COURT OF APPEAL FOR ONTARIO

CITATION: Blackwell v. Genier, 2022 ONCA 539

DATE: 20220720

DOCKET: C69944

Lauwers, Benotto and Paciocco JJ.A.

BETWEEN

Richard Mark Blackwell and John and Brenda Bysterveld

Applicants (Appellants)

and

Robert Genier, Julie Genier, Howard Vachon and Melanie Vachon, Barbara Grace Bauman, Neil Rocky Sisco and Mary Florence Newall

Respondents (Respondents)

Neil Abraham, for the appellants

Guy A. Wainwright and Jeremy A. Wainwright, for the respondents Robert Genier, Julie Genier, Howard Vachon and Melanie Vachon

Mary Florence Newall, acting in person

No one appearing for the respondents Barbara Grace Bauman and Neil Rocky Sisco

Heard: May 24, 2022

On appeal from the judgment of Justice Robin Y. Tremblay of the Superior Court of Justice, dated September 29, 2021, with reasons reported at 2020 ONSC 1170 and 2021 ONSC 6460.

Lauwers J.A.:

Overview

[1] The appellants are cottage owners who own almost all of the bed of Silver Lake. They claim that their ownership empowers them to prevent other cottage owners and members of the public from navigating vessels on the water above "their portion" of the lakebed. When other cottage owners began to jet ski on the lake, the appellants attempted unsuccessfully to prevent this activity by asserting their ownership over the majority of the lakebed. This issue divided the cottage owners.

[2] In order to settle the dispute, the appellants initiated an application against the respondents, who are cottage owners who oppose the appellants' claimed right to control navigation on most of Silver Lake. During the application hearing, the appellants requested a declaration that they are the owners and occupiers of their respective portions of the bed of Silver Lake and that the respondents and the public are prohibited from entering their property without express permission. The application judge dismissed the application, ruling that Silver Lake is navigable water pursuant to the definition of "navigable water" in s. 2 of the Canadian Navigable Waters Act, R.S.C. 1985, c. N-22 [the "CNWA"].

[3] The application judge's reasons raise two issues for disposition on this appeal: A. Did the application judge err in finding that the CNWA definition of navigable water applies? B. Should the appeal be allowed and the declaration be granted?

A. Did the application judge err in finding that the CNWA definition of navigable water applies?

[4] I agree with my colleague's statement of the material facts and his analysis of this issue. The application judge erred in applying the definition of "navigable water" in s. 2 of the CNWA to resolve a dispute over the effect of lakebed property rights on navigation on the waters of Silver Lake. On that basis, I would allow the appeal. My colleague would not allow the appeal, as he explains in his dissent.

B. Should the appeal be allowed and the declaration be granted?

[5] Allowing the appeal leaves for disposition whether this court should allow the appeal and grant the declaration on the merits, or remit the application to the application judge for determination. The appellants ask us to do the latter, that is, to allow the appeal and declare that Silver Lake is non-navigable water within the meaning of the Beds of Navigable Waters Act, R.S.O. 1990, c. B-4 [the "BNWA"]. My colleague and I agree that this court should decline to grant the declaration the appellants seek, but for somewhat different reasons.

[6] The application has placed in issue access to and control over the use of the waters of Silver Lake. Recall that there are two kinds of property rights at issue. First, there are people who own lakeshore property and part of the lakebed of Silver Lake, including the appellants, Blackwell, Bysterveld, and the estate of Jane Skidmore-Fox, and the respondents, Genier and Vachon. Second, there are people with solely riparian rights on Silver Lake, as an incident of owning lakefront property, including the respondents Newall, Bauman and Sisco.

[7] As noted, the appellants argue that they control access to the waters over the portions of the lake bottom they own, as an incident of ownership, and seek a declaration under the BNWA that Silver Lake is not navigable. They submit that such a declaration will give them the control they seek.

[8] In my view, despite allowing this appeal, it would not be appropriate for this court to make the declaration sought, for several reasons: First, there are likely hundreds, if not thousands, of lakes in Ontario similar to Silver Lake, with riparian landowners and owners of lakebeds, many engaging the interests of the Crown. Arcane and ancient common law intersects with federal and provincial legislation. A final decision in this case would have far-reaching implications. This is a case in which judicial minimalism is warranted. This court does not have before it representatives of the affected interests, nor is the Government of Ontario present.

[9] Second, the application judge did not address the issue of Silver Lake's navigability within the meaning of the BNWA, and how it might be related to the appellants' property interests. He noted, at para. 42: "It is not necessary to decide whether the applicants are the owners and occupiers of their respective portions of the bed of Silver Lake for the purpose of this application". Because the application judge did not resolve the factual issues required to make the legal determinations flowing from an interpretation of the BNWA, there is no basis on which this court could do so. The interpretation of the BNWA by this court should await a case in which there is a decision on the merits below.

[10] Third, s. 1 of the BNWA, on which the appellants rely, appears to be a provision for interpreting Crown grants and, perforce, title that flows from Crown grants. As was the case with the federal CNWA, the appellants seek to enlist the legislation to serve a purpose for which it was not intended. Given the scope of the issues, this court would benefit from the intervention of the Crown on the proper interpretation and application of the statute.

[11] Fourth, I agree with my colleague that the exclusive control over the waters of Silver Lake that the appellants seek would not likely flow from s. 1 of the BNWA but from the common law, if at all. I agree with him that the declaration sought by the appellants would serve no purpose and would not resolve the live issue, which he identifies as "whether the appellants can prevent the respondents from navigating on water that sits above the lakebed property that they own".

[12] I would add that any determination of right must also account for the rights of riparian owners, whose rights of access to the water of Silver Lake were not fully litigated. The application of the common law was not fully argued on either the property rights of the owners of lake bottoms or the rights of riparian owners. The cases on which my colleague relies, Attorney-General of Canada v. Higbie, [1945] S.C.R. 385, at pp. 417-418, and Erik v. McDonald, 2019 ABCA 217, 4 R.P.R. (6th) 8, were both closely argued, as befits the common law. The parties did not refer to these authorities, nor did they offer arguments of similar cogency.

[13] Finally, this court heard no argument on the proper interpretation and application of s. 37.4 of the Public Lands Act, R.S.O. 1990, c. P.43, which appears to be relevant. It provides:

37.4 (1) A Crown transfer is subject to the reservations and conditions set out in this section.

(4) The free use, passage and enjoyment of, in, over and upon all navigable waters found on or under, or flowing through or upon, any part of the lands that are the subject of a Crown transfer is reserved to the Crown.

The court would benefit from the intervention of the Crown on the proper interpretation and application of this provision and of the impact of the common law on all the issues.

Disposition

[14] This court's jurisdiction on appeal is governed by s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which in para. (a) allows the court to make any order or decision that the court below might have made, and in para. (c) allows the court to make any order or decision that is considered just. I would allow the appeal, decline to make the declaration sought by the appellants, and dismiss the application on the basis that the record cannot sustain the analysis that a case of this importance requires: Victorian Townhomes (Burlington) II Limited Partnership v. Mutual Trust Co., [1995] O.J. No. 1844 (C.A.). I would do so without prejudice to the ability of the appellants to bring a fresh application that addresses the numerous deficiencies in this application, on notice to the Crown.

[15] If they have not yet done so, the parties shall exchange bills of costs within 5 clear court days of the release of this decision and may provide costs submissions of no more than 3 pages, accompanied by a bill of costs, within 15 clear court days of the release of this decision.

"P. Lauwers J.A."

"I agree. M.L. Benotto J.A."

Paciocco J.A. (dissenting):

OVERVIEW

[16] My colleague and I agree for the reasons I explain below that the application judge erred in law in relying on s. 2 of the Canadian Navigable Waters Act, R.S.C. 1985, c. N-22 [the "CNWA"] in finding that Silver Lake is navigable water. We also agree that we should not make the declaration sought by the appellants. However, we disagree on whether the appeal should be allowed.

[17] In my view, the appeal should be dismissed pursuant to s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43. That provision directs that this court should not order a new hearing unless some substantial wrong or miscarriage of justice has occurred. In my view, no substantial wrong or miscarriage of justice occurred as a result of the application judge's error because it is not possible as a matter of law to grant the declaration the appellants are now seeking. As the appellants state in their factum, "Though they initially sought broader relief, the appellants now seek only a declaration that Silver Lake is not navigable under s. 1 of the Beds of Navigable Waters Act, R.S.O., 1990, c. B.4". Even if Silver Lake is, in fact, non-navigable water, a point on which I express no opinion, a declaration to that effect will not settle the live controversy between the parties, which is a legal prerequisite to providing declaratory relief: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 832; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11. This declaration will not settle the live controversy between the parties because even if the declaration the appellants now seek is made, there are remaining legal questions, on which I offer no opinion, about whether the owner of a lakebed can control the use of the non-navigable water above that lakebed, including against those with riparian rights. Put simply, the action now before us should be dismissed because the relief the appellants now request in this action is not available.

[18] I do not agree with my colleague that the appellants should be permitted "to bring a fresh application that addresses the numerous deficiencies in this application". In my view, it would be unfair to the respondents to permit the appellants do so. The appellants initiated this action and narrowed it as it progressed, for obvious tactical reasons. They should not be permitted now to reframe their action to seek broader relief than they sought before us, with the benefit of the guidance this court has provided.

[19] I would therefore dismiss this appeal.

MATERIAL FACTS

[20] The entire shoreline of Silver Lake is privately owned, most of it by the appellants Richard Mark Blackwell, John Bysterveld and Brenda Bysterveld, and by the estate of the late Jane Skidmore-Fox. Together the appellants and the estate of the late Jane Skidmore-Fox hold title to nearly all of the lakebed. Their land patents were granted variously in 1928, 1933 and 1937.

[21] The respondents Robert Genier, Julie Genier, Howard Vachon and Melanie Vachon own a small strip of the shoreline and some of the lakebed. After acquiring this property in 2013, they began to use jet skis on the lake. The appellants believe this activity interferes with their reasonable enjoyment of their property and asserted the right to prevent it.

[22] The respondents Mary Florence Newall, Barbara Grace Bauman and Neil Rocky Sisco own property on the lake, but none of the lakebed. They dispute the appellants' claimed authority to control navigation on most of the lake, believing that if true, it would diminish their shoreline property value.

[23] The application that is the subject of this appeal was brought in July 2017. The appellants initially requested an injunction prohibiting the respondents from trespassing on their private property "by navigation or otherwise", as well as two declarations: (1) that "Silver Lake [...] is non-navigable within the meaning of the Beds of Navigable Waters Act"; and (2) that "the bed of the Lake is private property".

[24] Relying on the common law test for identifying navigable waters, which is "one of public utility", the appellants argued that Silver Lake is not navigable water because navigation on the lake does not have public utility: Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, 132 O.R. (3d) 497, at para. 19, quoting Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (Ont. H.C.), at p. 502. They offered evidence that Silver Lake is not accessible to the public and presented anecdotal evidence that it has not been used historically for public purposes. They also produced documentary evidence that Silver Lake is described by the Ontario Land Surveyor in a reference plan as "non-navigable within the meaning of the Beds of Navigable Waters Act", as well as a letter dated April 21, 2017, in which the Ontario Ministry of Natural Resources and Forestry accepted this statement as accurate.

[25] In 2019, before the application was heard, the federal government amended the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, a federal statute dealing with navigable water, including by changing the name of the statute to the Canadian Navigable Waters Act, and by altering the definition of "navigable water". In resisting the appellants' application, the respondents contended that the new definition of navigable water in s. 2 of the CNWA applies to this dispute and does not require "public utility", thereby undercutting the appellants' basis for asserting that the lake is non-navigable. In the alternative, they argued that even if the applicable test for identifying navigable water has a public utility requirement, Silver Lake would satisfy that requirement. In support of this position the respondents offered affidavit evidence that they contend establishes public access to Silver Lake using a nearby stream, as well as a history of public use of the lake.

[26] The application judge decided that before hearing the application on its merits, he would resolve the preliminary legal question of whether the CNWA definition of navigable water in fact governs this dispute. This preliminary question was argued on February 5, 2020, and on February 24, 2020, the application judge gave his ruling that the CNWA definition applies.

[27] On July 5, 2021, the application was heard on its merits. By this time the appellants abandoned their request for an injunction, pursuing only their request for a declaration.

[28] The particular declaration the appellants requested has evolved and narrowed over time. As indicated, in their initial application the appellants sought two declarations: (1) that "Silver Lake [...] is non-navigable within the meaning of the Beds of Navigable Waters Act"; and (2) that "the bed of the Lake is private property". During the application hearing, the application judge understood the appellants to be asking for "a declaration that they are the owners and occupiers of their respective portions of the bed of Silver Lake and that the respondents and the public are prohibited from entering their respective properties without their express permission". In this appeal, the appellants no longer seek this broad declaration. Instead, they advance only the first of the two requests made in the original application, namely, a request for a declaration that Silver Lake is not navigable within the meaning of s. 1 of the provincial BNWA.

[29] On September 29, 2021, the application judge dismissed the application that was before him on the basis that Silver Lake is navigable water within the meaning of the CNWA. I will describe the application judge's reasoning in more detail below when considering relevant grounds of appeal. Suffice it to say for now that in coming to this conclusion the application judge found that the new definition in s. 2 of the CNWA expressly ousts the common law concept of public utility. He therefore found it unnecessary to resolve the contested evidence before him relating to public access and use of Silver Lake.

ISSUES

[30] The appellants argue that the application judge erred in concluding that: (1) the CNWA definition of "navigable water" applies to this dispute; (2) this definition ousts the public utility requirement; and (3) Silver Lake is navigable. For the reasons that follow, the only ground of appeal that needs to be addressed is whether the application judge erred in finding that the CNWA definition of "navigable water" applies. If this error occurred, I must also consider whether the appeal should be allowed, and whether a declaration should be granted that Silver Lake is not navigable water under s. 1 of the BNWA.

ANALYSIS

A. Did the application judge err in finding that the CNWA Definition of navigable water applies?

[31] The common law test for identifying navigable waters holds that "if a waterway has real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access, the waterway is considered navigable": Middlesex Centre (Municipality), at para. 19, quoting Canoe Ontario, at p. 502. To meet this test, the waterway must have been capable of being used at the time of the land grant "as transportation in relation to a public purpose such as commerce, agriculture, or recreation": Middlesex Centre (Municipality), at paras. 9, 18.

[32] Certainly, this is not the definition used in s. 2 of the CNWA. That section defines "navigable water" 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.

[33] In concluding that s. 2 applied to the dispute between the appellants and the respondents, and not the common law, the application judge described the modern approach to statutory interpretation identified in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, and he examined carefully the words used in the s. 2 definition of "navigable water". He also undertook a close examination of the purpose behind the legislation, aided by extrinsic evidence of government publications relating to the change in definition found in s. 2 of the CNWA. He found that in enacting the CNWA, "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'".

[34] After citing passages from the Interpretation Act, R.S.C. 1985, c. I-21, he then endeavored to give the CNWA a "fair, large and liberal construction and interpretation as best ensures the attainment of its objects", holding that "the definition of 'navigable water' it provides must [...] be used in any legal proceeding that may affect, restrict or interfere with the navigation rights of Canadians". He reasoned that it would be "unjust and unreasonable" if the CNWA prohibited physical interference with the navigation rights of the public, but the appellants would be able to "prohibit navigation altogether on over 90% 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".

[35] In my view, the application judge misapplied the Bell ExpressVu principles in interpreting s. 2 of the CNWA.

[36] First, when applying the Bell ExpressVu principles, he failed to consider the "context in which the words are found": Wilk v. Arbour, 2017 ONCA 21, 135 O.R. (3d) 708, at para. 20. The words the application judge relied upon are found in the definition section of the CNWA, not in any statutory provisions that purport to address the issue before him. To be sure, there is a presumption, supported by s. 15(2)(b) of the Interpretation Act, that a definition in a statute will apply when the defined term is used in other statutes that deal with the same subject matter and that are passed within the same jurisdiction: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 44. However, I know of no authority that elevates a definition in a statute to a common law term of art applicable to legal issues that are not addressed within a statute. Nor do definitions included in an enactment ordinarily create legal rights, obligations, procedures, or enforcement mechanisms. Instead, they service the substantive and procedural provisions created in the body of the enactment by identifying the meaning that defined terms carry within the statute: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), at § 4.04; Hrushka v. Canada (Minister of Foreign Affairs), 2009 FC 69, 340 F.T.R. 81, at paras. 16-17. In this case, the capo to s. 2 of the CNWA makes this point expressly by stating: "The following definitions apply in this Act" (emphasis added). In my view, the application judge erred by using a definition provision adopted within the CNWA to resolve a dispute that is not governed by any of the provisions of that statute.

[37] Second, I am persuaded that the application judge mischaracterized the purpose of the CNWA by concluding that "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'". In my view, this characterization is far too general. The CNWA has a dedicated and narrower purpose. In Friends of the Oldman River Society v. Canada (Ministry of Transport), [1992] 1 S.C.R. 3, at pp. 56-59, La Forest J. recognized for the majority of the court that the predecessor legislation to the CNWA, the Navigable Waters Protection Act, was enacted to address the public nuisance that occurs where "structures" impede the right of navigation. Like its predecessor statute, the CNWA contains provisions that regulate and restrict physical impediments that are liable to interfere with navigation, including "works" (such as structures or devices or the dumping of fill), "obstructions", "deposits" and acts of "dewatering". It contains no provisions that purport to address navigation rights generally. Although initially the application judge correctly noted that the "object" of the CNWA is "to prevent interference with navigation on any navigable water in Canada as a result of works or obstructions" (emphasis added), he lost sight of this. Instead, he mistakenly treated Parliament's intention to expand the definition of navigable waters for the purpose of the CNWA as though it was a general Parliamentary intention to expand the definition of navigable waters for all navigation disputes. In my view, there is no basis for interpreting Parliament's intention this broadly.

[38] Third, the application judge erred in concluding that a fair, large and liberal interpretation requires the CNWA's definition of navigable water to "be used in any legal proceeding that may affect, restrict or interfere with the navigation rights of Canadians". In my view, a fair, large and liberal interpretation of legislation is meant to give effect to legislated rights, not to create unlegislated outcomes that may happen to advance a purpose that the subject legislation reflects. As I have indicated, the provisions of the CNWA deal solely with physical impediments to navigation. There are no relevant provisions in the CNWA addressing navigation generally or in the context of property-based disputes that can be given a large and liberal interpretation.

[39] Finally, as the appellants argued before us, a "legislature is presumed not to have intended to alter or extinguish common law rules": Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 39; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 406, at para. 21. In my view, there is nothing in s. 2 of the CNWA to rebut this presumption and to support the application judge's conclusion that "the definition of 'navigable water' [in s. 2 of the CNWA] must [...] be used [in place of the common law definition] in any legal proceeding that may affect, restrict or interfere with the navigation rights of Canadians". With respect, if Parliament had intended to give the CNWA such reach, it would have said so.

[40] I therefore agree with the appellants that the application judge erred in applying the definition of "navigable water" in s. 2 of the CNWA to resolve a dispute over the effect of lakebed property rights on navigation.

B. SHOULD THE APPEAL BE ALLOWED AND THE DECLARATION BE GRANTED?

[41] What relief flows from the error made by the application judge? The appellants ask us to allow the appeal and provide a declaration that Silver Lake is non-navigable water within the meaning of the BNWA.

[42] In my view, even if we were to allow this appeal, it would not be appropriate for this court to make the declaration sought, given that the application judge did not resolve the factual issues required to make that determination. Indeed, I would dismiss the appeal itself because I am persuaded that the declaration sought by the appellants should not be made, even by an application judge on a rehearing.

[43] I recognize that a declaration is a discretionary remedy arising from the inherent jurisdiction of courts in which a court states the law without changing anything: Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at pp. 85-86. By declining to send this matter to a rehearing, I do not wish to be taken as usurping the right of a rehearing judge to exercise their discretion as they see fit. I would decline to send the matter back because there are prerequisites to the exercise of that discretion, and when those prerequisites are considered, it becomes apparent that no judge should grant the declaration the appellants are now seeking in this action.

[44] The applicable test for granting a declaration was described in Canada (Prime Minister) v. Khadr, 2010 SCC 33, [2010] 1 S.C.R. 44, at para. 46: "A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it." I take no issue with any of these requirements. However, there is an additional requirement that I describe in para. 17 above, recognized in Solosky v. The Queen, at p. 832, and articulated in Daniels v. Canada (Indian Affairs and Northern Development), at para. 11, that "[a] declaration can only be granted if it will have practical utility, that is, if it will settle a 'live controversy' between the parties". I accept that there is a live controversy as to whether the appellants can prevent the respondents from navigating on water that sits above the lakebed property that they own, but I do not see how a declaration that Silver Lake is non-navigable water within the meaning of the BNWA could settle this controversy, even if the evidence ultimately supported a finding of non-navigability.

[45] First, the BNWA is a provincial enactment that contains provisions relating to when the bed of navigable water has been granted by the Crown. It has no provisions that address whether those who do have title to beds of navigable or non-navigable water have the legal right to control whether vessels can travel on the water above those beds. Technically, the common law governs this dispute, not the BNWA.

[46] Second, and more importantly, even a declaration that Silver Lake is non-navigable at common law could not be expected to settle the instant dispute. To be sure, the law is clear that if Silver Lake was found to be navigable, the public, including the appellants, would have an affirmative "public right of way" to use Silver Lake as a means of transportation, including for recreational purposes, regardless of who holds title to the bed under the waterway: Middlesex Centre (Municipality), at paras. 13, 17; Friends of the Oldman River Society, at pp. 54, 56. But it does not necessarily follow, in my view, that if Silver Lake is non-navigable, an owner of a portion of the lakebed has the lawful authority to prevent others, including those with riparian rights in the lake, from traveling in vessels on the water above the portion of the lakebed they own. Indeed, there is authority recognizing that riparian rights are separate from the right to possession or ownership of land covered by water: Attorney-General of Canada v. Higbie, [1945] S.C.R. 385, at pp. 417-418. And in Erik v. McDonald, 2019 ABCA 217, 4 R.P.R. (6th) 8, Wakeling J.A. endorsed the propositions that a riparian owner: (1) has the right to access all parts of the water that borders their land, and (2) may "maintain an action or obtain an injunction against anyone, even the owner of the bed [...] who interferes with the right": at paras. 131-132. It also bears consideration that the law is a practical institution, and that the appellants do not own the entire lakebed. I ask rhetorically, "Would the law really attempt to restrict the respondents, who are riparian rights holders, to boating only on those parts of Silver Lake that sit above their own lakebeds? How enforceable would that be?" To be clear, I do not purport by referencing this authority or raising these questions to settle the legal issue of whether a lakebed owner can control the use of non-navigable waters above that lakebed. My point in engaging in this exercise is simply to demonstrate that even if factually available, a simple declaration that Silver Lake is non-navigable at common law would not settle the live controversy between the parties because this legal issue would still need to be settled.

[47] Since the declaration sought by the appellants would not settle their live controversy with the respondents, I agree with the respondents that the relief the appellants seek on this appeal is unavailable as a matter of law. The appeal should therefore be dismissed. I have already explained why it would be unfair to permit the appellants to reconstitute their action more broadly to obtain relief not sought by them on this appeal.

CONCLUSION

[48] I would therefore dismiss this appeal.

Released: July 20, 2022 "P.D.L."

"David M. Paciocco J.A."