Case information

Property — Real property — Title — Crown Patent — Interpretation — Aboriginal law — Treaties — Land claims — Honour of Crown — Law of water boundaries of riparian parcels — Whether the Ontario Court of Appeal Decision departs from binding precedent of this Court regarding the unconditional surrender of land — Whether the Decision would subject all dealings in Ontario lands involving treaties with comparable proceeds of sale clauses to the principle of the Honour of the Crown, thus destabilizing title and triggering legal disputes — Whether the Decision purports to establish a new framework for establishing the objective intentions of parties to a Crown Grant or Patent — Whether the Court of Appeal erred by applying the law of natural accretion and erosion, rather than the law of inundation of land by flooding caused by artificial regulation, thereby confusing the law of water boundaries of riparian parcels — Whether the Court of Appeal failed to give deference to the application judge and performed its own assessment of the evidence without the comprehensive evidentiary record available to the application judge and without first finding palpable and overriding error.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant, the Estate of William Albin Herold (“Herold Estate”), is the owner of Lot 35, Concession 11, in the Township of Smith, County of Peterborough (“Lot 35”). It applied to the Ontario Superior Court of Justice to confirm its ownership of three islands (“Islands”) located in the waterway near Lot 35 and in close proximity to each other.

Before the Ontario Superior Court of Justice, the application judge held that Herold Estate owned the Islands by virtue of Crown Letters Patent dated 1868 to Herold Estate’s predecessor in title which conveyed the Islands as part of the conveyance of Lot 35.

The Court of Appeal unanimously allowed the appeals of the respondent Attorney General of Canada (“AGC”) and the respondents Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation. In its view, the application judge’s determination that the Letters Patent conveyed the Islands as part of the conveyance of Lot 35 was not owed deference because he made extricable errors of law. First, the application judge failed to follow the fundamental principle of interpretation to determine the meaning of the Letters Patent in accordance with the intentions of the parties, objectively ascertained. Second, he erred in treating a legal principle about the effect of sudden changes in water levels on boundaries between different owners as applicable and determinative. Third, he failed to properly consider the Crown’s obligations to the First Nations in determining what the Crown intended to convey by the Letters Patent.