Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: Becker v. Walgate, 2020 ONCA 491

DATE: 20200805

DOCKET: C66924

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

Martha Leeanne Becker and Jason John Becker

Applicants/Plaintiffs (Respondents)

and

Walter Eddy Walgate

Respondent/Defendant (Appellant)

Izaak de Rijcke and Robert J. Fenn, for the appellant

Jeffrey D. Ayotte and Michael W. Gunsolus, for the respondents

Heard: In writing, with questions by video conference on July 2, 2020

On appeal from the order of Justice J. Christopher Corkery of the Superior Court of Justice, dated April 11, 2019, with reasons reported at 2020 ONSC 2342, 6 R.P.R. (6th) 100, and the costs order dated August 30, 2019

Rouleau and Hoy JJ.A.:

I. OVERVIEW

[1]          This appeal arises out of a dispute between neighbours at Jack Lake over where the lot line between their properties ends.

[2]          Jack Lake is a reservoir lake within the Trent-Severn Waterway. The lot line between the two properties – the most westerly parcel of Lot 41 and the most easterly parcel of Lot 42 – skews the water’s edge and strikes the lake at an oblique angle. What water level is to be used in determining the termination point of the lot line?  

[3]          Does the lot line between Lots 41 and 42 end where it intersects with the “High Water Mark” shown in Registered Plan 33 which created the lots in 1958 and which the trial judge found was the water’s edge of Jack Lake at the Normal Controlled High Water Level, a contour elevation of 106.33 feet (assumed datum)?

[4]          Or, as the appellant contends, must the determination of the terminus of the lot line begin with reference to the water’s edge at the time of the 1902 Crown patent of lands of which the disputed lands were a part?

[5]          According to the trial judge, approximately 100 feet of valuable water frontage is at issue.

[6]          We agree with the appellant that the trial judge’s conclusion that the lot line ends at the Normal Controlled High Water Level is tainted by reversible error and that the determination of the terminus of the lot line must begin with reference to the water’s edge of Jack Lake at the time of the Crown Patent.

[7]          As we will explain, we return this matter to the trial court for determination.

II BACKGROUND

[8]          As we return this matter to the trial court, we will provide only a brief outline of relevant facts not in dispute.

[9]          Prior to 1902, a “lumberman’s dam” existed on Jack Lake.

[10]       The chain of title to Lots 41 and 42 begins with a patent from the Crown, dated April 2, 1902.

[11]       By way of the Crown patent, the Crown transferred a 152-acre parcel of Crown Land of which Lots 41 and 42 are part to Frances L. Robbins. The Crown patent describes the patented lands “as shown on a Plan of Survey by Ontario Land Surveyor Alfred J. Cameron” (the “Cameron Survey”). On the Cameron Survey, Mr. Cameron certifies that it is correct on September 23, 1901. There is no reference to or distinction made between high water or low water marks on the Cameron Survey.

[12]       The Crown Patent contained the following reservation:

saving, excepting and reserving nevertheless, unto Us, Our Heirs and Successors the free use, passage and enjoyment of, in, over, and upon all navigable waters which shall or may hereafter be found on or under or be flowing through or upon any part of the said Parcel or Tract of Land hereby granted as aforesaid, reserving also right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons, together with the right to use so much of the banks thereof, not exceeding one chain in depth from the water’s edge, as may be necessary for fishery purposes.

[13]       The federal government decided to use Jack Lake for water storage and, in 1910, it replaced the lumberman’s dam with what is referred to in the trial judge’s reasons as the “Dominion Dam”. 

[14]       In 1932, the Crown settled a claim by the successor in title of the patentee, paying her $400 to release the Crown from liability for damages caused by the Dominion Dam flooding the land. The release describes the lumberman’s dam as having “held the water at a certain level during the Spring of the year, admitted of the said lake being later drained to its natural level”. It also notes that the Dominion Dam has a crest that is 2’10” higher than the lumberman’s dam.

[15]       In 1958, the Jack Lake Land Company (“JLL”) subdivided the land by Registered Plan 33, resulting in the creation of Lots 41 and 42. Registered Plan 33 was surveyed by W.A. Beninger between March 8, 1957 and May 30, 1958 (the “Beninger Survey”). His survey shows the line between Lots 41 and 42 extending to a heavy curved line marking the limit of Jack Lake which the Plan Legend indicates is the “High Water Mark”. Mr. Beninger tried to retrace the Cameron Survey, but his field notes indicate that the Cameron Survey was poorly done, as it appeared that Mr. Cameron had only completed a rough shore traverse.

[16]       On September 11, 1974, JLL transferred the appellant’s property to Viceroy Construction Company Limited pursuant to the legal description in Plan 33. The parties’ agreed statement of facts indicates, and the trial judge found, that after this transaction, JLL ceased to operate.

[17]       In turn, the appellant and the respondents purchased their properties pursuant to the legal description in Plan 33. The appellant owns the most westerly parcel of Lot 41, and the respondents own the most easterly parcel of Lot 42.

[18]       Since the registration of Plan 33, other surveyors have completed plans and surveys of lands within Plan 33, but the line between Lots 41 and 42 remains the boundary between the parties’ properties. A further subdivision of Lot 41 on May 1, 1978 and a building location survey of Lot 41 by Thos. E. Lyons, dated February 22, 1989, also described the water boundary as the “High Water Mark.”

[19]       Plans of subdivisions of Lot 42 in 1987, 1991 and 2002 described the water boundary as “Normal Controlled High Water Level Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Reg’d Plan No 33”. The 1987 and 1991 plans also include the notation “The Original High Water Mark of Jack Lake cannot be determined with any certainty therefore a portion of Lot 27 Concession 9 may lie in front of Parts 1 and 3”.

III THE TRIAL JUDGE’S REASONS

The expert evidence

[20]       Each party called a surveyor as an expert witness. Both were qualified by the trial judge to provide opinions as to where the terminus of the lot line between Lots 41 and 42 lies and how that end point is determined. The respondents’ expert was Shawn O’Connor. The appellant’s expert was Paul Miller.

[21]       The trial judge reviewed their evidence. He preferred the evidence of Mr. O’Connor over that of Mr. Miller, and, where Mr. Miller’s evidence was inconsistent with that of Mr. O’Connor, he accepted Mr. O’Connor’s evidence. In particular, he accepted Mr. O’Connor’s evidence that the Normal Controlled High Water Level (“NCHWL”) of Jack Lake had not changed since Plan 33 was surveyed.

[22]       In Mr. O’Connor’s opinion, on a controlled body of water the meaning of “high water mark” is clear: it is the NCHWL. Further, during the navigational season on the Trent-Severn Waterway, from the long weekend in May through to the Thanksgiving weekend in October, Parks Canada maintains the lake at the NCHWL, 106.33 feet (a.d.).[1] During the remainder of the year, Parks Canada maintains the lake at the normal controlled low water level, approximately three feet lower.

[23]       Mr. O’Connor believed that Mr. Beninger’s survey was completed in the winter of 1957-1958, that Mr. Beninger determined the High Water Mark based on a shore traverse at that time, and, accordingly, that what he marked as the High Water Mark on his survey was in fact the normal controlled low water level.

[24]       In contrast with Mr. Miller’s opinion, Mr. O’Connor opined that the Cameron Survey and the Beninger Survey both clearly show that water was being held back. Both show an island and a bay that would not have existed if water had not been held at similar levels. While in Mr. O’Connor’s view the water level in both surveys is similar, he stated that it was impossible to determine with any precision the level of Jack Lake in 1902, when the land was patented. 

[25]       Based on the cross-sectional area of water flowing through the dam, Mr. Miller estimated the elevation of the original water level of Jack Lake to be 909.1[2] feet or 100.3 feet (a.d.), plus or minus 0.3 feet. However, the trial judge expressly rejected his opinion because Mr. Miller did not explain how he used the cross-sectional area of water flowing through the dam to arrive at his opinion and, absent any explanation, it was impossible to assess the validity of his opinion or determine if it fell within his area of expertise, namely surveying.

The trial judge’s analysis

[26]       The trial judge described his task as determining what water level is to be used to determine the termination point of the line between Lots 41 and 42 where it strikes the lake.

[27]       The trial judge properly began with this court’s decision in Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), at p. 461, where Finlayson J.A. reviewed the legal principles governing the use of extrinsic evidence in interpreting a grant of land.

[28]       In brief, if the terms of a conveyance are clearly defined, extrinsic evidence is not admissible to contradict the conveyance or transfer. Extrinsic evidence may be introduced in the case of latent ambiguity for the purpose of ascertaining the intention of the grantor. A latent ambiguity is one that arises only when the deed is applied to the land it purports to describe.

[29]       The trial judge noted that the use of the term “high water mark” by surveyors in Ontario to define a natural boundary has a long and confusing history:

Although the common law had recognized the boundary between land and non-tidal waters as the water’s edge, throughout the early part of the last century, provincial Crown policy was that the Crown owned the beds of navigable waters to the high water mark, including any dry land between the variable water’s edge to the high water mark. This policy was enacted in statute in 1940 by amendment to the Bed of Navigable Waters Act, S.O. 1911, c. 6.[1], which also provided a statutory definition of “high water mark”.

Although the amendment was repealed in 1951, restoring the common law, the Crown maintained its policy asserting ownership to the high water mark. It was not until 1970 that this policy was rejected and the common law was confirmed by Stark J. in Ontario (Attorney General) v. Walker, [1971] 1 O.R. 151 (H.C.J.), affirmed [1972] O.R. 558 (Ont. C.A.), affirmed [1975] 1 S.C.R. 78 (S.C.C.).

[30]       He quoted from p. 181 of Walker v. Ontario (Attorney General), [1971] 1 O.R. 151 (H.C.J.), aff’d [1972] 2 O.R. 558 (C.A.), aff’d [1975] 1 S.C.R. 78:

[A]ny 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 water’s 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 water’s edge.

[31]       He further noted that in Tiny (Township) v. Battaglia, 2013 ONCA 274, 305 O.A.C. 372, this court held that Walker is not limited to Crown grants and surveys, but applies to any conveyance.

[32]       However, the trial judge found that Walker does not apply to controlled bodies of water:

Walker was not considering controlled bodies of water but inland non-tidal waters where “the distinction of high and low water marks will not hold”. On a controlled body of water, the distinction does hold. There are regulated high and low water levels: maximum, minimum, normal high and normal low levels.

On controlled bodies of water, in my view, “High Water Mark” presumptively refers to the line where the land meets the water at the normal controlled high water level, absent clear evidence that a water level lower than the NCHWL was intended to be conveyed.

[33]       He then concluded that Plan 33 is not ambiguous: the line between Lots 41 and 42 terminates where it intersects with the “High Water Mark”, which is the water’s edge of Jack Lake at the NCHWL, 106.33 feet (a.d.). He stated that it was open to JLL to choose this boundary.

[34]       According to the trial judge, the fact that “Mr. Beninger erroneously illustrated the location of the ‘High Water Mark’ line on the plan does not compromise his unambiguous adoption of a natural boundary. The line on the plan is only representative of this clear natural boundary.”

[35]       Further, he stated that if there were a latent ambiguity, his conclusion would not have changed:

Nothing in the extrinsic evidence available to me is inconsistent with my conclusion. The JLL Company intended to create waterfront lots. They provided for the construction of boathouses with boat slips. There was no admissible evidence permitting the court to determine that they conveyed all or retained some of their land.

[36]       Finally, he concluded that if the lot line terminated beyond its intersection with Jack Lake at the NCHWL, the respondents (who were the applicants below) have a riparian right of access along the line beyond the intersection point with the NCHWL.

IV THE ISSUES ON APPEAL

[37]       We would frame the issues that must be addressed on this appeal as follows:

1.    Did the trial judge err in concluding that it is unambiguous that the term “High Water Mark” in Plan 33 means the NCHWL? If so, does the term “High Water Mark” in Plan 33 create a latent ambiguity?

2.    If the term “High Water Mark” in Plan 33 creates a latent ambiguity, does the trial judge’s finding that the intent of JLL was to set the NCHWL as the water boundary constitute a reviewable error?

3.    If the trial judge erred in finding that the intent of JLL was to set the NCHWL as the water boundary, what is the boundary of Lots 41 and 42, and thus, the terminus of the lot line between them?

4.    What is the consequence of the trial judge’s alternative finding that the respondents have a riparian right of access along the lot line, beyond the intersection point with the NCHWL?

V ANALYSIS

1. Did the trial judge err in concluding that it is unambiguous that the term “High Water Mark” in Plan 33 means the NCHWL?

[38]       Respectfully, in our view the trial judge’s conclusion that the term “High Water Mark” in Plan 33 is unambiguous and means the NCHWL, which is 106.33 feet (a.d.), is clearly wrong.

[39]       Plan 33 does not define what is meant by “High Water Mark”. It does not use the term “Normal Controlled High Water Level” or refer to 106.33 feet (a.d.). The trial judge’s conclusion that “High Water Mark” in Plan 33 means the NCHWL, which is 106.33 feet (a.d.), necessarily relied on extrinsic evidence, presumably the evidence of Mr. O’Connor and the plans of subdivision prepared decades after Plan 33 which describe the water boundary for Lot 42 as the “Normal Controlled High Water Level Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Reg’d Plan No 33”.

[40]       The trial judge’s conclusion that the term “High Water Mark” in Plan 33 is unambiguous seems rooted in his view that Walker has no application to controlled inland bodies of water. However, his reasons for coming to that conclusion are unclear. In any event, it is unnecessary for us to determine whether Walker applies to controlled inland bodies of water.

[41]       Even if Walker does not apply to controlled, inland bodies of water, the reference to “High Water Mark” in Plan 33 still creates a latent ambiguity. The trial judge acknowledged that Mr. Beninger erroneously illustrated the location of the “High Water Mark”. Even Mr. O’Connor acknowledged that there “seems to be some ambiguity”, resulting from the Beninger Survey. When the Beninger Survey is applied to the land it purports to describe, the lake-ward boundary is ambiguous. It is not clear that “High Water Mark” means the NCHWL, as opposed to, for example, the maximum water level, or the water level depicted by the line on the Beninger Survey. Nor is it clear, in the absence of extrinsic evidence, that the NCHWL was 106.33 feet (a.d.) at the time of the Beninger Survey. Extrinsic evidence is necessary to resolve this ambiguity by ascertaining the intention of the grantor.

2. If there is a latent ambiguity, does the trial judge’s finding that the intent of JLL was to set the NCHWL as the water boundary constitute a reviewable error?

[42]       Again, respectfully, the trial judge’s conclusion that JLL intended to set the NCHWL as the water boundary in Plan 33 cannot stand.

[43]       The trial judge said this at paras. 72 and 74 of his reasons:

The line between Lots 41 and 42 terminates where it intersects the “High Water Mark” which is the water’s edge of Jack Lake at the NCHWL, 106.33 feet (a.d.). It was open to the JLL Company to choose this boundary.

…

Nothing in the extrinsic evidence available to me is inconsistent with my conclusion. The JLL Company intended to create waterfront lots. They provided for the construction of boathouses with boat slips. There was no admissible evidence permitting the court to determine that they conveyed all or retained some of their land.

[44]       Essentially, the trial judge says that because he could not determine the water boundary of JLL’s land, he does not know whether JLL retained any land following its transfer. And, since he did not make that determination, there is nothing inconsistent with his conclusion that JLL intended to select the NCHWL as the water boundary in Plan 33. In effect, JLL might have conveyed all that it owned and, in any event, it conveyed sufficient title to permit the owners to construct the boathouses and slips referred to in the transfer documents.

[45]       However, on this record, the only reasonable inference is that JLL intended to transfer the full extent of the title that it had, whatever that title might be. The parties’ agreed statement of facts indicated, and the trial judge found, that JLL ceased operations after it transferred the property in 1974. It would not have made commercial sense for JLL to retain any land included in the Crown patent that was below the NCHWL – what the parties refer to as “drowned land”. 

[46]       This was the conclusion reached in Lackner v. Hall, 2012 ONSC 3951, 23 R.P.R. (5th) 243, rev’d on costs 2013 ONCA 631, 36 R.P.R. (5th) 165; Michnick v. Bass Road Beach Assn., 2015 ONSC 1936, 55 R.P.R. (5th) 63; and Municipality Northern Bruce Peninsula v. Rauchfleisz, 2019 ONSC 5460, 8 R.P.R. (6th) 82. In those cases, the court found that the owners intended to transfer all the property they owned.

[47]       This intention is even captured in the agreed statement of facts. Both parties agreed that “Beninger attempted to retrace the Cameron Survey”. In other words, Plan 33 was intended to include all the land originally patented to Francis L. Robbins.[3]

[48]       As in Lackner, Michnick, and Municipality Northern Bruce Peninsula, the use of the term “High Water Mark” in Plan 33 must be considered in historical context. As the trial judge noted, the use of the term “high water mark” by surveyors in Ontario to define a natural boundary has a long and confusing history, finally resolved by Walker.

[49]       The trial judge’s statement that there was no admissible evidence permitting the court to determine whether JLL conveyed all or retained some of their land is incorrect. There was evidence based on which the trial judge could have made this determination, on a balance of probabilities, namely, the evidence described above.

3. What is the boundary of Lots 41 and 42, and thus, the terminus of the lot line between them?

[50]       There is no dispute that in the Crown patent the Crown did not except or reserve a space between the lands granted and the water’s edge. Thus, given the intention of JLL to convey all the land that it owned, to determine the terminus of the lot line between Lots 41 and 42, the trial judge was required to begin by determining the boundary of what JLL owned: the water’s edge of Jack Lake at the time of the Crown patent.[4] While this was undoubtedly a difficult task, and perhaps impossible to determine with certainty, the trial judge was required to make a finding on a balance of probabilities based on the evidence before him.

[51]       Although the trial judge made several findings of fact based on the release signed in 1932 and the other evidence, he did not determine what the water’s edge of Jack Lake was at the time of the Crown grant. The findings he did make include:

·        from some unknown date before the Cameron Survey in 1901 until the construction of the Dominion Dam in 1910, the lumberman’s dam held the water of Jack Lake at a certain level during the Spring and then drained it to its natural level;

·        the release signed in 1932 addressed additional flooding caused by the Dominion Dam, above that of the lumberman’s dam;

·        the release does not state the elevation of the crest of either dam;

·        the Dominion Dam can hold Jack Lake to a level of 108.5 feet (a.d.);

·        the crest of the lumberman’s dam was lower than 108.5 feet (a.d.) or there would have been no additional flooding from the Dominion Dam;

·        the crest of the Dominion Dam is 2 feet 10 inches higher than the lumberman’s dam. Since the Dominion Dam is capable of holding Jack Lake to a level of 108.5 feet (a.d.), the crest of the lumberman’s dam was at least 105.66 feet (a.d.), which is 108.5 less 2 feet 10 inches or 2.83 feet;

·        the crest of the lumberman’s dam was greater than or equal to 105.66 and less than 108.5 feet (a.d.); and

·        the water’s edge in the Cameron Survey could be at any level between 100.00 and 108.5 feet (a.d.).

[52]       The trial judge also concluded that it was possible that the lumberman’s dam could have held Jack Lake in the springtime to the same level as the NCHWL of the new Dominion Dam, 106.33 feet (a.d.). (The trial judge presumably refers to the springtime level because, while the Cameron Survey was certified to be correct as of September 23, 1901, the Crown patent was granted on April 2, 1902.)

[53]       Further, he found that although Mr. Beninger erroneously illustrated the High Water Mark on the Beninger Survey and was unable to retrace the Cameron Survey, it was possible that Mr. Beninger used the same water boundary as Mr. Cameron.

[54]       However, as we have said, the trial judge made no finding about the water’s edge of Jack Lake at the time of the Crown patent. The finding that it was possible that the lumberman’s dam could have held Jack Lake in the springtime to the same level as the NCHWL of the new Dominion Dam, 106.33 feet (a.d.) is not a finding that the water level of Jack Lake at the time of the Crown patent was probably the NCHWL.

[55]       In our view, this issue should be returned to the trial court for determination. 

[56]       We will address a further issue which we conclude should also be returned to the trial court for determination.  

[57]       In their factum, the appellant addresses a further issue: did accretion or erosion after the Crown patent alter the legal boundary? This issue was not adverted to in the trial judge’s reasons and it is unclear whether it was a live issue at trial or whether the trial judge did not address it because of the manner in which he resolved the first issue.

[58]       The appellant submits that, at common law, accretion and erosion “so slow and gradual as to be in a practical sense imperceptible in its course and progress as it occurs” alter a water boundary: Attorney General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd, [1915] AC 599, at p. 613; Van Diepen v. Thomson, 2011 ONSC 2020, 4 R.P.R. (5th) 204, at paras. 151-153.

[59]       In contrast, a sudden and artificial change in water elevation leaves the boundary as it was: Attorney General of British Columbia v. Neilson, [1956] S.C.R. 819 at p. 826; McLeay et al. v. City of Kelowna et al., 2004 BCSC 325, 19 R.P.R. (4th) 206, at paras. 20-21.  

[60]       We understand the appellant to argue either that the boundary of the Crown patent was fixed at the outset because the lumberman’s dam had suddenly and artificially altered the water level, or that the construction of the Dominion Dam suddenly and artificially raised the water level and fixed the boundary. In either case, accretion or erosion did not alter the boundary.

[61]       The respondents do not appear to take issue with the legal principles cited by the appellant, though they dispute that there was sufficient evidence to demonstrate that the building of the Dominion Dam resulted in a sudden increase in water level sufficient to fix the legal boundary, and they note that erosion can result from artificial causes. They argue that there is evidence of significant erosion along the disputed segment between 1958 and 1987 and that this was sufficient to move the legal boundary. Again, it is unclear whether the respondents advanced this position at trial.

[62]       The trial judge’s findings of fact include that the Dominion Dam caused additional flooding above that of the lumberman’s dam. However, he did not determine whether the flooding caused by the lumberman’s dam or the Dominion Dam was such as to fix the legal boundary at the water’s edge of Jack Lake at the time of the Crown patent.

[63]       Similarly, the trial judge’s reasons do not advert to the issue of the impact of erosion or accretion on the terminus of the lot line between Lots 41 and 42, and he made no findings on this issue.

[64]       Thus, we conclude that the effect of erosion or accretion on the water boundary since the time of the Crown patent, if any, should also be returned to the trial court. The determination of the water’s edge of Jack Lake, at the time of Crown patent, and the effects of erosion or accretion on that boundary, if any, will determine the terminus of the lot line between Lots 41 and 42.

4. What is the consequence of the trial judge’s alternative finding that the respondents have a riparian right of access along the lot line, beyond the intersection point with the NCHWL?

[65]       Returning this matter to the trial court cannot be avoided by relying on the trial judge’s alternative finding that the respondents have a riparian right of access along the lot line.

[66]       At para. 75 of his reasons, the trial judge said this:

Finally, had I been persuaded that the disputed line terminates somewhere beyond its intersection with Jack Lake at the NCHWL, I would have nevertheless found that the applicants have a riparian right of access along the line beyond the intersection point with the NCHWL.

[67]       It is unclear whether the respondents asserted below that they had a riparian right of access that permitted them to build and maintain a dock on the disputed lands. It is undisputed that the respondents already have access to Jack Lake. Indeed, counsel for the respondents advised that the respondents have a lakeside dock at another point on their waterfront and that the dispute between the parties was triggered when they wished to construct a second dock on the disputed lands. The trial judge gave no reasons for his conclusion, nor did he explain what the riparian right of access he provided for was to consist of.

[68]       The trial judge’s conclusion that the respondents have a riparian right of access along the line beyond the intersection point with the NCHWL cannot stand.

VI DISPOSITION

[69]       The appeal is allowed. The trial judge’s order, dated April 11, 2019, is set aside. The issue outlined at paragraph 64 above, which will determine the terminus of the line between Lots 41 and 42, as well as any issue of riparian rights that may arise are returned to the trial court.

[70]       The appellant is entitled to his costs of the appeal. If the parties are unable to agree on the costs of the appeal, they may make written costs submissions within 21 days following the release of these reasons, not to exceed three pages.

[71]       The trial judge’s order as to costs, dated August 30, 2019, is also set aside. The issue of costs before the trial judge is reserved to the trial court, to be determined after determination of the terminus of the line between Lots 41 and 42 and any issue of riparian rights that may arise.

Released: “PR” “AUG 5 2020”

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”

“I agree C.W. Hourigan J.A.”