COURT OF APPEAL FOR ONTARIO
LASKIN, LANG and JURIANSZ JJ.A.
BETWEEN:
LAVINA LANTY
Plaintiff (Appellant)
and
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by THE MINISTER OF NATURAL RESOUCES
Defendant (Respondent)
Michael J. Reid for the appellant
Robert Ratcliffe for the respondent
Heard: October 29, 2007
On appeal from the judgments of Justice Guy P. DiTomaso of the Superior Court of Justice dated January 20, 2006, with reasons reported at (2006), 89 L.C.R. 161, and March 1, 2006, with reasons reported at (2006), 38 R.P.R. (4th) 275.
1In 1978 the appellant, Ms. Lanty, bought a cottage in Wasaga Beach Provincial Park. To reach her cottage she drove over 150 feet of beach property. In 1998, however, the respondent, the Minister of Natural Resources, terminated her vehicular access to her cottage by changing the lock on the gate leading to the beach. The Ministry said that it did so because of concerns about safety and the public interest. The Ministry offered Ms. Lanty the continued use of two parking spaces it had provided four hundred feet from her cottage and the right to drive over the beach to her cottage for emergencies or on other justifiable occasions. Ms. Lanty was not content with this offer.
2Ms. Lanty brought this action seeking a declaration that she had a legally enforceable right to drive over the beach to her cottage, and an award of damages. The Ministry defended by asserting that she had no legal right to drive to her cottage; her ability to do so in the past had been by permission, which the Ministry was entitled to and justifiably did terminate.
3At trial, Ms. Lanty’s claim turned on who owns the beach property, whether it had been a “highway”, a “roadway”, or an “access road”, and whether Ms. Lanty had established a prescriptive or equitable easement or an easement of necessity. In a thorough and well reasoned decision, DiTomaso J. dismissed Ms. Lanty’s action and awarded costs against her in the amount of $133,800.
4On appeal Ms. Lanty renews the arguments that she made at trial save for one. She abandons her claim under the Road Access Act. She also seeks leave to appeal the trial judge’s costs order against her. On the issues she argues in this court we agree substantially with the reasons of the trial judge. We add only the following brief comments.
1) Ownership of the beach property
5The original Crown patent in 1866 granted the land to a Mr. George Cook, subject to the following clause: “Reserving the beach and free access to the shore of Lake Huron for all vessels, boats, and persons.” The trial judge concluded that by this “reservation” clause, the provincial Crown retained legal title to the beach property.
6Ms. Lanty submits that in so concluding the trial judge misapplied the majority judgment of this court in Gibbs v. Grand Bend (Village) (1995), 1996 2835 (ON CA), 26 O.R. (3d) 644. In that case, Finlayson J.A. for the majority drew a distinction between a “reservation” clause and an “exception” clause. If the Crown patent uses the word “reserving” the fee is ordinarily transferred to the grantee. If the patent uses the word “excepting” the Crown ordinarily retained the fee. Ms. Lanty contends that because the patent to Cook used the word “reserving”, after 1866 the Crown no longer owned the beach property. Instead it vested in the municipality until it was reclaimed by the Crown on the establishment of the Provincial Park in 1974.
7The trial judge carefully considered this court’s judgment in Gibbs and distinguished the wording of the Crown patent in that case from the wording of the patent in this case. He held that though the clause uses the word “reserving”, its specific language showed that the Crown retained title. We think it was open to the trial judge to so hold. In Gibbs itself, though Finlayson J.A. distinguished between Crown patents using the word “reserving” and those using the word “excepting”, he also made the important point that whether the Crown did or did not retain title depended on the wording and context of the entire clause.
8However, even if the trial judge erred in holding that the Crown retained title to the beach property under the 1866 patent, this “error” does not advance Ms. Lanty’s position. The trial judge held, in the alternative, that the Crown acquired title to the property by the 1924 Watson dedication of the “sand beach … to public use”. That holding is amply supported in the record as outlined at para. 49 of the trial judge’s reasons. We are not persuaded of any basis to set aside that holding. Thus, from 1866 on, or at the latest, from 1924 on, the provincial Crown owned the beach property.
2) Highway or roadway?
9For many years, the public drove their cars along the beach and parked their cars on the beach. Indeed, the public often described the beach as a road or a highway. Nonetheless, these two facts do not turn the “beach road” into a legal highway or roadway triggering closing obligations under the Municipal Act, 2001, S.O. 2001, c. 25. The trial judge found that Ms. Lanty had failed to prove the beach road was a road or a highway under the act or at common law. That finding is supported by the evidence.
10Moreover, as the trial judge also observed, once the Crown established ownership of the beach property, s. 63 of the Public Lands Act, R.S.O. 1990, c. P.43 applied, and this section by itself answers Ms. Lanty’s claim. Section 63 states: “Any part of the public lands that is a beach and is used for travel by the public is not by reason only of such use a highway within the meaning of any Act”.
3) Easements
11The trial judge gave several reasons why Ms. Lanty had not established an easement to drive her car over the beach to her cottage. On appeal, she argues two main points: the scope of the Crown’s permission and the July 13, 1978 letter from the park superintendent.
12The trial judge rightly held that permission – “neighbourly accommodation” – cannot be turned into an enforceable legal right. Ms. Lanty tries to avoid this sensible proposition by arguing that she drove on the beach in a way inconsistent with the Ministry’s permission. She relies on this court’s judgment in Rose v. Krieser (In Trust) (2002), 2002 44894 (ON CA), 58 O.R. (3d) 641. That case is entirely distinguishable on its facts. And the short answer to Ms. Lanty’s submission on this issue is that on cross-examination she acknowledged she drove along the beach to her cottage with the Ministry’s permission.
13The park superintendent’s letter was not an ideal response to Ms. Lanty’s letter requesting clarification of her rights. However, the response does not contain any representation on which Ms. Lanty could reasonably rely to impose a legal obligation on the Ministry to provide her car access to her cottage.
4) Costs
14We think that the trial judge was correct to award costs against Ms. Lanty. This was not one of those rare novel or public interest cases warranting a no costs order.
15Thus, the only real question on this branch of the appeal is the quantum. The amount is admittedly high. Yet, the trial judge gave detailed reasons for his order, which included Ms. Lanty’s “unreasonable and uncooperative behaviour”, both before and during the trial – behaviour, the trial judge found, that increased the length of the proceedings. Bearing in mind the narrow scope of appellate review of a trial judge’s costs award, we can find no basis to interfere with the award in this case.
5) Conclusion
16Substantially for the reasons given by the trial judge and for these brief additional reasons, the appeal is dismissed with costs in the agreed amount of $10,000 inclusive of disbursements and G.S.T.
RELEASED: NOV 07 2007
“SEL” “John Laskin J.A.”
“S.E. Lang J.A.”
“R.G. Juriansz J.A.”
