Attorney General of Ontario v. Walker, [1975] 1 SCR 78

Supreme Court of Canada

Attorney General of Ontario v. Walker, [1975] 2 S.C.R. 78

Date: 1974-01-22

The Attorney General for the Province of Ontario (Plaintiff) Appellant;

and

William H. Walker II, Ruth V. Stockton, Robert S. Stockton, Charlotte Worral Corey and Mary Elizabeth Letchworth (Defendants) Respondents.

1973: October 24, 25, 26, 29, 30, 31; 1974: January 22.

Present: Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Real property—Crown patent—Boundaries—Beaches—The Quieting Titles Act, R.S.O. 1960, c. 340—The Limitations Act, R.S.O. 1960, c. 214, ss. 3(1), 16.

The respondents were the absolute owners in fee simple possession of certain lands on the shores of Lake Erie and applied to have their titles quieted. The respondents claimed ownership of the beach down to the waters edge and this claim was contested by appellant on the basis that such beaches were Crown lands. The trial judge held that the respondents had title to the beaches and appellants appeal to the Court of Appeal for Ontario was dismissed.

Held: The appeal should be dismissed with costs.

The trial judge in his reasons examined minutely the wording of the Crown Patents to the respondents’ predecessors in title and held that the respondents had established a good paper title to the beaches, because the grants had included the land to the edge of Lake Erie. The trial judge was also of the opinion that s. 16 of The Limitations Act would have prevented a possessory title being obtained against the Crown. In the Court of Appeal the view was expressed that the respondents would have established a possessory title. In agreeing with the finding of the trial judge affirmed in the Court of Appeal that respondents had established a complete paper title it was not necessary in dismissing the appeal to reach a determinative conclusion on the question of possessory title.

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[R. v. McCormick (1859), 18 U.C.Q.B. 131; Attorney General for New South Wales v. Love [1898] A.C. 679; Walker v. Russell [1966] 1 O.R. 197, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming a judgment of Stark J. Appeal dismissed with costs.

John D. Hilton, Q.C., T.W. Lane and W.E.D. Peters, for the appellant.

W.L.N. Somerville, Q.C., and W. Ross Murray, for the respondents.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on February 3, 1972 whereby that Court affirmed the judgment of Stark J. pronounced on August 20, 1970. In the latter judgment, Stark J. had declared that the respondents were the absolute owners in fee simple in possession without any adverse right of way, right of use, or other easement and without any adverse title or lien in any owner or person interested in adjoining lands, of certain lands which were described in a schedule to the judgment. The said schedule set out by metes and bounds certain parts of Lots 16 and 17 in the Broken Front Concession, in the Township of Bertie, in the County of Welland and Province of Ontario, together with part of the original road allowance between the said lots.

The five respondents had applied under the provisions of The Quieting Titles Act, R.S.O. 1960, c. 340, to have their titles to the lands which they claimed to be theirs quieted. The applicants’ change of title had already been examined by the referee of titles at Toronto and the only remaining outstanding question as to the title had been referred to Stark J. for his decision. That remaining question was whether the ownership of the applicants’ lands included the ownership of the beach down to the water’s edge. The applicants’, here respondents’, claim

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to ownership of such beaches had been contested by notice filed on behalf of Her Majesty the Queen in right of the Province of Ontario claiming that such beaches were and always had been Crown lands.

Stark J., after a very lengthy trial, held, in what was, with respect, properly termed by Aylesworth J.A., as “learned and exhaustive reasons for judgment”, that the applicants, here respondents, had established a good paper title to the said beaches. In his reasons, Stark J. examined minutely the wording of the Crown Patents to the predecessors in title of the applicants, here respondents, the original survey made by Augustus Jones, and such evidence as could be produced as to the many other sketches and surveys which had preceded or followed that of the said Augustus Jones. Stark J. also considered the authorities bearing upon the subject and had come to the firm conclusion that what had been given in the Patent granted by the Crown to the applicants’, here respondents’, predecessors in title had been not only the lands above the so-called high-water mark but, as part of the said lots 16 and 17, the lands to the edge of Lake Erie.

Stark J.’s view was affirmed by the Court of Appeal for Ontario in reasons given by Aylesworth J.A. at the close of the argument and although counsel for the Attorney General for Ontario addressed to this Court a very able and detailed argument upon all phases of the appeal, I have come to the conclusion that there is no sound reason for reversing the judgment arrived at by Stark J. in his most carefully considered judgment affirmed, as it was, in the Court of Appeal, and I would for this reason dismiss the appeal.

The respondents advanced before Stark J. another basis for their claim of ownership of the said beaches, that is, a possessory title under

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the provisions of The Limitations Act, then R.S.O. 1960, c. 214, and particularly ss. 3(1) and 16 thereof, which read as follows:

3. (1) No entry, distress, or action shall be made or brought on behalf of Her Majesty against any person for the recovery of or respecting any land or rent, or of land or for or concerning any revenues, rents, issues or profits, but within sixty years next after the right to make such entry or distress or to bring such action has first accrued to Her Majesty.

...

16. Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922.

Stark J. relied on Regina v. McCormick[2], to hold that these beaches were “waste or vacant land” and if they had not been covered by the paper title of the applicants, here respondents, was of the opinion that the said s. 16 prevented a possessory title thereto being obtained against the Crown.

In the Court of Appeal, Aylesworth J.A. expressed the view that the closing words of s. 16,

but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922

had escaped the notice of counsel and therefore had not been brought to the attention of Stark J.

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and that by the application of the said limiting words at the end of s. 16 the provisions of s. 3(1) would apply and that the applicants, here respondents, would have established a possessory title.

I am of the opinion that the question of possessory title is much more complicated. It must be remembered that until the Nullum Tempus Act of 1769 the common law rule was that the Statute of Limitations did not bind the Crown. The Nullum Tempus Act altered this rule, established a prescription period of sixty years but did not apply in cases where the Crown, although not in possession, received rents, charges or some returns applicable to the lands.

In Regina v. McCormick, supra, the Court of Queen’s Bench of Upper Canada held, upon an injunction application by the Attorney General of Upper Canada, that the Nullum Tempus Act was the law in the Province of Ontario but that it did not apply to certain waste lands which were part of Pointe-au-Pele Island lying in Lake Erie. Those lands had never been surveyed, no grant from the Crown had ever been issued, the lands had never been assessed, no taxes had ever been received, in fact, Robinson C.J. said at p. 136:

For anything that appears, this island may have been regarded and treated by the Crown as Indian land, in which the right of the natives had not been extinguished, though it is by law a part of the township of Mersea, as the case states; and in that case, or even if it formed part of the waste lands of the Crown, to which no tribe of Indians could pretend any claim, but which had never been organised by the Crown, and surveyed and laid out with a view to its being occupied, I do not think the Nullum Tempus Act of 9 Geo. III. could be properly held to apply to it.

The same issue was considered by the Judicial Committee of the Privy Council in Attorney

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General for New South Wales v. Love[3], which considered waste lands never surveyed and never granted by the Crown but held in continuous possession by the predecessors in title of the respondent Love for well over sixty years. The Judicial Committee came to the conclusion that the provisions of the Nullum Tempus Act did apply and that the respondents had established a good possessory title.

In 1902, by 2 Edw. VII, c. 1, ss. 17 to 19, there was added to the statutory law of the Province of Ontario a provision whereby a possessory title could be obtained against the Crown upon sixty years’ possession. Section 19 simply provided:

Sections 17 and 18 of this Act shall not apply to any waste lands of the Crown.

If the beaches in front of Lots 16 and 17, with which this appeal is concerned, could be likened to the lands which were considered by the Court of Queen’s Bench in Regina v. McCormick, supra, then under the result obtained in that decision neither the Nullum Tempus Act nor the 1902 Statute of Ontario would apply to permit the possessory title to be obtained against the Crown. On the other hand, if one were to apply the judgment in Attorney General for New South Wales v. Love, supra, then under the 1902 statute possessory title against the crown would have been possible.

There is serious doubt as to whether these beaches could fall into the same category as the waste lands considered by the courts in either one of these two decisions. Here, the Broken Front Concession Lots 16 and 17 had been continuously occupied for many decades by the applicants’ predecessors in title and had been farmed. They were, of course, well known to the province and had been surveyed by the province. The beaches at the southerly end of those Broken Front lots had been occupied by

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the applicants’ predecessors in title in such fashion as such beaches ordinarily are occupied: see Walker v. Russell[4], and, according to the evidence, had been assessed against the applicants and their predecessors in title.

Stark J., in his reasons for judgment, said:

It appears to me that the applicants have proven continuous and effective and undisturbed possession of the lands, save either for occasional trespassers or for occasional permissions granted for limited purposes. However, insofar as the crown is concerned, it is my view that the applicants are not entitled to succeed in their claim to ownership of the beaches on a prescriptive title…

I would be ready to hold that these beaches were not the unknown, unsurveyed lands dealt with in either of the two cases which I have cited but rather were lands which were well known to the Crown, which were occupied in a title adverse to the Crown and which therefore were not waste lands as referred to in those cases.

There were, however, other statutory amendments. In 1910, by 10 Edw. VII, c. 34, s. 17, the provision as to the application of periods of limitation against the Crown was altered to read:

17. Nothing in the foregoing sections shall apply to any waste or vacant lands of the Crown whether surveyed or not.

The important addition of the words “or vacant” should be noted.

In 1922, by 12-13 Geo. V, c. 47, s. 17 of The Limitations Act was further amended and as so amended read:

17. Nothing in the foregoing sections shall apply to any waste or vacant land of the Crown whether surveyed or not, nor to lands included in any allowance for road heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the

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Crown or in a municipal corporation, commission or other public body, but nothing in this section contained shall be deemed to affect or prejudice any right, title or interest heretofore acquired by any person by virtue of this Act.

That is essentially the form of s. 16 of The Limitations Act as it appeared in R.S.O. 1960, c. 214, and was the section which Stark J. considered in his reasons.

If these beaches, although not waste lands, were vacant lands, then a sixty-year prescriptive period would have had to end prior to the effective date of c. 34 of the 1910 Statute, i.e., on March 19, 1910. That is, the applicants and their predecessors in title would have had to have had been in adverse possession from March 19, 1850. I cannot find that Stark J. investigated the question of whether the applicants and their predecessors in title had such open adverse possession during that whole period and therefore am not ready to agree to the view expressed by Aylesworth J.A. in the Court of Appeal that the applicants, here respondents, had established possessory title. I do not, however, find any such step necessary.

As I have already pointed out, I am in full agreement with the finding of Stark J., affirmed in the Court of Appeal, that the applicants have established a complete paper title to the said beaches and I would, for this reason, dismiss the appeal.

The respondents requested that costs in this court should be allowed on a solicitor and client basis. Stark J., for reasons with which the Court of Appeal agreed, allowed costs up to and including the trial before him upon that solicitor and client basis. The Court of Appeal, however, was of the opinion that thereafter the costs, that is, those in the Court of Appeal, should only be allowed upon a party and party basis. With respect, I am in agreement with that view and feel that it should apply to the appeal to this court. I would, therefore, simply dismiss the

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appeal and award to the respondents costs on the usual party and party basis.

Appeal dismissed with costs.

Solicitor for the appellant: John D. Hilton, Toronto.

Solicitors for the respondents: Borden, Elliot, Kelly & Palmer, Toronto.