowns position that it owns
    the beds of navigable waters extending to the high water mark.

[17]

This
    amending legislation was repealed in 1951, thereby restoring the common law
    position.  Nonetheless, the Crown continued to assert ownership over the beds
    of navigable waters to the high water mark.

[18]

The Crown position was ultimately rejected in the decision
    of
Walker v. Ontario (Attorney General)
, [1971] 1 O.R. 151 (H.C.J.), affd [1972] 2 O.R. 558, affd [1975] 1
    S.C.R. 78, which is discussed below.

[19]

The Crown policy is
    significant in this case because Messrs. Aldridge and Tripp were subdividing
    waterfront lands. Thus, the surveyor of the plan of subdivision needed to
    decide where to locate the lakeward, or westerly boundary on the plan.

[20]

The record includes correspondence
    from the Ontario Department of Lands Forests & Mines, Office of Director of
    Surveyors, to A.G. Ardagh, O.L.S., the surveyor Aldridge and Tripp retained to
    prepare the plan of subdivision. In a letter dated September 28, 1921, the
    Director of Surveys responded to a letter from Mr. Ardagh (which is not in the
    record) concerning the Aldridge and Tripp lands. The Director set forth the
    governments policy concerning waterfront boundaries:

It has been the ruling and
    custom in the Department to consider that the boundary of a lot bordering on
    the water where no specific mention is made in the description is the high
    water mark and any beach below the high water mark is in the Crown and does not
    belong to the adjoining owner other than that he has riparian rights and the
    Crown does not dispose of this beach or water lot to other parties excepting
    those who have the riparian rights on the adjoining land.

This being the case I can
    hardly undertake to write you a letter that the lot owned by Mr. Aldridge will
    go to the waters edge.  If Mr. Aldridge owns the parcel of land the other party
    from whom he purchased would not, of course, own the beach.  As I said before,
    the beach belongs to the Crown


[21]

Mr.
    Ardagh thus prepared the plan of subdivision affecting the Aldridge and Tripp
    lands in the light of the Director of Surveys position that the Beach was
    Crown land.

(c)

Plan 656

[22]

Plan
    656, registered by Messrs. Aldridge and Tripp in October 1921, subdivided the Aldridge
    and Tripp lands into a series of 50-foot wide lots, located on either side of
    Woodland Avenue. Woodland Avenue runs north and south.  The lots lying to the
    west of Woodland Avenue are Lots 2-29 and Block A, which are referred to for
    ease of reference as the waterfront lots
[2]
,
    while the lots lying to the east of Woodland Avenue are Lots 30-59 and are
    referred to here as the rear lots.

[23]

The
    coloured portion of the Plan shows Lots 2-29 and Block A as being bounded on
    the west by Block B. Block B is shown as being 20' ± in perpendicular width. 
    Block B is bounded on the west by a boundary marked as the High water line.

[24]

The
    Beach, shown as the land to the west of Block B and extending to the waters
    edge, is not included in the coloured portion of the version of Plan 656 that
    is found in the Registry Office.

(d)

Conveyances
    by Tripp and Aldridge

[25]

In
    1921, there were a series of conveyances between Tripp and Aldridge as a result
    of which Aldridge held title to all of the waterfront lots on Plan 656, with
    the exception of Lot 22 and Block A, which Tripp retained.  Aldridge also held
    title to Block B, except for the parts of Block B in front of Lot 22 and Block
    A.  Tripp and Aldridge also gave each other rights of way over the portions of
    Block B owned by the other.

[26]

The
    most significant result of these conveyances for the purposes of this case is
    that Aldridge held title to Block B in front of all of the waterfront lots
    except Lot 22 and Block A.

[27]

It
    is also important to emphasize that none of the legal descriptions in the 1921
    transfers between Tripp and Aldridge after the registration of Plan 656 refer
    to the area marked BEACH on Plan 656.  Thus, Aldridge retained title to the
    northern portion of the Beach in front of Lots 2-14 pursuant to the August 1921
    conveyance to him from Tripp, while Tripp retained title to the southern
    portion of the Beach in front of Lots 15-29 and Block A pursuant to the
    conveyance to him by the Argues.

[28]

Beginning
    in 1921, Aldridge conveyed the lots on Plan 656 in separate deeds to various
    individuals. Each deed conveyed a specified lot on the Plan, together with a
    right of way over Block B. None of the descriptions in the deeds refer to the
    Beach, with the follow
ing two exceptions that are particularly
    significant, as I will later explain.

(e)

Mr. Aldridge Conveys
    Portions of the Beach

[29]

In 1922, Mr. Aldridge transferred Lot 12 on Plan 656 to Robert
    Giffen, and in 1923, he transferred Lot 13 to Myrtle Forsey, together with
    rights of way over Block B. In 1926, Aldridge conveyed parts of the Beach to
    Giffen and Forsey. In two separate deeds both registered on January 22, 1926,
    Aldridge conveyed the portion of the Beach in front of Lot 12 to Giffen and the
    portion of the Beach in front of Lot 13 to Forsey.

[30]

The legal description of these parcels states that the lands are
    part of Broken Lot 27, Concession 1, being on the lakeside of Lots 12 and 13
    as shown on Plan 656. The metes and bounds descriptions describe the parcels as
    commencing at the western boundary of Block B as shown on Plan 656, running
    westerly to the waters edge and then southerly and along the waters edge.

(f)

Transfers
    to the Township of Portions of Land on Plan 656

[31]

There
    was no significant title activity until 1970, when Mr. Tripps heirs conveyed
    to the Township the southerly 30 feet of Lot 22 for the stated purpose of a
    right of way for the owners of the rear lots on Plan 656 for access to Georgian
    Bay.

[32]

On January 5, 1983, a Tripp executor provided a quit claim deed
    in favour of the Township to Lot 52 and to that part of Block B lying in front
    of Lot 22 and that part of Block B lying in front of Block A
on Plan 656.  The quit
    claim deed states that the lands had been dedicated by user to the Township.
A quit claim deed operates as a release by a party of his or claim to or
    interest in land. A quit claim deed passes any title, interest or claim that
    the grantor may have in the property to the grantee.

[33]

In
    a deed registered on June 20, 2001, the Township transferred Block B to itself.
    The transfer, prepared by the Townships solicitor, James McIntosh of Burgar
    Rowe (the interveners) contains the following explanation: Transfer from
    municipal corporation to itself in verification of municipal ownership of
    public beach and establish paper title to property within 40 year title search
    period. No consideration passing hands. The legal description of the
    transferred lands refers to Block B on Plan 656, while the explanation in the
    deed indicates that the transfer is verifying the Townships ownership of the
    public beach.

[34]

On
    July 9, 2001, the lands within Plan 656 were converted from the Registry system
    to Land Titles.  The Beach remained in the Registry Division as part of Lot 27,
    Concession 1.

(g)

Reference Plans Deposited on Title Showing Westerly Boundary
    of Block B as the Waters Edge

[35]

In
    2005, the Township retained Gary Preston, O.L.S., to prepare a reference plan
    of Block B.  The plan was deposited on December 8, 2005 as Reference Plan
    51R-34189 (Preston Plan). The Preston Plan, attached as Schedule B, shows
    Block B as extending to the waters edge, in conflict with the depiction of
    Block B on Plan 656 as a 20'
±
wide strip
    extending to the high water line. The Preston Plan includes within the
    boundaries of Block B the two parcels of the Beach in front of Lots 12 and 13
    that were transferred in 1926 to Giffen and Forsey.

[36]

On
    February 15, 2006, another surveyor, Rodney Reynolds, O.L.S., who had been
    retained by the owners of Lots 12 and 13, deposited a reference plan on title
    to Plan 656 and to Lot 27, Concession 1 (Plan 51R-34362).  This plan is
    attached as Schedule C. Plan 51R-34362 shows the waters edge as the boundary
    of Block B, except in front of Lots 12 and 13, where it is shown as a 20 foot
    wide strip.

[37]

On
    February 18, 2006, Mr. Reynolds wrote a letter to Mr. Battaglia in which he
    described the title history for Lot 27, Concession 1, and the lands on Plan
    656. To the letter, Reynolds attached the report he had prepared for the owners
    of Lots 12 and 13.  The Reynolds letter sets out the following conclusions:

·

Aldridge only granted two instruments that referred to the Beach
    between the High Water Mark and the Waters Edge [the grants to Giffen and
    Forsey described above]. This research would lead us to believe the title to
    Block B, Plan 656 in front of Lots 2 to 14 is with the estate of William
    Aldridge.

·

In 1989, Gibbs, the owner of a beach, went to court against the
    Village of Grand Bend.  The decision from that case indicates the boundary of
    lands along a lake where there are no reservations is the Waters Edge.  The
    High Water Mark is a retracement of the original limit, the waters edge.  The
    conclusion from this decision moves the easterly [
sic
 westerly]
    limit of Block B Plan 656 from the High Water Mark to the Waters Edge.

·

Block B Plan 656 has 4 owners:

o

Malecki (that portion lying in front of Lot 12) [Malecki is a
    successor in title to Giffen];

o

Dawson (that portion lying in front of Lot 13) [Dawson is a
    successor in title to Forsey];

o

the Township (that portion lying in front of Lot 22 and Block A);
    and

o

the estate of Wilfred Aldridge (the remainder).

·

This ownership means the portion of Block B lying between the
    High Water Mark and the Waters Edge in front of Lots 12 and 13 is a PRIVATE
    Beach for Malecki and Dawson. The remainder is a PRIVATE Right of Way for all
    the owners within Plan 656.

[38]

On
    April 23, 2007, Mr. Reynolds deposited on title a further reference plan
    (Reynolds Plan 51R-35342), which also depicts Block B as being bounded by the
    waters edge.  This plan is attached as Schedule D.

(h)

Mr. Battaglia Appeals to the OMB and Contacts the Heir of Mr.
    Aldridge


[39]

On
    January 9, 2006, the Township enacted a new comprehensive zoning by-law that
    zoned Block B on Plan 656 as
public open space.

[40]

On
    March 8, 2006, Mr. Battaglia appealed the zoning by-law as it pertained to the
    lands in front of Lot 3, on Plan 656, which he owned. He advised the Township
    that he was in negotiations with the actual current land owner heirs to
    purchase Block B. He also enclosed the Reynolds letter as proof that the
    lands are not municipally owned and as such the rezoning of such lands are not
    permissible.

[41]

Mr.
    Battaglia, with the help of a private investigator, then located Gwendolyn
    Gladys Olds Lewis, the 93-year-old heir of Wilfred Aldridge.  In a letter to
    her dated March 28, 2006, Mr. Battaglia advised: The Township of Tiny has laid
    claim to lands rightfully belonging to you by a series of questionable registry
    entries indicating the possibility of gross misconduct and abuse of the
    government registry system.

[42]

In
    this letter, Mr. Battaglia summarized the title history of the lands.  He
    indicated that Block B on Plan 656 is 20 feet wide.  He repeated the passage
    from the Reynolds letter stating that the
Gibbs
decision moves the easterly [
sic
 westerly] limit of Block B Plan
    656 from the high water mark to the waters edge.

[43]

In
    a subsequent letter dated September 7, 2007, Mr. Battaglias lawyer wrote to
    the Township advising that Mr. Battaglia had entered into an agreement of
    purchase and sale with Ms. Olds Lewis with respect to Block B and adjacent
    beachfront property down to the high water mark.  Counsel asked the Township
    to execute a deed back to Aldridge to permit this transaction to close on the
    scheduled closing date of September 17, 2007.

(i)

Township
    Investigates Title to Block B

[44]

In
    response to Mr. Battaglias challenge to the Townships ownership of Block B
    and his OMB appeal, the Townships municipal solicitors, Burgar Rowe, retained
    a leading real estate lawyer, Sidney Troister, to provide an opinion on the
    title issue.

[45]

In
    his detailed opinion, Mr. Troister concluded that the heir of Wilfred Aldridge
    was the rightful owner of most of Block B, except for the portions in front of
    Lot 22 and Block A, which the Tripp executor transferred to the Township in
    1983.  Mr. Troister opined:

The Township of Tiny has conveyed title to Block B [to itself]
    ... but without any apparent claim or history of ownership entitling it to do
    so other than its title to Block B in front of lot 22 and Block A.

[46]

Mr.
    Troisters opinion contained a thorough analysis of whether Block B includes
    the Beach.  Mr. Troister disagreed with Mr. Reynolds view that the decision in
Gibbs v. Grand Bend (Village)
(1995), 26 O.R. (3d) 644, reversing
    (1989), 71 O.R. (2d) 70 (H.C.J.), had the effect of putting the boundaries of
    the high water mark and the waters edge together. In his view, these terms
    refer to two different boundaries. Mr. Troister opined that to extend Block B
    to the waters edge was illogical.  It would be inconsistent with a registered plan
    of subdivision that showed a 20 foot wide Block B and about 24 feet of beach. 
    It would also be inconsistent with two deeds by which Aldridge conveyed parts
    of the Beach to Giffen and Forsey. Troister concluded that the Beach belonged
    to those to whom it was last conveyed  Aldridge, Tripp, and the owners of Lots
    12 and 13.

[47]

On
    September 19, 2007, the Townships solicitor, James McIntosh of Burgar Rowe,
    sent the Township a copy of Mr. Troisters opinion letter. In his covering
    letter, Mr. McIntosh advised the Township that Mr. Troisters opinion is that
    the Townships ownership of Block B is subject to attack by the rightful owner,
    and that the legitimate owner of Block B  with the exception of the parts in
    front of Lot 22 and Block A  is Wilfred Aldridge or his estate.  Mr. McIntosh
    noted that a representative of Mr. Aldridges estate was seeking ownership of
    Block B. He recommended that the Township enter into discussions with this
    representative to facilitate the transfer of ownership on the best terms
    possible.

[48]

Significantly,
    Mr. McIntoshs fairly detailed covering letter that purported to summarize Mr.
    Troisters opinion makes no reference to several important aspects of it. Mr.
    McIntosh does not mention Mr. Troisters opinion that Block B does not include
    the Beach or his opinion that Tripp, as well as Aldridge, retained title to
    much of the Beach.

(j)

The Township and Mr. Battaglia Settle the OMB Appeal

[49]

This
    is when the waters beyond the shores of Plan 656 get completely muddied.

[50]

Having
    received Burgar Rowes advice as set out in its covering letter of September
    19, 2007, the Township agreed to settle Mr. Battaglias OMB appeal by
    consenting to the zoning of Block B (except the portions owned by the Township)
    as private open space.  The settlement was effected on December 12, 2007.  The
    Township also agreed to convey Block B (except the parts that the Township
    owned) back to Ms. Olds Lewis.  Mr. Battaglia deposed that he relied on the
    description of Block B in the deeds, the surveys and the zoning by-law
    materials in determining whether to complete the transaction with Ms. Olds
    Lewis. All of those documents, most of which were created by or on behalf of
    the Township, depicted Block Bs westerly boundary as the waters edge.

(k)

Three
    Conveyances of Block B in May 2008

[51]

After
    the OMB appeal was settled, two conveyances were registered by the Township and
    one by Mr. Battaglia and 173  all dealing with Block B.

[52]

On
    May 8, 2008, the Township registered two transfers. First, the Township
    transferred to itself part of Block B, Plan 656, being Parts 4 and 5 on Plan
    51R-35342 (which are the portions of the Beach in front of Lot 22 and Block A),
    and Parts 1 and 2 on Plan 51R-36043.  Reference Plan 51R-36043 is a third
    reference plan that was deposited on title by Mr. Reynolds. This plan is
    attached as Schedule E to these reasons. Parts 1 and 2 on Plan 51R-36043 are
    the portions of Block B in front of Lot 22 and Block A.

[53]

The
    May 2008 transfer from the Township to itself explains that nominal
    consideration is given for the following reason: Transfer to confirm ownership
    by the Corporation of the Township of Tiny and to register updated description
    with respect to land conveyed in Instrument No. RO782959. This instrument
    number is the 1983 quit claim deed from the Tripp executor to the Township that
    vested the Township with title to that part of Block B lying in front of Lot 22
    and in front of Block A.


[54]

In
    the second transfer, the Township conveyed to Ms. Olds Lewis part of Block B
    shown as Part 1 on Plan 51R-35342, except for Parts 1 and 2 on Plan 51R-36043.
    The recitals in the transfer state in part: The Transferee is entitled to be
    the owner by law, as Estate Trustee of the Estate of the deceased owner,
    Wilfred G. Aldridge. The transfer explains that nominal consideration is being
    given to correct error in description in RO1457562 [the instrument in which
    the Township transferred Block B to itself] relating to land owned by The
    Corporation of the Township of Tiny and to confirm the title of the Transferee
    to the land described herein which was inadvertently included as part of the
    lands described in RO1457562.  As in the case with the first 2008 transfer,
    the legal description refers to the property being conveyed as Part 1 on Plan
    51R-35342, which depicts the westerly boundary of Block B as the waters edge.

[55]

There
    was a third conveyance registered on May 8, 2008, and prepared by Mr.
    Battaglias solicitor, whereby Ms. Olds Lewis transferred to 173 the same lands
    that the Township had just conveyed to her in the preceding transfer.  The
    consideration paid to Ms. Olds Lewis was $150,000.

[56]

Therefore,
    173 became the owner of part of Block B, subject to multiple rights of way over
    Block B in favour of owners of the front and rear lots on Plan 656.  The
    reference plans referred to in the property description are two of those
    deposited by Mr. Reynolds, which depict Block B as extending to the waters
    edge.

[57]

The
    Township soon learned that Mr. Battaglia planned to sever and sell or otherwise
    develop the Beach. The Township retained a new lawyer, counsel with WeirFoulds.
    It also retained a different surveyor, Chester Stanton, O.L.S., to investigate
    the boundaries and ownership of Block B and the Beach and to prepare a survey.

[58]

In
    Mr. Stantons survey report, dated April 23, 2010 (the Stanton Report), he expressed
    his opinion that Block B is a 20' wide strip as laid out in Plan 656, and that
    the reference plans prepared by Mr. Reynolds showing Block B as extending to
    the waters edge are inaccurate.

[59]

Mr.
    Stanton prepared a reference plan, (the Stanton Plan), and attached it to his
    report.  It is attached to these reasons as Schedule F.  On April 20, 2010, the
    Stanton Plan (Plan 51R-37338) was deposited on title to Part of Lot 27,
    Concession 1 in the Registry Division and Block B, Plan 656 in the Land Titles
    Division. The Stanton Plan depicts Block B as being a 6.1 metre (20 foot) wide
    strip lying to the west of Lots 2-29 and Block A and lying to the east of an
    area marked as BEACH SHOWN ON R.P. 656. The area marked as BEACH extends
    to the waters edge and is shown as having variable width.

[60]

The
    Stanton Report also addresses ownership.  Mr. Stanton opines that any portion
    of Lot 27, Concession 1, lying to the west of Block B was retained by Messrs.
    Aldridge and Tripp. The Aldridge heirs held title to the portion of the Beach
    lying in front of Lots 2-14, other than the portion that Mr. Aldridge conveyed
    in front of Lots 12 and 13 to Mr. Giffen and Ms. Forsey. The heirs of Mr. Tripp
    held title to the remaining portion of the Beach in front of Plan 656.

[61]

As
    for the ownership of Block B, Mr. Stantons view is that, as things stood prior
    to May 2008, and disregarding the Townships transfer to itself in 2001 of
    Block B, the Aldridge heirs retained title to all of Block B except the
    portions in front of Lot 22 and Block A, which were vested in the Township by the
    Tripp executor. In his view, the problems created by the reference plans prepared
    by Mr. Preston and Mr. Reynolds that incorrectly show Block B as extending to
    the waters edge
could be rectified.

(l)

Quit
    Claim Deeds from the Tripp Heirs to the Township

[62]

After
    receiving Mr. Stantons opinion, the Township located the Tripp heirs and
    obtained from them quit claims of their interests in the South Beach for
    consideration totalling $21,000.  The quit claim deeds describe the lands as
    Part of Lot 27, Concession 1, shown as Part 3 on the Stanton Plan.

C.

The Application Judges Reasons

[63]

At
    the outset of her reasons, the application judge identified her view of the key
    question as being whether the two original developers of the lands on Plan
    656, Messrs. Tripp and Aldridge, intended that the plan describe all that they
    owned, or whether the subdivided land fell short of the waters edge.

[64]

The
    application judge found that Messrs. Aldridge and Tripp intended to include all
    of the land that they owned in Plan 656 and therefore the only reason they did
    not include the Beach was because of their jointly-held belief that they did
    not own the Beach. The application judge went on to find as fact that the westerly
    boundary of Block B extends to the waters edge.  She stated, at para. 49:

I find that Messrs. Aldridge and Tripp intended when they
    subdivided the north part of Broken Lot 27 to include all that they owned. I
    find as fact that Block B on Plan 656 included all of the land extending to the
    waters edge. It follows that on November 22, 1921, when Lots 15-21 and 23-35
    were conveyed from Tripp to Aldridge, that Aldridge obtained all that Tripp
    owned extending to the waters edge, subject to the right of way Tripp retained
    over Block B. I find that the Preston and Reynolds survey references to Block B
    as PIN 74041-0126 LT extending to the waters edge are correct. I do not accept
    Mr. Stantons opinion or survey.

[65]

Having
    found that Block B includes the Beach, the application judge turned to the
    issue of who owns Block B.  The application judge held that 173 owns most of
    Block B for the following reasons, at para. 52:

I declare, based on the facts as I have found them and having
    regard to the opinion evidence I have accepted and the authorities and statutes
    to which reference was made, that the respondent 1737118 Ontario Inc. has
    acquired an indefeasible title to the lands as reflected in PIN 74041-0126 LT and
    described as Part Block B, Plan 656 Tiny being Part 1 on Reference Plan
    51R-36043 obtained by transfer dated May 8, 2008 and registered as Instrument
    SC645393.
[3]


[66]

The
    application judge also accepted the respondents estoppel arguments, holding
    that the Townships conduct does give rise to an estoppel in favour of the
    respondents (at para. 50). She found that in paying consideration to Ms. Olds
    Lewis the respondents relied to their detriment on the Townships conduct in
    settling the OMB appeal.

[67]

Finally,
    the application judge declared, at para. 53:

I declare as well, in the event that Tripp retained title of
    Block B to the waters edge when he conveyed his subdivided lots to Aldridge,
    that the applicant may take no title pursuant to the quit claims of the Tripp
    heirs other than as a conduit to the respondents, as it is estopped from
    retaining title in the face of the settlement of the OMB appeal.  It is obliged
    to convey any interest to the respondents as they may direct.

[68]

The
    application judge further held that Mr. Battaglia was a
bona fide
purchaser for value who did not orchestrate his transaction with Ms. Olds Lewis
    with knowledge of any difficulties surrounding title, and who, in purchasing
    the property, relied on the understanding that the property owned by the
    Aldridge heir extended to the waters edge.  She held that the respondents took
    title pursuant to s. 78(4) of the
Land Titles Act
, R.S.O. 1990, c.L.
    5, which  provides:

When registered, an instrument shall be deemed to be embodied
    in the register and to be effective according to its nature and intent, and to
    create, transfer, charge or discharge, as the case requires, the land or estate
    or interest therein mentioned in the register.

D.

ISSUES

[69]

There
    are two main issues:

1.    Did the
    application judge err in concluding that the western boundary of Block B is the
    waters edge?

2.    Did the
    application judge err in holding that the respondents own the South Beach?

E.

ANALYSIS

1.

The Boundary Issue

(1)

The Intention of the Original
    Developers

[70]

The
    application judges conclusion, at para. 49, that the waters edge forms the
    westerly boundary of Block B is based on her finding that Messrs. Aldridge and
    Tripp intended to include the Beach as part of Block B on Plan 656 and on her
    apparent acceptance of the opinion expressed by Mr. Reynolds.   She also
    accepted the reference plans prepared by Mr. Preston and Mr. Reynolds.  She did
    not accept Mr. Stantons opinion or his survey.

[71]

The
    application judge, without any legal analysis, appears to have proceeded on the
    basis that the intention of Aldridge and Tripp is dispositive of the question
    of the location of the westerly boundary of Block B.  I do not wish to be taken
    as agreeing with this view.  However, even if I were to accept, for the sake of
    argument, that the intention of the original developers of the lands is relevant
    to the determination of the boundary issue, in my opinion, the application
    judges finding that both Aldridge and Tripp intended to include all that they
    owned within the boundaries of Plan 656 is based on a misapprehension of the
    evidence.

[72]

I
    am also of the view that Mr. Reynolds assessment of the location of the
    westerly boundary of Block B is premised on the same and additional errors. 
    The application judge therefore mistakenly relied on his opinion. It follows
    that her disposition of the boundary issue cannot stand.

[73]

The application judges conclusion that Aldridge
    and Tripp believed they did not own the Beach appears to be primarily based on
    her acceptance of Mr. Reynolds opinion evidence.
At para. 13 of his
    affidavit, Mr. Reynolds says:

While Mr. Stantons Survey Report concludes that Mr. Aldridge
    was aware that he owned the beach to the waters edge, I dont believe that
    there is support for this conclusion at the time Plan 656 was prepared and
    registered.  Contrary to Mr. Aldridge being aware that he owned the beach, it
    is my belief that the communication from the [Ontario] Department of Lands
    caused Mr. Aldridge to act as though he did not own the beach.  I believe that
    Plan 656 was prepared such that it referred to the high water line because Mr.
    Aldridge and Mr. Ardagh [the surveyor who prepared Plan 656] considered the
    western boundary of the property to be the high water line based on the
    position taken by the Crown. ... It is my opinion that the intent of the
    original developers of Plan 656 was to create Block B to the edge of the
    property owned by Aldridge and Tripp and to give the owners on Plan 656 access
    to the adjacent lands and water. I do not believe it was their intention to
    reserve the beach as their own land, as I believe it was incorrectly understood
    by all to be Crown land, and they intended to subdivide all that they owned.

[74]

There
    is some evidentiary support for Mr. Reynolds assessment that Mr. Tripp did not
    think the Beach was part of the land he and Mr. Aldridge owned.  Mr. Aldridge,
    in a September 9, 1921 letter to Mr. Ardagh, the surveyor of Plan 656, said the
    following in reference to Mr. Tripps views about the extent of his ownership: the
    original stake for high water mark was at the fence, & therefore he cannot
    sign away that which never belonged to him. If the plan remains as it is  with
    the 100' from fence to water eliminated  he will sign.

[75]

However,
    there is no evidence to support the application judges finding when it comes
    to Mr. Aldridges intention.  In fact, as I see it, the evidence leads to the
    opposite conclusion - that Mr. Aldridge was well aware that he owned the land
    to the waters edge despite the Crowns assertion of ownership of the Beach and
    that he knew that he retained title to the Beach after the registration of Plan
    656.

[76]

First,
    I refer to the June 1921 conveyance before Plan 656 was registered, in which
    Mr. Tripp conveyed lands to Mr. Aldridge.  The deed describes the westerly
    boundary of the lands as running along the waters edge of the Georgian Bay.  It
    would have been clear from the legal description in the deed that Mr. Aldridge
    owned the lands to the waters edge.

[77]

Second,
    I refer to correspondence from Mr. Aldridge to Mr. Ardagh, dated November 23,
    1921  the day after Tripp transferred most of Block B to Aldridge. The
    correspondence states: Everything was satisfactorily settled with Mr. Tripp.
    [A]fter discussion, Mr. Middleton [Aldridges lawyer] is making out a deed
    whereby I give Tripp right of way over the 20' opposite Lots 1-14 (& he
    gives me right of way over lots 15 to 25).

[78]

The
    right of way referred to in this letter was conferred by an indenture
    registered on December 1, 1921 whereby Mr. Aldridge granted Mr. Tripp a right
    of way over the northerly part of Block B.  The quoted passage from the
    correspondence to Mr. Ardagh demonstrates Mr. Aldridges understanding that
    Block B is a 20' strip, thus undermining the finding that Mr. Aldridge intended
    or understood Block B as extending to the waters edge. The application judge did
    not refer to this correspondence in her reasons.

[79]

Third,
    there is the previously noted significance of the two 1926 conveyances by Mr.
    Aldridge of portions of the Beach to the owners of Lots 12 and 13.  In these
    1926 conveyances, the Beach is described as being part of Broken Lot 27, Concession
    1 being on the lakeside of Lots 12 and 13.  The metes and bounds descriptions
    used in the deeds make it clear that the lands being conveyed are not parts on
    Plan 656, but rather lie to the west of the Plan.  Mr. Aldridges conduct in
    transferring two portions of the Beach to individual lot owners demonstrates
    that he believed he retained title to the Beach and had the right to transfer
    portions of it notwithstanding the Crowns position at the time.  This is powerful
    evidence that Mr. Aldridge understood that he owned the Beach portion of the
    lands abutting Block B in front of Lots 2-14 and that the Beach was not part of
    Plan 656.

[80]

In
    his letter to Mr. Battaglia in February 2006, Mr. Reynolds referred to the two
    1926 transfers and mentioned, without further elaboration, that these portions
    of the Beach were privately owned.  Mr. Reynolds report to the owners of Lots
    12 and 13 was forwarded to Mr. Battaglia, but was not included as an exhibit to
    his affidavit filed on the application. This omission is significant because in
    his report to the owners of Lots 12 and 13, Mr. Reynolds would have presumably
    considered the two 1926 transactions by Mr. Aldridge.

[81]

The
    application judge did not refer to these 1926 conveyances.  It is therefore
    unclear how she reconciled them with her finding that Mr. Aldridge intended to
    include all that he owned when he subdivided the lands on Plan 656. Put
    rhetorically, why would Mr. Aldridge transfer portions of the Beach in deeds describing
    the lands as being part of Broken Lot 27, Concession 1, if he thought the lands
    lay within the boundaries of Block B, Plan 656? In my view, these conveyances
    destroy the coherence of the application judges factual finding that both of the
    original developers intended to include all that they owned in Plan 656.

[82]

For
    these reasons, the application judges factual finding that Messrs. Aldridge
    and Tripp intended when they subdivided the north part of Broken Lot 27 to
    include all that they owned cannot stand.

[83]

In para. 49 of the reasons, containing the pivotal conclusion that Block
    B on Plan 656 included all of the land extending to the waters edge, the
    application judge also specifically refers to the surveys of Mr. Reynolds and
    Mr. Preston, saying that she finds them to be correct.  The nature and extent
    of the application judges reliance on these surveys and the Reynolds opinion
    evidence obliquely referred to in para. 52 of her reasons are not clear.  I
    thus find it necessary to review Mr. Reynolds opinion in its entirety to see
    if it contains any other basis for concluding that the boundary of Block B is
    the waters edge, except in front of Lots 12 and 13 on Plan 656.

[84]

Mr.
    Reynolds opinion is founded on three other considerations in addition to his
    view that the original developers intended to include all that they owned in
    Plan 656, namely: (i) case law concerning riparian (
i.e.
, waterfront) boundaries;
    (ii) the Townships deposit of the Preston Plan; and (iii) Mr. Reynolds
    examination of original plans for other areas along Tiny Township beaches to
    the north and south of Plan 656 and related decisions under the
Boundaries
    Act
, R.S.O. 1990, c.B.10.

(2)

Case Law on Riparian
    Boundaries

[85]

In
    his letter to Mr. Battaglia, Mr. Reynolds relied on the
Gibbs
decision
    as support for locating the westerly boundary of Block B at the waters edge. 
    In his affidavit filed on the application, Reynolds instead relied on
Walker
    v. Ontario (Attorney General)

and
Ontario
    (Attorney General) v. Rowntree Beach Assn.
(1994), 17 O.R. (3d) 174 (Gen.
    Div.).


[86]

I
    will deal briefly with all three cases and demonstrate why none of them support
    Mr. Reynolds view that the westerly boundary of Block B is the waters edge.

[87]

The
    issue in
Gibbs
concerned the Crowns right to use beach property. The
    resolution of this issue turned on the interpretation of the word bank in a
    Crown patent containing a reservation and exception in favour of the Crown of
    all navigable streams, waters and water courses, with the beds and banks
    thereof.  There is no such reservation in the Crown patent in this case. 
    Given this focus,
Gibbs
has no relevance.  I suspect that this
    explains why Mr. Reynolds did not mention it in his affidavit, turning instead
    to
Walker
and
Rowntree Beach
.


[88]

The
Rowntree
case is factually closer but remains distinguishable in
    significant respects.

[89]

In
Rowntree,
a case that

also
    involves lands in the Township of Tiny, the Province sought a declaration that
    it owned the land between the waters of Nottawasaga Bay on Lake Huron and a
    wiggly line shown on the original township survey map and described as the
    line of the wood in the surveyors field notes. In 1929, Rowntree, the
    original developer of the lands in question, registered a plan of subdivision
    that did not depict the line of the woods. The plan shows a series of
    building lots set back from the waters edge and fronting on a block of land
    about 50-60 feet wide, marked as Block A and described as Beach. Block A lies
    between the fixed and monumented westerly boundaries of the various lots on the
    plan and the waters edge.

[90]

Ontario
    argued that Block A remained as Crown land given the reservation in the 1866
    Crown patent of free access to the shore of Lake Huron, for all vessels, boats
    and person. These words are identical to the wording of the reservation clause
    in the 1866 Crown patent of the lands at issue in this case.

[91]

The
    court rejected the Crowns argument and held that the Crown patent extends to
    the waters edge. Accordingly the court declared that the owner of Block A had
    title to the waters edge.

[92]

What
    distinguishes
Rowntree
is that the westerly boundary of Block A on the
    subdivision plan in that case is the waters edge.  There is no line or
    boundary on the plan of subdivision in
Rowntree
shown as the high
    water line. Thus,
Rowntree
does not stand for the proposition that the
    high water line as shown on a plan of subdivision is equivalent to the waters
    edge.

[93]

In
    contrast with
Rowntree
, Plan 656 shows a distinct boundary between
    Block B and the Beach marked High water line. The Beach is depicted as lying
    to the west of the high water line extending to the waters edge.

[94]

In
    my view, the only significance of
Rowntree
for present purposes is
    that it confirms that Messrs. Aldridge and Tripp held title to the waters edge
    based on the identical wording of the Crown patent in
Rowntree
and in this case.


[95]

In
Walker
, the issue was whether the applicant beachfront landowners on
    the shore of Lake Erie owned their lands to the waters edge or only to the
    high water mark. The applicants chain of title to the lands commenced with two
    original Crown patents in which the lakeside boundary was described as to Lake
    Erie, then Easterly along the shore of the Lake, and to Lake Erie, then
    Easterly along the Lake. However, the applicants deeds described the lands
    being conveyed as having a boundary of the high water mark. The Province
    claimed ownership of the beach lands on the basis that they were ungranted.

[96]

Stark
    J. concluded that the terms high water mark and low water mark have no
    relevance in non-tidal or inland waters, thereby rejecting the Crown policy
    that the bed of navigable bodies of water extends to the high water mark.  He
    went on to hold that there are two exceptions to the common law rule that the
    boundary between land and water is at the waters edge, at p. 181:

[T]hat 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 waters 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 waters edge.

[97]

Because
    the Crown patents in
Walker
used terms such as to the shore and
    along the shore of the lake, without any reservation of a space between the
    lands granted and the water boundary, the original grants from the Crown were
    held to include all land up to the waters edge including the beach area. The
    beach was therefore not Crown land. Stark J.s decision was upheld by the Court
    of Appeal and by the Supreme Court.

[98]

The
Walker
decision does not support Mr. Reynolds view that the line
    shown on Plan 656 as the High water line is equivalent to the waters edge.  In
    David W. Lambden and Izaak de Rijcke,
Legal Aspects of Surveying Water
    Boundaries
(Scarborough: Thomson Canada Limited, 1996), the authors contend
    that the above-cited passage from
Walker
is not limited to Crown
    grants and surveys, at pp. 77-78:

Thus, in our opinion, the words of Justice Stark of
Ontario
    (Attorney General) v. Walker

[at p. 181], carry through for any
    conveyance: high water mark only holds as a line creating a parcel that is
    not to be riparian where the grant clearly reserves by description or
    otherwise [as by the evidence: Authors] a space between the lands granted and
    the water boundary. Stark J.s further exception (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 waters edge.) applies, in our opinion, to
any
conveyance.

It follows that where, in subsequent divisions of land by
    written metes and bounds descriptions or by plans of subdivision, the owner has
    conveyed upland using the term high water mark not used in the Crown grant,
    reciting this in the description or as it is shown by a surveyor on a plan, the
    Crown has no claim to title between such line (whatever it is thought or found
    to mean) and the waters variable edge. If any space exists, the title would be
    in the grantee from the Crown or successor in title; or in the owners of the
    subdivision lots. Whether one or another is a matter of evidence and not to be
    lightly determined when the consequences of a poorly researched decision are
    considered for potential liability. [Emphasis in original.]

[99]

Importantly,
    Mr. Reynolds fails to deal with the significance of the fact that Plan 656
    delineates a space between the boundary labelled as the High water line and
    the line labelled Waters Edge. This space is marked as BEACH and is
    outside the boundaries of Plan 656.  He also fails to deal with the fact that
    the Beach was treated by one of the original subdividers as a strip of dry land
    to which he held title.  The relevant deeds described the parcels being conveyed
    by Mr. Aldridge as part of Broken Lot 27, Concession 1, and not as part of
    Block B on Plan 656.

[100]

In the light of
    this evidence, I share Mr. Troisters opinion that the boundary labelled High
    water line and the line shown as the Waters Edge on Plan 656 represent two
    distinct boundaries. In my view, the boundary labelled as High water line
    holds as a line creating a parcel  namely, Block B  that is not riparian.

[101]

I would add that
    this conclusion is consistent with how the Beach and Block B are depicted on
    the property index map found in the local land registry office. Property index
    maps are not plans of survey, but give the approximate location of individual
    parcels of land and their property index numbers.
Block B is shown on the property index map as a 20' wide strip of land
    abutting the westerly boundary of the lots on Plan 656. Lying to the west of
    Block B is a strip of variable width fronting on Nottawasaga Bay.  Located on
    this strip are the two parcels of the Beach that abut Lots 12 and 13.  The
    property index map describes these parcels as being part of Lot 27, Concession
    1.

[102]

Finally, I
    accept Mr. Stantons expert evidence that, in locating on the ground the
    boundary labelled as High water line, it is not necessary to try to ascertain
    where the high water mark existed when Plan 656 was prepared.  As he explained
    in his report: the 20 foot dimension [is] the best evidence of the westerly
    limit of Block B on Registered Plan 656.

(3)

The Preston Plan

[103]

In his affidavit,
    Mr. Reynolds comments as follows about the Preston Plan:

I have reviewed the Preston Plan and agree with it to the
    extent that it depicts the Westerly boundary of Block B as the waters edge. 
    The Townships current approach contradicts its own surveyor and the Reference
    Plan that it had prepared, reviewed, accepted and deposited.



I reviewed and relied on the Preston Plan as well as my own
    survey field work and document review in preparing the Reynolds Plans.

[104]

Mr. Reynolds
    further deposed that he does not agree with the Preston Plan in that it included
    within the boundaries of Block B the two portions of the Beach that had been
    transferred to the owners of Lots 12 and 13. However, he agrees with the
    Preston Plans depiction of the westerly boundary of Block B as the waters
    edge.

[105]

Mr. Reynolds does not explain why it is sound surveying practice
    to determine the location of a disputed boundary based on where another
    reference plan shows the boundary. Given the obvious error in the Preston Plan
    in depicting the westerly boundary of the entire length of Block B at the
    waters edge (including in front of Lots 12 and 13), I do not think it was safe
    for Mr. Reynolds to rely on this plan in preparing his own reference plans.  In
    any event, it does not appear that he relied on the Preston Plan to any great
    extent, considering that Mr. Reynolds performed his own survey work and
    conducted his own document review in preparing his reference plans.

(4)

Other Waterfront Plans
    in Tiny Township

[106]

In his
    affidavit, Mr. Reynolds says that he examined original plans along Township
    beaches and that he has never seen the beach itself included in the original
    or coloured plans that I have reviewed.

He
    attributes this to the provincial governments policy of refusing to approve any
    plan that illustrated the land being subdivided as extending to the waters
    edge.

[107]

Mr. Reynolds also
    expresses the view that his approach to treating the high water mark as
    equivalent to the waters edge is consistent with principles that have been
    applied to riparian and boundary court decisions and decisions under the
Boundaries
    Act
. As examples, he attached two decisions by the Deputy Director of
    Titles under the
Boundaries Act
confirming the location on the ground
    of the boundaries of different Township of Tiny waterfront lots:
Marion
    (Township of Tiny)
, Deputy Director of
    Titles J.S. Cotterill (31 May 2006)
and
Cornell (Township of
    Tiny)
, Deputy Director of Titles J.S.
    Cotterill (
24 October 2008).

[108]

Mr. Reynolds did
    not elaborate on how these decisions support his view that Block B is
    riparian.  Both decisions involved disputes over the location of the westerly
    boundary (
i.e
., the lakeward boundary) of lots along Georgian Bay and
    more particularly, whether the westerly boundary was the high water mark or the
    waters edge.

[109]

It is difficult
    to analyze the significance of these decisions without the benefit of a copy of
    the plans of survey in question. In any event, there is no suggestion in either
    decision that the Deputy Director was considering a plan of subdivision that
    includes a parcel of land similar to Block B on Plan 656, which is shown as
    having a westerly boundary labelled high water line. There is also no
    suggestion that these cases involved conveyances by the original developers of
    portions of land located between the waters edge and the high water line or
    mark.

[110]

Mr. Reynolds
    also referred to an unspecified
Boundaries Act
case involving Plan
    917, a registered plan of subdivision affecting waterfront lands in the
    Township of Tiny.   This plan is similar to Plan 656 in that it shows a parcel
    of land marked as Block A with a westerly boundary shown as High Water Mark
    and a parcel of land shown as Beach, lying to the west of this line and
    extending to a line marked edge of Water.  According to Mr. Reynolds, the
    beach area was added to Block A in a
Boundaries Act
decision.

[111]

It is impossible
    to assess the significance of this unnamed decision without knowing the
    submissions that were made to the Director of Titles and the evidence that was
    presented to him.

(5)

Boundary Issue 
    Conclusion

[112]

Based on this
    analysis, I conclude that the application judges finding that Messrs. Tripp
    and Aldridge intended to include the Beach in Plan 656 reveals a
    misapprehension of the evidence and reflects her reliance on the flawed opinion
    evidence of Mr. Reynolds. Her resulting conclusion that the westerly boundary
    of Block B is the waters edge must be set aside.

[113]

In my view, the boundary issue should be analyzed as follows. 
    First, the dispute is over the location of the westerly boundary of a
    registered plan of subdivision.  Second, the boundary in question is shown not
    only as the High water line, but also as creating a strip depicted as being
    20'± in perpendicular width.  Third, the Plan creates a separate parcel between
    Block B and the waters edge, identified as BEACH.

[114]

Fourth, the
    evidence indicates that Mr. Aldridge understood that he retained title to the
    Beach and that he also understood that the Beach was not included in Plan 656.

[115]

Fifth, Mr. Reynolds
    opinion that Block B extends to the waters edge, except in front Lots 12 and
    13, is inconsistent with how Block B is depicted on Plan 656. As Mr. Troister
    succinctly and sensibly put it in his opinion: [T]o extend Block B to the
    waters edge in some places but recognize that Block B does not overlap with
    the beach in front of lots 12 and 13 is illogical.  Either Block B goes to the
    water or it does not. It is a strip of consistent width.

[116]

These
    considerations compel the rejection of Mr. Reynolds view that the westerly
    boundary of Block B is the waters edge and the acceptance of Mr. Stantons
    view that the best evidence of the location of the westerly boundary of Block B
    is the 20'± measurement provided on Plan 656.  Accordingly, I would accept the
    accuracy of the Stanton Plan.

[117]

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

2.

The Ownership Issue

(6)

The Application
    Judges Reliance on s. 78(4) of the
Land
    Titles Act

[118]

The next issue
    that must be assessed is the correctness of the application judges reliance on
    s. 78(4) of the
Land Titles Act
for her conclusion that 173 acquired
    indefeasible title to the majority of Block B  including the Beach  through
    the May 8, 2008 transfer from the Aldridge heir to 173. The 2008 transfer
    describes the property being conveyed as Block B, Plan 656, being Part 1 on
    Plan 51R-35342, except for Parts 1 and 2 on Plan 51R-36043, subject to multiple
    right ways over Block B by the various owners of lots on Plan 656.

[119]

In my view, the
    application judge erred in concluding that 173 acquired indefeasible title to
    the majority of the Beach through the May 2008 transfer.  For the reasons set
    out above, the reference plans referred to in the property description, which
    were deposited on title by Mr. Reynolds, are based on his flawed analysis of
    the location of the westerly boundary of Block B.

[120]

A reference plan
    is intended to provide a convenient graphic description of property that avoids
    the need for a metes and bounds description in a registered transfer or
    charge.  A reference plan is deposited on title rather than registered. In
    contrast to a registered instrument, it is important to bear in mind that a
    reference plan deposited on title does not independently create an interest in
    land.  See
MacIsaac v. Salo
, 2013 ONCA 98, at para. 45 and see
Lumme
    v. Eagle Point, L.L.C.
,
2011 ONCA
    291, where, at para. 5, this court said: The reference plan... does not convey
    any interest in property.  It is a reference plan and only that.

[121]

No statutory or
    common law authority has been cited to this court to suggest that by depositing
    a reference plan on title to lands that are subject to a registered plan of
    subdivision, the reference plan may somehow supersede or re-draw the boundaries
    shown on the registered plan.

[122]

In my view, the
    fact that the property description in the May 2008 transfer to 173 refers to
    the erroneous Reynolds Plans, does not have the effect of changing the location
    of the westerly boundary of Block B on Plan 656 to the waters edge.  It is
    open to this court to grant declaratory relief, as the Township requested,
    confirming that the Reynolds Plans are not accurate in depicting the westerly
    boundary of Block B as the waters edge.

[123]

The property description in the May 2008 conveyance did not
    have the effect of creating an indefeasible interest in land that was wrongly
    included within the boundaries of Plan 656 by reference to the erroneous
    depiction of the westerly boundary of Block B on Plan 51R-35342.
This court explained in
Lumme
, at
    para. 6: 
The
Land Titles Act
only guarantees the quality of
    ones title, not the extent of it.
This
    assertion is based on s.
140(2) of
    the
Land Titles
Act, which states:

140. (2) The description of registered land is not
    conclusive as to the boundaries or the extent of the land.

[124]

After referring to
Lumme
, Winkler C.J.O. explained in
MacIsaac
, at para. 46:

Section 140(2) of the
Land
    Titles Act
is a significant
    qualification to the language of s. 78(4). The principle of indefeasibility of title
    does not preclude the correction of a registered instrument containing a
    misdescription of the boundaries or the extent of land
.

[125]

There is no unfairness
    to the respondents in correcting the property descriptions in the May 2008
    conveyances.  As will be explained below, the evidence shows that Mr. Battaglia
    was aware that various documents in the title register did not treat the Beach
    and Block B as one parcel of land, and he structured the agreement of purchase
    and sale in the light of this knowledge.

[126]

Therefore, the
    application judge further erred in declining to grant the Townships request
    for an order that would correct the erroneous depiction of the westerly
    boundary of Block B on the Reynolds Plans.

(7)

Estoppel

[127]

The
    application judge also held that the equitable doctrine of estoppel precludes
    granting the relief the Township requested. The application judges reasons
    contain only brief references to the operation of estoppel, particularly at paras.
    50 and 53:

In paying the consideration it did to the Aldridge heir, I find
    that the respondents relied to their detriment upon the applicants conduct in
    settling the OMB hearing. The applicants conduct does give rise to an estoppel
    in favour of the respondents as claimed herein.



I declare as well, in the event that Tripp retained title of
    Block B to the waters edge when he conveyed his subdivided lots to Aldridge,
    that the applicant may take no title pursuant to the quit claims of the Tripp
    heirs other than as a conduit to the respondents, as it is estopped from
    retaining title in the face of the settlement of the OMB appeal. It is obliged
    to convey any interest to the respondents as they may direct.

[128]

On the
    application and before this court, the respondents rely on three forms of
    estoppel  proprietary estoppel, general principles of estoppel by conduct, and
    feeding the estoppel.  They argue that these doctrines of estoppel were
    properly applied to prevent the Township from taking the position that Block B
    is a 20' wide strip based on its conduct in settling the OMB appeal and
    completing the May 2008 transfers.

[129]

The application
    judge failed to identify what doctrine or doctrines she was relying on in
    concluding that the Townships conduct gave rise to an estoppel.  This court is
    left to speculate about the basis for her conclusions regarding estoppel.

[130]

As I will
    explain, regardless of which form of estoppel the application judge had in
    mind, I am of the view that her resort to estoppel represents a misapplication
    of the governing principles.

(i)


Proprietary Estoppel

[131]

Proprietary
    estoppel affects or creates rights of property and is relevant to interests in
    land: see A.J. Oakley, Megarrys Manual of the Law of Real Property, 8th ed.
    (London: Sweet & Maxwell Ltd., 2002), at p. 483.

As explained by this court in
Schwark Estate v. Cutting
,
2010 ONCA 61, 261 O.A.C. 262, at para.
    16, there are three elements needed to establish proprietary estoppel: 1)
    encouragement of the plaintiffs by the defendant owner; 2) detrimental reliance
    by the plaintiffs to the knowledge of the defendant owner; and 3) the defendant
    owner seeks to take unconscionable advantage of the plaintiff by reneging on an
    earlier promise.


[132]

According to the
    respondents, proprietary estoppel operates to prevent the Township from
    advancing a claim that Block B is a 20' wide strip that does not include the
    Beach.
I conclude it was not open to the application
    judge to find that the unconscionability element of the test for proprietary
    estoppel was established based on the evidentiary record on the application.

1)   Encouragement by the Township

[133]

It could be said
    that the Township encouraged Mr. Battaglia to pursue his endeavour to purchase
    the Beach simply because the Township agreed to facilitate Mr. Battaglias
    efforts to close the transaction with Ms. Olds Lewis by transferring to her the
    majority of Block B, which it then understood as including the Beach, in return
    for Mr. Battaglias agreeing to settle his OMB appeal.

[134]

However, as will
    be discussed in greater detail below, the primary motivation behind Mr.
    Battaglias efforts to locate Mr. Aldridges heir and to negotiate the purchase
    of her interest in Block B was the receipt of the Reynolds letter. Moreover, in
    agreeing to facilitate the transfer to Mr. Battaglias company, the Township
    was unaware of any controversy over the boundary of Block B and acted
    accordingly (at para. 34).

[135]

Thus, while I
    would not intervene based on the encouragement prong of the test, I note that
    the evidence supporting this prong is weak.

2)   Detrimental Reliance

[136]

The application
    judge found that detrimental reliance was made out because the respondents paid
    consideration to the heir of Mr. Aldridge in reliance on the Townships conduct
    in settling the OMB appeal.

[137]

Again, I would
    not interfere with this finding. However, I would note that the application
    judge failed to refer to competing considerations, including that Mr. Battaglia
    was also relying on the advice of Mr. Reynolds and his own lawyers in entering
    into the agreement of purchase and sale with Ms. Olds Lewis. Indeed, he executed
    a draft of the agreement with Ms. Olds Lewis in May 2007, almost six months
    before the Townships passage of the resolution settling the OMB appeal on
    October 29, 2007. It would appear, therefore, that the settlement may have fortified
    the respondents resolve to complete the transaction. It clearly did not
    establish it.

3)   Unconscionable advantage

[138]

The application
    judge did not refer to the unconscionability prong of the proprietary estoppel
    test or explain why this element of the test was satisfied.  In
Schwark
    Estate
, at paras. 27-29, this court endorsed a five-part test for
    determining if unconscionability is established. The application judge ought to
    have considered whether the following five elements were present in this case:


1.

The respondents must have made a mistake as to their legal rights;

2.

The respondents must have expended some money or must have done some act
    on the faith of their mistaken belief;

3.

The Township must have known of the existence of its own right which is
    inconsistent with the right claimed by the respondents;

4.

The Township must have known of the respondents mistaken belief of
    their rights; and

5.    The
    Township must have encouraged the respondents in their expenditure of money or
    in the other acts which they have done, either directly or by abstaining from
    asserting its legal right.

[139]

In my view, none
    of the elements of unconscionability is present based on the evidentiary
    record.

[140]

With regard to
    the first criterion, it would be necessary to find that the respondents held
    the mistaken view that by acquiring Block B from Mr. Aldridges heir, they were
    obtaining legally valid title to the Beach. This finding is not available given
    the considerable evidence indicating that the respondents were well aware of
    the legal uncertainty surrounding the boundaries and ownership of Block B. They
    entered into the transaction with Ms. Olds Lewis despite these risks.

[141]

For example, during
    his cross-examination on his affidavit, Mr. Battaglia testified that during his
    investigations concerning the Beach, he received a rough sketch from a local
    title searcher, Leslie Burley. This sketch shows the Beach in front of Block B
    on Plan 656 and that Block B goes to the high water mark. The sketch notes:
    Beach area shows in front of Block B but not included in plan and Block B
    Plan 656 goes to high water mark. Thus, Mr. Battaglia had before him pictorial
    evidence showing that the Beach was not part of Block B on Plan 656.

[142]

Additional
    significant evidence of the respondents knowledge of the uncertainties
    surrounding the extent and ownership of Block B is found in the wording of the draft
    and final version of the agreement of purchase and sale between 173 and Ms.
    Olds Lewis. The agreements describe the property being purchased as Part of Block
    B on Plan 656 
and adjacent beachfront property down to the waters edge
,
    shown as Part 1 on Plan 51R-35342 dated April 22, 2007,
and all rights of
    action with respect thereto
 (emphasis added).

[143]

Simply put, if
    Mr. Battaglia had mistakenly thought that Block B incontrovertibly included the
    Beach, the emphasized wording in the description of the lands being acquired
    would not have been included.  These words are clear evidence that Mr.
    Battaglia was aware of the risk that Block B might not include the Beach and
    that he might face subsequent legal challenges as a result of his assertion of
    ownership over the Beach.

[144]

Given that the
    evidence is incompatible with a finding that Mr. Battaglia held the mistaken
    belief that the boundaries of Block B and the ownership of the Beach were
    clearly established, the first, second and fourth elements of the test for
    unconscionability are not met.  Mr. Battaglia was aware of the uncertainty and
    risks surrounding the title and boundaries issues when he agreed to pay Ms.
    Olds Lewis $150,000 plus transaction costs for acquiring title to the vast majority
    of the Beach. It appears from the evidence that Mr. Battaglia, a sophisticated
    businessman with significant experience in real estate, took a calculated risk with
    respect to both the extent of Block B and the possibility of triggering a legal
    battle over his ownership rights.

[145]

While the Townships
    agreement to facilitate the transfer to the respondents might have diminished Mr.
    Battaglias concerns about whether the transaction with Ms. Olds Lewis would be
    challenged, it would not eliminate them. There would have been an obvious risk
    that the lot owners on Plan 656 might seek to invalidate the transfer.

[146]

Concerning the
    fourth element of the test, obviously, the Township could not have known of a
    mistaken belief that Mr. Battaglia did not hold.

[147]

Returning to the
    third element of the test for unconscionability, the application judges
    factual findings are inconsistent with a finding that, in settling the OMB
    appeal, the Township knew of the existence of its own right  or more
    accurately, the right of the Tripp heirs  to the South Beach. The application
    judge found, at para. 34, that the municipality was unaware of any controversy
    over the boundary of Block B. She based this finding on her acceptance of the
    evidence of Douglas Luker, the Chief Administrative Officer of the Township. He
    testified that, after receiving the covering letter from Burgar Rowe, dated
    September 19, 2007, the Townships understanding regarding Block B and the
    Beach was [t]hat they were one. As noted above, the covering letter from
    Burgar Rowe attaching and purporting to summarize Mr. Troisters opinion fails
    to mention that Mr. Troister considered if Block B includes the Beach and
    concluded it does not.

[148]

Although the
    Township clearly had the entirety of Mr. Troisters opinion in its possession, its
    conduct in registering the May 2008 transfers, which refer to the Reynolds
    Plans, strongly suggests that the Township made an uninformed mistake in treating
    Block B as being bounded by the waters edge. The Township did not stand to gain
    any advantage by treating Block B as including the Beach, aside, perhaps, from
    avoiding the need to contact the heirs of Mr. Tripp. The far more likely
    explanation for the Townships behaviour is the evidence accepted by the
    application judge that the Townships actions were based on the incomplete
    information that Burgar Rowe provided in its covering letter.

[149]

I do not wish to
    be taken as suggesting that the Townships conduct in failing to review the
    entirety of Mr. Troisters opinion letter is entirely blameless. However, in my
    view, the failure of the Townships solicitor to mention  let alone summarize
     a critical portion of Mr. Troisters lengthy opinion tells against imputing
    knowledge to the Township.  In any event, even if I were to impute knowledge to
    the Township of Mr. Troisters opinion that Block B did not include the Beach,
    the other elements of the test for unconscionability are not met.

[150]

As for the final
    element of the test, in my view, the Townships encouragement in the form of
    agreeing to facilitate the transfer from Ms. Olds Lewis to 173 in return for
    Mr. Battaglia dropping his OMB appeal does not exhibit the type of direct
    encouragement that is capable of establishing unconscionability. A review of
    the evidence demonstrates that the triggering event for Mr. Battaglias
    purchase of Block B was not the Townships encouragement, but rather his
    receipt of Mr. Reynolds letter dated February 18, 2006.

[151]

After receiving
    the Reynolds letter, along with the report to the owners of Lots 12 and 13, Mr.
    Battaglia undertook complicated arrangements to secure title to the Beach. He
    advised the Township in a letter dated March
8,
    2006, that he was appealing the zoning by-law as it pertained to his lands.
He
    hired a private investigator to locate the Aldridge heir and consulted a local
    title searcher about Block B and the Beach. After finding Ms. Olds Lewis, he
    began negotiations to purchase Block B.  He testified that he had a team of
    lawyers acting for him during the process.

[152]

This evidence
    establishes that Mr. Battaglia acted on his own volition and with the benefit
    of independent advice in undertaking a time-consuming project to try to wrest
    title to the Beach from the Township and obtain it for himself. The element of
    vulnerability on the part of the plaintiff that was present in a case relied on
    by the respondents,
Flello v. Baird
, 1999 BCCA 244, 172 D.L.R. (4th)
    741, is notably absent in this case.

[153]

Finally, it is
    significant that the Township is not resiling from the agreement related to the
    zoning issue. The lands will continue to be zoned as private open space.

[154]

Thus, on the one
    hand, Mr. Battaglia initiated the efforts to acquire the Beach and he was aware
    that doing so could expose him to legal action. On the other hand, in
    facilitating this transaction, the Township was mistaken in its view that Block
    B includes the Beach and that Ms. Olds Lewis was the rightful owner of most of
    the Beach. In these circumstances, there was no basis for the application judge
    to find that the Township would be taking unconscionable or unjust advantage of
    the respondents by asserting on the application that Block B is a 20' wide
    strip that does not include the Beach.


(ii)

Estoppel by Words or
    Conduct

[155]

The respondents also
    submit that the Townships conduct gives rise to a more general type of estoppel
    as described by Ritchie J. in
John Burrows Ltd. v. Subsurface Surveys Ltd.
,
[1968] S.C.R. 607, at p. 615:

The principle, as I understand it, is that where one party has,
    by his words or conduct, made to the other a promise or assurance which was
    intended to affect the legal relations between them and to be acted on
    accordingly, then, once the other party has taken him at his word and acted on
    it, the one who gave the promise or assurance cannot afterwards be allowed to
    revert to the previous legal relations as if no such promise or assurance had
    been made by him, but he must accept their legal relations subject to the
    qualification which he himself has so introduced, even though it is not
    supported in point of law by any consideration, but only by his word.

[156]

Assuming,
    without deciding, that this more general doctrine of estoppel by words or
    conduct is applicable in a case where legal rights to property are being
    asserted, the conduct at issue in this case cannot give rise to this form of
    estoppel. Any assurance that the Township may have given to Mr. Battaglia to
    the effect that Ms. Olds Lewis held title to the Beach was based on its
    mistaken view that Block B included the Beach.  Having realized that the Tripp
    heirs were the rightful owners of the South Beach, the Township went about
    trying to remedy the title problems it had unwittingly helped create, which the
    respondents had taken advantage of.  Permitting the Township to restore the
    correct legal circumstances surrounding the property in issue would not result
    in the requisite unfairness to the respondents.

(iii)

Feeding
    the Estoppel

[157]

The application
    judge stated, at para. 53, that in the event Tripp retained title of Block B
    to the waters edge when he conveyed his subdivided lots to Mr. Aldridge,  [the
    Township] may take no title pursuant to the quit claims of the Tripp heirs
    other than as a conduit to the respondents.

[158]

This statement suggests
    the application judge may have been relying on the doctrine of feeding the
    estoppel. The effect of the doctrine of feeding the estoppel is that, when a
    grantor has purported to grant an interest in land that he or she did not
    actually possess at the time, but the grantor subsequently acquires this
    interest, the benefit of this subsequent acquisition automatically transfers to
    the benefit of the earlier grantee  it feeds the estoppel by deed created by
    the original grant.

[159]

As a prerequisite
    to the doctrine of feeding the estoppel, a claimant must first establish
    estoppel by deed:
see Bruce MacDougall,
Estoppel
(LexisNexis Canada Inc., 2012), at pp. 72-78.

The doctrines of estoppel by deed and feeding the estoppel
    are described by this court in
Re Certain Titles to Land in Ontario
,
[1973] 2 O.R. 613, at p. 629:

An interest in land is created by estoppel when the grantor has
    no legal estate or interest therein at the time of the grant, and although a
    title by estoppel is not good as against all the world but only against the
    grantor, who is estopped by his own deed as against him, it has all the
    elements of a real title. Where the grantor subsequently acquires a legal title
    to the premises which he has purported to grant that legal estate or interest
    is said to feed the estoppel, and the original grant then takes effect in
    interest and not by estoppel, but the grantor is estopped from saying that he
    had no interest at the time of the grant. Thus through the instrumentality of what
    is a pure legal fiction, i.e., by operation of law, the grantee's erstwhile
    estate by estoppel valid only as against his grantor became an estate in
    interest valid as against the rest of the world without the necessity of the
    grantee obtaining a further or supplementary grant from the grantor, or without
    any other or further documentation.

[160]

Here, the respondents
    argue that the doctrine of feeding the estoppel applies at two stages.  First,
    Mr. Tripp transferred his interest in the south half of Plan 656 to Mr.
    Aldridge, retaining only Lot 22 and Block A and Block B in front.  He did not
    purport to reserve the Beach to himself through this transfer.  The evidence
    establishes that Mr. Tripp did not believe he owned the Beach.  According to
    the respondents, Mr. Tripp and his heirs would be required to feed the estoppel
    to anyone claiming through the Aldridge heirs, including 173.

[161]

Second, the
    Township, conveyed to Mr. Battaglia (through Ms. Olds Lewis) land described in
    conveyances as Block B being to the waters edge based on reference plans it
    had reviewed and incorporated in the transfer.  The Township later acquired an
    interest (through the Tripp heirs quit claims) in what it purported to
    transfer, so it must feed the estoppel.

[162]

Neither the application judge nor the respondents addressed the
    above-mentioned prerequisite to the doctrine of feeding the estoppel, which is
    the need to first establish estoppel by deed. Estoppel by deed relates to a
    grant of title or estate by one party to the other that is purportedly made by
    the deed or assumed in the deed.  The estoppel is related to the nature of the
    relationship between the parties to the deed and does not depend on any
    explicit assertion in the deed.

[163]

Estoppel by deed
    applies where the deed purports to make a grant of interest that cannot be made
    at the time of the transaction because of a lack of the grantors interest:
     MacDougall, at pp. 61-62.  As between the parties, they are held to
    their agreement as to entitlement.  Estoppel by deed does not work through
    equity and there are no equitable constraints on whether a transfer of a
    property right or interest will be effected through the estoppel: MacDougall,
    at p. 62.

[164]

The respondents cannot establish estoppel by deed in respect of the
    1921 conveyance from Mr. Tripp to Mr. Aldridge of the southerly lots on Plan
    656 except Lot 22 and Block A and Block B in front of those two lots. There is
    no issue that Mr. Tripp had an interest in the lands that he was purporting to
    convey and that he in fact conveyed his interest. This is not a case where he
    subsequently came to acquire an interest in lands that he earlier had purported
    to transfer to Mr. Aldridge. The prerequisite for applying the doctrine of
    feeding the estoppel in favour of the respondents is absent.

[165]

Concerning the
    May 2008 conveyance from the Township to Ms. Olds Lewis, it is important to
    point out that the doctrine of estoppel by deed operates to hold the parties to
    their grant and prevents the grantor from denying that a grant has been
    effected by the deed: see MacDougall, at p. 78.  Here, the Township is not
    disputing that a grant was effected by the deed to Ms. Olds Lewis. Rather, the
    Township is disputing the boundaries of the property that it conveyed to Ms.
    Olds Lewis in the May 2008 transfer because of the erroneous Reynolds Plans
    referred to in the property description. The Township delivered the May 2008
    transfer to Ms. Olds Lewis to correct a defect it had created in her title to
    her lands in 2001 when it transferred Block B to itself. The Township is not
    attempting to resile from its effort to correct her title.  The
    respondents have not pointed to any authority to suggest that the doctrine of
    estoppel by deed would apply in this context to hold the grantor to an
    erroneous description of boundaries contained in the deed.

[166]

For these
    reasons, on the facts of this case, I am of the view that there was no estoppel
    by deed to feed through to the respondents.

[167]

Even assuming
    that the doctrine of estoppel by deed would apply to estop the Township from
    contesting the boundaries of Block B, the doctrine of feeding the estoppel, unlike
    the doctrine of estoppel by deed, is an equitable doctrine: see MacDougall, at
    pp. 62-63.  As Stong J. (dissenting in the result) explained in
Sydney and
    Louisburg Coal and Railway Co. v. Sword
(1892), 21 S.C.R. 152, at p. 159:

A grantor, who purports to convey land to
    which he has no title, if he afterwards acquires title will, no doubt, be restrained
    by a Court of Equity from setting up his paramount title against his own
    grantees and will be compelled to make good out of the title so subsequently
    acquired the title which he had previously purported to convey. But this equity
    is one which is only enforced on proper terms and is something wholly different
    from legal estoppel.

[168]

The equities of
    the situation in this case are not the same as where a grantor purports to have
    legal title to the land, transfers the land to another, subsequently obtains
    legal title to the land, but then seeks to retain the land by relying on
    his/her lack of legal title at the time of the original grant. The Townships belief
    that Ms. Olds Lewis was the rightful owner of the majority of Block B, its mistaken
    belief that Block B included the majority of the Beach, combined with Mr.
    Battaglias knowledge that Block B as shown on Plan 656 does not include the
    Beach, negates the equitable rationale behind the doctrine of feeding the
    estoppel in the circumstances of this case.

[169]

I conclude
    therefore that the application judge erred in holding that the Township was
    precluded from obtaining the relief sought by any doctrine of estoppel upon
    which the respondents relied.

F.

Disposition

[170]

For these
    reasons, I would allow the appeal and would set aside the application judges
    judgment granting declaratory relief to the respondents. I would grant the
    Townships application for a series of declarations as set out in the
    Townships amended notice of application. To paraphrase the declarations sought
    by the Township, I would grant the following items of declaratory relief:

·

confirm the accuracy of the Stanton Plan and the inaccuracy of
    the Reynolds Plans;

·

confirm that, as of the date of the application, the heirs of
    Jonathan Tripp were the legal owners of the South Beach (i.e., Part 3 on the
    Stanton Plan);

·

confirm that any transfers by the Tripp heirs to the Township of
    the South Beach will be effective to convey their respective interests in Part
    3 on the Stanton Plan to the Township;

·

confirm that the respondents do not have a legal or beneficial
    interest in the South Beach;

·

direct the Land Registrar for the Registry Office of Simcoe
    County to amend the register to show that the Tripp heirs own the South Beach
    and to register any transfers by those heirs to the Township; and

·

direct the Land Registrar to issue new Property Identification
    Numbers reflecting the legal descriptions and boundaries of the lands within
    Plan 656 and the Beach in front of those lands.

[171]

The notice of
    application also requests a certificate of pending litigation with respect to
    the northern portions of the Beach, which are designated as Parts 1, 2 and 3 on
    the Stanton Plan. This is a matter for the Township to pursue before a justice
    of the Superior Court, if so advised.

[172]

My conclusion
    would result in the Township being entitled to its costs of the application and
    of the appeal.  I would award the Township its costs below as fixed by the
    application judge, in the amount of $55,000.

[173]

With respect to
    the appeal, based on the written submissions of counsel provided at the
    conclusion of argument, I would award the Township its costs in the amount of
    $18,000.  Both amounts are inclusive of disbursements and applicable taxes.

Released:

APR 30 2013                                    Gloria
    Epstein J.A.

JS                                                   I
    agree Janet Simmons J.A.

I
    agree Russell Juriansz J.A.



Schedule A


Schedule B


Schedule C


Schedule D


Schedule E


Schedule F






[1]
It did so through an amendment to the
Bed of Navigable Waters Act
in
The
    Statute Law Amendment Act, 1940
, S.O.
    1940
, c. 28, s. 3. The amendment was repealed in 1951 by the
Bed
    of Navigable Waters Amendment Act, 1951
, c. 5.



[2]
There is also Lot 1 on the Plan lying to the west of Woodland Avenue, but Lot 1
    does not abut Block B.



[3]
The application judge erroneously referred to Part 1 on Reference Plan
    51R-36043.  In fact, Instrument SC645393 conveyed to 173 Part 1 on Reference
    Plan 51R-35342,
excluding
Part 1 and Part 2 on Plan 51R-36043.  The
    judgment as issued and entered corrects this mistake.  The application judge
    did not mention that the Township had not requested a declaration concerning
    the ownership of the northerly portion of the beach in the amended notice of
    application.  Nor did she mention that the respondents had not asked for any
    declaratory relief by way of a separate application.


