Court of Appeal for Ontario

Date: 2017-12-13 Docket: C62262

Judges: Hourigan and Brown JJ.A. and Himel J. (ad hoc)

Between

Craig Frohlich Plaintiff/Defendant in Appeal

and

John Ferraro and Diane Ferraro Defendants/Appellants in Appeal

Counsel

G. Edward Oldfield and Christian Ferraro, for the appellants

James Bennett and Christopher Clemmer, for the respondent

Heard and released orally: December 11, 2017

On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated May 19, 2016.

Reasons for Decision

[1] This appeal is about a property dispute between two cottage owners. At trial, the court declared that the appellants had entered and trespassed on the dry land portion of the respondent's water lot. A permanent injunction was issued restraining the appellants from entering upon any part of the respondent's property not covered by water. The appellants' counterclaim for an easement over that land was dismissed.

[2] On appeal, the appellants raise a number of new arguments in support of their request that a judgment be granted declaring that the property boundaries are subject to their riparian rights, or, in the alternative, granting an easement, or, in the further alternative, declaring a mistrial. They also seek to adduce fresh evidence regarding property boundaries.

[3] In summary, the appellants submit that the trial judge erred in failing: to consider the issues of riparian rights and accretion, the high water mark, and the intentions of the original sub-dividers; to provide sufficient reasons; and, to find on the evidence that an easement had been established.

[4] We do not give effect to any of these grounds of appeal.

[5] The issues of riparian rights (either the appellants' or the Crown's), accretion, the high water mark and the intentions of the original sub-dividers were not argued at trial. Indeed, in their written trial submissions, the appellants stated "issues of riparian rights, erosion and accretion do not apply…as they do not have a water boundary, in law, to their property." We would not give effect to any of these grounds of appeal. The appellants are attempting to fundamentally alter their case post-trial. In so doing, they have not offered any credible explanation regarding why these issues were not raised at trial. It would be grossly unfair to the respondent to force him to respond to an entirely new case on appeal. As the proposed fresh evidence is tendered in support of these new arguments, we decline to grant leave to admit it.

[6] With respect to the sufficiency of reasons, the appellants make a series of arguments to the effect that the reasons raise more questions than provide answers and are therefore insufficient. We disagree. For example, there was no need for the trial judge to make a finding about lot boundaries as the appellants conceded the area of the water lot at trial. Similarly, the appellants' contention that the trial judge failed to consider what use they could make of certain structures is inconsistent with their position at trial that "there is no effort to seek to build, linger or do anything on the plaintiff's land ... except travel for the purpose of accessing the water." In short, we are not satisfied that the trial judge failed to provide sufficient reasons on any relevant issue.

[7] On the issue of the easement, the appellants' primary submission is that the trial judge erred on the question of permission because he conflated the issue of the easement regarding an island in the water lot with the issue of an easement for access to the water. At trial, the appellants did not argue that there were multiple easements; they argued that there was one. The trial judge considered that argument. The trial judge made findings of fact regarding permission that were open to him on the record. He correctly applied the law to the facts he found and ruled against the appellants. We see no error in that analysis.

[8] The appeal is dismissed. The appellants shall pay the costs of the appeal to the respondent in the all-inclusive sum of $20,000.

"C.W. Hourigan J.A."

"David Brown J.A."

"Himel J."