Herman Faber

Landowners brought applications under the Beds of Navigable Waters Act seeking a determination of title to the bed of a creek running through their properties.

Under s. 1 of the Act, if the waterway was navigable at the time of the Crown grant, the bed remains vested in the Crown unless expressly granted.

The court considered historical surveys, expert evidence, photographs, and testimony regarding seasonal water levels and canoe use.

Applying established case law on navigability and the concept of “public utility,” the court found the waterway was likely navigable for significant portions of the year at the time of the 1816 Crown grant.

Consequently, the bed of the stream remained Crown property and severed the applicants’ lands.

Multiple motions arose in two related civil actions involving commercial disputes concerning rose-growing agreements and related tort claims dating back to the early 1990s.

The court considered requests to dismiss the actions for delay, set aside a presumed registrar’s dismissal, determine entitlement to funds paid into court as security for costs, and various procedural relief.

The court found that the litigation had been inactive for more than a decade, constituting inordinate and inexcusable delay.

The court also found actual prejudice due to the deterioration of a key witness’s health and the fading of witness memories.

Both actions were dismissed for delay, and funds previously paid into court as security for costs were ordered released to the successful defendants.