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Real Property - Interpretation

. Herold Estate v. Canada (Attorney General)

In Herold Estate v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered principles of interpreting 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.
These issues are expanded on in paras 38-88.


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