COURT FILE NO.: CV-17-027
DATE: 2019 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Municipality of Northern Bruce Peninsula
N. Lovell, for the Applicant
Applicant
- and -
Mark Rauchfleisz
R. Thomson, for the Respondent
Respondent
HEARD: August 10, 2017 and May 30, 2019
REASONS FOR DECISION
McSweeney J.
TABLE OF CONTENTS
I. OVERVIEW3
II. ADDITIONAL FACTS5
III. HISTORY OF CONVEYANCES OF THE BEACH6
IV. MATTERS NOT IN DISPUTE8
V. LEGISLATIVE CONTEXT: CONVEYANCES IN THE 1950s AND CROWN OWNERSHIP OF THE BEACH10
VI. ISSUES12
VII. LEGAL BACKGROUND: TERMINOLOGY…………………………………….12
VIII. POSITIONS OF THE PARTIES17
Municipality17
Mr. Rauchfleisz19
Ministry of Natural Resources20
IX. DISCUSSION AND ANALYSIS21
Case Law21
X. ANALYTICAL FRAMEWORK25
XI. ANALYSIS28
The Reference Plan28
Patent and Latent Ambiguities29
Step One - The Crown Patent30
Step Two - Other Conveyances30
XII. ADDITIONAL ARGUMENTS35
Riparian Rights35
Trespass36
Accretion36
XIII. CONCLUSION37
I. OVERVIEW
[1] This is an Application brought by the Municipality of Northern Bruce Peninsula (“the Municipality”) for a declaration of ownership of a strip of beach on the shore of Georgian Bay. The analysis required is complicated. It engages over a century of land transfers, regulations, unsettled law, and changing statutory provisions.
[2] The question arises in a simple factual context. The Respondent, Mr. Rauchfleisz, lives on property near the shore of Georgian Bay. Georgian Bay is just across the road from his home. There is a strip of grassy and sandy beach across the road (“the beach”) bordering the waterfront. In 2015, Mr. Rauchfleisz built a structure on the beach, big enough to put chairs on (hereinafter referred to as “deck”, as its primary purpose is to sit on). At the time of construction, the supporting posts were in the water. Mr. Rauchfleisz likes to sit on the deck to watch the sunset, particularly in the summer, and invites others to do so.
[3] Following a complaint from a neighbor of the Respondent, the Municipality ordered Mr. Rauchfleisz to remove the deck. It claims he is trespassing on municipal land, and that he built the deck without municipal approval. Mr. Rauchfleisz knows the deck is not built on his own land but disagrees that the Municipality owns the strip of beach. However, if the court declares the beach to be municipal land, Mr. Rauchfleisz agrees that he built it without municipal approval and will remove the deck promptly.
[4] The legal context is more complicated. The parties to this Application disagree whether the beach is part of the adjoining road parcel owned by the Municipality. The strip has a long legal history in which most of the legal documents associated with it do not indicate who owns the beach. The conveyancing documents are ambiguous in what they say and do not say. With the exceptions of a Deed in 1954 and a Reference Plan deposited on title in 1969, none of the conveyancing documents indicate whether the properties bordering the waterfront terminate at the high or low-water mark. Further, the 1954 Deed and Reference Plan were drafted during a window of time when the law was highly unsettled. The result is significant confusion over who originally owned and who now owns the part of the beach between the high and low-water mark abutting the municipal road. Mr. Rauchfleisz’s deck sits on the beach between those two water marks.
[5] To further complicate matters, in this part of the Municipality, there is no plan of subdivision: there is only a Reference Plan.
[6] In 2017, the Municipality returned this Application before me in Owen Sound to resolve the question of ownership. There is no doubt that the Municipality owns the road bordering this strip of land. The question to be determined is who owns the strip of beach between the road and the water’s edge? Relying on a series of conveyances of land beginning in 1899, the Municipality claims the beach.
[7] On my direction, this Application was adjourned on August 10, 2017, to allow the Municipality to serve the federal and provincial Crowns. This was done. The federal Crown did not respond. The Ontario Crown is not appearing but stated its position by means of a letter. The parties agree that I may consider the Ontario Crown’s letter in this Application. In 2018, the parties provided further submissions per my direction. Their final appearance on the Application was May 30, 2019.
[8] To be clear at the outset, this is not a case about municipal zoning authority. The parties do not dispute that as a matter of municipal law, the Municipality can enforce its zoning by-laws on privately owned land. In this case, however, there are no relevant by-laws to enforce. In other words, if Mr. Rauchfleisz had built the deck structure on his own waterfront land, the Municipality argues that he would not need to comply with any municipal by-laws.
[9] For the reasons that follow, I conclude that the Municipality owns the beach.
II. ADDITIONAL FACTS
[10] The facts on this Application are not in dispute.
[11] Mr. Rauchfleisz’s lot is landlocked. It is roughly rectangular in shape. It fronts on the road that is owned by the Municipality. On the other side of the road lies the strip of beach at issue. That strip of beach lies between the road and Georgian Bay.
[12] The beach is frequently used by the public.
[13] The parties agree that the deck built by Mr. Rauchfleisz on the strip is below the high-water mark.
[14] Mr. Rauchfleisz submits that before he built his structure, he made various inquiries, including confirming that there were no municipal by-laws relating to the construction of a deck. He also contacted both the Ontario Ministry of Natural Resources and the Federal Department of Fisheries and Oceans to ask whether he required a permit to construct the deck. He was told that as long as the footprint of the dock did not exceed a certain size, he did not need a permit.
[15] As referenced earlier, Mr. Rauchfleisz refuses to comply with the Municipality’s direction to remove the deck. He argues that it is the Provincial Crown in Right of Ontario that owns the beach, and therefore only an Ontario authority, not the Municipality, can compel him to remove the structure.
[16] Accordingly, the Municipality now seeks a declaration that they own the beach as a means to compel Mr. Rauchfleisz to remove the deck.
III. HISTORY OF CONVEYANCES OF THE BEACH
[17] In determining who owns the beach, it is necessary to consider and outline the history of conveyances which followed the original transfer of the land to a local purchaser by Crown Patent. The parties agree that the history of the land is as follows:
a) Crown Survey: January 1, 1857. The Town of Eastnor was divided into concessions and lots. The parcel relevant to this Application is on Concession 12, Lot 13.
b) Crown Patent: July 22, 1899. The Crown granted roughly 43 acres to Robert Wesley Bright. The parties agree that the Crown Patent does not describe either the specific boundaries between the granted land and adjacent lands, nor the location of its water boundaries. The land is described only as “Forty Three Acres […] composed of Lot number Thirteen in the Twelfth Concession East of the Bury road in the aforesaid Township of Eastnor”.
c) Deed: 1924. Robert Wesley Bright and Kate Bright transferred their land (“the Bright Grant”) to Thomas H. Hoath. The Deed makes no mention of any specific water boundaries.
d) Deed: 1944. Thomas H. Hoath, Emma Hoath, and George Hoath transferred the Bright Grant to Lloyd Hoath. The Deed makes no mention of any specific water boundaries.
e) Deed: August 4, 1954. Lloyd Hoath and Marion Hoath transferred the Bright Grant to Ivan Lemcke. This Deed referenced the boundary of the property as being to “the high-water mark”. The parties agree that this was the first reference to the high-water mark in the history of the transfers of this land.
f) Reference Plan R-171: July 1969. Local developer Ivan Lemcke deposited a Reference Plan called R-171 on title. The Reference Plan is dated July 18, 1969. It depicts Mr. Lemcke’s proposed subdivision of the Bright Grant lands into many individual lots. It also shows a road (labelled Part 41) along the water, as well as a high and low-water mark.
g) Deed: August 7, 1969. Ivan Lemcke transferred every second lot in the Reference Plan (e.g. parts 1, 3, 5, 9, 11, etc.) to his wife Florence Lemcke. The Municipality submits, and the Respondent does not dispute, that these “checkerboarding” transfers were likely made in order to avoid any future difficulty in severing adjacent lots under the Planning Act. The Deed refers only to Reference Plan R-171 as the description of the properties conveyed. There is no mention in this Deed of any water boundary.
h) Deed: August 7, 1969. Mr. Lemcke transferred parts 7, 14, 23, 32, and 41 (the road) to Kenneth Graham Haskins. This Deed also refers to R-171 as the description of the properties conveyed, without reference to the water mark.
i) Note: The Deed to Mr. Rauchfleisz’s property also describes the boundaries of his lot with reference only to R-171. No other deeds were filed on the Application before me. The parties agree that for the purpose of this Application, and I accept for that purpose only, that none of the Deeds transferring waterfront properties referenced in R-171 contained a description of the water boundaries or reference to a specific water mark.
j) Deeds: 1971 and 1976. The Municipality officially took title to the road, shown on R-171 as “Part 41”, through a transfer from Mr. Lemcke and Mr. Haskins. The 1976 Deed does not refer to a water mark and again references R-171 as the only description of the property. These conveyances are the culminating documentation relied on by the Municipality to assert ownership of the beach.
k) In 2000, the Township of Eastnor became the Municipality of Northern Bruce Peninsula.
IV. MATTERS NOT IN DISPUTE
[18] As this Application proceeded, the parties agreed on a number of additional factual matters, summarized below.
[19] First, the parties agree that the bed of Georgian Bay belongs to the Provincial Crown. It has long been established in law that the bed of navigable waters is presumptively retained by the Crown, unless there is an express grant of the bed: see Beds of Navigable Waters Act, R.S.O. 1990, c. B.4, s. 1.
[20] It should be noted that some cases have referred to the bed of non-tidal waters as being owned by riparian owners. This is incorrect. That distinction was abandoned in 1911 with the Beds of Navigable Waters Act in Ontario: see, for example, Keewatin Power Co. v. Kenora (Town), [1908] O.J. No. 110, at para. 7, which was decided prior to the 1911 Act.
[21] Second, the parties agree that Georgian Bay is navigable, non-tidal water. This means that the bed of Georgian Bay is owned by the Crown, and the terms high and low-water mark are not strictly applicable.
[22] Third, as previously noted, the parties agree that the Municipality seeks ownership of the beach, and that no municipal by-laws are in dispute. The Respondent concedes that, as confirmed by decisions including Glaspell v. Ontario, 2015 ONSC 3965, the Municipality has the right to zone the beach, whether or not it owns the beach. At the hearing of the Application, however, the Municipality conceded that it had not passed any relevant zoning by-laws.
[23] Fourth, and crucially, it is agreed that my decision will only resolve the dispute between the parties regarding the ownership of the strip of beach between Part 41 (the road) and the water’s edge. It will not determine the rights of nearby waterfront owners with respect to the shore in front of their properties – including the owners of Part 1 and Parts 7 to 40. I make this point specifically as the Deeds for those specific parcels of land were not put into evidence. In any event, the court would not make a determination of the rights of owners of other waterfront properties without notice to them. The parties have agreed, however, that for the purpose of this Application, the original Deeds to those waterfront properties would also likely reference R-171 as the description of the boundaries of the property. This is a sound inference, given that all the neighbours’ Deeds in evidence included such a description.
[24] Fifth, the parties agree that the road (Part 41) was outlined in R-171 in 1969 and was deposited prior to any of the other parts on R-171 being conveyed to other owners. As such, the owners of Parts 1 to 6, including the Respondent, would have known of the existence of this road prior to purchasing their properties, even though the road was not officially conveyed to the Municipality until 1976. I note therefore, the facts do not describe a situation where the owners of Parts 1 to 6 bought waterfront land and then lost waterfront access when a municipal road was built.
[25] Sixth, the parties agree that R-171 is not a plan of subdivision and therefore cannot be used to create property rights. This point will be discussed further below. The parties agree that there is no plan of subdivision registered on the property.
[26] For the purpose of this Application, it is important to consider the legislative changes around the time the 1954 Deed was registered. As noted earlier, this was the first Deed relating to the Bright Grant lands that referred to a high-water mark.
V. LEGISLATIVE CONTEXT: CONVEYANCES IN THE 1950s AND CROWN OWNERSHIP OF THE BEACH
[27] The law surrounding the ownership of land between the high and low-water mark was uncertain and unsettled until 1974. On January 22, 1974, the Supreme Court of Canada released its decision in Attorney General of Ontario v. Walker, 1974 3 (SCC), [1975] 1 S.C.R. 78. This decision affirmed the Court of Appeal for Ontario and trial judge’s decisions on the issue of Provincial Crown ownership of waterfront property. As discussed below, the Supreme Court of Canada decided that the Crown did not own the area between the high and low-water mark, unless it had expressly reserved that ownership in the original Crown Grant.
[28] Before 1911, when the Beds of Navigable Waters Act was enacted, the common law established that the boundaries of waterfront property extended to the water’s edge: Attersley et al. v. Blakeley et al., 1970 316 (ON CA), [1970] 3 O.R. 303 (County Ct.), at para. 6, aff’d [1970] 3 O.R. 303 at 313 (C.A.).
[29] However, as early as 1916, it was the policy of the Crown to own the bed up to the high-water mark: Lackner v. Hall, 2012 ONSC 3951, at para. 23, rev’d on costs 2013 ONCA 631.
[30] Further, as of 1931, perhaps earlier, and at least until 1959, and possibly also up until Walker in 1975, the Registry Office would not accept a plan of subdivision for registration if it did not reflect the high-water mark to show the Crown’s title: see for example Lackner, at paras. 29, 32; Michnick v. Bass Road Beach Assn., 2015 ONSC 1936, at para. 10.
[31] In 1940, the Beds of Navigable Waters Act was amended to include a definition of the high-water mark, which was defined as including any “navigable” body of water. This amendment was not helpful, mostly due to lack of clarity over where to locate the high-water mark, and the amendment was repealed in 1951. However, the Crown maintained its position that it owned the land between the high-water mark and low-water mark: Lackner, at para. 24; Becker v. Walgate, 2019 ONSC 2342, at paras. 54-55; Tiny (Township) v. Battaglia, 2013 ONCA 274, at para. 17.
[32] Prior to the Walker decision, several courts determined that as of 1951, the law reverted to the common law position prior to 1911 – that is, that the boundary extended to the water’s edge: Todd v. Walker, 1954 274 (ON SC), [1955] 1 D.L.R. 495 (Ont. County Ct.). Though, as noted in Lackner, the Crown still maintained its position that it owned the land between the high-water mark and the water’s edge. The Todd decision indicates that in 1955, there was still confusion over ownership on waterfront properties several years after the Act was amended.
[33] In 1975, the Walker decision settled confusion in the law and determined that the Crown did not own the area between the high and low-water mark, absent an express reservation. That is, waterfront properties presumptively extend to the water’s edge. In Walker, the original Crown Patent described the boundary as being “to the lake” or “along the shore”, but subsequent conveyances used the high-water mark as the boundary of the property. Nonetheless, the court found that the lots extended to the water’s edge.
VI. ISSUES
[34] The fundamental issue to be decided in this case is as follows: Does the Municipality own the beach?
[35] In order to answer that question, the following sub-issues will need to be addressed:
a) Does the Provincial Crown own the beach?
b) Did any private party retain ownership of the strip or convey the strip as a separate parcel to a private owner?
c) What is the legal effect of Reference Plan R-171?
d) Do the documents referring to the high-water mark, namely the 1954 Deed and Reference Plan R-171, create a private ownership right in the strip in either of the parties or a non-party?
VII. LEGAL BACKGROUND: TERMINOLOGY
[36] To inform this analysis, it is first important to outline some key terminology.
Crown Patent:
[37] A Crown Patent is the legal document used to transfer Crown Land to a private owner. This seems to be the preferred term in Ontario. Other jurisdictions sometimes refer to this as the “Crown Grant”: see, for example, Land Act, R.S.B.C. 1996, c. 245, s. 1. The distinction appears to arise from historical practice. At one point in time, a settler first had to obtain a Crown Grant, subsequent to which he or she would fulfil various conditions imposed by the Crown. Once those conditions were fulfilled, the settlor could obtain a Crown Patent that officially transferred ownership. Today, the terms appear to be used interchangeably. For the purpose of this Application, the term “Crown Patent” will be used.
Foreshore:
[38] During the proceedings, the parties, at times, referred to the term “foreshore” in describing the strip of land at issue. For tidal waters, the “foreshore” typically refers to the seashore. In the seashore context, the strip of land between the high and low-water mark is presumptively owned by the Crown in the same manner that it owns the bed: see Ontario (Attorney General) v. Rowntree Beach Assn., 1994 7228 (ON SC), [1994] 17 O.R. (3d) 174 (C.J. (Gen. Div.)), at para. 116. As explained in the early case of Parker v. Elliott (1852), 1 U.C.C.P. 470, the seashore is retained by the public for the purposes of navigation and fishing: para. 16.
[39] With regard to non-tidal, inland waters, which include most lakes, the courts have typically held that the term “foreshore” is not applicable: see Ontario (Attorney General) v. Walker, 1970 953 (ON SC), [1971] 1 O.R. 151 (Sup. Ct. (H.C.)), at para. 44, aff’d 1972 31 (ON CA), [1972] 2 O.R. 558 (C.A.), aff’d 1974 3 (SCC), [1975] 1 S.C.R. 78.
[40] In other words, although this term was used by the parties in this case, and although there are some decisions that discuss the “foreshore” of non-tidal waters, the strip of beach in this Application is not properly called a “foreshore”. It is therefore not presumptively owned by the Crown and, as noted above, will simply be referred to as the “beach” on this Application.
Reference Plan:
[41] A reference plan is essentially a picture or description of land being transferred or subject to a charge that does not contain a metes and bounds description of the property. (Note: “metes and bounds” is a way of describing property – such as through coordinates – and is commonly used for surveys). Reference plans must be deposited in the Land Registry Office in order to transfer or register a charge on property in certain circumstances: see, for example, Land Titles Act, R.S.O. 1990, c. L.5, s. 150. Unlike a registered plan of subdivision, a reference plan cannot independently create a legal interest in land: see Spencer v. Salo, 2013 ONCA 98, 114 O.R. (3d) 226, at paras. 44-45.
[42] In this matter, the Reference Plan is titled “R-171”. Below is a sketch abstracted from the relevant part of R-171. It is included in these reasons solely as an illustration to assist the reader to visualize the relative location of the deck structure, the municipal road, and the nearby properties.
[43] Part 6 on the Reference Plan is Mr. Rauchfleisz’s property.
[44] Part 41 on the Reference Plan is the municipal road, which was transferred to the Municipality in 1971 and 1976.
[45] The deck is located approximately four metres from the western edge of the road (Part 41), located approximately across from Parts 4 and 5 on R-171.
[46] The deck is approximately 20 feet by 20 feet in size.
[47] Note with respect to “Inst. No. 8071” on the left side of the Reference Plan, to the left of Part 41 (the road): This lot is a section of land that was expressly reserved by Mr. Lemcke in 1969. The evidence indicates that this parcel of land has since been divided into several waterfront lots.
Plan of Subdivision:
[48] The Planning Act, R.S.O. 1990, c. P.13, requires a plan of subdivision to be registered in certain circumstances under the Planning Act, R.S.O. 1990, c. P.13: see for example. s. 50(3) of the Planning Act. A plan of subdivision requires a survey from an Ontario land surveyor showing the exact boundaries of the lots to be subdivided. Because lands in Ontario are subject to subdivision control, a plan of subdivision is typically used to obtain approval to divide land into lots in order to sell those lots individually.
Property Index Map:
[49] Like a reference plan, a property index map is an image describing properties in relation to one another. It is not determinative of property boundaries.
Riparian Rights:
[50] A riparian right is essentially a right of access to the water for owners of property that borders a body of water. Riparian owners also have rights relating to drainage; to the flow, quality, and use of the water; and rights of accretion. Importantly, while any structures erected on the bed of navigable waters must not interfere with these rights, a riparian owner does not actually have a right to construct works or control construction; that right remains with the owner of the bed: see Welsh v. Marantette (1983), 1983 1855 (ON SC), 44 O.R. (2d) 137 (H.C.), at paras. 21-22, aff’d (1985), 1985 2176 (ON CA), 52 O.R. (2d) 37 (Sup. Ct. (C.A.)), leave to appeal to SCC refused, 54 O.R. (2d) 800 (note); see also Glaspell, at para. 41.
Tidal Waters:
[51] Tidal waters are subject to the ebb and flow of ordinary tides. Non-tidal waters are not subject to the ebb and flow of tides, and usually include lakes: Gibbs v. Grand Bend (Village) (1995), 1996 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), at para. 66. The body of water in this case is ordered to be non-tidal, navigable water.
Water Marks:
[52] In this case involving waterfront land, two terms are relevant: (a) the high-water mark (the highest point the water reaches on the abutting land); and (b) the low-water mark or the water’s edge (the lowest point at which the water reaches on the abutting land).
[53] Importantly, for non-tidal waters, the terms high-water mark and low-water mark are somewhat of a misnomer. As discussed in Anne Warner La Forest, Anger & Honsberger Law of Real Property, 3rd ed. (Ontario: Canada Law Book, 2006), for non-tidal waters, the water’s edge is called the “ordinary water line”. Thus, when cases refer to the water’s edge in non-tidal water cases, they essentially mean the ordinary water level, unaffected by natural increases in the water level during the year (such as melting snow, spring rain, or flooding). Indeed, the terms “high-water” and “low-water” mark are sometimes synonymous in non-tidal water scenarios.
[54] Thus, for the purpose of this Application, the term “water’s edge” will be used interchangeably with “ordinary water mark”. However, as will be discussed below, there have been cases where parties have disputed ownership over a strip of land in front of the water due to the use of the terms “high-water mark” and “low-water mark/water’s edge” on various documents or conveyances describing the land at issue.
[55] As will also be discussed below, prior to the Walker decision, there was significant confusion over whether the Crown owned a strip of land in front of non-tidal waters between the high and low-water mark. For the purpose of this Application, the strip of land at issue – the beach – is between the low and high-water marks as indicated on R-171.
VIII. POSITIONS OF THE PARTIES
The Municipality:
[56] The Municipality submits that it became the owner of the beach at the time Part 41 of the Reference Plan (the road) was transferred to it by Mr. Lemcke and Mr. Haskins in 1971 and 1976. I observe that the Applicant being the Municipality is unusual in Ontario jurisprudence, as most disputes regarding waterfront ownership or access are initiated by private owners who claim ownership of the waterfront part of their lots, with the Municipality as respondent, arguing that the Crown owns the beach.
[57] In support of its position, the Municipality cites Walker for the proposition that the Crown does not own the beach unless there is an express reservation in the original Crown Patent. In this case, the Crown Patent contains no such reservation.
[58] Regarding the Deed of 1954 in which Lloyd and Marion Hoath transferred to Mr. Lemcke the lands “to the high-water mark”, the Municipality submits that the owner(s) intended to sell all the land they owned – which included the beach. The reference to the high-water mark in the Deed was a consequence of confusion in the law at that time with respect to waterfront lot boundaries. The Municipality points to the fact that the date of the transfer was not long after the 1951 repeal of the definition of “high-water mark” in the Beds of Navigable Waters Act. Indeed, it was unclear in Ontario law whether the Crown presumptively owned all waterfront land in Ontario below the high-water mark until the Walker decision of the Supreme Court of Canada in 1974.
[59] In other words, the Municipality argues that Lloyd and Marion Hoath sold Mr. Lemcke all the land they owned, but they were unaware that they owned the beach as they believed that it was owned by the Crown. For that reason, “high-water mark” was a boundary of the land sold. If the owner(s) had known they owned the beach to the shoreline/low-water mark, they would not have limited the water boundary in the Deed.
[60] In support of its position, the Municipality adds that the Property Index Map shows that there are no reserved lands or property index numbers for the beach, indicating that it is not a separate parcel with a private owner.
[61] Further, cases including Lackner and Michnick have recognized that up until the Walker decision, plans of subdivision could only be registered if they included a high-water mark to recognize the Crown’s ownership claims: Lackner, at paras. 29, 32; Michnick, at para. 10. In both of those cases, the courts held that that the owners intended to convey all their property, but misunderstood their ownership rights at the time of transfer: Lackner, at para. 76; Michnick, at paras. 53-57. Accordingly, the courts concluded that the lots they conveyed extended to the water’s edge, notwithstanding the high-water mark boundary reference in the deed: Lackner, at para. 76; Michnick, at paras. 1, 3.
[62] Similarly, in this case, the Municipality submits that the prior owners (namely, Mr. Hoath and Mr. Lemcke) intended to convey all of their land, but did not know that they owned the beach at the time. It submits that the common law should step in to fix that inconsistency and convey the land to the Municipality as being annexed to the road.
[63] The Municipality submits that if the court finds that the Municipality owns the land to the water’s edge, Mr. Rauchfleisz has trespassed on that property by building the deck.
[64] The Municipality also raises two further points. First, it submits that even if it does not own the beach, because it owns the road adjoining the beach, it has riparian rights to access the water from the road. Its riparian rights entitle it to direct Mr. Rauchfleisz to remove his deck structure. Second, it submits that when the bed is covered by water, Ontario owns it; whereas, when the bed is uncovered, the Municipality owns it, pursuant to its right of accretion.
Mr. Rauchfleisz:
[65] Mr. Rauchfleisz submits that the beach is not owned by the Municipality. Therefore, it must be owned either by the Ontario Crown (and thus subject to the Ministry of Natural Resources’ discretion) or some other party (perhaps Mr. Hoath, whose 1954 Deed transferred land only to the “high-water mark”).
[66] Mr. Rauchfleisz distinguishes Walker from this case. In Walker, the property at issue actually touched the water – whereas here, the road (Part 41) has never touched the water as there has always been a strip of beach between the physical edge of the road and the water’s edge. Mr. Rauchfleisz submits that because the Reference Plan does not provide a written description of the boundaries of Part 41 (the road), there is no legal lot description on which the Municipality can claim that its road has a waterfront boundary. Mr. Rauchfleisz emphasizes that because the Reference Plan is not a plan of subdivision, its registration on title cannot be the basis of finding that the Municipality owns the beach between the road and the water’s edge.
[67] Mr. Rauchfleisz notes that when he built his structure, its support posts were entirely submerged in water on the bed of Georgian Bay, which he submits belongs to the Ontario Crown. He submits that the Municipality cannot claim partial ownership to the bed of water underneath the structure on the basis that when the water level goes down, the deck is on dry land and the Municipality owns it. Fluctuations in water level cannot change ownership.
[68] Regarding riparian rights, Mr. Rauchfleisz argues that riparian rights do not grant a right to control construction on the bed of water. That right remains with the owner of the bed – the Ontario Crown.
Ministry of Natural Resources:
[69] The Ministry was given notice of this Application at my direction. Counsel in the Ministry’s Legal Branch sent a letter to the parties which advised that the Province is not a party and does not seek to participate in the Application. The Ministry did not request any further notification about the Application or seek to make submissions. The Ministry’s letter was included in the material before me on consent. Some of the comments in the Ministry’s letter will be referenced in the analysis below.
[70] The Ministry takes no position with regards to ownership of the beach, though it suggests that supporting evidence is required to establish that the beach is part of Part 41 on R-171.
IX. DISCUSSION AND ANALYSIS
[71] The Municipality must show on a balance of probabilities that it owns the strip of beach between the road (Part 41) and the water’s edge.
[72] The essential rule to be applied in such cases is outlined in Walker (Ont. Sup. Ct.), at p. 181:
[…] any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water, then it establishes that boundary as at the water's edge and not upon any bank or high water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water's edge.
Case Law:
[73] Ontario case law relating to the ownership of land between the water’s edge and the high-water mark can be difficult to reconcile. However, the analytical approach to determining ownership was clarified significantly in the Walker decision. A review of the five most relevant Ontario decisions since Walker is helpful to further clarify the key questions informing a modern analysis of waterfront land ownership in Ontario.
[74] In Battaglia, the parties were disputing ownership over a strip of beach property along the shoreline of Georgian Bay in the Township of Tiny. In this case, the Court of Appeal for Ontario confirmed that the Crown Patent rule regarding the boundaries of lands abutting water is not limited to the original plan of survey, and applies to conveyances as well:
Thus, in our opinion, the words of Justice Stark in Ontario (Attorney General) v. Walker [at p. 181], carry through for any conveyance: ‘high water mark’ only holds as a line creating a parcel that is not to be riparian where “the grant clearly reserves by description or otherwise … a space of lands granted and the water boundary.” Sark J.’s further exception (“or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water’s edge.”) applies, in our opinion, to any conveyance. …
It follows that where, in subsequent divisions of land by written metes and bounds descriptions or by plans of subdivision, the owner has conveyed upland using the term “high water mark” not used in the Crown grant, reciting this in the description or as it is shown by a surveyor on a plan, the Crown has no claim to title between such line (whatever it is thought or found to mean) and the water’s variable edge. If any space exists, the title would be in the grantee from the Crown or successor in title; or in the owners of the subdivision lots: at para. 98.
[75] See also Becker, at para. 61; Michnick, at para. 54.
[76] In Battaglia, the 1921 plan of subdivision indicated the boundary to be the high-water mark, with a separate area labelled “beach”. Various legal transfers in the 1920s did not mention the beach, except for two transfers in 1926 that expressly included the beach in the lots – that is, the lots extended to the water’s edge.
[77] In Battaglia, the application judge held that the Town did not own the beach: the subdividers had intended to transfer all of their land, but had mistakenly believed that they did not own the beach. The application judge therefore extended the land in front of the beach to the water’s edge. The Court of Appeal reversed, holding that the subdivider in fact knew he owned this beach, as indicated by, for instance, the fact that the subdivider’s deed showed he owned up to the water’s edge and that he expressly transferred the beach in two deeds in 1926. The area on the plan was also labelled “beach”, showing a separate section distinct from the lots. Thus, the Court of Appeal held in that case that the land only extended to the high-water mark.
[78] In Lackner, the Plaintiffs sought a declaration that the boundaries of specific lots in the Township of Torbolton extended to the water’s edge of the Ottawa River. In that case, the original patent did not contain a reservation, and therefore the lots extended to the water’s edge. A plan of subdivision was registered in 1931, but indicated that there was a strip of land – the “beach” – between the lots and the water’s edge. The court heard expert evidence concerning the confusion in the law at the time surrounding who owned the beach. The evidence was that until the 1970s, the policy enforced on surveyors was that they include the high-water mark in the survey.
[79] In Lackner, the court concluded that the conveyors likely believed that the beach was public land, given the state of the law and other evidence (e.g., there was a road leading to the beach indicating it was public and the conveyors’ children indicated that their fathers believed it was public land). However, since, the conveyors’ intention was to convey all the land they owned, and they mistakenly believed that they did not own this beach, the lot owners were entitled to a finding that the correct boundary was the water’s edge.
[80] In Michnick, the Deputy Director of Titles determined that the waterfront boundary of two lots in the Bruce Peninsula extended to the water’s edge. In that case, the patent again did not reserve the beach, and the land therefore extended to the water’s edge. However, a plan of subdivision was registered in 1959 which concluded that the boundary was the high-water mark. Subsequent deeds did not mention the boundaries of the lots.
[81] In Michnick, the court noted that until the late 1970s, surveys would not be accepted by the Land Registry Office unless they showed the high-water mark. In this case, the subdivider did not know that he owned the beach. The beach was not named, unlike in Ellard (discussed below), and there was nothing in the plan indicating that he reserved the shore, as in Battaglia. In Michnick, the subsequent use of that land also showed that he likely believed it was public. However, since the conveyor intended to subdivide all his land, the court corrected his mistaken belief that he did not own the land and extended it to the water’s edge.
[82] In Ellard v. Tiny (Township), 2012 ONSC 280, 295 O.A.C. 44 (Div. Ct.), the Applicants who were owners of cottage property on Lake Huron sought an order that their property extended to the water’s edge, while the Respondent, the Township of Tiny, opposed. In this case, the Crown Patent, the original survey, and a Deed to George Kitching indicated that the lots extended to the water’s edge. However, Mr. Kitching’s plan of subdivision (“Plan 773”) in 1931 used the high-water mark as the edge of the lots. The lots were sold according to Plan 773. The question was if Mr. Kitching’s intention was to extend the lots to the water’s edge or the high-water mark.
[83] In Ellard, the Divisional Court found that Mr. Kitching’s intention was to create lots with the high-water mark as the boundary. The evidence established the following: that Plan 773 labelled the waterfront as “sand beach”; that Mr. Kitching may not have believed he owned the beach; that it did not make commercial sense to sell the beach to the front lot owners, as the back lot owners would then not have access to the water; that his failure to make an express reservation of the beach was irrelevant, since he was not required to do so until Walker in 1975; and that the subsequent deeds indicated that the cottage owners and the public believed the beach belonged to the Town. The court therefore concluded that the Municipality owned the beach.
[84] In Gibbs, a private land owner attempted to clarify ownership of the main beach on the shore of Lake Huron, located west of the south half of Grand Bend in the Township of Bosnquet in the County of Lambton. In this case, the Court of Appeal for Ontario determined that if there is a patent ambiguity in a deed – an ambiguity that is apparent on the face of the deed itself – extrinsic evidence is inadmissible to resolve that ambiguity: para. 38. However, if there is a latent ambiguity – an ambiguity that arises only when the deed is applied to the land it purports to describe, or an ambiguity that is revealed through extrinsic evidence – then extrinsic evidence may be used to determine the intention of the grantor. See also Lackner, at paras. 4-7, on this issue.
[85] The cases outlined above all involve a latent ambiguity in which the court was required to determine the intentions of the parties to the transfer of land.
[86] In Lackner, for instance, the trial judge determined that there was a latent ambiguity, as it was unclear on the plan of subdivision whether the original subdividers intended to leave the boundary of the lots at the water’s edge or if they intended to retain the beach for themselves. Ambiguity in a plan of subdivision appears to be a common issue for the cases described above, which may arise due to the historical context surrounding the creation of surveys in the 20th century.
X. ANALYTICAL FRAMEWORK
[87] The following analytical framework is based on questions address by the decisions noted above. From these cases, and specifically from the analysis in Battaglia, the analytical framework is useful in considering whether or not a lot extends to the ordinary water mark of a non-tidal, navigable body:
- Does the Crown Patent expressly reserve a strip of land between a waterfront property and the ordinary water mark?
• If the Crown Patent is silent or is ambiguous – e.g. by using such terms as “to the shore”, “to the bank”, “to the lake” – then the waterfront property presumptively goes to the ordinary water mark (or, in other words, to the “water’s edge”).
• If there is a clear reservation – such as a metes and bounds description retaining a strip of land between the property and the water – the waterfront property does not extend to the ordinary water mark. The analysis ends there.
- If the answer to (1) is “no”, the court must then determine if the original Crown Survey or any other conveyance limits the parcel to the high-water mark (or reserves a strip of land in front of the waterfront property).
• A “conveyance” in law typically refers to a written document that transfers legal title of a property from one person to another. This can include, for instance, a deed. However, it is clear from the case law that other documents may need to be assessed to interpret the deed – particularly any plan of subdivision.
• Although in Battaglia the court adopted the view that Walker applies to any conveyance, the law is not necessarily as clear to enable a finding of ownership based on the deed alone. Indeed, as noted, deeds are not necessarily determinative of boundaries. If there is conflict between that deed and other evidence, the intentions of the parties to that deed are paramount.
A) Before using extrinsic evidence to determine the intentions of the parties, the court must determine if there is a latent or patent ambiguity in the deed or other conveyance. If the ambiguity is patent, no such evidence may be considered.
B) If there is a latent ambiguity, the court may consider extrinsic evidence to determine the intentions of the parties in interpreting the conveyance. Whether or not extrinsic evidence is used, the court should be cognizant of the following:
• There was confusion over ownership of the land between the high and low-water mark until Walker. Thus, for instance, plans of subdivisions and surveys in the 20th century frequently included a high-water mark line, which was a requirement in order to have the document registered. It may therefore be the case that the evidence shows that the parties intended to convey all that they owned, but mistakenly believed they did not own the beach, as in Lackner – in which case, the waterfront property may extend to the water’s edge. However, there may also be cases – such as Battaglia – where even in the 20th century, it is clear the owners knew that they owned the waterfront strip and intended to reserve it, or to expressly convey it to another person. In such a case, the lots may not extend to the water’s edge.
• For non-tidal bodies, the terms “high” and “low” water mark are not necessarily applicable. As early as Parker, there was recognition that such terms do not truly apply to non-tidal waters, yet they continued to be used in the case law: Parker, at para. 17. Thus, even if a conveyance refers to such terms directly, such reference may not be determinative, given the inapplicability of those terms to non-tidal bodies.
• A description of metes and bounds in a deed is not necessarily determinative of the boundaries of a parcel of land where it conflicts with the intentions of the parties: see Gall v. Rogers (1993), 1993 5446 (ON SC), 15 O.R. (3d) 250 (Ont. S.C.), at para. 30.
[88] Note that such considerations may not apply to tidal bodies.
XI. ANALYSIS
The Reference Plan:
[89] Although a reference plan is normally of limited value in determining ownership rights and intentions of the parties, on this Application, R-171 can be given more weight than is usually attributed to such a document.
[90] This is an odd situation arising from the historical context of R-171, which was helpfully provided by Ontario in its letter to the court.
[91] In this Application, as distinct from the facts in Spencer and Battaglia, there is no plan of subdivision. The reference plan is not found to be in conflict with that document (in which case, the plan of subdivision would have prevailed).
[92] Further, as distinct from the facts in Spencer, the deeds after R-171 was deposited on title all refer to R-171 as the description of the property. It is therefore necessary for this court to consider that document in determining ownership rights for the deeds after 1969 when R-171 was deposited on title.
[93] In 1964, Mr. Lemcke had a survey prepared for the purpose of subdividing the Bright Grant. At that time, it was an offence under s. 29 of the Planning Act to subdivide and sell land with an unregistered plan of subdivision. It is therefore reasonable to infer that Mr. Lemcke intended, in preparing the survey, to comply with that provision. However, in 1967, the law changed, such that an “unregistered plan of subdivision” no longer included plans deposited under the Registry Act: see Planning Amendment Act, 1967, S.O. 1967, c. 75. As such, instead of needing a registered plan of subdivision, Mr. Lemcke was able to comply with the amended statute in 1969 by simply depositing his reference plan on title to the property. Not long thereafter, the law was again changed in 1970, requiring a registered plan of subdivision on the property in order to sell or transfer land.
[94] I conclude on the basis of the record and on this statutory history that Reference Plan R-171 was deposited on title in the three-year window of time during when this action was sufficient to subdivide and sell the lots. It can therefore be used as evidence of Mr. Lemcke’s intentions regarding subdivision, even though deposit of a reference plan does not usually support this inference.
Patent and Latent Ambiguities:
[95] There are latent ambiguities in the facts of this case. Given the record on the application, the court is required to admit extrinsic evidence to determine the intentions of Mr. Hoath, Mr. Lemcke, and Mr. Haskins when they transferred the land.
[96] As in Lackner, at para. 6, the Reference Plan in this case contains a high and low-water mark that is ambiguous with respect to the boundaries of the lots. It is not clear on that plan whether or not the beach (i.e. the land between the high and low-water marks on R-171) was expressly retained by Lemcke, belonged to some other party, or was attached to the lots. Nor do any of the Deeds – with the exception of the 1954 Deed – make reference specifically to the beach. This court is also proceeding on the basis that all Deeds after 1969 refer to the Reference Plan as the description of the property, as occurred with the Deeds in evidence to Mr. Lemcke, Mr. Haskins, and the Municipality.
Step One - The Crown Patent:
[97] As per the first step in the framework outlined above, it is agreed that the Crown Patent in this case does not contain an express reservation of the beach. The Crown Patent states that the Crown transfers the land to Mr. Bright, his heirs, and assigns, forever, “saving, excepting, and reserving, [sic] [onto] Us, Our Heirs and Successors, the free use, passage, and enjoyment of, in, over and upon all navigable waters that shall or may be hereafter found on or under, or be flowing through or upon any part of the said Parcel or Tract of Land hereby granted as aforesaid”. This description contains no express reservation of title to the beach. I therefore conclude that as of 1899, the property transferred extended to the water’s edge/ordinary water mark as it existed at the time of the Crown Survey.
[98] This conclusion is also supported by consideration of the analysis in Gibbs, where the Crown Patent stated that the transfer was made saving, excepting, and reserving “all navigable streams, waters, and water courses, with the beds and banks thereof”. Putting aside the fact that the Crown Patent in this case does not reserve the “bank”, “saving and excepting” in conveyancing practice usually applies to the grant of an easement: Gibbs, at para. 25. That the Crown merely intended to retain use of navigable waters, rather than title, is also shown in the language of the Patent above: Gibbs, at para. 30. Note also that this reservation is consistent with the recognized public right to navigation on navigable waters: see Parker, at paras. 13, 16.
Step Two - Other Conveyances:
[99] As referenced earlier, the Crown Survey of 1847 makes no mention of retaining the beach.
[100] Until 1954, none of the conveyances indicated any express reservation. As such, given that no reservation was made in the Crown Patent, Mr. Hoath owned the land to the water’s edge/ordinary water mark in 1954 when he signed the Deed transferring land to Mr. Lemcke.
[101] Therefore, the Ontario Crown would not own the beach in any scenario. As of 1954, either Mr. Hoath intended to expressly keep the beach, or he intended to transfer all of the land that he owned, but due to confusion in the law regarding ownership, mistakenly believed that he did not own the beach. In the first scenario, Mr. Hoath’s heirs and assigns own the beach. In the second scenario, Mr. Lemcke owned it, and the court would then need to assess whether he also intended to transfer all of the land he owned to the lot owners as he subdivided the land.
[102] As there is a latent ambiguity in this case, the court is required to determine the intentions of Mr. Hoath and Mr. Lemcke in determining ownership of the beach, with reference to extrinsic evidence, if necessary. However, both of those individuals died some time ago.
[103] Based on a review of the record described above, I conclude that the parties intended to transfer all that they owned. That is, after R-171 was deposited on title in compliance with the law at the time, the lands extended to the water’s edge and were transferred as part of each waterfront lot in the Reference Plan.
[104] The conveyance of the road (“Part 41”) in 1976 to the Township of Eastnor therefore included the land to the water’s edge. With the conveyance of the road, the Municipality also took title to any land which lay between the road and the water’s edge. I therefore conclude that the Municipality owns the strip of beach between the road and the water.
[105] This conclusion is supported if one looks closely at R-171 and considers that on the left side of the Reference Plan, to the left of the road as shown, there is a parcel labelled “Inst. No. 8071”. That parcel also contains two lines in front of it – one at the high-water mark and one at the low-water mark – like the rest of the Reference Plan. This lot is a parcel of land that was expressly reserved to Mr. Lemcke by separate instrument 8071.
[106] It is a reasonable inference that Mr. Lemcke would not separate this parcel of land from the beach through the use of a high-water mark if he believed that he owned the beach and intended to reserve it expressly for himself. He would not have placed a high-water mark line in front of the Instrument 8071 parcel, or he would have also placed “Inst. No. 8071” or another instrument number on the beach area next to the road on R-171 to make it clear that he was keeping it.
[107] A failure to make an express reservation of the beach is not necessarily determinative, as noted in Ellard. In this case, Mr. Lemcke’s express reservation of ownership of a portion of waterfront land appears to have been expressly blocked off from the beach through the use of a high-water mark.
[108] There are therefore only two explanations for why he would have placed a high-water mark in front of the parcel he reserved: either he did not believe he owned the parcel due to the confusion surrounding the Crown’s claim over the beach during this time period, or he did not believe he owned it because Mr. Hoath retained it in the 1954 Deed.
[109] Unlike the facts in Ellard and Battaglia, on this Application, there is no description of this beach. It is not identified by an instrument number, unlike for the express reservation. Nor is it identified by any term, such as “beach”, written on the Reference Plan. Nor is there any reference to the land being owned by Mr. Hoath. Given that Mr. Lemcke wrote the instrument number for the express reservation (Inst. No. 8071), it would have made sense for Mr. Lemcke to also write down the instrument number for Mr. Hoath’s Deed if Mr. Lemcke believed that Mr. Hoath had retained that section of land under the 1954 Deed.
[110] Recall that there is no plan of subdivision applicable to this Application, and all of the Deeds registered after R-171 was deposited refer to R-171 as the description for the property. If Mr. Lemcke or Mr. Hoath believed that Mr. Hoath had retained ownership of the beach following the 1954 transfer, they would have presumably indicated this retention on the transfer documents.
[111] I would also note that contrary to the situation in Ellard, it does not make commercial sense for a developer like Mr. Lemcke to buy this land but agree to Mr. Hoath retaining the beach. The waterfront lots – namely Part 1 and Parts 7 to 40 – would have been significantly less commercially valuable if their access to the water was reserved to Mr. Hoath.
[112] In Ellard, the court noted that it did not make commercial sense to provide the front lot owners with sole ownership of the beach, since the back lot owners would not have had access to the water. In that case, around half of the lots did not front the beach. Here, only five of the 40 lots do not have access to the beach. Similarly, if Mr. Lemcke owned the beach and knew he owned it, it would have made good commercial sense to grant those lots ownership of the beach in front of their properties.
[113] Further, Mr. Lemcke may simply have been using the same language as that of the 1954 Deed in R-171 without any intention to make the beach a separate lot on the Reference Plan.
[114] The reference plan is not a plan of subdivision. However, given that it was originally prepared in 1964 with the intention to be such a plan, as the law required it to be a registered plan, it is a reasonable inference that the surveyor hired by Lemcke would comply with the rules at the time for the purpose of registration. Thus, as in Lackner and Michnick, R-171 likely included the high and low-water mark on the survey in order to comply with the requirements for registration. The inclusion of a high-water mark does, in the circumstances, lead to an inference that Mr. Lemcke intended to retain this beach.
[115] It is the Municipality’s burden to show that they own this land on a balance of probabilities. In this case there is absolutely no evidence to support a finding that Mr. Hoath (or Mr. Lemcke) intended to retain the beach. Further, the area in front of Part 41 is used by the public.
[116] It is reasonable to assume that if Mr. Hoath had sought to expressly retain the beach for his own use, he or his heirs and assigns would have taken some steps to assert ownership over the past 65 years. Unlike in Ellard, there was never any express transfer of the beach in other Deeds in a manner suggesting that Mr. Lemcke knew he owned the beach and retained it or sold it for a profit.
[117] Indeed, remove the 1954 Deed from the entire historical record of this property, and the only available conclusion would have been that the lots extend to the water’s edge/ordinary water mark.
[118] As stated in Gall, at para. 30, a description of metes and bounds in a deed is only one piece of evidence and does not necessarily determine the boundaries of the land: the intention of the originating parties in describing the boundary is paramount. See also s. 140(2) of the Land Titles Act, which reads: “The description of registered land is not conclusive as to the boundaries or extent of the land.” This is also not a case where the deeds throughout the history of the land specifically referred to the boundaries of the property to a particular water mark: see also Attersley. See also Walker, where several deeds indicated that the property extended to the high-water mark, yet the court nonetheless concluded that the property extended to the water’s edge: Walker, at pp. 77-78.
[119] As argued by the Municipality regarding the 1954 Deed, this conveyance also occurred not long after the 1951 amendment to the Beds of Navigable Waters Act, which removed reference to the high-water mark. As indicated by Todd in 1955, the Crown was still arguing ownership over the beach a year after this deed was signed, and there was ambiguity over whether the Crown owned from the low to the high-water mark or if the law had reverted to the situation prior to the amendment (that the waterfront owners owned to the low-water mark).
[120] Given the above commentary, it is therefore likely that Mr. Hoath intended to convey all that he owned but believed that he did not own the beach. Again, there is no indication that Mr. Hoath had done anything to retain this beach, and it does not make sense that Mr. Lemcke – a developer – would buy this land for the purpose of subdivision while cutting off the lots from the water.
[121] I therefore conclude that Mr. Hoath, and subsequently Mr. Lemcke, intended to convey all the land that they owned to the water’s edge, but mistakenly believed that they did not own the beach, similarly to Lackner and Michnick. Therefore, when Mr. Lemcke (and Mr. Haskins) transferred the road (Part 41) to the Municipality, and given that the road borders the high-water mark, the Municipality owns the land in front of the road to the ordinary water mark as shown on the original Crown Survey.
XII. ADDITIONAL ARGUMENTS
Riparian Rights:
[122] The applicant’s riparian rights assertion does not need to be determined, as I have concluded that the deck is built on the beach owned by the Municipality.
[123] However, I observe that if I had found that the beach did not belong to the Municipality, in my view, this secondary argument would not have succeeded. If there were a strip of land in front of the road belonging to a third party, the road would not be riparian, and no such rights would be attached. Even if there were riparian rights, these would not include a right to control construction on the bed of the Bay. The Municipality would have had to establish that the deck interfered with its private ownership rights – which was not established on the record.
Trespass:
[124] Mr. Rauchfleisz agrees that if the Municipality owns this strip, he has trespassed. Accordingly, there is no dispute as to this issue. In this regard, I conclude that the building of the deck on municipal land constitutes trespass.
Accretion:
[125] Briefly, although no longer in issue, the Municipality argued in this case that jurisdiction changed with the fluctuation of the water level. This is incorrect. It cannot be the case that the Crown owns the beach when it is covered by water, but the Municipality owns it when it is not covered by water. Again, the relevant water mark when determining ownership is the “ordinary water mark”, unaffected by seasonal changes like spring rain and melting snow. The seasonal changes to the water level do not change that ownership.
[126] Riparian owners have a right of accretion as water levels change, provided the change is slow, gradual, and incremental over time due to either natural forces or as an inadvertent result of a legitimate artificial structure: Clarke v. Edmonton (City), 1929 38 (SCC), [1930] S.C.R. 137, at p. 13; Duarte v. Ontario, 2018 ONSC 2612 (Div. Ct.), at para. 95.
[127] If the water has gradually lowered since the Crown Survey, then the Municipality has also gained land as part of this right of accretion. But, again, this type of change is not seasonal. Jurisdiction does not change multiple times in a single year. By definition, rights of accretion are slow and incremental changes to the landscape.
[128] Therefore, it is not the case that Mr. Rauchfleisz is permitted to keep his deck on the water when the water level is high, but must remove it when the water level is at its ordinary mark. As the riparian owner of the beach in front of the road, the Municipality has an associated right to accretion.
XIII. CONCLUSION
[129] The Municipality’s Application is granted. The Municipality owns the strip of beach in question, and Mr. Rauchfleisz has trespassed on the land by building a structure on the beach without municipal approval.
Order:
[130] Order to go as follows:
- A Declaration of ownership to issue in favour of the Municipality of Northern Bruce Peninsula. The real property in question on this Application, being all the lands in PIN 33121-0328 on its western boundaries (as described in instrument R-171), being Part 41 of R-171, in the Municipality of Northern Bruce Peninsula, in the Land Registry Office for the County of Bruce:
a) extend to the water’s edge of Rush Cove; and
b) is owned by the Municipality of Northern Bruce Peninsula;
The Respondent, Mr. Rauchfleisz, has trespassed upon the Municipality of Northern Bruce Peninsula’s lands by erecting a deck structure;
Mr. Rauchfleisz is directed to remove the deck structure and all related materials no later than October 18, 2019 at his own expense, unless otherwise agreed by the parties; and
Mr. Rauchfleisz is further directed to restore the real property to its condition at the time the deck was erected, at his own expense. Such steps are to likewise be completed by October 18, 2018, unless otherwise agreed by the parties.
Costs:
[131] This Application highlighted a lack of clarity in the law regarding the ownership of the beach. Mr. Rauchfleisz made efforts to determine the legality of erecting the deck on the beach prior to starting construction and attempted to comply with the law as he understood it. As such, the parties are advised that although the Municipality was successful on this application, any costs analysis will require consideration of this context.
[132] Should it wish to pursue its costs, the Municipality is directed to file its cost submissions no later than October 25, 2019. Mr. Rauchfleisz is to file responding submissions no later than November 15, 2019. The Municipality shall file any reply submissions by November 22, 2019. Each submission shall be no more than three pages, double spaced, and single sided, not including the party’s Bill of Costs and any relevant offers to settle. All submissions are to be filed in Owen Sound to my attention by way of the Superior Court of Justice Trial Coordinator.
McSweeney J.
Released: September 20, 2019
COURT FILE NO.: CV-17-027
DATE: 2019 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Municipality of Northern Bruce Peninsula
Applicant
- and -
Mark Rauchfleisz
Respondent
REASONS FOR DECISION
McSweeney J.
Released: September 20, 2019