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Real Property - Surveys. Duarte v. Ontario (MNDNRF)
In Duarte v. Ontario (MNDNRF) (Div Ct, 2022) the Divisional Court engages in extended Surveys Act appeals that are interesting to anyone involved in this area of law. There are no compelling points of law involved.
. Cook v. Corporation of the Township of Strong
In Cook v. Corporation of the Township of Strong (Div Ct, 2020) the Divisional Court approved the Surveyor-General's summary of the legal principles applicable to a survey:[11] The Appellants argue that the Surveyor General erred in law by failing to follow the legal principles that govern a survey. In particular, they emphasize that a surveyor is to respect a hierarchy of evidence. Here, the Surveyor General should have considered the original monument as evidence of boundaries, and she erred by instead relying on conflicting evidence from subsequent surveys.
[12] I see no error of law on the part of the Surveyor General. She carefully set out the common law principles to be applied at p. 10 of her Reasons, stating,The courts have provided surveyors with clear direction on what constitutes the hierarchy of best evidence and the rigour they must use when retracing boundaries. Though the exact wording varies in the caselaw, in general terms, surveyors are to give the most weight to those things that are least likely to be mistaken, being natural features, original monuments in their original location, evidence of lines run and marked on the ground, and finally measurements made by the original surveyor in his original notes. Her statement of the legal principles is consistent with what the Divisional Court said in Richmond Hill Furriers Ltd. v. Clarissa Developments Inc. (1996), 1996 CanLII 11805 (ON SC), 31 O.R. (3d) 529 at pp. 273-74.
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