



COURT OF APPEAL FOR ONTARIO

CITATION: Weaver v. Anderson, 2017 ONCA 964

DATE: 20171208

DOCKET: C63677

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Karen Jean Weaver and William Bryce Weaver

Applicants
(Appellants)

and

Gordon Robert Anderson

Respondent
(Respondent)

Daniel J. Wyjad, for the appellants

Andrew Mae, for the respondent

Heard: December 4, 2017

On appeal from the judgment of Justice James A.S. Wilcox
    of the Superior Court of Justice dated March 27, 2017, with reasons reported at
    2017 ONSC 1928.

REASONS FOR
    DECISION

[1]

The appellants assert the application judge made
    palpable and overriding errors in establishing the boundary line between their
    property and the respondents.

[2]

They make four submissions.

[3]

First, they say that the application judge
    misinterpreted the field notes of an earlier surveyor, White. We do not agree.
    As the application judge observed, Whites note was cryptic, but it was open
    to the interpretation the judge gave it  that a former owner of the
    respondents lot had identified the fence as the boundary between the
    appellants property and the respondents. The respondents expert witness,
    Williams, was critical of Whites work and said that Whites decision not to
    accept the fence as the boundary was contrary to much common law. He also
    noted that the fence was reasonable as a limit of occupation of the
    respondents property. We see no error in the application judges
    interpretation of Whites field notes.

[4]

Second, the appellants say the application judge
    failed to give proper consideration to Whites plan of the property, which
    identified the lot line in a location other than the fence. Given Williams
    evidence that Whites plan reflected improper survey practice and failed to
    give sufficient consideration to the location of the fence, it was open to the
    application judge to conclude that it would be a remarkable coincidence if the
    fence, being so close to the White line, had not been erected as a boundary
    marker.  The proximity of that fence to the surveyed lot line (an extension of
    the White line) over that distance is unlikely to be a coincidence. Rather, it
    strongly suggests that the fence was built to mark the boundary.

[5]

The application judge found, on the basis of the
    evidence before him, including Williams evidence, that White erred in not
    using the fence line. He did not, however, accept Williams reasons why the
    court might accept the White line as the boundary, preferring the reasons
    Williams gave for treating the fence line as the best evidence of the boundary.
    These findings of fact were open to the trial judge on the basis of the
    evidence that he accepted.

[6]

Third, the appellant contends that the application
    judge failed to apply proper legal principles in establishing the boundary. We
    see no basis for this complaint. The application judge identified the leading
    cases of
Thelland v. Golden Haulage Ltd.
,
    [1989] O.J. No. 2303 (Dist. Ct.), and
Nicholson v. Halliday
(2005), 74 O.R. (3d) 81 (C.A). He applied the principles expressed
    in those cases that in the absence of natural boundaries or original monuments,
    fences or possession that can reasonably be related back to the time of the
    original survey are more compelling evidence of the boundary than
    measurements.

[7]

There was, therefore, both an evidentiary basis
    and a legal basis for the application judges rejection of the White line and
    his acceptance of the fence line as the more reliable evidence of the boundary.

[8]

Fourth, the appellant makes the broad assertion
    that the application judges location of the boundary was not based on the
    facts. As indicated above, there was evidence to support the judges findings
    of fact, and the inferences he drew from the facts.

[9]

We do not accept the appellants submission that
    the application judge conflated adverse possession with survey principles. He
    expressly observed, at para. 44, that [T]he decision on the location of the
    boundary is based on surveying principles, not on adverse possession. He was
    entitled to have regard to historical possession in establishing the boundary.
    His use of the word occupation is to be understood in that context.

[10]

The parties left it to the application judge to
    choose between the reasonable alternative locations for the boundary identified
    by Williams. The option he selected was reasonable, practical and fair, for the
    reasons he identified.

[11]

In summary, none of the findings of fact
    identified by the appellants are clear errors, let alone palpable and
    overriding ones. The application judges findings were based on his assessment
    the evidence, or inferences that he was entitled to draw from the evidence.
    That evidence included uncontradicted expert evidence of a land surveyor, some
    of which the trial judge accepted and some of which he rejected, for reasons
    that fell within his province. His findings of fact are entitled to deference.

[12]

The appeal is dismissed, with costs to the
    respondent in the amount of $20,000, inclusive of disbursements and all
    applicable taxes.

G.R.
    Strathy C.J.O.

R.G.
    Juriansz J.A.

Grant
    Huscroft J.A.


