Court of Appeal for Ontario

Docket: C64906

Judges: Rouleau, Watt and Paciocco JJ.A.

Parties

Between

Emil Mihaylov and Sofia Mihaylov Applicants (Appellants)

and

Long Beach Residents' Association, Attorney General of Canada, and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Natural Resources Respondents (Respondents)

Counsel

Stephen Jackson, for the appellants

Liz Tinker, for the respondent Attorney General of Canada

Glenn Frelick, for the respondent Her Majesty the Queen in Right of Ontario

Ryan O'Neill, for the respondent Long Beach Residents' Association

Hearing and Decision

Heard and released orally: October 25, 2018

On appeal from: the order of Justice Edward M. Morgan of the Superior Court of Justice dated January 3, 2018, with reasons reported at 2018 ONSC 14.

Reasons for Decision

[1] The appellants purchased land near the western shore of Sturgeon Lake in 2012 and commissioned a survey of their property later that year. According to the survey, the easterly limit of the appellants' property abuts land owned by the respondent, Long Beach Residents' Association. The appellants claim that the portion of Long Beach's land lying between their property and the shore of Sturgeon Lake was originally part of the parcel they purchased and should now be conveyed to them. The application judge, they submit, erred in dismissing their claim.

[2] We disagree.

[3] Central to the appellants' submission is that the application judge erred in concluding that the lake's shoreline has been moved further east by depositing landfill on parts of what is now Long Beach's lot. Specifically, the application judge found that Long Beach's property was originally a water lot conveyed by the province to the federal government and that fill was deposited thereon to construct a wharf. In our view, the application judge's factual finding is well-grounded in the evidence and we see no basis upon which to interfere.

[4] We note further that several surveys of the property – including the survey commissioned by the appellants – rely on existing survey monuments and indicate that the boundary lies where the application judge determined it to be.

[5] The appellants also argue that the application judge erred in dismissing their claim for interference with riparian rights. Assuming without deciding that riparian rights attached to the appellants' property in 1946 – the conveyance predating the conveyance of the water lot to the federal government and upon which the appellants rely for their claim to riparian rights – any such riparian rights would now have been extinguished pursuant to ss. 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15. This follows from the application judge's finding that the property acquired by the appellants could not have abutted the lake due to the landfill that has been present on the adjoining lot since at least 1999. Any possible claim against the Crown has therefore long been extinguished.

[6] With respect to the costs order in the court below, the respondent Crown in Right of Ontario has not sought leave to appeal. As a result, the appeal and cross-appeal are dismissed. Costs to the Long Beach Residents' Association are fixed at $4,629.43 all-inclusive; to the Attorney General of Canada at $9,424.71 all-inclusive; and to the Crown in Right of Ontario at $6,000 all-inclusive.

Paul Rouleau J.A.

David Watt J.A.

David M. Paciocco J.A.