A reference plan does not guarantee property boundaries

In MacIsaac v Salo the Ontario Court of Appeal confirmed that a court has jurisdiction to rectify a reference plan that has been deposited on title.

In 1985 the owner of a large parcel of land, Mr. Kivikangas, subdivided the land into 3 lots.  He directed his surveyor to create a reference plan of survey that portrays a right of way running across the westerly lot owned by the Salos, in order for the owners of the middle and easterly lots, the MacIssacs and the Johansens, to access the waterfront. 

The right of way was to be portrayed in the reference plan as being over an existing gravel road.  The purchasers of each of the lots were informed of the right of way over the gravel road and all of the lot owners used this right of way peacefully for about 15 years. A dispute began between the neighbours when one of them had a survey prepared and discovered that the reference plan did not actually describe the right of way as being over the gravel road. 

The gravel road winds around a large rock outcrop, while the reference plan describes the right of way as going through the outcrop.  The reference plan description renders the MacIssacs’ and the Johansens’ use of the right of way impossible. After learning about the reference plan description, the Salos spent a considerable amount of money fixing up the gravel road and the MacIssacs and the Johansens intensified their use of the road. These circumstances prompted the Salos to barricade the road. 

The MacIssacs and the Johansens then sought rectification of the reference plan. In its reasons, the court explained that unlike a registered instrument, a reference plan does not independently convey an interest in land.  In addition, the court said that the Land Titles Act only guarantees the quality of title, not the quantity. 

Therefore, the only way to confirm the boundaries of a parcel of land, including an easement, is to conduct an up to date survey. In this case, the court held that there would be no injustice in ordering a rectification of the reference plan.  It is clear that all of the parties believed that the right of way across the Salos property was defined by the gravel road. Accordingly, the court exercised its jurisdiction pursuant to section 160 of the Land Titles Act and ordered the rectification of the register.

MacIsaac v Salo, 2013 ONCA 98 (CanLII)