Ontario Heritage Trust v. Hunter, 2025 ONSC 3379

Court File No.: CV-21-00671532-0000
Date of Judgment: June 6, 2025
Heard: March 10–11, 2025
Ontario Superior Court of Justice
Between:
Ontario Heritage Trust, Applicant
– and –
Troy James Hunter and Chippewas of Nawash Unceded First Nation, Respondents

Applicant Counsel: Sylvia Davis and Jenny Kim (student-at-law)
Respondent Counsel:

• Alex Van Kralingen (for Troy James Hunter)
• Benjamin Brookwell and Jesse Abell (for Chippewas of Nawash Unceded First Nation)

Judge: Rohit Parghi

Reasons for Judgment

Introduction

Ontario Heritage Trust brings this application seeking a declaration of trespass and related relief under rules 14.05(3)(e) and (g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The trespass arises from various encroachments onto a lot of land that is sacred and culturally important to the Anishinaabe, and which forms part of a larger piece of land recognized as an Aboriginal peoples’ burial ground under the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33. The encroachments at issue consist of a 28.9 square metre portion of a cottage, a gravel driveway, fifteen decorative cedar trees, a concrete well, and the well’s underground servicing lines, which together constitute approximately 20–25% of the lot (together, the “Encroachments”). The Encroachments were constructed by the owner of the neighbouring lot, the Respondent Troy Hunter.

That the Encroachments encroach on the land is acknowledged and uncontested. The issue before me is what to do about them.

Ontario Heritage Trust (the “Trust”) and the Respondent Chippewas of Nawash Unceded First Nation (“Nawash”), an Anishinaabe nation, seek a declaration that all the Encroachments constitute trespass to land. They ask for a mandatory order that Mr. Hunter remove the Encroachments from the lot and restore the lot to its original condition at his expense.

Mr. Hunter states that the Encroachments were accidental and that therefore he should not be required to remove them or otherwise restore the land. He asks to be permitted to leave the cottage where it is, in exchange for granting an equal sized portion of his own lot to the Trust. He also asks that the balance of the Encroachments be remediated in accordance with various joint protocols agreed to by archaeologists and ecologists retained by both parties.

For the reasons below, I grant the application and the relief sought, including the removal of the Encroachments. I find that the Encroachments constitute a trespass to land and that the injunctive and other relief sought by the Applicant is appropriate, particularly given the spiritual, cultural, and archaeological significance of the land.

The Parties

The Trust is a Crown corporation without share capital continued under s. 5(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. It is the registered owner of Lot 20, which I describe further below and on which the Encroachments are located. The Trust acquired Lot 20 in 2007. Pursuant to section 7(b) of the Ontario Heritage Act, the Trust holds Lot 20 in trust for the people of Ontario.

The Respondent Troy Hunter (“Mr. Hunter”) owns Lot 21, which is adjacent to Lot 20. Mr. Hunter has worked in the hauling and excavation business since high school. He started his own such company in 1996; it merged with his father’s company in 2002. Mr. Hunter purchased Lot 21 in 1989. He built the Encroachments in 2005.

Nawash co-manages the burial ground, of which Lot 20 forms a part, together with the Trust.

The Land

The land at issue is a waterfront lot on the Bruce Peninsula in the County of Bruce. It is described as Lot 20 in Plan 3M-117, a registered subdivision plan first registered in August 1987 by Mr. Hunter’s father, Alton Hunter. Plan 3M-117 includes 22 waterfront lots, three interior lots, and two roads.

Lot 20, and all of Plan 3M-117, form part of Nochemowenaing, a sacred site and burial ground for Nawash. The word “Nochemowenaing” means “healing waters” in English. Nawash’s evidence is that Nochemowenaing has been a sacred site since time immemorial, as it is deeply connected to Midewin, a faith and way of life of the Anishinaabe given to them by their Creator. The Anishinaabe Migration Story tells of the migration of the Anishinaabe and their Midewin knowledge up the St. Lawrence River and westward, generations before the arrival of Europeans. When the Anishinaabe reached Nochemowenaing, the Great Meegis Shell surfaced in the water and lit up the land and the entire bay. The Meegis blessed the land and waters, and also provided direction to the Anishinaabe for the continuation of their migration before it submerged back into the water, creating a giant whirlpool. The water, whirlpool, and lands blessed by the Meegis were given healing properties and are considered a sacred landscape and place of healing for the Anishinaabe. The ancestors of those now living at Nawash became caretakers of Nochemowenaing. Anishinaabek from elsewhere journey to Nochemowenaing to seek healing.

Nochemowenaing is also a sacred burial ground known by Anishinaabek all over. It is a starting place to go up to the Star People, the Land of the Souls. Burial sites, in Anishinaabe tradition, are sacred and are to remain untouched and undisturbed. It is considered disrespectful to disturb burial sites or for there to be buildings or people living on burial sites. Members of Nawash go to Nochemowenaing only for ceremonial purposes or to protect and care for the area. When they do go there, they follow spiritual protocols and walk in single file following a trail, to avoid disturbing burials and for protection.

Factual Background

Mr. Hunter’s purchase of Lot 21, the discovery of archaeological resources on the subdivision, and the start of negotiations to sell Lots 9-20 (1989-2001)

In February 1989, Mr. Hunter purchased Lot 21 from his father, Alton Hunter. Lot 21 is adjacent to Lot 20, to its northwest. Both lots front the water and are roughly pie shaped, with their (narrower) southwestern ends on the water and their (wider) northeastern ends abutting roadways in the subdivision.

In October 1989, archaeological resources were discovered on the subdivision lands. Alton Hunter gave a doctoral student, James Molnar, permission to investigate the site. Mr. Molnar investigated the site during the summers of 1990 to 1992. He and his study team recovered over 7000 artifacts, including shards from ceramic vessels, ground stone tools, and lithic pieces from time periods spanning 200 B.C. to 1600 A.D. They also identified large pits or depressions built on cobble beach ridges and recovered human remains from the surface of three discrete areas of the site.

Additional investigation was done in 1994, through which 28,166 objects were inventoried and additional human remains, including infant remains, were uncovered. The infant remains were found in circular depressions on the property that were considered to likely be burial pits. The Ministry of Culture, Nawash, and the Cemeteries Section of the Ministry of Consumer and Commercial Affairs were notified. The finding of the infant remains triggered the operation of the Cemeteries Act (Revised), R.S.O. 1990, c. C.4.

The Registrar appointed under the Cemeteries Act mandated further investigations of the area. Investigations of Lots 9-22 took place in 1996. They recorded the locations of 131 circular and oval shaped depressions and 27 low-lying elongated mound features. The depressions and mound features were considered likely burial features.

In 1997, the Registrar directed additional investigation. Two additional human burials were identified in close proximity to the infant burial. Additional investigation took place in the following years in consultation with the Chippewas of Nawash Band Council, and on the direction of the Registrar. A fourth human burial was identified.

In 1999, the Registrar issued a Declaration, pursuant to section 71 of the Cemeteries Act, that a portion of the subdivision was an “Unapproved Aboriginal People’s Cemetery”. This portion did not include Lots 20 or 21.

Alton Hunter was given notice of the declaration and was required by the Cemeteries Act to enter into negotiations with Nawash, the municipality, and the provincial and federal governments to sell Lots 9-20. The negotiations broke down in 2001. As discussed below, he eventually entered into an agreement to sell the lots in 2007.

Mr. Hunter’s permit applications, Alton Hunter’s archaeological assessment, and the Ministry of Culture’s final clearance for development (2002-2005)

In May 2002, Mr. Hunter, who had purchased Lot 21 from his father in 1989, applied to the Niagara Escarpment Commission for a development permit to build a cottage on Lot 21. His evidence is that it did not occur to him at the time to get a survey done on Lot 21. Mr. Hunter acknowledges that his permit application contained inaccuracies. It relied on a hand-drawn map that depicted the lot as rectangular, rather than pie-shaped, and mis-stated the proposed set back for the cottage relative to the boundary between Lots 21 and 20, showing the cottage to be well back from the boundary line. It also depicted the driveway as being about 35 feet from the boundary line with Lot 20.

In September 2002, Mr. Hunter’s application was given conditional approval, subject to an archaeological assessment of Lot 21 being completed to the satisfaction of the Ministry of Culture. Mr. Hunter and Alton Hunter sought a reconsideration of the conditional approval. The requirement for the archaeological assessment was not altered.

Accordingly, in April 2003, Alton Hunter had an archaeological assessment done of Lots 1-8 and Lots 20-21, in accordance with the Ministry’s four-stage framework for archaeological assessment. The assessment found “scatters of cultural artifacts” that had “potential significance” and recommended additional assessment. That subsequent assessment resulted in the recovery of 79 artifacts from an area on Lot 20 referred to as Location 8. The archaeologist recommended that, “[d]ue to the potential significance and information potential of the material thus far recovered from Location 8, … this site be subject to additional Stage 4 avoidance or excavation in advance of any construction on the lot.” However, no additional archaeological steps were taken.

In June 2004, the Ministry of Culture issued a final clearance for development for Lots 1-8 and Lot 21. The letter stated that archaeological concerns remained for the other lots (which included Lot 20) and that the Ontario Heritage Act prohibition on unlicensed alterations to archaeological sites remained in effect, including for Location 8 on Lot 20. Mr. Hunter was copied on the letter and his evidence is that he must have been told about the letter at the time.

In May 2005, Mr. Hunter applied for a sewage system disposal permit. The application again showed Lot 21 as rectangular, not pie-shaped, and mis-stated the location of the cottage relative to the boundary between Lots 21 and 20, showing it to be set back 59 feet from the boundary line.

In July 2005, Mr. Hunter applied for a building permit; the attached site plan again depicted a rectangular lot and showed a 59-foot side yard setback for the cottage from the boundary line with Lot 20.

Mr. Hunter’s construction of the Encroachments (2005)

In 2005, Mr. Hunter constructed a cottage, of which a 28.9 square metre portion was constructed on Lot 20. He also constructed a driveway and well on Lot 20.

In determining the boundaries of Lot 21 prior to construction, he did not retain a surveyor. His evidence is that it did not occur to him to do so. Instead, he referred to Plan 3M-117, and walked the property. He believed he was constructing the cottage, driveway, and well on Lot 21, based on his understanding of the lot boundaries in Plan 3M-117 and his own familiarity with the land. The reasonableness of the steps Mr. Hunter took to discern the property boundaries before building are contested before me and discussed further below.

The Trust’s purchase of Lots 9-20 from Alton Hunter (2007)

As noted above, pursuant to the declaration issued in 1999, Alton Hunter was required to enter into negotiations with Nawash, the municipality, and the provincial and federal governments to sell Lots 9-20. As part of this process, Ontario Realty Corporation, on behalf of the Province of Ontario, obtained two real estate appraisals of the market value of the fee simple in Lots 9-20. The appraisals came in at $2,775,000.00 and $1,830,000.00 respectively. These reports appraised the value of the land as though no archaeological findings had occurred, with the result that the estimated value of the land in both reports was substantially higher than its actual market value.

In April 2007, the Trust acquired Lot 20, together with Lots 9-19, from Alton Hunter for $2,800,000.00. The Agreement for Purchase and Sale obligated Alton Hunter to deliver vacant possession of the Property. A separate undertaking that he signed made the same promise. He also signed a Declaration that provided:

a) that he was the absolute owner of the lands;
b) that he had been in continuous, exclusive possession and occupation of the lands throughout his period of ownership;
c) that he was not aware of any person having any claim or interest in the lands or any part of the lands inconsistent with registered title and was positive that none existed; and
d) that, except as may be registered on title, he had never heard of any claim affecting the lands.

The co-management agreement between the Trust and Nawash and the declaration of Lots 9-20 as an Aboriginal people’s burial ground (2011, 2015)

In July 2011, the Trust and Nawash entered into a co-management agreement in respect of the burial ground. The agreement provides that the goals of co-management are to conserve and protect the site and its natural, archaeological, and sacred value for future generations and for the Anishinaabe in particular. The agreement further provides that the burial ground is not to be disturbed, built on, developed, visited, or used except for site monitoring and for ceremonial purposes by members of Nawash or other Anishinaabek.

In June 2015, the Registrar appointed under the Funeral, Burial and Cremation Services Act, 2002 issued a declaration recognizing Lots 9-20 and an adjacent road allowance as an Aboriginal peoples’ burial ground. It declared

the Nochemowenaing burial site, more particularly described as the lands composed of Lots 9-20, Plan 3M-117 … and an adjacent road allowance … which land contains the four burials… and that includes the land between the burials including the areas where the primary “tree/scaffold” burials were identified as having originated from, to be an Aboriginal peoples burial ground as defined in Section 97 of the Funeral, Burial and Cremation Services Act, 2002 .

On March 15, 2018, the parties entered into a settlement agreement which provided for the Trust or Nawash to purchase Lots 2-3, 5-8, 24, and 25 from Alton Hunter and Lot 23 from Alton Hunter and Mr. Hunter in phases between 2018 and 2021. The final transaction closed on April 30, 2021.

The survey of Lot 20 and the discovery of the Encroachments (2018)

In 2018, the Trust commissioned a survey of Lot 20. The survey identified the following encroachments made onto Lot 20:

a) The southeast corner of a cottage constructed on Lot 21 encroached approximately 5.19 metres over the boundary onto Lot 20;
b) A gravel driveway was constructed on Lot 20 and encompassed about 20-25% of the area of Lot 20;
c) A shed was constructed on Lot 20;
d) A propane tank was installed on Lot 20;
e) A concrete well was constructed on Lot 20 about 2.5 metres from the projected boundary line between Lot 20 and Lot 19, which suggested that excavations had been made to install subsurface water lines across Lot 20 to service the dwelling on Lot 21 (Mr. Hunter has since acknowledged that there are subsurface water lines); and
f) 15 decorative cedar trees were planted on Lot 20.

The shed and propane tank have since been removed.

Mr. Hunter does not contest the above description of the Encroachments, that they are in fact encroachments, or that he constructed them on Lot 20. I note that, a round 2020, Mr. Hunter commissioned his own survey of the boundary between Lots 20 and 21, which confirmed the boundaries identified by the Trust’s survey in 2018.

The record indicates that the Encroachments are located very close to Location 8 on Lot 20, where artifacts had been recovered in 2003.

The record also contains photographs of canoes and watercraft next to the storage shed, and an access route that had been cleared on Lot 20 from the driveway to the water.

In June 2019, the Trust wrote to the Niagara Escarpment Commission and the municipality about the Encroachments.

Niagara Escarpment Commission staff investigated and issued a report in July 2020. The report described the Encroachments as representing “approximately 20-25%” of Lot 20. It included photographs depicting tire tracks along the access route on Lot 20 to the water. It concluded that the Encroachments contravened section 24(1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, and formed reasonable grounds for a proposed Order to Demolish/Restore intended “to return Lot 20 to as close to its original condition as possible, and to ensure that no further development occurs in contravention of” the Act. The Commission deferred the matter to give Mr. Hunter a chance to respond.

Mr. Hunter suggested that this was a matter of trespass more appropriately decided through the courts. The parties eventually agreed to have it heard by the courts. Mr. Hunter made six separate offers to the Trust in an attempt to resolve the impasse, without success.

Issues

There are two issues before me:

a) Whether the Encroachments constitute trespass to land; and
b) Whether a mandatory injunction is the appropriate remedy.

Whether the Encroachments constitute trespass to land

The tort of trespass involves a direct and physical intrusion onto land that is in the possession of the plaintiff, through a voluntary act ( Grace v. Fort Erie (City of), at para. 86 ; R. & G. Realty Management Inc. v. Toronto (City) ¸ 2005 CarswellOnt 7857, para. 40 ; Smith v. Inco, 2010 ONSC 3790 , 52 CELR (3d) 74, para. 37 ). The defendant must have entered upon the land, remained upon it, or placed or projected an object upon it without legal justification ( Ramsahai-Whing v. Weenen, 2016 ONSC 2427 , at para. 46 ). The defendant’s act must be voluntary, but need not be intentional ( Wigle v. Vanderkruk, at para. 48 ).

The Encroachments clearly constitute trespass. Each Encroachment – the portion of the cottage on Lot 20, the gravel driveway, the fifteen cedar trees, the shoreline well, and the well’s underground servicing lines – represents a direct and physical intrusion by Mr. Hunter and his construction worker agents onto land that is owned by the Trust in trust for the people of Ontario. The Encroachments were constructed voluntarily. They were not justified by law.

Mr. Hunter acknowledges that the Encroachments constitute trespass to land.

Whether a mandatory injunction is the appropriate remedy

This court has jurisdiction to issue a mandatory order where it is just or convenient to do so; such an order may include such terms and conditions as are considered just ( Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 11(2), 96(3) , 97 , 101(1) and (2) ). The parties agree that I have jurisdiction to decide this matter and grant the relief sought.

The Trust and Nawash seek a mandatory order that Mr. Hunter remove the Encroachments and restore Lot 20 to its original condition at his expense.

Mr. Hunter asks that he be permitted to keep the cottage where it is, and that the court order an exchange of land whereby Mr. Hunter would receive 745 square metres of Lot 20, including the land under encroaching corner of the cottage, and would in exchange provide the Trust with 784.1 square metres of Lot 21. Mr. Hunter further proposes that the balance of the Encroachments be remediated in accordance with joint protocols agreed to by archaeologists and ecologists retained by both parties.

For the reasons below, I grant the relief sought by the Trust and Nawash.

The test for injunctive relief

The preferred remedy for trespass is an injunction. Justice Robert J. Sharpe, in his text Injunctions and Specific Performance , 5th ed. (Toronto: Canada Law Book, 2017), at 4.9, writes that “[w]here the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringements in the nature of trespass.” The Court of Appeal for Ontario has cited this passage with approval in upholding an injunction preventing a landlord from re-entering leased premises and otherwise interfering with a tenant’s property rights ( 1465152 Ontario Ltd. v. Amexon Development Inc. , 2015 ONCA 86 , at para. 23 , leave to appeal refused, [2015] S.C.C.A. No. 102).

Injunctive relief is discretionary, because it is an equitable remedy. In considering whether to grant damages instead of an injunction in the case of trespass, I must consider the four factors of the so-called “Working Rule”, namely, whether:

a) The injury to the plaintiff’s legal right is small;
b) The injury is capable of being estimated in money;
c) The injury can be adequately compensated by a small money payment; and
d) Granting an injunction would be oppressive.

( Bellini Custom Cabinets v. Delight Textiles Limited , 2007 ONCA 413 , at para. 41 , leave to appeal refused, citing Shelfer v. City of London Electric Lighting Co. , [1985] 1 Ch. 287 (C.A.) , at 322-3 ; Armstrong, et al. v Penny, et al. , 2023 ONSC 2843 , at paras. 79 , 83).

Every trespass is unique, and I am to consider that uniqueness when assessing whether damages are appropriate in lieu of an injunction ( Armstrong , at para. 94). The burden rests with Mr. Hunter, as the trespasser, to persuade me that damages would be appropriate, having regard to these criteria.

Counsel are unable to point me to any case law applying the Working Rule criteria to matters involving trespass to land of particular cultural or spiritual significance to Indigenous people, or to land held in trust for the public. The jurisprudence only involves private property disputes. In my view, the nature of the interest in the land in this case is a unique dimension to the trespass that I am to consider when applying the Working Rule criteria.

[Further detailed analysis and findings omitted for brevity; see full text above for all paragraphs and legal reasoning.]

Order granted

I declare that the Encroachments, as defined in these Reasons, constitute trespass to land.

I order the following:

a) That Mr. Hunter forthwith remove all remaining Encroachments, together with any site alterations, debris, or substances constructed or placed upon Lot 20 by him, his agents or assigns without lawful authority, and restore Lot 20 to its original condition under the supervision of qualified persons and in a manner that protects the archaeological, cultural heritage and natural heritage features of Lot 20;

b) That the parties, within 45 days of these Reasons, come to an agreement regarding terms of a supplemental order addressing appropriate terms and conditions, including monitoring and reporting requirements, in respect of Mr. Hunter’s removal of the Encroachments and other matters referred to in subparagraph (a); if the parties reach an agreement regarding the supplemental order they may provide it to me and I will issue it, and if they are unable to come to such an agreement they may advise me and I will convene a case conference;

c) That Mr. Hunter, together with his agents, assigns, heirs, and successors, be restrained from entering or otherwise trespassing upon Lot 20 for any purpose other than complying with this Order and any supplemental order(s) issued by the court; and

d) That Mr. Hunter pay for all demolition and site restoration work, including all archaeological assessments, environmental science and other professional services and site monitoring required to comply with this Order and any supplemental order(s) issued by the court.

Mr. Hunter requested the opportunity to make costs submissions after this matter was decided on the merits. All parties may have this opportunity. The Trust and Nawash have already submitted costs outlines and are asked to either confirm that they rely on those materials, or provide revised costs submissions, within 20 days of these Reasons. Mr. Hunter is to provide his costs submissions within 35 days of these Reasons. These materials may be sent via email to my judicial assistant.

Released: June 6, 2025

Rohit Parghi