SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-7665
07-30823

DATE: 20130125

BETWEEN:

Ester O’Donnell

Applicant

AND

The Queen in Right of the Province of Ontario,

as represented by the Ministry of the Attorney General,

and Canadian Imperial Bank of Commerce

Respondents

AND BETWEEN:

Brian Obratoski and Patricia Obratoski,

Applicants

AND

The Queen in Right of the Province of Ontario,

as represented by the Ministry of the Attorney General

Respondent

APPLICATIONS UNDER the Beds of Navigable Waters Act, R.S.O. 1990 c. B.4 and in the matter of title to certain lands being composed of Part of Lot 5,Concession 4, former Township of Binbrook, now in the Township of Glanbrook, now in the City of Hamilton, being all of PIN #17384-0418 (LT) and being all of PIN # 17384-0466 LT.

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Herman Faber, Counsel for the Applicants in both matters

Ronald Carr, Counsel for the Respondent, Ontario, in both matters

No one appearing for the Respondent CIBC in the O’Donnell matter

HEARD: December 6, 2012

RULING ON APPLICATIONS

Introduction

[1] In both applications, the applicants seek an order to “clarify or determine title” to the bed of a waterway which traverses each of their lands. The lands of Ms. O’Donnell are part of Lot 5, Concession 4, former township of Binbrook, now in the township of Glanbrook, as described in instrument CD70843, now in the City of Hamilton, and being all of PIN# 17384-0418LT. The lands of the Obratoskis are part of Block 5, Concession 4, former township of Binbrook, now in the township of Glanbrook, in the City of Hamilton and being all of PIN# 17384-0466LT.

[2] Important to the outcome of these applications is s. 1 of the Beds of Navigable Waters Act, R.S.O. 1990 c.B 4. It provides that:

“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.”

[3] Accordingly, if the waterway is determined to be navigable, then in the circumstances of each of these applications the bed of the waterway remains the property of the Crown and effects a severance of the lands of each of the applicants. If the waterway is found to be non-navigable, then title to the riverbed is held by the applicants and their respective parcels remain as one.

[4] The Act does not define “navigable”. Case law has developed the following seven factors:

1. navigability in law requires that the waterway be navigable in fact. It must be capable in its natural state of being traversed by large or small craft of some sort;

2. navigable also means floatable in the sense that the river or stream is used or is capable of use for floating logs or log rafts and booms;

3. a river may be navigable over part of its course and not navigable over other parts;

4. to be navigable, a river need not in fact be used for navigation so long as it is realistically capable of being so used;

5. a river is not navigable if it is used only for private purposes or if it is used for purposes which do not require transportation along the river (i.e. fishing);

6. navigation need not be continuous but may fluctuate with the seasons; and

7. where a proprietary interest asserted depends on a Crown grant, navigability is initially to be determined as of the date of the Crown grant.

[5] The aforementioned factors are found in Canoe Ontario v. Reed (1989), 1989 4237 (ON SC), 69 O.R. (2d) 494 (H.C.) at paragraphs 28-35, and Coleman v. Ontario (Attorney General), 1983 3055 (ON SC), [1983] O.J. No. 275 (H.C.) at paragraph 15.

Particulars of the Two Properties

[6] Ms. O’Donnell owns approximately 22.5 acres, which she purchased in 1971. Her lands are accessed from Fletcher Road.

[7] The Obratoskis own approximately 9.75 acres, which they purchased on March 31, 1994. This property is accessed from Trinity Church Road.

[8] The waterway in question runs in an easterly direction, passing first through the Obratoski property, then through lands owned by others, and then through the O’Donnell lands.

[9] The Crown Patent for the lands of both properties was issued on January 11, 1816, to William Claus. The original Crown Patent does not contain any express grant of the bed of the watercourse. Accordingly, if the waterway is found to be navigable in respect of each of the properties, title remains in the Crown. Otherwise, it is that of the applicants.

Summary of Evidence

[10] The respondent relies on the opinion of Mr. George Booth, a Lands and Waters Specialist with the Ministry of Natural Resources. He has an Honour’s Bachelor of Environmental Studies degree and has been employed by the Ministry for 29 years. His evidence is that the Ministry of Natural Resources administers and controls the beds of navigable bodies of water vested in the Crown. Part of his role and responsibility is to investigate the navigability of watercourses for the specific purpose of determining whether or not the bed is Crown land and under the Ministry of Natural Resources’ administration and control.

[11] He visited the subject location three times, twice in July of 2007 and once in February 2008. He also studied aerial maps and photographs and information obtained from the Ontario Surveyor General.

[12] Mr. Booth’s evidence is that the Ministry of Natural Resources has a policy statement issued in February 2007 entitled “Ownership Determination – Beds of Navigable Waters.” It is a published document and is used as a guide by Mr. Booth and the ministry. He summarizes the approach taken by the ministry to be one of determining “where a waterway is used, or is capable of being used by the public as an aqueous highway. It must have real or potential practical value to the public as a means of travel or transport, generally from one point of public access to another point of public access.”

[13] Mr. Booth is aware of the aforementioned seven specific factors derived from the case law. He also refers to other practical considerations, as identified in the ministry’s policy statement. They include the following:

1. Determining navigability requires consideration of the issue from the perspective of both the date of inspection and the date of Letters Patent.

2. Navigability depends on “public utility.”

3. Public utility means actual or potential commercial or recreational use, or other “socially beneficial activity.”

4. Generally, the waterway should run from one point of public access to another point of public access.

5. Seasonal fluctuations do not detract from navigability as long as there is some use (or potential use) which is regular and which has practical value.

6. Consideration of the physical characteristics of the watercourse such as depth of water, width of the natural bed and physical structures or improvements influencing or impeding water traffic.

[14] In his July 25, 2007, visit to the site, he ascertained that the stream in question was a “small, intermittent tributary which is not the Chippewa Creek nor the Welland River, but rather feeds into them.” He observed this waterway to be dry and heavily overgrown with grasses and bulrushes, and his opinion was that there was so much growth that even in a heavy rain it would not be conducive to navigation.

[15] In his next visit on July 30, 2007, he again observed the position and the situation and again took photographs. One photograph shows the stream channel at the Obratoski property to be dry and heavily overgrown with grasses and overhanging vegetation. Another photograph from the same location also showed only a narrow natural center channel. Two other photographs from the Fletcher’s Road location looking upstream show the waterway to be dry and heavily overgrown with field grass, with no open channel visible.

[16] In February of 2008 he observed there was partial coverage with snow and ice and a modest flow.

[17] Mr. Booth also considered available historic survey information. In a 1791 survey by Augustus Jones, his field notes refer to the waterway as being a “small creek” and “a creek twelve links.” Twelve links equals 8 feet or 2.5 metres. A survey in 1810 by Samuel Wilmot refers to the watercourse as a “brook.” A survey in 1848 by William Carroll does not show any watercourses on the property in question.

[18] Mr. Booth is of the opinion and experience that, from the perspective of historical surveys, if a watercourse was considered to be of importance in terms of moving people or goods, then the surveyor would note both the depth and the flow rate of the waterway.

[19] Mr. Booth concluded that the waterway in question is not navigable and hence that it’s bed is not under Crown administration.

[20] Mr. Booth was cross-examined on his affidavit. He advised that he also attended the property on September 11, 2008, after his affidavit had been sworn, but saw nothing that changed his conclusions. He confirmed on cross-examination that during his visits he saw no wetted widths that could be measured, other than the odd pool.

[21] The applicants rely in part on the evidence of Mr. John Parish, a fluvial geomorphologist. He visited the Obratoski property only and only on one occasion, May 12, 2008. His memorandum of opinion dated June 24, 2008, advises that the purpose of his involvement was to determine navigability “and its bearing on being a natural severance within the subject property.” He seems to have relied fairly heavily on minimum requirements for navigability as developed by Transport Canada under its Navigable Waters Protection Program. There it is suggested that minimum wetted width of three metres and a minimum wetted depth of 0.3 metres was necessary in order to consider a stream to be navigable. In part, his opinion is based upon the results of a desktop exercise he and his staff conducted which appears to involve a series of mathematical calculations based on drainage area, climate data, information on land usage and aerial imagery. The result was to determine a mean annual flood level, by which was meant the high flow condition occurring approximately once per year. This information was then projected and led to a finding that a channel width of 3.9 to 6.2 metres would be expected. In terms of actual measurements, he claims that on May 12, 2008, wetted widths were measured as being between 0.75 and 3.0 metres and wetted depths were observed to be between 0.05 and 0.4 metres.

[22] Based on this information, he concludes in his opinion that the property would be navigable for at least part of the year, mainly during spring runoff or during heavy rain events when he would expect the channel widths and depths to exceed the minimums of 3 metres wetted width and 0.3 metres wetted depth, and that accordingly the stream is navigable. He includes photographs taken in his May 2008 visit which generally show what appears to be quite a shallow stream of varying widths and degrees of growth within the water.

[23] Mr. Parish was cross-examined on his report and conceded that the Transport Canada figures of 3 metres of wetted width and 0.3 metres of wetted depth were developed by Transport Canada when considering minimums for navigability of the Grand River. He confirmed as well that when he speaks of widths of 4 to 6 metres and depths of 0.5 to 0.8 metres in his opinion memorandum, he was talking about what his calculations led him to expect during an annual flood and not what he observed on May 12, 2008.

[24] Although Mr. Parish did not visit the O’Donnell property, Ms. O’Donnell relies on his opinion in part, as well as that expressed by her husband Patrick O’Donnell in his sworn affidavit. He explains that Canadian Imperial Bank of Commerce was named as a party only because it holds a mortgage on the property. His affidavit asserts that the waterway, as it traverses through his lands, varies in width from 10 to 20 feet and he claims it cannot be crossed on foot. He attaches photographs of the waterway taken “at various times of the creek at various points” and then goes on to explain that the photographs show the creek to be a significant waterway, particularly in the fall and the spring.

[25] He swears that the depth of the creek was approximately 4 feet from one end of his property to the other at the time the photographs were taken. He does not identify when the photographs were taken. He swears that the creek contains running water year round, albeit with higher levels in the spring and fall. He expresses the view that historically the portion of the creek on his property was used for commercial purposes. He then refers to a letter dated March 21, 1999, addressed to “Whom it may concern” by a Mr. Roy Harrison who’s described as being a long time resident of the area.

[26] The letter speaks of the creek having been a “from earliest times” “a useful body of water to people who live in the area.” It opines that “Indians” must have used it for a long period of time because the banks are rich in arrowheads and spear points. Local families collected spawning suckers in the spring. The letter continues that this waterway was “probably” used to float logs down to a sawmill downstream. He claims to have seen logs floating down the creek in the spring of the year. He claims that in modern times the creek is used by local people for canoeing. There is no information given as to any particular training as a historian. Aside from the assertion that he has seen logs floating down the river, much of what is said here is unsupported opinion. For example, it seems to me that the presence of arrowheads and spear points may well be more consistent with the area having been hunted in, than it would be with the use of the waterway by natives in canoes.

[27] Attached to his affidavit is a portion of a pictorial atlas of Wentworth County published by Page and Smith (Toronto) in 1875. It indeed does show a creek crossing the lands. He also refers to a publication of the Binbrook Historical Society entitled “History and Heritage of Binbrook 1792-1973” in which a chapter is devoted to the Chippewa Creek and surrounding area. It indicates at page 96 that “the Chippewa was not always a sluggish creek, as the sawmills once operating along its banks can attest.” It should be noted that it appears that the Chippewa Creek is a larger waterway into which the little Chippewa, likely watercourse in question, was a tributary.

[28] In his affidavit, Brian Obratoski swears that the creek traversing his lands is a wide waterway varying from 12 feet, 8 inches wide next to Trinity Church Road to 16 feet in width and that it varied in depth from 3 to 5 feet as it flowed through his property, as of March 25, 2007, when he took a number of photographs attached to his affidavit.

[29] He asserts that he has personally canoed on the creek and knows others have as well, and he relies on many of the same historical references as were set forth in the O’Donnell affidavit.

[30] The photographs marked as exhibits to his affidavit show, as one would expect, a very high rate of flow in the spring melt season, given the snow on the banks beside the running water, and the presence of ice in the stream.

[31] Mr. Obratoski has also filed a reply affidavit sworn on July 17, 2008. In it he takes issue with Mr. Booth’s opinion. In particular, he challenges the accuracy of the photographs relied upon by Mr. Booth and claims they are of portions of the creek that are not on the Obratoski property. Specifically, he includes two photographs in his affidavit showing lands west of Trinity Church Road, showing virtually no watercourse, but then two other photographs again looking west from Trinity Church Road with the waters at very high levels. In at least one of them snow banks and muddy/brown water are visible, both of which in my opinion are indicative of high points during spring runoff. The first two photographs are obviously taken during the warm weather months.

[32] Through Mr. Obratoski’s cross-examination, it is disclosed that the letter written by Mr. Roy Harrison to “Whom it may concern” was in fact written up on behalf of Mr. O’Donnell.

Discussion

[33] In Coleman v. Ontario (Attorney General), 1983 3055 (ON SC), [1983] O.J. No. 275, Justice Henry considered the issue of navigability in respect of a stream passing through the applicant’s property. At paragraph 10 he determined that navigability of a stream is to be determined as of the date of the Crown grant. Amongst other factors, he determined that a stream must be navigable in fact in order to be navigable at law, in other words it must be capable of being used by some sort of craft, or capable of being used to float logs. It need not be in fact used for navigation as long as it is capable of being so used. In paragraph 16 he held that the “underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public.” He also held that navigation need not be continuous but may fluctuate with the seasons, and specifically relied on Gordon v. Hall (1958), 1958 363 (ON SC), 16 D.L.R. (2d) 379. In reaching his conclusion Justice Henry considered the evidence he had as to the present features of the creek in question, as well as such historical evidence as was available concerning past use. At paragraph 30 he observed that most streams in Ontario are now seldom used for commercial purposes and that that should no longer be a required finding.

[34] In Canoe Ontario v. Reed (1989), 1989 4237 (ON SC), 69 O.R. (2d) 494, Justice Doherty, then of the High Court, considered historical information as well as evidence concerning the current characteristics of the stream in question. He found that it provided “enjoyable” canoeing from March through most of May, the possibility of limited and unsatisfactory canoeing from June through September, and some canoeing “for the particularly hardy” in October and November. At paragraph 36 he held that “the test for navigability developed in Canada is one of public utility. 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.”

[35] At paragraph 39 of that decision Justice Doherty made a point of observing that capability of use for some very brief period of time is not sufficient to render a waterway navigable. If, however, the waterway does have a regular and practical value, then seasonal limitations do not render it non-navigable.

[36] Simpson v. Ontario (Ministry of Natural Resources), [2012] O.J. No. 866 (Div.Crt.) points out that the question of whether or not a waterway is navigable is a question of law and fact. It also helpfully points out that Ontario law states that the reference in Canoe Ontario to navigability being “initially” determined as of the date of the Crown grant does not refer to two separate tests, one for the time of the grant and one for now. Rather, the operative time is the date of the Crown grant, but evidence of modern usage and characteristics of the waterway can be considered to assist the Court in determining the probable navigability of the waterway at the time of the grant (para. 21).

[37] Trying to determine navigability as of a date almost 200 years ago is an uncertain exercise, at least in the case of waterways of this nature. No doubt the degree of difficulty increases as the years continue to roll by. Evidence of personal observations made at the time becomes less available. I have no evidence about climate changes, or any topographical changes, or of any obstructional changes either upstream or downstream which could affect the present situation compared to that which existed at the time of the Crown grant.

[38] I am satisfied on a balance of probabilities that at some times during the year this waterway would be navigable, as evidenced by some of the photos and the evidence of small boat usage. Other evidence suggests that during dry seasons the waterway dries up markedly and would likely not be navigable. As held in Coleman, seasonal fluctuations will not prevent a finding of navigability. Contrasted to this is the observation in Canoe Ontario that navigable capability for a very brief period is insufficient. How long must the period of navigable usage be? What I have are essentially evidentiary snapshots at particular times of the year, as opposed to evidence relating to other seasons.

[39] It seems obvious that our winter months in Ontario will often render waterways unusable for any kind of watercraft because of ice—regardless of the sufficiency of water depth below the ice. Similarly, it seems to me, our climate often produces spring run-off conditions that arguably would temporarily convert even roadside drainage ditches into navigable waterways. I think that latter situation to be what would fall within the comments at paragraph 39 in Ontario Canoe.

[40] I have the evidence of the applicants which, although they have an interest in the outcome, supports a finding of navigability for much of the year.

[41] I remind myself that the determination of navigability is to be made as of the time of the Crown grant. I have evidence suggesting navigability then in the form of the Harrison letter. While it is really a compilation of reported recollections, in terms of historical usage, it is one made by someone with an interest in such matters. The recording of a width of 8 feet in the 1791 survey, and the recording of a brook in the 1810 survey suggest to me that the waterway was likely larger than it is today.

[42] I conclude that it is probable that this waterway was navigable for significant periods of the year in 1816. Hence I rule that the waterway in question, as it passes through the lands of each of the applicants, is a navigable waterway according to the applicable legal principles. Accordingly, title to the bed of the stream as it passes through each of these properties, remains in the Crown.

[43] Both applications are allowed. If counsel are unable to agree on the issue of costs, written submissions may be forwarded to judge’s chambers at the John Sopinka Court House, 45 Main Street East, Hamilton, Ontario, L8N 2B7. Those of the applicants are to be forwarded within 30 days of the release of these reasons, and responding submissions within 30 days receipt of those of the applicant. The written submissions should not exceed 5 pages exclusive of the bill of costs and copies of any relevant offers. If no submission are received by March 31st it will be assumed that costs are settled and there will be no order as to costs.

Glithero J.

Date: January 25, 2013.