ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6994/12
DATE: 2012-12-03
BETWEEN:
MUNICIPALITY OF MIDDLESEX CENTRE Applicant – and – DAVID RONALD MACMILLAN, JANICE LYNN MCINTOSH and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents
P. Strickland, for the Applicant
A. Ferreira, for the Respondents MacMillan and McIntosh
J. Wall, for the Respondent Ontario
HEARD: November 30, 2012 at London
HEENEY R.S.J.:
[ 1 ] The Applicant municipality brings this motion seeking, among other things, directions with respect to who should be served with the Notice of Application. The application itself asks for a declaration that the watercourse known as the Bear Creek Drain, which flows through part of Lot 32, Concession 10, in the geographic Township of London (now in the Municipality of Middlesex Centre), is not, and was not at the time of the original Crown grant, a navigable body of water for purposes of the Beds of Navigable Waters Act , R.S.O. 1990, c. B.4 (“the BNWA”). The Bear Creek Drain forms part of the headwaters of the Sydenham River.
[ 2 ] The Respondents MacMillan and McIntosh (“the Respondents”) own and reside on the land in question, and the stream flows across their 10 acres of property from east to west. In 1997, their predecessors in title had applied for a severance, which would have created two lots to the south of the “existing creek”, with the property to the north being retained as a separate lot. That application was denied by the Municipality.
[ 3 ] After the Respondents took title, they sought an opinion as to whether the stream created a “natural severance” of their land into two lots, one north of the stream and one to the south. They retained the services of a surveyor, who satisfied himself that it did. The surveyor registered Reference Plan 33R-17698, which showed the land to the north of the stream as Part 1 and the land to the south as Part 2. The stream itself is described on the plan as “Unpatented Crown Land”.
[ 4 ] All of this was done without the knowledge or consent of the Applicant. No consent to sever the property into two parcels was ever sought by the Respondents pursuant to the Planning Act , R.S.O. 1990, c. P.13. The Applicant found out about it when the Respondents applied for a building permit to construct a new residence on the property. This would have constituted the second dwelling on the 10 acre parcel, and would not be permitted without a rezoning unless, of course, a natural severance did indeed exist.
[ 5 ] The Applicant proceeded to launch these proceedings, for a declaration that the stream is not a navigable waterway. However, before proceeding very far with the application, the Applicant thought it prudent to seek the direction of the court as to who should be served. It reasoned that whatever declaration the court issued with respect to the segment of the stream that crosses this 10 acre parcel of land would likely affect the rights of property owners upstream and downstream of the subject property. If, for example, the stream was found to be a navigable waterway at this location, it could probably be said that the stream was also navigable for some distance both upstream and downstream of this location.
[ 6 ] If a stream is a navigable waterway, the stream bed is owned by the Crown, and the public has a right of access to it. That would entitle members of the public to travel on the waterway by vessel, or to walk on the stream bed at times of the year when it is dry enough to do so. On the other hand, if the stream is not a navigable waterway, the stream bed is and remains private land, and is owned by the landowner who has title to the land over which the stream flows. Any entry onto the stream or stream bed by members of the public would be an act of trespass.
[ 7 ] If the present status of the stream as being/not being a navigable waterway was going to be the subject-matter of the court’s ultimate decision in this application, it would be correct to say that upstream and downstream owners would have an interest in these proceedings and should be served. However, that is not the question that will be before the court. Rather, all counsel agree that the question before the court will be this: was the stream a navigable waterway at the time of the original Crown grant to the Respondents’ predecessors in title in 1831? If the answer is yes, the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway. If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including the Respondents.
[ 8 ] This result stems from the wording of s. 1 of the BNWA , which reads as follows:
- Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
[ 9 ] There was no express grant of the stream bed in the 1831 grant from the Crown. Thus, the issue as to whether the stream bed was or was not included in the grant depends upon whether or not the stream was a navigable waterway at the time of the Crown grant.
[ 10 ] In the recent decision of the Divisional Court in Simpson v. Ontario (Ministry of Natural Resources) , [2012] O.J. No. 866 (Div. Ct.) at para. 20 , MacKinnon J., speaking for the court, said: “the issue whether the stream is navigable in law must be determined as of the date of the Crown grant.” All counsel agree that this is an accurate statement of the law.
[ 11 ] The issue before the court is, therefore, one which concerns itself only with the parcel of land owned by the Respondents, whose predecessors in title obtained it from the Crown in 1831. If any landowner upstream or downstream of this parcel wished to take a similar position to that being taken by the Respondents, they would have to prove that the stream where it crosses their property was a navigable waterway at the time their own predecessors in title obtained their grant from the Crown, whenever that may have been. While the historical evidence to be marshalled on such an application might include much of the same evidence that will be marshalled by the Respondents in these proceedings, the question would still have to be determined afresh.
[ 12 ] I therefore conclude that no additional parties need to be given notice of this application, because the only parties whose rights will be affected by the decision in this application are the parties already named. The planning authorities certainly have an interest in the outcome of these proceedings, since it will affect their powers over subdivision control. However, authority over planning rests with the Applicant municipality, so no additional party needs to be added in that regard.
[ 13 ] The declaration to be issued by the court will relate only to that portion of the stream that crosses the Respondents’ land. To be clear, no precedent will be set by the decision in this case which will affect the rights of landowners upstream or downstream of the subject property, nor the rights of the Applicant or other governmental authorities with respect to those other lands.
[ 14 ] There is one additional direction that counsel agreed I should provide. Ms. Ferreira, for the Respondents, concedes that the onus of proving that the stream was a navigable waterway at the time of the Crown grant rests with the Respondents. Since the Respondents have the onus of proof, they will present their case first at trial, followed by the Applicant and finally by the Respondent Her Majesty the Queen in Right of Ontario.
[ 15 ] As agreed among counsel, costs of this motion will be in the cause, in an amount to be fixed by the trial judge.
“T. A. Heeney R.S.J.”
Regional Senior Justice T. A. Heeney
Released: December 3, 2012
Middlesex Centre v. MacMillan et al, 2012 ONSC 6874
COURT FILE NO.: 6994/12
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MUNICIPALITY OF MIDDLESEX CENTRE Applicant – and – DAVID RONALD MACMILLAN, JANICE LYNN MCINTOSH and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents REASONS FOR JUDGMENT ON A MOTION Heeney R.S.J.
Released: December 3, 2012