In Ontario, there is a little known piece of legislation (at least to those who do not specialize in that field) called the Boundaries Act. Its function is to address disputed property boundaries as surveyed. It does not address issues such as adverse possession.
Ownership of property can be the source of extreme emotion. Waterfront/recreational properties, as you can imagine, can become hotly contested, especially in those areas where the location of the water’s edge may have changed over time by changes in water levels or build up of soils.
In representing a municipality recently, I had the pleasure (or pain) of being involved in such a war. The municipality has an unopened road allowance that goes to the water’s edge of a certain bay. Historically, local residents have used this road allowance.
It was the position of the waterfront landowners on one side that the water levels had receded since the original survey ( back in the 1830’s!) and therefore the road allowance at that point had to be adjusted to accommodate the current reality. Fair enough. The debate was in relation to the extent of the adjustment. Of course the landowner on the other side of the road allowance got into the debate.
A proceeding under the Boundaries Act was commenced by the first set of landowners. We proceeded and obtained evidence that undermined their expert’s opinion as to where the original water’s edge was. So at the eleventh hour, they withdrew their proceedings.
They then sued the municipality claiming all sorts of nasty things. It was our position that the property issues needed to be determined by the specialized tribunal under the Boundaries Act. So we all agreed to go back, and the landowners would start a new proceeding.
They did so, but presented an entirely different theory that called into question the location of the entire portion of the road allowance, not just at the water’s edge.
The implications were far broader, impacting properties all along down the line.
As luck would have it, I came across a provision in another piece of legislation called the Surveys Act. This provision allows a municipality to make application to the Minister of Natural Resources to, in effect, re-survey the area in dispute, hold a public hearing and then make a binding determination.
As it turns out, this provision has not been used since the 1960’s. Even the Ministry was confused when we submitted the application.
Ultimately the Boundaries Act tribunal has held its proceeding in abeyance pending the results of this long forgotten process under the Surveys Act . The Boundaries Act process was trumped!.
The moral?
Sometimes if you do not like how the chess pieces are lined up, you have to change the entire board (apologies for mixing the metaphors).