Jeremy Arthur Wainwright

The appellant, Lynn Larabie, as executrix of her parents' estate, appealed a Superior Court decision that dismissed her application to quash a zoning by-law passed by the Township of Moonbeam.

The by-law rezoned an adjacent property to permit expansion.

The appellant argued the Township failed to provide proper statutory notice under the Planning Act and regulations, and acted in bad faith.

The application judge found the by-law procedurally illegal due to notice failures but exercised discretion not to quash it, finding no bad faith and negligible broader consequences.

The Court of Appeal upheld the application judge's decision, finding no error in the bad faith analysis or the exercise of discretion not to quash the by-law, despite the procedural illegality.

The appellants, who own most of the bed of Silver Lake, sought a declaration that the lake is non-navigable under the Beds of Navigable Waters Act to prevent other cottage owners from navigating vessels over their portion of the lakebed.

The application judge dismissed the application, applying the definition of 'navigable water' from the federal Canadian Navigable Waters Act (CNWA).

On appeal, the Court of Appeal held that the application judge erred in applying the CNWA definition to a property dispute over lakebed rights.

However, the Court declined to grant the declaration sought by the appellants, noting that the application judge had not resolved the necessary factual issues and that a declaration would not resolve the underlying dispute regarding riparian rights and common law navigability.

The appeal was allowed, and the application was dismissed without prejudice to bringing a fresh application.