Blackwell et al. v. Genier et al.
[Indexed as: Blackwell v. Genier]
Ontario Reports Ontario Superior Court of Justice Tremblay J. February 24, 2020 149 O.R. (3d) 669 | 2020 ONSC 1170
Case Summary
Real property — Access — Applicants seeking injunction to prevent respondents from trespassing on lake — Court deciding preliminary issue that new, broader definition of "navigable water" in the Canadian Navigable Waters Act was to be used in deciding the application — Canadian Navigable Waters Act, R.S.C. 1985, c. N-22, s. 2.
Statutes — Interpretation — "Navigable water" — Principles of interpretation — Applicants seeking injunction to prevent respondents from trespassing on lake — Court deciding preliminary issue that new, broader definition of "navigable water" in the Canadian Navigable Waters Act was to be used in deciding the application — Canadian Navigable Waters Act, R.S.C. 1985, c. N-22, s. 2.
The applicants owned five parcels comprising much of the bed of a lake, as well as the adjacent shoreline and abutting lands. There was a long-standing verbal agreement between the various riparian owners allowing mutual access to the entirety of the lake but limiting the use of motorized watercraft. Four of the respondents purchased a property abutting the applicants' property and included a small sliver of the lake and its shoreline. When those respondents began using motorized watercraft on the lake, the applicants took the position that such activities interfered with their reasonable enjoyment of the property and were inconsistent with the verbal agreement. The applicants sought an injunction to prevent the respondents from trespassing on their portion of the lake by navigation or otherwise. There was a preliminary issue as to whether the application would be decided by the new definition of "navigable water" in the Canadian Navigable Waters Act ("CNWA"), which had been enacted in 2019.
Held, the new definition was to be used in deciding the application. [page670]
The scheme of the CNWA prohibited any work in, on, over, under, through or across any navigable water in Canada except in accordance with the Act itself. The goal of the legislation was to prevent interference with navigation on any navigable water in Canada as a result of works or obstructions. Based on a reading of Government of Canada publications, and a comparison of the CNWA with its predecessor legislation, the intention of Parliament in enacting the CNWA was to protect the navigation rights of Canadians on more bodies of water by adopting a new and more comprehensive definition of "navigable water". Giving the CNWA such fair, large and liberal construction and interpretation as best ensured the attainment of its objects, the definition of "navigable water" it provided had to be used in any legal proceeding that might affect, restrict or interfere with the navigation rights of Canadians. The injunction application was just such a proceeding.
Cases referred to
- Wilk v. Arbour (2017), 135 O.R. (3d) 708, [2017] O.J. No. 164, 2017 ONCA 21, 407 D.L.R. (4th) 222, 97 C.P.C. (7th) 61, 274 A.C.W.S. (3d) 460
Statutes referred to
- Canadian Navigable Waters Act, R.S.C. 1985, c. N-22, s. 2 [as am.]
- Interpretation Act, R.S.C. 1985, c. I-21, ss. 8(1), 10, 12, 15(2)
RULING on a preliminary issue as to the applicability of a statutory definition in an injunction application.
T. Mann, for applicants. G. Wainwright, for respondents. Barbara Grace Bauman, Neil Rocky Sisco, Mary Florence Newall, acting in person.
TREMBLAY J. : —
Overview
[1] All parties own recreational properties on Silver Lake in the District of Cochrane. They have a major disagreement as to how they can use the lake.
[2] The applicants own the five parcels that comprise the lion's share of the bed of Silver Lake, as well as the adjacent shoreline and abutting lands of over 90 per cent of the lake.
[3] There was a long-standing verbal agreement between the various riparian owners, which allowed mutual access to the entirety of the lake but limited the use of motorized watercraft in the interest of preserving the tranquillity of the lake and its environmental integrity.
[4] According to the applicants, this all changed on June 14, 2013, when the respondents Robert and Julie Genier and Howard and Melanie Vachon (the "Geniers and Vachons") purchased a property that abuts the applicants' property and includes a small sliver of Silver Lake and its shoreline at its southeast corner. [page671]
[5] The Geniers and Vachons began to use jet skis on Silver Lake. The applicants were not pleased with that. They claim that these activities interfere with their reasonable enjoyment of the property and are inconsistent with the long-standing agreement for the collective use of Silver Lake.
[6] Unable to work out their differences, the applicants brought this application, which seeks, among other things, an injunction to prevent the respondents from trespassing on "their portion" of Silver Lake by navigation or otherwise.
The issue that I must decide
[7] In 2019, the federal government enacted significant changes to legislation formerly referred to as the Navigation Protection Act, R.S.C. 1985, c. N-22 (the "NPA"), which is renamed the Canadian Navigable Waters Act, R.S.C. 1985, c. N-22 (the "CNWA"). The new Act provides, among other things, a new definition of "navigable water". That new definition of "navigable water" in s. 2 of the CNWA may have a significant impact on this application.
[8] The new definition reads as follows:
navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and
(a) there is public access, by land or by water;
(b) there is no such public access but there are two or more riparian owners; or
(c) Her Majesty in right of Canada or a province is the only riparian owner. (eaux navigables)
[9] The preliminary issue that I must decide is whether the definition of navigable water found in s. 2 of the CNWA is the definition that must be used in deciding this application.
The law
[10] The Interpretation Act, R.S.C. 1985, c. I-21 is an Act respecting the interpretation of statutes and regulations. It includes the following sections:
- Section 8(1): "Every enactment applies to the whole of Canada, unless a contrary intention is expressed in the enactment." [page672]
- Section 10: "The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning."
- Section 12: "Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."
- Section 15(2): "Where an enactment contains an interpretation section or provision, it shall be read and construed (a) as being applicable only if a contrary intention does not appear; and (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears."
[11] In Wilk v. Arbour (2017), 135 O.R. (3d) 708, [2017] O.J. No. 164, 2017 ONCA 21, the Court of Appeal for Ontario stated, at paras. 19-20:
The motion judge correctly set out the proper approach to statutory interpretation, namely, that the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament or the legislature: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting Elmer Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), at p. 87.
The purposive approach required the judge to first consider the ordinary meaning of the word or words being interpreted; next, the context in which the words are found and the purpose of the legislation; and then, whether the proposed interpretation produced a just and reasonable result: Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co, 2008 ONCA 561, 295 D.L.R. (4th) 83, at paras. 24-25; Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, 112 O.R. (3d) 354, at para. 34.
Position of the Parties
[12] The applicants submit that the amended and expanded definition of "navigable waters" in the CNWA applies only to the Act itself. It expands the number of bodies of water over which the federal government has oversight of proposed works or obstructions. It does not, however, establish or confer the right to navigate, which remains a common law right.
[13] The respondents submit that the definition of "navigable waters" in the CNWA was amended and expanded to change the common law definition. The legislator intended to protect the [page673] recreational use of all navigable waters in Canada and prevent attempts, such as this application, to interfere with that right.
Analysis
[14] The CNWA applies to any body of water in Canada that meets the definition of "navigable water" found in s. 2 of the Act.
[15] If a body of water in Canada meets the definition of "navigable water" in the Act, navigation on the said body of water will benefit from the protection afforded by the Act.
[16] Accordingly, the CNWA will apply to Silver Lake if it meets the definition of "navigable water" in s. 2 of the Act. If it does, Silver Lake will benefit from the protection afforded by the CNWA.
[17] Should the definition of "navigable water" in s. 2 of the CNWA be used in the context of this application for an injunction prohibiting the respondents and their executors, heirs, and successors in title from trespassing on their private property, which includes the vast majority of Silver Lake, by navigation or otherwise?
[18] To answer that question, I must consider the scheme of the CNWA, its object and the intention of Parliament and determine whether the proposed interpretation produces a just and reasonable result.
[19] What is the scheme of the CNWA? It prohibits any work in, on, over, under, through or across any navigable water in Canada except in accordance with the Act. The CNWA also requires the person in charge of an obstruction in a navigable water in Canada to give notice of the obstruction to the minister immediately.
[20] What is the object of the CNWA? The goal of the legislation is to prevent interference with navigation on any navigable water in Canada as a result of works or obstructions.
[21] What was the intention of Parliament in enacting the CNWA?
[22] The publications on the Government of Canada website prior to and after the enactment of the CNWA that were produced by the respondents at this hearing are useful in ascertaining the intention of Parliament.
[23] A five-page document entitled "Open, accessible and transparent processes" last modified on August 4, 2017, indicates three separate times that Transport Canada, in reviewing the changes to the Navigation Protection Act intends to clarify the criteria used for the aqueous highway test to determine whether water is navigable.
[24] In an 11-page handbook entitled "The Canadian Navigable Waters Act -- Restoring Lost Protections and keeping Canada's Navigable Waters open for public use for years to come", last [page674] modified on February 8, 2018, the Government of Canada indicates that once adopted, the new Act will restore lost protection so that recreational boaters can continue to travel Canada's vast network of rivers, lakes and canals for years to come. The document states that one of the purposes of the changes to navigation protection legislation is protecting the public right of navigation on all navigable waters in Canada and that the new Act includes new criteria and a better process for adding navigable waters to the list.
[25] A 15-page document entitled "Protecting Canada's navigable waters", produced by the Government of Canada and last modified on February 19, 2018, states that the CNWA delivers on the Government of Canada's promise to better protect the right to navigate on all Canada's navigable waters. The document also specifies that the proposed CNWA will modify the navigability test from the common law test (water must be part of an aqueous highway) to a new, more comprehensive definition of "navigable water".
[26] Finally, in a document last modified on November 19, 2019, entitled "Works on navigable waters in Canada", Transport Canada states that the public right to travel on navigable waters is protected by law in Canada and that it applies to all waters that the public may use for travel or transport.
[27] Having read the CNWA, having compared it to the previous legislation (the NPA) and having considered the various documents published by the Government of Canada regarding the CNWA, I find that the intention of Parliament in enacting the CNWA is clear. Parliament intended to protect the navigation rights of Canadians on more bodies of water by adopting a new and more comprehensive definition of "navigable water".
[28] Giving the CNWA such fair, large and liberal construction and interpretation as best ensures the attainment of its objects, the definition of "navigable water" it provides must, in my view, be used in any legal proceeding that may affect, restrict or interfere with the navigation rights of Canadians.
[29] This application for an injunction prohibiting the respondents from trespassing on the applicants' private property, which includes over 90 per cent of Silver Lake, by navigation or otherwise, is such a legal proceeding.
[30] The definition of "navigable water" in s. 2 of the CNWA, therefore, applies to this application. It effectively replaces the common law navigability test that the water must be part of an aqueous highway.
[31] In my view, this interpretation produces a just and reasonable result. [page675]
[32] Should Silver Lake meet the definition of "navigable water" under the CNWA, the Act would prohibit the applicants from physically obstructing or interfering with the navigation rights of the public, including the respondents on that lake. In the circumstances, it would be unjust and unreasonable that the applicants would, however, be able to prohibit navigation altogether on over 90 per cent of Silver Lake through a permanent injunction as a result of the court relying on a different definition of "navigable water" -- the common law navigability test -- in this proceeding.
Conclusion
[33] The definition of "navigable water" in s. 2 of the CNWA is the one that must be used to decide this application. It effectively replaces the common law navigability test that the water must be part of an aqueous highway.
Costs
[34] I am reserving the issue of costs until the final adjudication of the application.
Ruling in favour of the respondents.
End of Document