DATE:20030303

DOCKET: C37764

COURT OF APPEAL FOR ONTARIO

RE: ALBERT JOHN HOMENIUK (Appellant) –and– MISFERT HOLDINGS INC. (Respondent)

BEFORE: MORDEN, WEILER and CHARRON JJ.A.

COUNSEL: W. Peter Murray, for the appellant

Oswald W. Stahl, for the respondent

HEARD: February 14, 2003

RELEASED ORALLY: February 14, 2003

On appeal from the judgment of Justice William Festeryga of the Superior Court of Justice dated December 6, 2001.

E N D O R S E M E N T

[1] The predecessors of the respondent acquired title to property that bordered the Lynn River. Boathouses were built on the land along the river. The appellant owned a boathouse that he and his predecessors had used since 1946. Access to the boathouses was across the respondent's land. The respondent charged rent for the use of its land. The appellant paid the rent from 1981 to 1997 and then stopped payment when the respondent asked him to remove his boathouse. The respondent wanted to use the land for its own purposes. The appellant refused to remove his boathouse, claiming that the boathouse was completely located on the riverbed, which was not owned by the respondent but by the Crown.

[2] The respondent sued the appellant for unpaid rent, for a declaration that the appellant had no interest in the property on which the boathouse rested, and for an order removing the boathouse. The respondent was successful at trial. The trial judge found that the boathouse was situated on the respondent's land. It was not supported by piles that were embedded in the riverbed. He also found that a landlord and tenant relationship existed and ordered the appellant to pay rent from 1997 until he ceased to use the property. The trial judge ordered the appellant to remove his boathouse as soon as possible. He granted a permanent injunction preventing the appellant from entering the respondent’s property except for the purpose of removing the boathouse.

[3] This is the appeal from that decision. The two broad issues raised in this appeal and our conclusions on them are as follows:

1.) Did the trial judge err in finding that the respondent owns the land on which the boathouse is located?

Based on the survey, exhibit 20, and the evidence of Mr. Teeple as to the general practice that boathouse owners dug slips into the embankment, it was open to the trial judge to find that the boathouse was located at least partly on the respondent’s land.

2.) Did the trial judge err in finding a landlord and tenant relationship between the parties?

The trial judge did not err in finding that a landlord and tenant relationship existed between the parties having regard to the history of their relationship, the fact that the boathouse was located partly on the respondent’s property, and the rights of the respondent as riparian owner.

[4] The appellant pointed out that paragraph four of the trial judge’s order is overly broad in that it declares the respondent to be the owner of all the land on which the boathouse rests. We agree with this submission. The trial judge’s order is amended by striking paragraph four but in all other respects the appeal is dismissed.

[5] Costs of the appeal are to the respondent fixed in the amount of $4,296.05 all inclusive.

Signed: “J.W. Morden J.A.”

“K.M. Weiler J.A.”

“Louise Charron J.A.”