COURT OF APPEAL FOR ONTARIO

CITATION: Vu v. Canada (Attorney General),
    2021 ONCA 574

DATE: 20210823

DOCKET: C68398

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Huan Vu

Plaintiff (Respondent)

and

Attorney General of Canada

Defendant (Appellant)

Kristina Dragaitis and Aleksandra
    Lipska, for the appellant

Subodh S. Bharati and W. Cory Wanless, for the
    respondent

Heard: March 4, 2021 by video conference

On appeal from the order of Justice Paul
    B. Schabas of the Superior Court of Justice, dated April 21, 2020, with reasons
    reported at 2020 ONSC 2447.

Fairburn A.C.J.O.:

A.

Overview

[1]

The respondent started a claim for false arrest,
    false imprisonment, and breaches of his rights under the
Canadian Charter
    of Rights and Freedoms
. The appellant brought a motion for summary
    judgment pursuant to r. 20 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, on the basis that the respondents action is statute-barred
    pursuant to ss. 4 and 5 of the
Limitations Act, 2002
, S.O. 2002, c. 24. That
    motion was dismissed.

[2]

This appeal is predicated on multiple alleged
    errors in the motion judges reasons, all of which are said to have led to the
    erroneous conclusion that the respondents action is not statute-barred. For
    the reasons that follow, I would dismiss this appeal.

Brief Factual Overview

[3]

In 1999, the respondent, a Vietnamese citizen,
    came to Canada as a student. In 2001, his legal status in Canada expired, but he
    did not leave the country. In 2007, Citizen and Immigration Canada ordered his
    removal from Canada, but he remained in the country. Also in 2007, he was
    charged with and convicted of one count of possession of marijuana, for which
    he received a 3-month conditional sentence.

[4]

In 2009, the respondent was placed into
    immigration detention. He was later released on terms, including that he reside
    at the home of his friend and bondsperson, Mr. John Le, and adhere to a nightly
    curfew from 2:00 a.m. to 6:00 a.m. Mr. Le also signed a $10,000 performance
    bond and a $15,000 cash bond to guarantee the respondents compliance with his
    release terms.

[5]

In 2010, the respondent married his current
    wife. In 2012, he and his wife had a child. The respondent quickly became the
    childs primary caregiver as his wife was the sole income earner. The
    respondent maintained that he would spend his days caring for the child in the
    home where his wife and child lived, but that he would always return to the
    residence of his bondsperson at night in order to comply with the terms of his
    release.

[6]

The crux of the allegation leading to the
    respondents arrest, lengthy detention, and eventual deportation from Canada
    occurred on June 25, 2013 at about 10:00 a.m. On that day, Canada Border
    Services Agency (CBSA) officers, including Officer Erin McNamara, conducted a
    compliance check at the bondspersons residence. The respondent was not there.
    According to Officer McNamaras statutory declaration, used at the immigration
    proceeding resulting in the respondents detention and ultimate deportation
    from Canada, she spoke to an English speaking resident Ms. Than Luong.

[7]

Officer McNamara said that she showed Ms. Luong a
    picture of the respondent and asked if he was home. According to Officer
    McNamara, Ms. Luong responded that the respondent used to reside in the
    basement with her daughter, but that he had moved out last summer and did
    not live there anymore.

[8]

On June 27, 2013, the respondent was arrested
    for breach of the terms of his release and placed into detention. The
    respondent attended two detention reviews before the Immigration Division
    tribunal on July 2, 2013 and July 9, 2013. At the second review, the respondent
    filed the sworn affidavit evidence of Ms. Dau Thi Le, the mother of the
    bondsperson, Mr. Le.

[9]

In Ms. Les affidavit, she said that she was the
    woman who spoke to the CBSA officers on June 25, 2013, not Ms. Luong. Ms. Le said
    that she was present in the home that day because, despite her health problems,
    her daughter asked her to babysit her grandchildren. Ms. Le said that she does
    not speak or understand English well, but [is] fluent in Vietnamese. Even so,
    she said that she communicated with the officers in English. She described her interaction
    with the CBSA officers as follows:

Around 12 noon on that day, two people, a man
    and a woman, came to my daughters home, and when I opened the door, I saw them
    in bullet proof vests and they looked like police officers to me. I asked them
    in English what happened and they showed me a photograph and asked me in
    English if Hoan Vu lived at my daughters house, and I answered that I did not
    know.

When my daughter returned home at 3pm on that
    day, I told her that those two people came to her home to inquire if Hoan Vu
    lived there. My daughter then told me that Hoan Vu did live in her house,  but
    only at night.

[10]

Ultimately, the Immigration Division tribunal
    accepted Officer McNamaras evidence about what Ms. Luong said in English at
    the residence and ordered the respondent detained. The detention stretched over
    467 days in what he described as a maximum-security facility.

[11]

On October 7, 2014, well over a year after he
    was placed into detention, the respondent was escorted by CBSA officers to
    Vietnam, where he was released the next day.

[12]

Because the respondent breached his terms, Mr.
    Les bonds were forfeited. Mr. Le contested the forfeiture of the bonds in
    Federal Court. In the context of that litigation, CBSA Officer Derek Sliwka
    authored a document entitled Notes to File (Notes), dated March 2, 2015. Of
    course, this was after the respondent had already been removed from the
    country.

[13]

The Notes were disclosed and ultimately made
    their way to the respondent. In the Notes, Officer Sliwka wrote that, in
    preparation for writing the Notes, he reviewed the electronic systems and the
    case file along with the submission from counsel.

[14]

Officer Sliwka summarized Mr. Les counsels
    position that Officer McNamara actually encountered Ms. Le at the door of the
    bondspersons home on June 25, 2013, and that she does not speak English. Officer
    Sliwka explained that Officer McNamara maintains that she spoke to Ms. Luong
    during her investigation and that an interpreter was contacted by phone to
    translate the specific questions asked by Officer McNamara.

[15]

As a result of those Notes, the CBSA decided to
    reverse its position on the bond, settling the litigation with Mr. Le on June
    13, 2016, ultimately agreeing to return his previously forfeited funds. In an internal
    email disclosed as part of the appellants motion record, it is clear that a
    decision had been reached to not forfeit the bonds because it could not be
    defended due to the inconsistencies between the [statutory declaration of
    Officer McNamara] and the notes to file.

[16]

In affidavit evidence, the respondent explained
    the many things he was dealing with during his lengthy period in custody,
    including attempting to navigate the complexities involved with being removed
    from the country while having a child who would remain in Canada. Ultimately,
    though, the respondent explains that it was not until the Notes were released
    in the context of the bonds litigation that he came to realize that he had a
    claim. As he puts it:

Previously, I had trusted the Canadian
    government and had trusted the CBSA. I had put my faith in the adjudicators at
    my detention review hearings. I believed that they were doing their job and had
    not questioned them. I had thought that at worst the CBSA had made a mistake
    and misunderstood what I had done or what was going on. I thought maybe the
    Officer didnt realize that Johns mom didnt speak English. I had never
    believed that the CBSA would have withheld disclosure from the Immigration
    Division indicating that it knew the Statutory Declaration of Officer McNamara
    contained errors.

[17]

Accordingly, the respondent commenced his action
    on October 7, 2016. The motion judge summarized the respondents claim for
    false arrest, detention, and
Charter
breaches as follows: [t]he claim
    arises from the actions of the CBSA in arresting and supporting the [respondents]
    detention in June and July 2013, and specifically presenting false evidence at
    the review hearing on July 9, 2013, regarding the information allegedly
    obtained from the woman McNamara spoke to at the bondspersons home.

B.

The Reasons for Dismissing the Motion

[18]

In addition to his claims for false arrest,
    false imprisonment, and breaches of
Charter
rights, the respondent
    made other claims, including malicious prosecution and breach of a settlement.
    Those latter claims were struck by Schreck J. on June 1, 2018 because they
    disclosed no reasonable cause of action.

[19]

The appellant then moved for summary judgment,
    asking that the balance of the claim be struck on the basis that it was statute-barred
    by virtue of s. 5(2) of the
Limitations Act
, because the causes of
    action of false arrest, false imprisonment, and breaches of
Charter
rights are said to have been discoverable more than two years prior to the
    commencement of the action.

[20]

Before reviewing the motion judges reasons for
    dismissing the motion, it is perhaps helpful to provide a chart that summarizes
    the key dates informing the limitation period:

Date

Event

June 25, 2013

Officer McNamara visits bondspersons
          home and communicates with what she describes as the English speaking
          resident

June 27, 2013

Respondent is arrested and detained

July 9, 2013

Immigration Division accepts Officer McNamaras
          evidence over the respondents evidence, as captured in the sworn affidavit
          of Dau Thi Le, and orders the respondent detained

October 7, 2014

Respondent is escorted by CBSA officers to
          Vietnam

October 8, 2014

Respondent is released in Vietnam

June 10, 2015

Notes disclosed in the context of the bonds
          litigation state that an interpreter was used to communicate with the person
          with whom the CBSA officers spoke on June 25, 2013

June 13, 2016

Decision communicated to the bondsperson that
          the $15,000 cash bond and $10,000 performance bond are no longer required
          and would be returned to him

October 7, 2016

Action commenced by the respondent

[21]

The motion judge provided lengthy and considered
    reasons, commencing with a discussion of the legal principles that apply to
    both summary judgment and
Limitations Act
matters.

[22]

The appellant argued that the torts of false
    arrest and false imprisonment arise upon arrest. As the alleged breaches of the
    respondents
Charter
rights are tied to the allegations involving
    false arrest and false imprisonment, they are also said to arise on the date of
    arrest. Therefore, according to the appellant, the torts advanced by the
    respondent were discoverable on June 27, 2013  the date the respondent was
    arrested.

[23]

The motion judge perceived some conflict in the
    law relating to when a limitation period commences for purposes of unlawful
    arrest and detention. Ultimately, though, he determined that he did not need to
    decide that issue because, in his view, even if the limitation periods for the intentional
    torts of false arrest and false imprisonment usually start on the date of
    arrest and detention, this is nothing more than a presumption. Like all limitation
    date matters, that presumption must be considered against the four-part test
    set out in s. 5(1)(a) of the
Limitations Act
.

[24]

When considered against the four-part test in s.
    5(1)(a), the motion judge was satisfied that the presumption had been displaced
    because the respondent did not have sufficient facts on which to base his claim
    of arrest and detention until the Notes were disclosed on June 10, 2015. In addition,
    the motion judge found that, pursuant to s. 5(1)(a)(iv) of the
Limitations
    Act
, even if the respondent had sufficient facts by July 9, 2013 on which
    to allege wrongdoing, it would not have been appropriate to bring a claim until
    after the disclosure of the Notes.

[25]

The motion judge also rejected as speculative
    and unpersuasive the appellants suggestion that, even if the claim was not
    discoverable at the time of arrest, this resulted from the respondents failure
    to exercise due diligence in discovering his claim within two years of his
    arrest.

[26]

Finally, the motion judge determined that,
    pursuant to s. 5(1)(b) of the
Limitations Act
, the respondent acted
    reasonably in the circumstances in which he found himself and could not
    reasonably have been expected to have discovered his claim earlier than June
    2015.

[27]

In the end, the motion judge concluded that June
    10, 2015 was the pertinent discoverability date. Since the claim was started on
    October 7, 2016, the motion judge concluded that the claim was made well within
    the two-year limitation period.

C.

ISSUES

(i)
Overview

[28]

The appellant argues that the motion judge made
    multiple errors in his decision to dismiss the motion for summary judgment.

[29]

First, leaning on this courts decision in
Kolosov
    v. Lowes Companies Inc.
, 2016 ONCA 973, the appellant argues that the limitation
    periods for the torts of false arrest and false imprisonment automatically
    commence upon arrest. As the alleged breaches of the respondents
Charter
rights are tied to the allegations involving false arrest and false imprisonment,
    the limitation periods for those breaches are also said to commence upon the
    date of arrest. Therefore, according to the appellant, the motion judge erred
    by failing to appreciate that the torts advanced by the respondent were, for
    all intents and purposes, automatically discoverable on June 27, 2013, the date
    the respondent was arrested, or, at the very latest, July 9, 2013, when the
    respondent learned of Officer McNamaras evidence.

[30]

Second, the appellant argues that the motion
    judge erred in law by failing to articulate and apply the correct test for
    discoverability.

[31]

Third, even if the motion judge articulated the
    right test for discoverability, the appellant argues that he erred by making
    palpable and overriding errors of fact in arriving at the conclusion that the respondent
    had no claim to bring until the Notes were disclosed in June 2015.

[32]

Fourth, the appellant contends that the motion
    judge erred by failing to appreciate that the respondent did not act with due
    diligence.

[33]

Finally, the motion judge is said to have erred
    in concluding that it was appropriate within the meaning of s. 5(1)(a)(iv) and
    the circumstances of this case to delay bringing this action until after the
    Notes were disclosed.

[34]

The respondent advances an alternative argument
    in the event that the appellants position finds favour in this court. In
    particular, the respondent argues that because he was transported by the CBSA
    to Vietnam, rendering him detained for a period of time outside of Ontario, s.
    32 of the
Crown Liability and Proceedings Act
, R.S.C. 1985, c. C-50
    governs the limitation period in this case. If he is right on this, then a
    six-year (as opposed to two-year) limitation period would apply and the
    respondents claim would easily fall within that zone. As will become clear,
    there is no need to address this alternative argument

(ii)
The
    Application of
Kolosov

[35]

The appellant argues that the motion judge erred
    in failing to find that this courts decision in
Kolosov
stands for
    the clear proposition that the limitation period for wrongful arrest and
    detention commences on the date of arrest.

[36]

The appellant argued before the motion judge
    that the
Limitations Act
barred the respondents action because the
    causes of action of false arrest, false imprisonment, and breaches of
Charter
rights (as linked to the other causes of action) all crystallized and were
    discoverable on the date of the respondents arrest on June 27, 2013 and, at
    the latest, at the time of the detention hearing on July 9, 2013. In support of
    this proposition, the appellant relies upon this courts decision in
Kolosov
,
    at para. 11:

The law in relation to the commencement of the
    limitation period for the intentional torts of false arrest and false
    imprisonment, and associated
Charter
breaches, is well settled. As
    Chiappetta J. noted in
Fournier-McGarry (Litigation guardian of) v. Ontario
, 2013 ONSC 2581
, at para. 16:

A claim for the
    common law torts of false arrest, false imprisonment and breach of
Charter
rights arising there-from
    crystallizes on the date of arrest (see,
Nicely v. Waterloo Regional Police
    Force
, [1991] O.J. No. 460
(Ont. Div. Ct.),
    para. 14; [
Ferri
]

v. Root
, [2007] O.J. No. 397
(Ont. C.A.), para.
    102).

[37]

The respondent, citing different and earlier
    appellate authority that he argued was not overturned by
Kolosov
,

urged
    the motion judge to instead conclude that the limitation period commenced not
    on the date of arrest, but on the date of his release from detention in
    Vietnam:
Mackenzie v. Martin
,

[1952] O.R. 849 (C.A.), at paras.
    6-8, affd [1954] S.C.R. 361.

[38]

The motion judge reviewed the issue in some
    detail, clearly expressing misgivings about the broad interpretation of
Kolosov

being urged upon him by the appellant. Among other things, the motion judge
    looked behind the cases cited in
Kolosov

in an effort to explain
    why the appellants position about the reach of
Kolosov

was not
    as clear as suggested. The motion judge also expressed some concern that a
    false arrest and an unlawful imprisonment may not occur at the same time.

[39]

Despite expressing these misgivings, in the end,
    the motion judge concluded that he need not resolve the parties disparate
    views as to whether the limitation period commenced on the date of arrest or
    release given that, even taking
Kolosov

at its highest, it only
    created a rebuttable presumption under s. 5 of the
Limitations Act
and
    that the presumption had been rebutted in this case:

While I have concerns with the broad
    application of
Kolosov

urged on me by the defendant, I do not
    need to resolve the conflict in the cases in this matter.  [S]ince section
    5(1)(a) of the
Limitations Act
establishes a four-part test, I regard
Kolosov
as simply setting up a presumption (which was not rebutted in that case) that
    the cause of action arose on the date of arrest and detention or, at latest,
    the date of the second detention hearing [July 9, 2013], but it does not
    address all four parts of the test. This means I must still consider when the
    plaintiff had sufficient facts on which to base an allegation of wrongful
    arrest and detention .

[40]

Significantly,
Kolosov
has been cited
    by this court in subsequent decisions for the very proposition disputed by the
    respondent, that the limitation period presumptively runs from the date of
    arrest: see, for example,
Winmill v. Woodstock (Police Services Board)
,
    2017 ONCA 962, 138 O.R. (3d) 641, at para. 44,
per
Huscroft J.A. (dissenting),
    leave to appeal refused, [2018] S.C.C.A. No. 39;
McHale v. Lewis
,

2018
    ONCA 1048, 144 O.R. (3d) 279, at para. 42. Therefore, the appellants argument has
    some traction as to when limitation periods commence in cases of this nature.

[41]

At the same time, I understand the appellants
    concern to be the motion judges characterization of the appellants reading of
Kolosov
, and his expression of misgiving about it. At the end of the
    day, though, the motion judge did not find that
Kolosov
stands for any
    principle broader than the presumption that a cause of action arises on the
    date of arrest and detention or, at the latest, the date of the second
    detention hearing a few weeks later. Indeed, the motion judge was prepared to resolve
    the motion on that basis. In the end, he simply resolved that the date of
    arrest  the
Kolosov
date  was the presumptive date for the commencement
    of the limitation period, but that the respondent had effectively displaced
    that presumption.

[42]

Therefore, despite having expressed misgivings
    about the appellants submissions, I do not read the motion judges reasons as unfaithful
    to the plain language of
Kolosov
.

Rather, he accepted, however
    reluctantly, the appellants position that the limitation period presumptively begins
    to run at the date of arrest. This makes sense legally, given that the arrest is
    the act on which the claim is based, and is therefore the presumptive date of
    discovery of the claim:
Limitations Act
, s. 5(2). It makes sense
    practically as well, as the plaintiff will often know at the time of arrest and
    detention whether the facts alleged to justify that arrest and detention are
    false, as was the case in
Kolosov
: see 2016 ONSC 1661, at para. 119. Accordingly,
    despite his expressed concerns, the motion judges reasoning turned on whether
    the
Kolosov
presumptive date was rebutted pursuant to ss. 5(1) and (2)
    of the
Limitations Act
.

[43]

I see no error in that approach. Section 4 of
    the
Limitations Act
requires an action in respect of a claim to be
    commenced within two years of the claim being discovered. Sections 5(1) and (2)
    of the
Limitations Act
read as follows:

5(1) A claim is discovered on the
    earlier of,

(a) the day on which the person with
    the claim first knew,

(i) that the injury,
    loss or damage had occurred,

(ii) that the
    injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act
    or omission was that of the person against whom the claim is made, and

(iv) that, having regard
    to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with
    the abilities and in the circumstances of the person with the claim first ought
    to have known of the matters referred to in clause (a).

(2) A person with a claim shall be
    presumed to have known of the matters referred to in clause (1)(a) on the day
    the act or omission on which the claim is based took place,
unless the contrary is proved
. [Emphasis added.]

[44]

Despite the presumption that
Kolosov
creates
    in relation to the running of the limitation period, s. 5(2) permits the
    contrary to be proved in accordance with the matters referred to in s. 5(1)(a).
    While that presumption was not rebutted in
Kolosov
, it
was rebutted here.
Accordingly, regardless
    of the hesitation expressed by the motion judge as to the reach of
Kolosov
,
    nothing in this case turns on those observations.

(iii)
The Proper Articulation of the Test for Discoverability Based on
    Sufficient Facts

[45]

The appellant next argues that, despite referring
    to the correct legal authorities respecting how to determine the date of
    discoverability based upon sufficient facts, the motion judge erred in his
    articulation and application of that test.

[46]

The appellant notes that the discoverability
    principle is satisfied once the party has sufficient information to infer the
    material facts underlying the claim, a test that does not turn in any way upon the
    viability of the claim. The motion judge is said to have erred in failing to
    appreciate that the respondent knew all material facts by, at the latest, the
    Immigration Division hearing on July 9, 2013. By extending the discoverability
    date to June 10, 2015  the date the Notes were disclosed  the motion judge is
    said to have erred by focusing on when the claim was more likely to succeed,
    rather than when the respondent knew the claim existed.

[47]

Limitation periods are driven by when the
    material facts on which [a cause of action] is based have been discovered or
    ought to have been discovered by the plaintiff by the exercise of reasonable
    diligence:
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147, at p.
    224; see also
Grant Thornton LLP v. New Brunswick
, 2021 SCC
    31, at paras. 29, 42. As noted by this court in
Zeppa v. Woodbridge Heating
    & Air-Conditioning Ltd.
, 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41,
    leave to appeal refused, [2019] S.C.C.A. No. 91: discoverability means
    knowledge of the facts that may give rise to the claim. The knowledge required
    to start the limitation running is more than suspicion and less than perfect
    knowledge.

[48]

In my view, the motion judge identified the
    correct law relating to limitation periods. Notably, the motion judge cited to this
    courts judgment in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75,
    at para. 22, which in turn quoted from this courts earlier judgment in

Aguonie v.
    Galion Solid Waste Material Inc.
(1998), 38 O.R. (3d) 161
(C.A.), at p. 170:

The principle of discoverability provides that
    a cause of action arises for the purposes of a limitation period when the
    material facts on which it is based have been discovered, or ought to have been
    discovered, by the plaintiff by the exercise of reasonable diligence. This
    principle conforms with the generally accepted definition of the term cause of
    action  the fact or facts which give a person a right to judicial redress or
    relief against another:
Aguonie v. Galion Solid Waste Material Inc.
[citation omitted.]

[49]

As emphasized by the motion judge, the real
    question is whether the plaintiff knows enough facts with which to bring
    forward the claim:
Lawless
, at para. 23. If the plaintiff does know
    enough facts, then the claim is discovered and the limitation period begins
    to run. Knowing enough facts means knowing the material facts that are
    necessary to make the claim:
Lawless
, at para. 28.

[50]

I reject the suggestion that the motion judge did
    not appreciate that the principle of discoverability does not turn on whether
    the claim has a likelihood of success. As the motion judge put it, the
    discovery of a claim is also not dependent upon the plaintiff knowing that his
    claim is likely to succeed. The motion judge was right in this regard. As
    noted by Hourigan J.A. in
Sosnowski v. MacEwen Petroleum Inc.
,

2019
    ONCA 1005, 441 D.L.R. (4th) 393, at para. 19, a determination of when it is
    appropriate to proceed with a claim does not include whether a civil
    proceeding will succeed. I see nothing in the motion judges reasons that
    would suggest he was unfaithful to that statement of law.

[51]

To the contrary, the motion judges reasons demonstrate
    that he was alive to the applicable law concerning discoverability. The law
    having been correctly stated, the question really becomes whether the motion
    judge made palpable and overriding errors of fact. I will now explain why he
    did not.

(iv)
No Palpable and Overriding Errors of Fact

[52]

The appellant acknowledged during oral argument that
    the real core of this appeal turns on what is said to be a palpable and
    overriding error of fact made by the motion judge.

[53]

The appellant claims that the motion judge erred
    in concluding that the Notes disclosed in the context of the bonds litigation brought
    anything new to the appellants attention. According to the appellant, the only
    way that the motion judge could have come to this conclusion would be if he had
    completely forgotten about or disregarded the Le affidavit that the appellant
    filed at the Immigration Division hearing on July 9, 2013.

[54]

The argument goes like this. At the latest, the respondent
    knew by July 9, 2013 (the Immigration Division hearing date) that Officer
    McNamara claimed to have spoken to an English speaking resident Ms. Than Luong
    at the doorway on June 25, 2013. Also by July 9, 2013, it is clear from the evidence
    filed by the respondent at the Immigration Division hearing that he maintained
    that it was not Ms. Luong but rather Ms. Le who spoke with the CBSA officers at
    the front door of the residence, and that she did not speak English well. The
    appellant places importance on the fact that the Le affidavit suggests that she
    attempted to communicate with the CBSA officers in English and makes no mention
    of an interpreter.

[55]

The appellant argues that the Le affidavit was
    fundamental to the resolution of the motion because it demonstrates that there
    was no interpreter used. And, even if there was an interpreter used, the
    appellant says that, with the McNamara statutory declaration and the Le
    affidavit in hand by July 9, 2013, it is clear that the respondent knew he had
    a claim if he wished to proceed. Therefore, the motion judges palpable and
    overriding error is said to be implicit in the failure to appreciate the importance
    of the Le affidavit, thereby leaving the motion judge with a distorted view of
    the importance of the new information provided in the Notes.

[56]

Based upon this line of argument, the appellant
    contends that the motion judge could not have come to the following conclusion:

In the
    particular context of this case, therefore,
I find as a
    fact
that Vu did not have sufficient facts on which to allege wrongdoing
    by the CBSA for which he could seek damages until June 10, 2015, when he
    received the [Notes] disclosing that McNamara had used an interpreter when
    conducting her investigation in June 2013. [Emphasis added.]

[57]

In my view, it was open to the motion judge to
    arrive at this factual finding.

[58]

Importantly, he based the finding upon the
    respondents affidavit evidence explaining that, prior to receiving the Notes
    and learning that an interpreter had been used during the interaction at the
    doorway of the bondspersons home, he thought that the CBSA had only made a
    mistake and misunderstood what had been communicated by the woman who answered
    the door. As the respondent put it: I thought maybe the Officer didnt realize
    that Johns mom didnt speak English. It was only after receiving the Notes
    that the respondent came to realize, as he suggests in his affidavit, that the
    CBSA had actively misled the Immigration Division. I see no error in the motion
    judge leaning on that evidence to arrive upon his conclusion as reproduced
    above.

[59]

As well, the motion judge was not oblivious to
    the Le affidavit. To the contrary, he specifically referenced it in his
    reasons, albeit in his factual overview of the case:

July 9, 2013  Vu attends his second detention
    review before the ID. he submits affidavits that the woman the CBSA spoke to at
    [the bondspersons home] on June 25, 2013, Dau Thi Le, his bondspersons
    mother, did not speak English well, that she did not live there but rather was
    babysitting that day, and that she said she did not know if Vu lived there.

[60]

Clearly, the motion judge was alive to the Le
    affidavit.

[61]

In my view, it was open to the motion judge to
    come to the conclusion that he did. The Notes make clear reference to the fact
    that Officer McNamara indicates that during her investigation, she was talking
    with Ms. Than Luong and an interpreter was contacted by phone to translate the
    specific questions asked by Officer McNamara. Yet this stood in direct
    contrast with Officer McNamaras statutory declaration. While the truth
    undoubtedly lies somewhere and, at some point, may see the light of day, it
    cannot be said that the motion judge committed a palpable and overriding error
    when he concluded that the respondent did not have sufficient facts on which to
    allege wrongdoing until he received the Notes. Nor can it be said that there is
    anything in the Le affidavit that detracts from that conclusion.

(v)
The Motion Judge Did Not Err on Due Diligence

[62]

The appellant also argues that, even if a later
    discoverability date applies, the respondent did not act with due diligence in discovering
    his claim within two years of his arrest. The motion judge is said to have
    erred in concluding that this argument was, at best, speculative and
    unpersuasive. To the contrary, the appellant contends that the respondent
    could have discovered additional details if he had proceeded with an
    application for leave and judicial review of his detention in Federal Court.

[63]

While a plaintiff is required to act with due
    diligence when determining if they have a claim to bring forward, the content
    of the duty of due diligence depends on the circumstances of each case:
Longo
    v. MacLaren Art Centre Inc.
, 2014 ONCA
    526, 323 O.A.C. 246, at para. 42
.

[64]

I see no error in the motion judges conclusion
    that the appellants argument on due diligence was speculative and
    unpersuasive.

[65]

In light of all of the harsh circumstances involved
    in the respondents detention

all 467 days of them, including
    being detained outside of Toronto, far from family and his lawyer; enduring strip
    searches and frequent lockdowns; and having limited resources to investigate
    the lawfulness of his arrest and subsequent detention while incarcerated

it was open to the motion judge to find that the respondent did not fail to
    exercise due diligence in discovering his claim.

[66]

Moreover, the respondent explained that he did
    not pursue a review of the Immigration Divisions determination because the
    CBSA led him to believe that his detention would be brief and removal imminent,
    making what he believed to be a lengthy judicial review application pointless. This
    context is relevant to understanding what degree of due diligence was required
    of the respondent.

[67]

In any event, it was not clear how a review
    would have led to the disclosure of the content of the Notes.

[68]

The motion judges finding on this point is owed
    deference and I would not interfere with it.

(vi)
The Motion Judges Alternative Finding

[69]

Finally, the appellant argues that the motion
    judge erred in arriving at the alternative conclusion that it would not have
    been legally appropriate to bring the claim earlier than June of 2015:
Federation
    Insurance Co. of Canada v. Markel Insurance Co. of Canada
, 2012 ONCA 218,
    109 O.R. (3d) 652, at para. 34.

[70]

In light of the resolution of the former issues,
    there is no need to address this one, other than to say that I see no error in
    the motion judges alternative reasoning.

D.

Conclusion and Costs

[71]

The appeal is dismissed.

[72]

The appellant raised the issue of costs, arguing
    that the $54,000 ordered by the motion judge was too high. I see no error in
    how the motion judge arrived at this amount. His decision is owed deference.
    Therefore, the appeal as to costs is dismissed.

[73]

Costs for the appeal will be fixed in the amount
    of $15,000, all inclusive.

Released: August
    23, 2021 JMF

Fairburn A.C.J.O.

I agree B.W. Miller J.A.

I agree B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asghar v. Toronto (City), 2021
ONCA 571

DATE: 20210820

DOCKET: M52232 (C68901)

Strathy C.J.O., Feldman and Sossin JJ.A.

BETWEEN

Sajjad Asghar

Plaintiff

(Appellant/Moving
Party)

and

The City of Toronto

Defendant
(Respondent/Responding Party)

and

The Mayor John Tory

Defendant
(Respondent/Responding Party)

and

The Toronto Police Services Board, Members Chair
Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Michael Ford Councillor,
Councillor Frances Nunziata, Ainsworth M. Morgan, Lisa Kostakis

Defendants

(Respondents/Responding
Parties)

and

The Toronto Police Chief (Interim) James Ramer

Defendant

(Respondent/Responding
Party)

and

The Toronto Police Deputy Chief Peter Yuen

Defendant
(Respondent/Responding Party)

Sajjad Asghar, acting in-person

Natalie Salafia, for the responding
parties

Heard: in writing

REASONS
FOR DECISION

[1]

The self-represented moving party, Mr. Asghar,
brings this motion to review the order of the chambers judge, dated January 15,
2021, dismissing Mr. Asghars interim motion for an order: (1) requiring the
responding parties to produce certain 911 call recordings, police video and
audio recordings, transcripts etc.; (2) permitting electronic filing and
service of all appeal materials; and (3) granting an extension of time to
perfect his appeal.

[2]

The motion before the chambers judge was brought
in the context of Mr. Asghars appeals from three orders of Ferguson J., all
dated November 19, 2020, dismissing three separate actions brought by Mr.
Asghar against the City of Toronto, the Mayor of Toronto, the Toronto Police
Services Board, and various other Toronto municipal and police entities and
officials. Ferguson J. found each of those actions to be frivolous, vexatious,
and an abuse of process within the meaning of r. 2.1 of the
Rules of Civil
Procedure
, R.R.O. 1990, Reg. 143.

[3]

Mr. Asghar filed a motion before the chambers
judge seeking interim relief in two of his appeals, which bear court file
numbers C68902 and C68901. The primary relief sought by Mr. Asghar on the
motion in appeal C68901 was the production of 911 call recordings and other video
and audio recordings and transcripts. Mr. Asghar submitted before the chambers
judge that the material requested would be important for his appeal.

[4]

On January 15, 2021, the chambers judge
concluded there was no foundation to make the order requested and dismissed
Mr. Asghars motion.

[5]

On this panel review motion, Mr. Asghar seeks to
set aside the order of the chambers judge and obtain the same relief sought on
the underlying motion. We decline to grant that relief. A panel review of the
motion in the C68902 appeal was dismissed in written reasons dated May 20,
2021.

[6]

As stated in those reasons, a panel review of a
chambers judges decision is not a
de novo
determination. Where the
chambers judge has made a discretionary decision, the decision is entitled to
deference and the reviewing panel will not interfere absent legal error or
misapprehension of material evidence:
Machado v. Ontario Hockey Association
,
2019 ONCA 210, at para. 9. In addition, if the chambers judge committed an
error in principle, the panel may intervene:
Yaiguaje v. Chevron
Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.

[7]

Applying the foregoing, as in appeal C68902, we
see no basis on which to interfere with the decision of the chambers judge.

[8]

Accordingly, Mr. Asghars panel review motion for
production is dismissed.

[9]

Mr. Asghar has also requested an extension of
time of 30 days to perfect appeals C68901 and C68902, whether or not the other
relief is granted. That extension of time to perfect is granted in both cases to
30 days from the date of these reasons. The respondents shall have 30 days to
respond after service of the perfection materials.

[10]

Once the records are complete, these two matters
will be listed to be argued with appeal C68903 which will be adjourned to a
date to be fixed by the Registrar for the argument of all three appeals
together.

G.R. Strathy C.J.O.

K. Feldman J.A.

Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Herold
    Estate v. Canada (Attorney General), 2021 ONCA 579

DATE: 20210824

DOCKET: C68393 & C68467

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

DOCKET:
    C68393

The Estate of William Albin Herold,
    deceased

Applicant (Respondent)

and

Attorney
    General of Canada
,
Curve Lake First Nation,
    Hiawartha First Nation and
Mississaugas of Scugog Island First Nation

Respondents (
Respondent
/
Appellants
)

AND BETWEEN

DOCKET:
    C68467

The Estate of William Albin
    Herold, deceased

Applicant (Respondent)

and

Attorney
    General of Canada
,
Curve Lake First Nation,
    Hiawatha First Nation and
Mississaugas of Scugog Island First Nation

Respondent (
Appellant
/
Respondents
)

Robert Janes, Candice S. Metallic, and
    Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake
    First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First
    Nation

Daniel E. Luxat, for the appellant (C68467)/respondent
    (C68393) Attorney General of Canada

D. Jared Brown, for the respondent
    (C68393/C68467) Estate of William Albin Herold

Heard: March 2, 2021 by videoconference

On appeal from the order of Justice C.M.
    Smith of the Superior Court of Justice, dated February 28, 2020 with reasons
    reported at 2020 ONSC 1202.

Zarnett J.A.:

I.

INTRODUCTION

[1]

This litigation concerns the ownership of three
    islands (the Islands) located in Lake Katchewanooka
[1]
, which is part of the
    Trent-Severn Waterway. The Islands are in close proximity to each other. The largest
    is referred to as Island 27; the two smaller islands were at one time part of
    Island 27 but are now separated from it as a consequence of flooding and
    erosion.
[2]

[2]

In the decision under appeal, the application
    judge held that  the respondent, the Estate of William Albin Herold (the
    Estate), owns the Islands by virtue of its ownership of Lot 35, Concession
    11, in the Township of Smith, County of Peterborough (Lot 35).

[3]

The application judge found that when Lot 35 was
    first surveyed in 1818, the land that became the Islands was a headland or
    peninsula connected to Lot 35s mainland. In 1868, the Province of Ontario, by Letters
    Patent, granted Lot 35 to Alexander Rose, the Estates predecessor in title. Although
    he was not satisfied that in 1868 the Islands were still physically part of the
    mainland of Lot 35, and the Letters Patent made no reference to any islands, the
    application judge declined to determine the intention of the parties to the
    Letters Patent. Instead, he concluded that since Island 27 had, by 1855, separated
    from the mainland as a result of changes in water levels brought about by dams
    erected in the 1830s, it was included as a matter of law in the Letters
    Patents conveyance of Lot 35. He further held that ownership of the Islands
    was not affected by treaties between the appellant First Nations
[3]
(the First Nations) and the
    Crown made in 1818 and 1856. He interpreted the treaties, by which the First
    Nations had surrendered their title to a vast tract of land in what is now
    Central Ontario, to include a surrender of the property in issue in this
    litigation, giving the Crown the right to sell. Accordingly, as the Islands had
    been sold as part of Lot 35, when the Estate became the owner of Lot 35, it also
    became the owner of the Islands.

[4]

The First Nations and the Attorney General of Canada
    (AG Canada) both appeal. For the reasons that follow, I would allow the
    appeals.

[5]

In my view, the application judges determination
    that the Letters Patent conveyed the Islands as part of the conveyance of Lot
    35 is not subject to deference, since he made extricable errors of law. The
    application judge failed to follow the fundamental principle of interpretationto
    determine the meaning of the Letters Patent in accordance with the intentions
    of the parties, objectively ascertained from the language they used in light of
    the relevant factual matrix. He also erred in treating a legal principle about
    the effect of sudden changes in water levels on boundaries between different
    owners as applicable and determinative. Finally, he failed to properly consider
    the Crowns obligations to the First Nations in determining what the Crown intended
    to convey by the Letters Patent.

[6]

Properly interpreted, the Letters Patent did not
    include any conveyance of the Islands. As Mr. Rose did not obtain ownership of
    the Islands when he received a conveyance of Lot 35 under the Letters Patent,
    the Estate did not obtain ownership of them when it obtained ownership of Lot
    35.

II.

Background

A.

Treaty 20

[7]

In 1818, the Crown and the First Nations entered
    into the Treaty of Newcastle (Treaty 20). It provided for the surrender to
    the Crown of a vast tract of land in what is now Central Ontario. Although the
    description in Treaty 20 was general, the application judge found that it included
    the property in issue in this litigation.

[8]

Although there was no express exclusion in
    Treaty 20 of any islands, the evidence before the application judge, which he
    accepted, was that the First Nations had requested that any islands in the
    waterways within the surrendered lands be excluded, and the Crowns
    representative had assured them that the request would be communicated to the
    King who would no doubt accede to it.

B.

The Wilmot Survey

[9]

At about the same time as Treaty 20 came into
    effect, the southern part of the Township of Smith was surveyed by Samuel
    Wilmot. The 1818 survey he prepared (the Wilmot Survey) showed bodies of
    water, concessions, and lots; of particular relevance is its depiction of Lot
    35.

[10]

The Wilmot Survey depicts Lot 35 as a mainland lot roughly
    triangular in shape. Its northern boundary is the concession line separating
    Concessions 11 and 12; its western boundary is the division between Lots 34 and
    35; and its southeastern boundary is the waters edge of Lake Katchewanooka. The
    Wilmot Survey does not show any distances between the fixed boundaries on the
    north and west, and the southeastern waters edge boundary.

[11]

The application judge noted that there was some concern about the precision
    of the Wilmot Surveys depiction of the southeastern area of Lot 35, as the surveyor
    had noted that the waters are not traversed only sketched. However, according
    to evidence that the application judge accepted, at the time of the Wilmot
    Survey, what came to be the Islands was a headland or peninsula on part of the
    mainland of Lot 35.

C.

Dams in the Waterway

[12]

Dams were constructed in
    the Trent Severn waterway in the 1830s, downstream and upstream from Lot 35.
The application judge did not make a finding of the distance
    between the dams and Lot 35. Some of the evidence suggests that one of the dams
    was about 7.5 kilometres away. The application judge found that these dams
    caused a rise in water levels, resulting in a change to the configuration of Lot
    35. His precise findings concerning the timing and nature of the rise in water
    levels are discussed in more detail in the Analysis section below.

D.

The Haslett Survey

[13]

In 1854, a survey of islands in the Rivers Trent and Otonabee and
    their lakes was authorized by the Privy Council and commissioned by the Commissioner
    of Crown Lands. The application judge found that the resulting survey (the
    Haslett survey), completed in 1855, identified an island in Lake
    Katchewanooka in the location of what had been the headland or peninsula depicted
    on the Wilmot Survey of Lot 35. The Haslett survey named it Island 27.

[14]

The Estate contended before the application judge that the Haslett
    survey was unreliable to the extent it identified Island 27 as separated from
    the mainland of Lot 35 in 1855. The Estate maintained that the Islands
    continued to be physically connected to the mainland of Lot 35 at the time of
    the Letters Patent in 1868, and only became separated due to flooding in the
    1870s.
Ultimately, the application judge found against
    the Estate, which bore the onus of proof, on these factual points. He noted
    that, based on the evidence of the expert witnesses, it is reasonable to
    conclude that Island 27 existed as surveyed [by Haslett] in 1856. The
    application judge concluded that I cannot be satisfied on a balance of
    probabilities that Island 27 was still attached to the main land in 1868  a
    reference to the date of the Letters Patent.

E.

Treaty 78

[15]

In 1856, the Crown and the First Nations entered into the Islands of
    the Trent Treaty (Treaty 78). The application judge found that Treaty 78
    addressed any uncertainty there may have been regarding the status of the
    islands in the waters in question flowing from the wording of Treaty 20 in 1818.
    Under Treaty 78, the First Nations conditionally surrendered to the Crown, in
    trust, to [be] sold or otherwise disposed of to the best advantage for
    ourselves and our descendants forever  all islands and mainland  in the
    Newcastle and Colborne Districts, including the islands in Rice Lake which have
    not heretofore been ceded to the Crown with the principal arising from such
    sales to be safely funded and the interest accruing therefrom to be paid annually
    to us and our said descendants for all time to come.

[16]

The application judge found that the description of land covered by
    Treaty 78 would include the Township of Smith where the subject property is
    located.

F.

The Letters Patent

[17]

In 1868, by Letters Patent, the Province of Ontario granted Lot 35 to
    Mr. Rose, from whom the Estate ultimately derived its title. The Letters Patent
    describe what was conveyed as being composed of Lot Number Thirty five in the
    Eleventh Concession of the  Township of Smith. An approximate acreage is
    provided but it is unclear if it is 21 or 71 acres. There is no express mention
    of any islands. The Letters Patent provided for the consideration to be paid by
    Mr. Rose  $17.00  and did not allocate it between the mainland and any
    islands.

G.

The 1893 Resolution

[18]

In 1893, the federal Crown issued a Resolution (the 1893
    Resolution) approving a request by the First Nations that certain islands,
    including Island 27, not be sold under Treaty 78, but instead be reserved for
    their use.

H.

Conduct After the Letters Patent

[19]

The parties led evidence of conduct and views expressed after the
    Letters Patent relating to whether the Islands were part of Lot 35, and whether
    they were sold as part of the 1868 Crown grant.

[20]

The after-the-fact evidence included: that between 1894 and 1896,
    the federal, Ontario, and Quebec governments participated in arbitration
    proceedings regarding amounts owing to the First Nations from the sale of
    islands, which did not include anything about Island 27; compensation having
    been paid to Jane Rose for flooding damage to Lot 35 that occurred because of
    the reconstruction of a dam in 1879; the registration of the 1893 Resolution and
    related resolutions on title in 1973; the Islands having been assigned their
    own Property Identification Numbers as separate parcels with no owners
    specified; correspondence between various government agencies articulating
    different positions; and
the Estate having used the
    Islands, made improvements, paid property taxes, and posted Private Property
    and No Trespassing signs on them.

[21]

The application judge summarized the effect of the after-the-fact evidence
    as follows: The title to [Lot 35] has been plagued since 1868 by uncertainty
    about whether three islands in the lake, the largest of which is referred to as
    Island 27, are properly a part of [Lot 35].

III.

The Application Judges Decision

[22]

The Estate applied for various orders to confirm its ownership of
    the Islands.

[23]

The application judge identified three issues for determination:

a)

Did the 1868 Letters Patent convey the Islands
    to the Estates predecessor in title, Mr. Rose?

b)

What is the effect of Treaty 20 and Treaty 78 on
    the ownership of Island 27?

c)

What is the effect of the Resolution of 1893 on
    the ownership of Island 27?

[24]

On the first issue, the application judge declined to consider the
    intention of the parties to the Letters Patent on the basis that to do so would
    be sheer speculation. He also observed that the
Beds of Navigable Waters
    Act
, R.S.O. 1990, C. B-4 (the
Act
), which deemed a Crown grant
    not to include the bed of a navigable body of water unless a contrary intention
    is expressly stated, could not have been on the minds of either party at the
    time of the Letters Patent as it was not yet proclaimed into force.

[25]

The application judge reasoned that the southeastern boundary of Lot
    35 was riparian and ambulatory at the time of the Wilmot Survey, but the water
    boundary lost its ambulatory status sometime during the 1830s, when the dams
    were first constructed. He relied on a legal principle that when water levels
    are quickly raised through a process that is not gradual, then the boundary of
    the property in question is fixed in location at the time of encroachment. Although
    he was not satisfied that the Islands were physically connected to Lot 35 in
    1868, the Letters Patent conveyed them because they were within the boundary of
    Lot 35 that had been so fixed.

[26]

On the second issue, the application judge found that Treaty 20
    provided for the surrender to the Crown of a vast tract of land which included
    Lot 35 and, based on his findings, the land that later became the Islands. He
    found that Treaty 20 contained no exceptions relating to the property in issue
    and imposed no restrictions of any kind regarding subsequent dealings with the
    lands by the Crown. He held that Treaty 78 did not detract from the Crowns
    full ownership rights, which included a right to sell. He noted that while Treaty
    78 imposed a condition that the Crown use the proceeds of any sale for the
    benefit of the First Nations, this did not estop the Crown from selling any of
    the surrendered lands. The honour of the Crown was not at risk as long as it
    used the proceeds in that way.

[27]

On the third issue, the application judge found that Island 27 was
    included in the 1893 Resolution by mistake, and that the 1893 Resolution should
    not affect title to the islands.

IV.

The Parties Positions

[28]

The First Nations argue that the application judge erred in giving
    Treaty 20 and Treaty 78 the effect of extinguishing the title of the First
    Nations to the Islands. Treaty 20 was subject to an orally agreed to
    reservation concerning islands. Treaty 78 was a conditional surrender in trust,
    which imposed obligations if the Crown were to effect a sale of any islands. There
    was no evidence of compliance with those obligations in the transaction
    contemplated by the Letters Patent. The application judge should have, but
    failed to, interpret the Letters Patent with reference to the Crowns intention
    as grantor and in a manner that reconciled their meaning with the obligations of
    the Crown under Treaty 78. The only way to do so would be to conclude that the Letters
    Patent did not include the Islands.

[29]

The First Nations further submit that the application judge erred in
    applying legal principles respecting water boundaries and misapprehended the
    evidence concerning the nature and timing of any change in water levels.
    Finally, they submit that the application judge erred in finding that after the
    Letters Patent, the federal Crown had no authority to deal with the Islands and
    thus had included them in the 1893 Resolution by mistake.

[30]

The appellant AG Canada argues that the application judge erred by: failing
    to properly interpret the Letters Patent in accordance with the intentions of
    the parties, objectively ascertained; and, applying a legal principle respecting
    water boundaries between different owners to conclude that Island 27 remained
    part of Lot 35 at the time of the Letters Patent, when the principle was
    factually and legally inapplicable.

[31]

The Estate argues that the application judge properly found as a
    fact that, prior to the Letters Patent, flooding had occurred causing the
    separation of the Islands from the mainland of Lot 35. They submit that he correctly
    concluded, as a matter of law, that the flooding fixed the boundary of Lot 35 such
    that what became the Islands were included as part of the Lot 35 Letters Patent
    conveyance. The Estate also argues that the application judge properly
    interpreted the treaties as giving the Crown the right to sell the Islands and properly
    found that the honour of the Crown was not engaged in any way that detracted
    from the Estates ownership.

V.

Analysis

[32]

If the application judge erred in finding that the Letters Patent included
    a conveyance of the Islands by the Province of Ontario to Mr. Rose, that is
    determinative of the appeals. Accordingly, my analysis commences with
    identifying the interpretive issue under the Letters Patent, the principles of
    interpretation, and the standard of review. I then discuss the errors which, in
    my view, the application judge committed in his approach. Finally, I set out the
    proper resolution of the interpretive question. The effect of the treaties and
    the legal principles concerning water boundaries all play a part in this
    analysis.

A.

The Interpretive Issue and The Standard of Review

[33]

The Letters Patent did not include a metes and bounds description of
    the property conveyed or any express mention of islands. The property was
    described by what the parties agree was a reference to Lot 35 on the 1818 Wilmot
    Survey.
[4]
The Wilmot Survey depicted Lot 35 as a mainland lot with a southeastern
    boundary formed by the waters edge of Lake Katchewanooka. In this court, all parties
    accept the application judges finding that Island 27 was beyond the waters edge
    and was not connected to the mainland of Lot 35 at the time of the Letters
    Patent in 1868.

[34]

The interpretive question thus raised was whether the Letters Patent
    conveyed the land up to the waters edge in 1868, and therefore did not include
    the Islands, or whether the Letters Patent also conveyed the Islands, as land that
    had previously been connected to the mainland of Lot 35, including at the time
    of the Wilmot Survey.

[35]

The parties advance different formulations of the issues and thus
    the applicable standard of review. The Estate characterizes the application, to
    the facts, of legal principles about the effect of flooding on boundaries and
    the resulting determination of what was conveyed as a question of mixed fact
    and law, subject to deference on appeal. The First Nations characterize the
    failure of the application judge to determine the intentions of the parties to
    the Letters Patent as an error of mixed fact and law, with a commensurate standard
    of appellate review. The AG Canada submits that the interpretation of the Letters
    Patent should be reviewed on a standard of correctness because it deals with
    title and the factual matrix is not required to resolve any ambiguity in the
    Letters Patent.

[36]

As I discuss in more detail below, the interpretation of the Letters
    Patent involves discerning what the parties to them objectively intended. That is
    a fact specific exercise; it is a function of the language used, read in light
    of the relevant factual matrix or surrounding circumstances, and the legal
    principles that arise from those circumstances. It follows that the
    interpretation of the Letters Patent is a question of mixed fact and law. Absent
    an extricable error of law, or a palpable and overriding error of fact, a
    determination of a question of mixed fact and law is subject to deference on
    appeal:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 234, at
    paras. 26, 36-37;
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at paras. 50, 53;
Corner Brook (City) v. Bailey
,
    2021 SCC 29, at para. 44.

[37]

In my view, the application judge made three extricable legal errors
    in his approach to the question of whether the Islands were included in the
    conveyance by the Letters Patent. First, he failed to follow the fundamental
    principle of interpretation, which is to determine the meaning of the Letters
    Patent based on the parties intentions, objectively derived from the words
    they used in light of the factual matrix. Second, he erroneously relied on a
    legal principle about a sudden change in water levels fixing boundaries between
    different owners; in the circumstances, that principle was neither applicable
    nor determinative. Third, he failed to consider how the apparent disconnect
    between the obligations of the Crown concerning a sale of an island covered by
    Treaty 78, and the terms of the Letters Patent, bore on the question of whether
    the Province of Ontario intended to include the Islands in the Letters Patent.

[38]

As a result of these extricable legal errors, the application
    judges conclusion about the meaning of the Letters Patent is not entitled to
    deference:
Sattva
,
at para. 53.

[39]

Below, I will expand on the application judges three errors. I will
    then turn to what I consider to be the proper interpretation of the Letters
    Patent.

B.

The Application Judges Errors

(1)

Failure to Consider the Meaning of the Letters
    Patent from the Standpoint of the Intention of the Parties Objectively Derived

[40]

Although the meaning of the Letters Patent was a core issue
    identified by the application judge, he declined to determine the intentions of
    the parties to it. This was an error, as objectively ascertaining the intention
    of the parties is the very goal of interpreting a written instrument.

[41]

As the Supreme Court of Canada said in
Sattva
, the overriding
    concern in the interpretation of contracts is to:

determine the intent of the parties
and the scope of their understanding. To do so, a decision-maker must
    read the contract as a whole  consistent with the surrounding circumstances known
    [or that reasonably ought to have been known] to the parties at the time of
    formation of the contract. Consideration of the surrounding circumstances
    recognizes that
ascertaining contractual intention
can be difficult when
    looking at words on their own, because words alone do not have an immutable or
    absolute meaning [Emphasis added.] [Citations omitted.]:
Sattva
, at
    para. 47.

[42]

In other words, when interpreting a contract, the question is not
    the abstract meaning of its words, but what the parties to the contract are
    objectively taken to have intended by the words they chose in light of the
    circumstances  the factual matrix  in which they used them. A court objectively
    derives the parties intentions by examining the words to determine what the
    parties intended, and examining the surrounding circumstances to deepen [its]
    understanding of
the mutual and objective intentions of the parties
as
    expressed in the words of the contract (emphasis added):
Sattva
, at
    para. 48, 57-58, 60;
McLean v. McLean
, 2013 ONCA 788, 118 O.R. (3d)
    216, at para. 54, leave to appeal refused, [2014] S.C.C.A. No. 76.

[43]

This approach is consistent with the goals of finality and certainty
    in contractual dealings  the interpretation that is reached is grounded in the
    text of the agreement read as a whole, and the factual matrix is used as an
    interpretive aid for determining the meaning of the written words chosen by the
    parties, not to overwhelm or deviate from them, or change or overrule their
    meaning:
Sattva
, at paras. 57, 59-60.

[44]

These general principles apply equally to the interpretation of an
    instrument that creates or conveys an interest in land. I draw that conclusion
    for three reasons.

[45]

First, the Supreme Court of Canada has noted that the construction
    of an easement  clearly an interest in land  is a question of mixed fact and
    law as it must be interpreted in light of the entire factual matrix:
Owners,
    Strata Plan LMS 3905 v. Crystal Square Parking Corp.
, 2020 SCC 29, 450
    D.L.R. (4th) 105, at para. 101. In support of that proposition, the Supreme
    Court cited both
Robb v. Walker
, 2015 BCCA 117, 383 D.L.R. (4th) 554, at
    paras. 30-31 (which held the principles in
Sattva
to be applicable to
    the interpretation of an easement) and
Sattva
itself. There is no
    apparent reason to distinguish the principles applicable to the interpretation
    of an instrument granting or conveying an easement from those applicable to a
    different type of interest in land. Determining the objective intentions of the
    parties is thus equally the goal of interpreting a conveyance, as that is the
    overriding concern of interpretation as identified in
Sattva
.

[46]

Second, the need for certainty and finality in conveyancing is
    respected by determining the objective intentions of the parties to the instrument
    through examining its words in light of the factual matrix that illuminates their
    meaning, in accordance with the principles in
Sattva
.

[47]

Third, this approach is in line with this courts holding in the
    leading case concerning the interpretation of conveyances by deed or Crown
    grant:
Gibbs v. Grand Bend (Village)

(1995), 129 D.L.R. (4th) 449 (Ont.
    C.A.)
. Although expressed in pre-
Sattva
language, the basic principles articulated in
Gibbs

do
    not vary, in any respect that is material to this case, from those articulated
    in
Sattva
. Those principles equally focus on determining the intention
    of the parties to the deed or grant.

[48]

Under
Gibbs
, the primary determinant of the meaning of a
    conveyance, whether by deed between private parties or by Crown grant, is its
    language:

Gibbs
, at p. 461. This is consistent with the role played by the text
    of a written agreement under
Sattva
: at para 57. Extrinsic
evidence cannot be used to contradict the unambiguous terms of a
    conveyance made by deed or Crown grant (
Gibbs
, at p. 461), just as it
    cannot be used to contradict the meaning of the language of any contract (
Sattva
,
    at paras. 59-60). But just as evidence of factual matrix or surrounding circumstances
    can be used to ascertain contractual intention when it is difficult to do so by
    looking at the words alone (
Sattva
, at para. 47), in the case of a
    deed or Crown grant, extrinsic evidence can be
used
to explain the sense
    in which words, open to more meanings than one, have been used by the
    contracting parties"
,
and thus to give
    effect to the grantors intention:
Gibbs
, at p. 461
(citations omitted).
[5]
The purpose of
    reviewing such evidence is to permit the court to carry out the intentions of
    the parties:
Gibbs
, at p. 463.

[49]

Gibbs
refers to the requirement that a
    latent ambiguity must exist in a deed or Crown grant before extrinsic evidence will
    be considered: at p. 461.
Sattva
permits the consideration of factual
    matrix or surrounding circumstances in any contractual interpretation,
    recognizing that it may be difficult to determine intention by the words alone.
    In this case, this is a distinction without a difference. The test for a latent
    ambiguity, and thus for the admission of extrinsic evidence under
Gibbs
,
is met in cases where the description of the land in the deed or grant, when
    applied to the land itself, raises an issue about the location of a boundary. Clearly,
    that test is met in this case.

[50]

An example referred to with approval in
Gibbs
was a case in
    which a deed described the old shore road as the westerly boundary of a lot
    expropriated by the provincial government. However, the old shore road no longer
    existed at the time of expropriation, causing difficulty in determining the
    dimensions of the land. Extrinsic evidence was admitted to assist in determining
    the previous location of the road: at p. 462.

[51]

Similarly, the interpretive issue in this case arises since the
    description in the Letters Patent, referring to property depicted on a survey
    in 1818 as a mainland lot with a waters edge boundary, when applied to the land
    in 1868 after Island 27 was no longer part of the mainland, raises an issue
    about the boundary of what was conveyed. Extrinsic evidence of the factual
    matrix or surrounding circumstances was thus admissible under both
Gibbs
and
Sattva
.

[52]

The parties introduced, and the application judge admitted, extrinsic
    evidence of the circumstances existing up to the time of the Letters Patent. Yet
    the application judge did not use this evidence to determine the intentions of
    Ontario and Mr. Rose, as revealed by the words of the Letters Patent, in light
    of the surrounding circumstances. He held that [a]ny consideration of the intention
    of the parties to the 1868 Letters Patent is  sheer speculation.

[53]

If all the application judge meant by this was that he was
    jettisoning from the analysis any consideration of the
subjective
thoughts
    of the parties, as opposed to what they
objectively
intended, he would
    have been correct. Evidence of subjective intentions plays no role in
    contractual interpretation:
Sattva
, at para. 59. But the application
    judge did not make that distinction.

[54]

He made numerous findings based on extrinsic evidence, including
    about the Wilmot Survey, the historical and then current location of the
    Islands, the Haslett survey, and Treaties 20 and 78. He did not hold that any
    of those matters fell outside of the category of background facts known or that
    reasonably ought to have been known to the parties at the time of the Letters
    Patent (the description of factual matrix used in
Sattva
) or as
    evidence of writings prior to and leading up to the issue of the Letters Patent
    that explains the sense in which the parties used language open to more than
    one meaning (the description of extrinsic evidence used in
Gibbs
).
[6]
Despite his acceptance of this
    evidence, he did not use it to assist in determining the objective intentions
    of the parties by examining the words used in the Letters Patent in light of those
    circumstances.

[55]

By failing to determine the objective intentions derived from the
    language of the Letters Patent in light of the surrounding circumstances, the application
    judge failed to consider and apply the correct principle of interpretation.
    This was an extricable legal error:
Sattva
, at para. 53.

(2)

Error in the Consideration of Boundaries
    Principles

[56]

The application judge identified three legal principles relating to water
    boundaries of property. He rejected the application of one of them, held that a
    second applied only up to a point in time, and treated one as applicable and
    determinative.

[57]

The appellants argue that the application judge erred in rejecting
    the applicability of the
Act
on the basis that it could not have been
    within the parties contemplation at the time of the 1868 Letters Patent, as it
    was not enacted until 1911. I agree that his basis for rejection was erroneous,
    but I do not agree that the error was material.

[58]

Section 1 of the

Act
provides that where land that borders
    a navigable body of water has been or is granted by the Crown, it shall be
    deemed, in the absence of an express grant of it, that the bed of that body of
    water was not intended to and did not pass to the grantee. Given the language
    of s. 1 (has been  granted), and the nature of the exceptions in s. 2 (for
    example, rights determined by a court before March 24, 1911), it is clear that s.
    1 has retrospective effect, governing grants made before the first version of
    the
Act
came into force in 1911:
Middlesex Centre (Municipality)
    v. MacMillan
, 2016 ONCA 475, 132 O.R. (3d) 497, at para. 16.

[59]

The
Act
specifically and retrospectively regulates the meaning
    of a grant from the Crown. If the applicability of the
Act
were contingent
    on it being in force at the time of the grant, its provisions that give it
    retrospective operation would be meaningless.

[60]

Although the basis on which he rejected the applicability of the
Act
was erroneous, in my view the error was not material; as the Estate argues, interpreting
    the Letters Patent to exclude the water bed between Lot 35 and the Islands does
    not necessarily exclude the Islands themselves, as Island 27 was above the
    water.

[61]

A second principle the application judge referred to is that a
    riparian or waters edge boundary may be ambulatory, in the sense that it may change
    to reflect gradual
[7]
movement of the waters edge (the Ambulatory Principle). A parcel of land with
    this type of boundary is subject to accretion  the addition of land when the
    waters edge gradually moves out  and erosion  the decrease of land when the
    waters edge gradually moves in. Put differently, when this principle applies,
    the waters edge, wherever it may gradually move to from time to time, is the
    boundary: Natural Resources Canada, Surveyor General Branch,
Water
    Boundaries on Canada Lands: That Fuzzy Shadowland,
(Edmonton: Her Majesty
    the Queen in Right of Canada, 2016) (the Surveyor General Publication), at p.
    31.

[62]

The application judge concluded that in 1818, the southeastern
    boundary of Lot 35 as depicted on the Wilmot Survey  the waters edge of Lake
    Katchewanooka  was ambulatory.

[63]

The application judge also referred to a principle (the Flooding Principle)
    that when water levels are quickly raised through a process that is not
    gradual, then the boundary of the property in question is fixed in location at
    the time of encroachment. In other words, where a sudden
[8]
change in water levels occurs,
    the boundary of the owners property will be fixed at the point where the land
    met the waters edge at the time of the sudden rise of water levels: Surveyor
    General Publication, at p. 39;
Neilson v. British Columbia (Attorney
    General)
, [1956] S.C.R. 819
,
at p. 840. The application judge
    applied this principle to conclude that the boundary of Lot 35 had ceased to be
    ambulatory in the 1830s.

[64]

The appellants argue that there are two problems with the
    application judges use of the Flooding Principle.

[65]

First, they say that the evidence was insufficient to support a
    finding that a non-gradual change in water levels separated the Islands. Indeed,
    the First Nations say that the application judge made findings that were
    contradictory, in that he referred to the rise in water levels as a lengthy
    and gradual process which commenced in the 1830s, but then applied the Flooding
    Principle as though the rise was sudden enough to engage it.

[66]

Second, the AG Canada argues that the Flooding Principle applies to
    prevent a person from losing land to another due to a sudden rise in water
    levels, not to determine where one parcel of unpatented land belonging to the
    Crown ends and another begins. Here, on the application judges findings, at
    the time that the water levels changed, the Crown owned Lot 35, the adjacent water
    bed, and the Islands that were separated from the mainland of Lot 35.

[67]

I address each point below.

a)

The Application Judges Factual Findings Do Not
    Support the Application of the Flooding Principle

[68]

The application judge found that the Islands separated from Lot 35
    in a lengthy and gradual manner:

I am also satisfied that the configuration of
    the subject property was radically altered by the installation of man-made dams
    on the river.
This was a lengthy and gradual process
which commenced in
    the 1830s with the Herriot dam, continued through the construction of the Trent
    Severn Waterway in the middle years of the 19th century, culminating in the
    more significant damage caused by the flooding in the 1870s which led to the
    damages paid by the Crown to Jane Rose, as evidenced by the release registered
    on title of the subject property in 1885 as Instrument Smith 3160.
The Baird
    drawings and the Haslett survey are the only evidence available regarding flood
    conditions at the subject property in the mid-19th century. Those documents,
    particularly the Haslett survey, support the notion that water levels on the
    river at the point in question had risen by as much as 2.5 feet by the
    mid-1850s
. [Emphasis added.]

[69]

After making these findings, he set out the Flooding Principle by
    reference to p. 44 of the Surveyor General Publication, which states that it
    applies where water levels rise quickly through a process that is not gradual:

Watercourses regulated for navigation or
    reservoir (millpond) purposes have higher levels, which remain somewhat
    constant throughout the year (e.g. many lakes in Ontario). Such levels are
    upstream of dams and remove impediments to navigation such as rocks and reeds.
    This means that discharge varies greatly throughout the year.
If
water
    levels are quickly raised (through a process that is not gradual)
, then erosion has not occurred and the boundary is fixed in
    location at the time of encroachment. The upland parcel is partially (or
    completely) submerged. [Emphasis added.]

[70]

The application judges factual finding of a gradual and lengthy
    process by which water levels changed over approximately 25 years was not a
    finding of a quick rise in water levels through a process that was not gradual,
    as necessary for the application of the Flooding Principle he described.
    Nonetheless, without explanation of this discrepancy, the application judge concluded
:

What does persuade me that Island 27 and the
    two smaller islands were [what] was conveyed to Alexander Rose in 1868 is the [principle]
    set out in the [Surveyor General Publication] to the effect that
when, as
    here, water levels are quickly raised through a process that is not gradual
,
    then the boundary of the property in question is fixed in location at the time
    of encroachment. That principle is set out in an article produced and published
    by no less an authority than the Surveyor General Branch of Natural Resources
    Canada. That same principle was also applied by this Court in the
Gall v. Rogers

case, also referred to above. In my view, that is the governing law.
    That being the case, I find that the applicant has met its onus and has
    established on the balance of probabilities that Island 27, as well as the two
    smaller islands which formed immediately adjacent to Island 27, were conveyed
    by the Crown to Alexander Rose by the Letters Patent of 1868. [Emphasis added.]

[71]

Although the application judge used the words as here, he did not
    make any factual findings that the change in water levels was non-gradual. He found
    the opposite  that the property was altered through a lengthy and gradual
    process. This characterization is also in line with what he described as the
    only evidence of the change in water levels and alteration of Lot 35, namely,
    that approximately 25 years after the dams were erected, Island 27 existed as
    depicted by the Haslett Survey, and that the water level had increased by 2.5
    feet over the course of those years. There was no evidence of water levels in
    1818 or the effect on them in the 1830s when the dams were erected.

[72]

The flooding principle requires a
sudden
alteration or
    displacement of land or water:
Neilson
, at p. 826
;

McLeay et al v. City of Kelowna et al.
,
    2004 BCSC 325, 27 B.C.L.R. (4th) 344, at para. 20.

[73]

The Estate seeks to support the application judges conclusion by
    relying on the cause of the rise in water levels having been artificial  the
    result of dams. However, the fact that the cause of a rise in water levels was
    artificial does not on its own make the Flooding Principle applicable if the
    rise was not sudden.

Nor is the
    Ambulatory Principle inapplicable if accretion or erosion is the result but not
    the intended effect of a lawful artificial structure: Surveyor General Publication,
    at p. 29;
Clarke v. Canada (Attorney-General)
, [1930] S.C.R. 137, at p. 144. A change in water levels somewhere
    may be the natural result of a dam. But the inference that the dams erected in
    the 1830s were intended to cause erosion at, and to take land away from, Lot 35
    was not one that the application judge drew. Nor is such an inference properly
    available from the fact that water levels were different, and Island 27 had
    separated from the mainland, some 25 years after the dams were erected.

[74]

Where the facts found by a trial judge are insufficient to engage a
    correctly articulated legal standard, the application of that standard is an
    error of law, since it is tantamount to the judge having altered the legal
    standard:

Housen
, at para. 27. On the factual findings of the
    application judge, the Flooding Principle was not applicable. It was thus an
    error of law for him to apply it.

b)

Applying The Flooding Principle to a Time Before
    the Crown Grant

[75]

The AG Canada submits that it was an error to apply the Flooding
    Principle to unpatented land, that is, to fix the boundary at a location other
    than the 1868 waters edge because of  changes in water levels before the
    Letters Patent.

[76]

Although in light of my finding above it is unnecessary to finally
    conclude on this issue, I note that the authority that the application judge
    relied on, The Surveyor General Publication, does not seem to support applying
    the Flooding Principle in this circumstance. The authors make the following
    observation about the relevance of the movement of the waters edge between the
    time a lot has been surveyed, and the time of the Crown grant:

What if the watercourse shifts between time of
    survey and time of parcel creation (e.g. creating a Reserve,
granting a
    Crown patent,
registering a subdivision plan, or raising a new title)?

The significant date is when the parcel is
    created.
The location of the watercourse and thus the location of the water
    boundary pertains when the parcel is created and not when the
    parcel/watercourse is surveyed:
The test is whether the land in fact comes
    to the waters edge under the grant and not upon the manner of land description
    within the grant. The time of survey pales into insignificance because
    riparian rights exist ... at the time of the original Crown grants. at p. 5
    (emphasis added).

[77]

Contrary to the submission of counsel for the Estate, the reference
in Becker v. Walgate
,
2020 ONCA 491,

at footnote 4, that
    the waters edge at the time of the Crown grant does not necessarily mean the
    waters edge on the day of the grant but rather the waters edge in its natural
    and calm condition cannot be read in this case to refer to the waters edge
    some 30 years prior to the Crown grant.

(3)

Failure to Consider the  Implications of the
    Treaties on the Interpretation of the Letters Patent

[78]

After finding that, because of the Flooding Principle, the Letters
    Patent conveyed the Islands to Mr. Rose, the application judge considered the
    effect of Treaties 20 and 78 on ownership of the Islands. As described above,
    he found that Treaty 20 effected an absolute surrender of lands that included
    Lot 35, and that Treaty 78 resolved any uncertainty about the Islands and did
    not detract from the Crowns full ownership rights which included a right to
    sell. The condition Treaty 78 imposed that the Crown use the proceeds of sale
    for the benefit of the First Nations did not estop the Crown from selling any
    of the surrendered lands, and the honour of the Crown was not at risk as long
    as the Crown used the proceeds in that way.

[79]

In other words, the application judge, having found without
    reference to the Treaties, that the Letters Patent meant that the Islands had
    been sold, then concluded that the Treaties did not affect the title that was
    conveyed.

[80]

The appellants argue that in approaching the matter this way the
    application judge made a number of errors. It is not necessary, in my view, to
    address each of those arguments. I accept the argument that in considering what
    the Letters Patent conveyed, the application judge erred by failing to consider
    the obligations in Treaty 78, and whether they were consistent with reading the
    Letters Patent to include Island 27. In other words, he failed to take them
    into account as something that
shed
    light on the sense in which the words in the Letters Patent were used:
Sattva
, at para.
    58;
Gibbs
, at p. 463.

[81]

Treaty 20 recorded an absolute surrender of title by the First
    Nations, but the application judge accepted that assurances were given that the
    King would accede to the First Nations request to exclude any islands. The
    application judge found that those assurances were not given effect until
    Treaty 78. However, Treaty 78 resolved those issues by effecting a surrender
    that was
in trust
and
on conditions
. It imposed limitations on the
    type of sale that could be made  to the best advantage for ourselves and our
    descendants forever  and obligations about any proceeds  the principal
    arising from such sales to be safely funded and the interest accruing therefrom
    to be paid annually to us and our said descendants for all time to come.

[82]

The Crown was under an obligation to ensure the conditions of
    surrender, which are construed liberally and through the lens of the honour of
    the Crown, were faithfully carried out:
R. v. Badger
, [1996] 1 S.C.R. 771, at para. 41
;
Guerin v. The Queen
, [1984] 2 S.C.R. 335, at pp. 376, 382.
    And the Province was bound by those obligations if it carried out the Crown
    power to sell:
Grassy Narrows First Nation v. Ontario (Natural Resources)
,
    2014 SCC 48, [2014] 2 S.C.R. 447, at para. 50.

[83]

The fact that the Crown had undertaken separate obligations in
    connection with islands, and the nature of the obligations, should have shed
    light on whether a sale of Island 27 was objectively intended by the Province by
    Letters Patent that referred only to Lot 35. The Crown is not presumed to act
    in a manner that ignores its duties:
Badger
, at para. 41. The fact
    that the Letters Patent neither identified Island 27 separately, although
    surrendered to the Crown in trust and on conditions, nor allocated any of the
    sale price to Island 27 (a seemingly necessary first step toward investing those
    proceeds for the benefit of the First Nations as the terms of Treaty 78
    required) were facts that were objectively inconsistent with the inference that
    the reference to Lot 35 was intended to include Island 27.

C.

The Interpretation of the Letters Patent

[84]

In light of these errors, the application judges interpretation of
    the Letters Patent is not entitled to deference. I turn, therefore, to whether,
    applying the proper principles, his interpretation is nevertheless supportable.
    In my view, and as presaged by the discussion above, it is not.

[85]

I repeat the interpretive question: whether it was the intention of
    the parties, objectively ascertained, that the Letters Patent conveyed the land
    up to the waters edge in 1868, which did not physically include the islands,
    or whether they conveyed land that in 1868 was beyond the waters edge but
    which had been, at a prior point in time, connected to the mainland.

[86]

In my view, the former interpretation is the only one which reflects
    the objectively ascertained intentions of the parties, as determined by the
    language of the Letters Patent read in light of the factual matrix and the
    legal principles that apply:

a)

the language of the Letters Patent refer to Lot 35, which the Wilmot
    Survey depicted as a mainland lot having a southeastern boundary constituted by
    the waters edge of Lake Katchewanooka, and that did not include any land
    beyond the waters edge or any islands;

b)

the waters edge boundary shown on the Wilmot Survey was ambulatory.
    Nothing in the language of the Letters Patent incorporating the Wilmot Survey,
    or in correctly applied legal principles concerning boundaries, would
    reasonably be taken to mean that the reference to Lot 35 was intended to include
    any land beyond the waters edge at the time of the Letters Patent even if the
    waters edge had moved after the date of the Wilmot Survey;

c)

by the time of the Letters Patent, Island 27 had not only separated
    from the mainland of Lot 35, but had also been separately identified on the
    Haslett Survey  this makes the absence of any reference to Island 27 in the Letters
    Patent all the more important; and

d)

by the time of the Letters Patent, the Crown, under Treaty 78, had
    undertaken obligations in connection with Island 27 in favour of the First
    Nations. Yet the Letters Patent did not reference Island 27 or set out a value
    for Island 27, nor is anything else in them consistent with a sale of Island 27
    in accordance with those obligations.

[87]

Interpreting the Letters Patent to not include the Islands makes
    sense of their language  both the reference to Lot 35, a property that as
    depicted was a mainland lot that did not extend beyond the waters edge, and
    the lack of reference to any islands being included in the conveyance. This
    interpretation is consistent with the relevant factual matrix at the time of
    the Letters Patent, namely that Island 27 was physically separate from Lot 35,
    located beyond the waters edge, had been separately identified, and was the
    subject of a separate and fundamental set of Crown obligations in favour of the
    First Nations.

[88]

The effect of the application judges interpretation is that the
    Letters Patent were meant to convey land with a boundary defined not by the waters
    edge at the time of the Letters Patent, but by a point defined by a historical
    event. In my view, this would not be a reasonable assessment of the parties
    intentions in these circumstances, as it would not be consistent with water
    boundary principles and would exclude from consideration all other factors
    noted above. Given that Island 27 was physically separate at the time and known
    by a designation, it seems highly likely, given the objectives of certainty in
    a conveyance, that if the parties had intended to include Island 27 in the
    conveyance, they would have simply said so.

VI.

Conclusion

[89]

For these reasons, I would allow the appeals, set aside the orders
    of the application judge, and substitute an order dismissing the Estates
    application.

[90]

The Estate sought costs of $43,754 if successful. The appellants
    indicated they were content with the quantum referred to by the Estate. I would
    award costs of the appeals to the First Nations in the sum of $21,500, and to
    AG Canada in the sum of $21,500both inclusive of disbursements and applicable
    taxes.

Released: August 24, 2021 J.M.F.

B. Zarnett J.A.

I agree. Fairburn A.C.J.O.

I agree. B.W. Miller J.A.

[1]
Also known as the Otonabee River.

[2]

The ownership of Island 27 determines the ownership of the
    other Islands  no party argued otherwise. I refer in these reasons to the
    Islands or to Island 27 as the context requires.

[3]
The appellants Curve Lake First Nation (formerly known as the Mud
    Lake Indian Band or Mud Lake Reserve), Hiawatha First Nation (formerly known as
    Rice Lake Indian Band or Rice lake Reserve) and Mississaugas of Scugog Island
    First Nation (formerly known as The Scugog Band of Indians).

[4]
The application judge did not resolve the acreage reference in the
    Letters Patent or use it to assist in determining what was conveyed.

[5]
In this case, it could not be seriously contended that the
    interpretive issue could be resolved by the words of the Letters Patent alone.
    Extrinsic evidence was led and relied on by all parties.

[6]

Nor was any partys position comprehensible without
    reference to these matters. For example, the Estates position turned on the
    location of the Islands in relation to the mainland of Lot 35 in 1818, and if
    separated, when and why that occurred. The appellants positions required
    consideration of the location and identification of the Islands at various
    points prior to and at the time of the Letters Patent, as well as the obligations
    of the Crown to the First Nations.

[7]
Gradual is usually accompanied by additional modifiers that
    reinforce its meaning  imperceptible (in the moment, though perceptible over
    time), and incremental. The applicability of the principle is also a function of
    the cause of the change of water levels  either natural forces or the
    unintentional effects of an artificial structure.

[8]
The principle is sometimes described as involving a change in water
    levels that is sudden and artificial.