Court File and Parties

Court File No.: CV-18-00607969-00OT Date: 2022-03-24 Ontario Superior Court of Justice

Between: Andrew Donnelly and Susan Burton, Plaintiffs – and – Guyconhud Inc., Guy Hudson and Connie Hudson, Defendants

Counsel: J. Daniel McConville, for the Plaintiffs James Morgan, for the Defendants

Heard: October 12, 2021 at St. Thomas by videoconference

Heeney J.:

[1] This case involves a dispute between two neighbours who own adjacent properties near Port Burwell. The plaintiffs own a large lot whose southerly boundary, when the lot was laid out in a reference plan, is close to, but still some small distance north of, the north shore of Lake Erie. The defendants Guy Hudson (“Hudson”) and his wife Connie Hudson, through their corporation Guyconhud Inc., own the lot immediately to the east of the plaintiffs’ property. I will refer to it as “the defendants’ property” even though title is technically held only by the corporation. It is an odd-shaped lot, in that it includes a long, narrow tongue of land that extends westerly a considerable distance, along the southerly boundary of the plaintiffs’ land as well as along the southerly boundaries of several properties further to the west. This tongue of land serves to separate the plaintiffs’ land from Lake Erie.

[2] The dispute is about access by the plaintiffs to Lake Erie for recreational purposes. The plaintiffs claim entitlement to enter the lake from the southerly limit of their land. Hudson maintains that they cannot enter the lake without crossing his land, and has refused permission for them to do so. He has erected a fence to prevent such access.

[3] The central issue to be determined is this: when lake water, at times when water levels are high, periodically floods over or through the rock breakwall on the defendants’ land and ponds on the plaintiffs’ land, does that part of the defendants’ land thereupon become part of the bed of Lake Erie, a navigable waterway to which title is held by the Crown? Additionally, do these circumstances give rise to any riparian rights in favour of the plaintiffs to access Lake Erie from their property?

Background

[4] The plaintiffs’ property is known municipally as 55159 Lakeshore Line, Port Burwell. It actually consists of two adjacent lots, both of which were purchased by them on April 26, 2017. One parcel was acquired by the parties as joint tenants, and is described as Part 1, Plan 11R-8824. The other parcel was acquired by Susan Burton in her name alone. It is described as Part 1, Plan 11R-4851, except Part 1, Plan 11R-8824. It is readily apparent that the jointly-owned parcel, Part 1, Plan 11R-8824 had been previously severed out of the larger parcel, Part 1, Plan 11R-4851. The net result is that the two lots owned by the plaintiffs can collectively be described as Part 1, Plan 11R-4851.

[5] Reference Plan 11R-4851 was registered on December 11, 1991. The southerly limit is a straight line, running from the southeast corner to the southwest corner of the property, and has no connection to the contours of the shore of Lake Erie. In fact, it clearly shows that the water’s edge of Lake Erie is to the south of the southerly limit of the parcel, separated from the lake by the tongue of land now owned by the defendants. At one point the water’s edge comes close to the south limit of Part 1, but is still south of it. The plan does not show a breakwall.

[6] On December 11, 2003, Reference Plan 11R-8029 was registered. This plan depicts the two parcels, Parts 1 and 2, which were eventually purchased by the defendants. It clearly shows the long tongue of land of Part 1, extending westerly along the southerly limit of the plaintiffs’ land Part 1, 11R-4851, and continuing westward a further 496 ft., along the southerly limits of seven other properties, separating them all from the lake. This reference plan also shows a breakwall of stones running all along the tongue of land near the water’s edge. This breakwall of large stones had been installed by the Township of Bayham in the early 1990’s for erosion control.

[7] This plan has two notations showing the water’s edge at different dates. One notation shows the waters edge on November 6, 1991 as being close, at one point, to the southerly limit of Part 1, 11R-4851, and was presumably copied from that plan, which was registered in December, 1991. It also has a notation showing the water’s edge on September 8, 2003, two months before reference plan 11R-8029 was registered. Importantly, the water’s edge is shown on that date to be on the southerly edge of the breakwall, and well south from the southerly boundary of the plaintiffs’ property, Part 1, 11R-4851. It is that water’s edge which forms the southerly boundary of the defendants’ land, Part 1, 11R-8029.

[8] To the extent that it may be relevant, the plaintiff Andrew Donnelly, at page 8 of the transcript of his cross-examination of August 31, 2021, admits having seen the 2003 reference plan (which he referred to as a “survey”) before closing, and discussing it with his lawyers at closing. As just noted, this plan clearly shows the tongue of land between the southerly boundary of their property and the edge of the water, upon which the breakwall is clearly shown, and which obviously did not form part of the property they were buying.

[9] Reference Plan 11R-8824, which created the parcel, Part 1, now held in joint tenancy by the plaintiffs, was registered on October 22, 2007. It also shows the breakwall of stones as being entirely on the tongue of land now owned by the defendants, south of the property now owned by the plaintiffs. It has the same notations regarding the location of the water’s edge as had been noted on 11R-8029.

[10] The defendants’ property was purchased by the defendant Guyconhud Inc. on August 9, 2017. As already noted, the description for this property is Parts 1 and 2, 11R-8029. Parts 1 and 2 are beside each other, on either side of the Little Otter Creek, which empties into Lake Erie at that location. It is the westerly portion, Part 1, that is relevant to this dispute, since it contains the long tongue of land that separates the plaintiffs’ land, and several other properties, from Lake Erie.

[11] The defendants’ predecessors in title included Charles and Victor Goberis, who acquired title by instrument number 135221, registered on July 16, 1969. This was many years before reference plan 11R-8029 was registered, and the property was described in that deed by metes and bounds. In describing part of Lot 14, which is where the property in dispute is located, the metes and bounds description includes the following:

THENCE SOUTH 74 degrees 05 minutes west a distance of 128.7 feet across Little Otter Creek to another point on the top of the Old Mill Pond dam contour line; THENCE SOUTH 88 degrees 03 minutes west a distance of 280 feet to the point on the High Bank facing the lake, as mentioned in the first part of this description.

Included in front of the last two traverse courses is all the land southerly of the High Water mark on the northerly shore of Lake Erie, as shown outlined in red on the plan annexed hereto.

[12] The plan annexed to that deed includes the tongue of land that is the focus of this litigation. What is notable about this description is that it includes land south of the high water mark. Since this property is on the north shore of the lake, by definition this description includes land that is under water when the lake is at the high water mark.

[13] Both neighbours having purchased their properties in the same year, one might have thought that they would get along as mutual newcomers to the neighbourhood. That was not to be. In 2017 Hudson began clearing property adjacent to a laneway which serviced his property, and in the course of that project trespassed on the plaintiffs’ land and removed trees and other vegetation. This is the subject-matter of a trespass claim by the plaintiffs, which will be dealt with later in these reasons.

[14] Conflict between the parties arose concerning the plaintiffs’ access to Lake Erie for purposes of swimming. Permission was granted by Hudson, then later rescinded due to an alleged breach of the conditions attached to that consent. “No trespassing” signs were erected by him, and a fence was constructed along the breakwall, although it was easily circumvented. After the plaintiffs commenced this action in 2018, a more permanent fence was constructed by Hudson which did effectively prevent the plaintiffs from accessing Lake Erie from their property.

[15] There is much evidence about arguments and confrontation, and allegedly abusive behaviour by one party against the other, none of which is necessary to review or resolve, because none of it is relevant to the issues to be determined in this case. This case is not about which party was being rude to the other. It is not about whether erecting a fence to prevent the plaintiffs from going for a swim was a neighbourly or reasonable thing to do. It is about whether the plaintiffs have the legal right to direct access to Lake Erie from their property.

Nature of the Motion Before the Court

[16] The plaintiffs issued a Statement of Claim on October 31, 2018 in Toronto, although the file was later transferred to St. Thomas in Elgin County. It claimed title to the tongue of land south of the plaintiffs’ property based on adverse possession, or alternatively a prescriptive easement providing access to the lake. In their Fresh As Amended Statement of Claim issued January 11, 2020, they continued those previous claims, but added a claim that the plaintiffs’ land now abuts Lake Erie, which is a navigable waterway pursuant to the Canadian Navigable Waters Act, R.S.C., 1985, c, N-22 (“CNWA”). They pleaded that the defendants are prohibited from obstructing the plaintiffs from accessing Lake Erie, based on the provisions of the CNWA as well as the common law. They pleaded that the defendants are infringing the plaintiffs’ statutory and common law riparian rights.

[17] In the Notice of Motion which is now before the court, the plaintiffs seek the following relief:

• A permanent, or in the alternative interlocutory, injunction restraining the defendants from erecting a fence or any other obstruction that obstructs the plaintiffs’ access to Lake Erie, in accordance with the CNWA;
• A permanent injunction restraining the defendants from trespassing further on the plaintiffs’ property;
• Damages in the amount of $20,000 for trespass;
• Costs.

[18] The grounds for the motion include the allegation that Lake Erie is a navigable waterway under the CNWA, and the fence obstructs their access to it, in breach of that Act; that the defendants’ actions are a breach of the plaintiffs’ riparian rights; and, that there is no genuine issue for trial. The plaintiffs specifically plead Rule 20, which is the summary judgment rule.

[19] The plaintiffs are, therefore, seeking summary judgment for an injunction, but based only on an alleged violation of the CNWA and their riparian rights. They are not seeking such relief based on adverse possession or a prescriptive easement. They are also seeking summary judgment for damages for trespass.

[20] The defendants are content to deal with these issues by way of a summary judgment motion, as opposed to a trial.

[21] I am of the view that this is an appropriate case to adjudicate by way of a summary judgment motion. With respect to the issues before the court on this motion, there is no genuine issue requiring a trial. The evidence filed before me is extensive, and allows me to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. Most importantly, as will be seen below, the key facts that drive the decision in this case are not really in dispute.

[22] Two issues of concern arise from the pleadings, however. As noted, while the plaintiffs have, in their Fresh As Amended Statement of Claim, continued to claim a right of access to Lake Erie based on adverse possession and proscriptive easement, those grounds were not relied upon in the plaintiffs’ motion for judgment. Instead, the claim for injunctive relief was based solely on a breach of the CNWA, or on the alleged infringement of riparian rights. Counsel for the plaintiffs did not indicate during argument, one way or the other, whether the adverse possession and proscriptive easement claims are being abandoned.

[23] The only evidence filed on adverse possession came from the defendants which, on its face, demonstrated that the defendants’ predecessors in title had open and continuous possession of their land, and that the plaintiffs’ predecessors in title did not access the lake from their property. This evidence is technically of no relevance, since it responds to a claim that is not before the court on the plaintiffs’ motion for judgment. This raises the second issue of concern arising from the pleadings: the defendants did not bring their own cross-motion for summary judgment.

[24] The defendants did, in their factum, ask for an order that the plaintiffs’ action (not just their motion) be dismissed and that they be awarded damages for various trespasses committed by the plaintiffs, but they did not seek this relief by way of a cross-motion for summary judgment.

[25] The defendants rely upon Meridian Credit Union Limited v. Baig, 2016 ONCA 57, as authority for the proposition that it is open to a judge hearing a motion for summary judgment to grant judgment in favour of the responding party even in the absence of a cross-motion for judgment. Laforme J.A., speaking for the court, said the following, at para. 17:

I pause to note that Meridian had not brought a cross-motion asking for summary judgment in its favour. However, the motion judge did not err by granting summary judgment. Counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party. Two recent decisions from this court make it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-15; and Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52.

[26] The distinction between that case and the case at bar is that counsel for the plaintiffs here maintains that the record before the court is incomplete, and objected to the fact that claims were asserted by the defendants for the first time in their factum that should have been advanced by way of a cross-motion for summary judgment. Far from inviting me to render a decision on all of these issues in favour of either party, counsel for the plaintiffs argues that he was not given proper notice of the defendants’ intention to litigate all issues on a final basis on this motion.

[27] There is merit to the plaintiffs’ objection. A motion for summary judgment triggers certain significant obligations on the part of the responding party. In particular, they are required to put their best foot forward, and to “lead trump” or risk losing. So, had the defendants brought a cross-motion for judgment seeking to dismiss the plaintiffs’ claims based on adverse possession and for a proscriptive easement, the plaintiffs would have been obligated to present sufficient evidence to show that there is a genuine issue for trial on those matters. When the defendants do not make this request until they file their factum, which happens after the affidavit evidence has been filed and cross-examinations have been completed, it would be unfair to the plaintiffs to dismiss these claims for having failed to put their best foot forward.

[28] Similarly, the defendants’ counterclaim for damages for trespass wasn’t dealt with at all in the plaintiffs’ factum, for the obvious reason that it was not then before the court by way of a cross-motion for summary judgment. It was raised for the first time in the defendants’ factum. It would be unfair to the plaintiffs to make a final order on that issue, given the absence of proper notice that the court would be asked to grant judgment with respect to this counterclaim.

[29] Having said that, I am fully prepared to grant final judgment in favour of either party on the issues that are properly before the court. In other words, if I find that there is no merit to the plaintiffs’ claims as framed in the motion for judgment, it is open to me to not only dismiss the motion, but also to grant judgment in favour of the defendants, and dismiss those claims on a final basis.

[30] As to the plaintiffs’ claims based on adverse possession and for a proscriptive easement, it was unclear whether those claims were not included in their motion for judgment because they intended to abandon them. To clear up that uncertainty, I issued a Preliminary Endorsement dated January 12, 2022, requesting a response from counsel for the plaintiffs to the following question: “are the plaintiffs abandoning their claims for relief based on adverse possession and proscriptive easement?” I received the following response:

Although the plaintiffs did not initially intend to abandon their alternative claims to prescriptive easement or adverse possession when this motion was brought, upon further consideration the plaintiffs have decided to abandon those claims for the purposes of this motion.

[31] This response is somewhat ambiguous, since it speaks of abandoning those claims “for purposes of this motion”, which begs the question as to whether they are also abandoning them for purposes of the action. If they are, these claims will be dismissed as abandoned. If the plaintiffs intended to withdraw them for purposes of this motion only, but still intend to keep them alive to be litigated at trial, I will make no order at the present time regarding those claims. In that event, if the defendants wish to seek dismissal of those claims in advance of trial, they will have to bring a proper motion for summary judgment. Counsel for the plaintiffs can clarify their position when they make submissions as to costs.

[32] The net result of the discussion above is that the defendants’ counterclaim for damages for trespass will remain a live issue, upon which I will not rule in this motion. The plaintiffs’ claims for adverse possession and for a proscriptive easement may or may not continue to be a live issue, and counsel for the plaintiffs will provide clarification. Having said that, I am hopeful the rulings I do make on this motion will be sufficient to convince both sides to bring this litigation to an end, since they will deal with what has been identified by both counsel as the most important issue in this case. But if some issues remain to be dealt with later, so be it. While adjudicating a case efficiently and cost-effectively is a laudable objective, it should not be achieved at the cost of unfairness to one side or the other. To minimize any duplication of costs and to maximize efficiency, I am prepared to seize myself with this case until its conclusion.

Breach of the Canadian Navigable Waters Act

[33] Lake Erie is a navigable water as set out in a Schedule to the CNWA. Section 3 of that Act provides as follows:

3 Except in accordance with this Act, it is prohibited to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water.

[34] A “work” is defined in s. 2, and includes:

(a) any structure, device or other thing, whether temporary or permanent, that is made by humans, including a structure, device or other thing used for the repair or maintenance of another work;

[35] Section 5 provides that anyone who proposes to construct a work that may interfere with navigation must obtain the approval of the Minister:

5 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works must make an application for an approval to the Minister — in the form and manner, and containing the information, specified by the Minister — if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:

(a) a major work in, on, over, under, through or across any navigable water; or

(b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.

[36] The plaintiffs argue that the defendants have constructed a “work”, to wit a fence, that, at least in part, goes in, on, over, under, through or across Lake Erie, such that they were required to obtain approval from the Minister, which they have not done. They also argue that the fence constitutes an “obstruction” as defined in s. 2 which, pursuant to s. 15(1) of the Act, must be removed, unless otherwise ordered by the Minister. On both grounds, the plaintiffs claim that the fence must be removed by the defendants, and that an injunction should issue to prevent them from constructing another one in the future.

[37] In my view, the plaintiffs do not have standing to advance the claims they make under the CNWA.

[38] In the section of the Act entitled “Administration and Enforcement”, s. 33 provides as follows:

33 The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.

[39] The plaintiffs here are attempting to enforce the provisions of the Act, by asking the court to make orders arising out of the defendants alleged failure to obtain approval of the Minister for the construction of the fence, and for failing to remove an obstruction to navigation. There is no evidence that the plaintiffs have been designated by the Minister as persons who are authorized to enforce the Act.

[40] Section 11 authorizes the Minister to make orders where a work is constructed contrary to the requirements of the Act. It provides as follows:

11 (1) This section applies to any work in, on, over, under, through or across any navigable water that is constructed, placed, altered, rebuilt, removed, decommissioned, repaired, maintained, operated or used contrary to the requirements under this Act.

(2) The Minister may

(a) order the owner of a work to repair, alter or remove the work;

(b) during the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work, order any person to remove or alter the work or to do any other thing with respect to the work, including taking all measures necessary for the safety of navigation;

(c) if the owner or the person fails to comply with an order given under paragraph (a) or (b), cause any thing to be done with respect to the work, including the removal of the work, its destruction and the sale, donation or other disposal of the materials contained in the work; and

(d) order any person to refrain from proceeding with the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work.

[41] In my view, in asking for an order that the fence be removed, the plaintiffs are attempting, through this proceeding, to take action that only the Minister, or his or her designates, is authorized to take.

[42] The plaintiffs seek an injunction arising out of the defendants’ alleged breaches of the Act, and ask this court to grant an injunction restraining the defendants from constructing a fence in the future. Section 38(1) specifically deals with injunctions. It provides as follows:

38 (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application

(a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or

(b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation.

[emphasis added]

[43] There is nothing in the Act that gives anyone other than the Minister the right to apply to a court for an injunction to restrain breaches of the Act.

[44] I am of the view that it is unnecessary to deal with the plaintiffs claims under the CNWA on their merits, since the plaintiffs lack standing to advance them. There is no genuine issue for trial. Those claims, both in the Notice of Motion and in the Fresh As Amended Statement of Claim, are dismissed on a final basis.

[45] Having said that, I do agree with the plaintiffs that the definition of “navigable water” in the CNWA is applicable to a common law claim to a right of access to navigable water, as held in Blackwell v. Genier, 2020 ONSC 1170. That does not mean, however, that the CNWA gives the plaintiffs have a private right of action to take enforcement proceedings, such as seeking injunctive relief or ordering the removal of a work, that only the Minister, or his or her designates, are empowered to take.

[46] To say that Lake Erie is a navigable waterway as defined under the CNWA, and is therefore a navigable waterway for purposes of this proceeding, is to state the obvious. Lake Erie is clearly a navigable waterway. There are two real questions to be answered, which have nothing to do with the CNWA: whether lake water, when it periodically floods onto the plaintiffs’ land and ponds there, causes the defendants’ land, which is then allegedly underwater, to become vested in the Crown; and, whether these circumstances give rise to riparian rights in favour of the plaintiffs. These questions will be addressed below.

The Claim for Riparian Rights

[47] The plaintiffs rely on the Beds of Navigable Waters Act, R.S.O. 1990, Ch. B.4. Section 1 provides as follows:

1. 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.

[48] The theory of the plaintiffs’ case in this regard can be summarized as follows. At times of high lake water levels, when water floods over the tongue of land owned by the defendants, that land thereupon becomes part of the bed of Lake Erie. Since Lake Erie is a navigable waterway, title to that flooded land immediately becomes vested in the Crown. Since the water, on occasion, reaches the southerly limit of the plaintiffs’ land, this means that the plaintiffs’ land now borders the north shore of Lake Erie. Thus, the plaintiffs now have riparian rights, including the right of direct access to the lake.

[49] The primary problem with that theory is that it is an admitted fact that high water conditions on Lake Erie are a periodic and temporary condition. The plaintiff Andrew Donnelly admitted, at pg. 29 - 30 of his cross-examination, that the water levels move up and down, depending on the season, the waves and weather conditions. He said “sometimes in our experience there’s been a beach there and sometimes there is not”. Hudson admitted that sometimes the water from the lake reaches the plaintiffs’ property, although it was “seldom” that that occurred.

[50] The cycle of high water and low water levels on Lake Erie is dramatically illustrated by the many photographs that have been filed. In some photos there is a broad sandy beach between the southerly edge of the breakwall and the edge of the water. In others, the water comes up to the edge of the breakwall, leaving little or no beach.

[51] I have already noted above that the metes and bounds description of the defendants’ land included “all the land southerly of the High Water mark on the northerly shore of Lake Erie”. It, therefore, presumably included the land between the high water mark and the low water mark. The concept of high water mark and low water mark, and the description of the land between those two points as the “foreshore”, was originally applicable to tidal waters, where the water level at the seashore rises and falls with the high and low tides twice each day. At common law, prima facie title to the foreshore is vested with the Crown: see Ontario (Attorney General) v. Rowntree Beach Assn., [1994] O.J. No. 483, 1994 CarswellOnt 698 (Ont. Ct. Gen Div.) at para. 116.

[52] However, the concept of a high and low water mark has come to be applied to inland, non-tidal waterways as well. There was for many years some confusion as to who owned the land between the high and low water marks. This confusion was resolved in Ontario (Attorney General) v. Walker (1970), [1971] 1 O.R. 151 (H.C.J.). In that case, Stark J. was dealing with a dispute which, coincidentally, also involved property along the north shore of Lake Erie. At issue was who owned the beach down to the water’s edge. After reviewing numerous authorities and the legislative history of the Beds of Navigable Waters Act, he said the following, at para. 38: “the old common law rule as to the boundary between land and water placing it at the water's lowest mark or the water's edge is the law as it stands at the moment.”

[53] This decision was upheld by the Ontario Court of Appeal at , [1972] 2 O.R. 558 (C.A.), and by the Supreme Court of Canada at , [1975] 1 S.C.R. 78.

[54] A very helpful review of the history of the law on this issue is found in Municipality Northern Bruce Peninsula v. Rauchfleisz, 2019 ONSC 5460. McSweeny J. said the following, at paras. 27 – 33:

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 Ontario (Attorney General) v. Walker (1974), [1975] 1 S.C.R. 78 (S.C.C.). 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.

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 v. Blakely, [1970] 3 O.R. 303 (Ont. Co. Ct.), at para. 6, aff’d [1970] 3 O.R. 303 at 313 (Ont. C.A.).

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 (Ont. S.C.J.), at para. 23, rev’d on costs 2013 ONCA 631 (Ont. C.A.).

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 (Ont. Div. Ct.), at para. 10.

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 (Ont. S.C.J.), at paras. 54-55; Tiny (Township) v. Battaglia, 2013 ONCA 274 (Ont. C.A.), at para. 17.

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), [1955] 1 D.L.R. 495 (Ont. Co. 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.

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.

[55] At my request, counsel made arrangements to trace the defendants’ title back to the original Crown Patent. A certified copy of that document has now been filed with the court. It shows that a 250 acre parcel of land, which includes the defendants’ land, was granted by the Crown to the Honourable Thomas Talbot on April 19, 1825. Counsel agree that the Crown Patent contains no relevant reservations. Furthermore, the metes and bounds description concludes with the words “then northwesterly along the shore of the said lake to the place of beginning”. This description makes the shore of Lake Erie the southerly boundary of the parcel.

[56] On the authority of Walker, given the absence of an express reservation of the land between the high and low water mark, that land belongs to the defendants, not the Crown. This conclusion is entirely in accord with the metes and bounds description of the defendants’ land in the chain of title referred to above, which dates back almost 53 years.

[57] The plaintiffs argue that the “water’s edge” is not synonymous with “low water mark”, despite the fact that Walker appears to use those terms synonymously, in placing the boundary “at the water's lowest mark or the water's edge”. They further argue that this natural boundary is “ambulatory”, so that the southerly boundary of the defendants’ lands moves north and south as the water rises and falls.

[58] I agree that the southerly boundary of the defendants’ land is ambulatory, given that it is tied to the shore of Lake Erie, as opposed to a defined lot line marked by surveyor’s monuments. The “ambulatory principle” was described by Zarnett J.A. in Herold Estate v. Canada (Attorney General), 2021 ONCA 579 at para. 61 as follows:

A second principle the application judge referred to is that a riparian or water’s edge boundary may be ambulatory, in the sense that it may change to reflect gradual* movement of the water’s edge (the “Ambulatory Principle”). A parcel of land with this type of boundary is subject to accretion — the addition of land when the water’s edge gradually moves out — and erosion — the decrease of land when the water’s edge gradually moves in. Put differently, when this principle applies, the water’s edge, wherever it may gradually move to from time to time, is the boundary: Natural Resources Canada, Surveyor General Branch, Water Boundaries on Canada Lands: That Fuzzy Shadowland, (Edmonton: Her Majesty the Queen in Right of Canada, 2016) (the “Surveyor General Publication”), at p. 31.

[59] The footnote to the word “gradual” in that passage states the following:

Gradual is usually accompanied by additional modifiers that reinforce its meaning — imperceptible (in the moment, though perceptible over time), and incremental. The applicability of the principle is also a function of the cause of the change of water levels — either natural forces or the unintentional effects of an artificial structure.

[60] The fluctuations in the level of Lake Erie in this case cannot be described as gradual. On the admission of both parties, the levels greatly fluctuate with the seasons, the weather and wave conditions. Sometimes there is a broad beach to the south of the breakwall, while at other times the water’s edge extends to the edge of the breakwall, to the point where water floods over or through the breakwall and ponds on the north side. Nor are the fluctuations incremental, which contemplates a gradually increasing encroachment of the water. Instead, the water level moves up, then it moves back down.

[61] The Ontario Court of Appeal, in Becker v. Walgate, 2020 ONCA 491, provides guidance to the court in how to establish the location of the “water’s edge”, and thereby determine the boundary of land abutting an inland lake. At para. 50, Rouleau and Hoy JJ.A., speaking for the court, determined that it was the task of the trial judge in that case to determine the location of the water’s edge at the time of the Crown Patent. Footnote 4 to that paragraph expanded upon what that task involved:

The “water’s edge of Jack Lake at the time of the Crown patent” does not necessarily mean the water’s edge on the day of the Crown patent in April, when the water level may have been unusually high. In Principles of Boundary Law in Canada (Guelph: Four Point Learning, 2016), Izaak de Rijcke states that “[i]n Ontario, the feature, which marks a water boundary, has been generally accepted as the water’s edge in its normal, calm condition”: at p. 340 (emphasis added). Similarly, the Canadian Encyclopedic Digest says that “[w]hen applied to navigable, non-tidal bodies of water, the terms ‘bank’, ‘line of the bank’, ‘shore’, ‘line of the shore’, ‘margin of the water’ and ‘water’s edge’ are synonymous as lines of demarcation. So also ‘to the bank of the lake’, ‘to the lake’ and ‘to the shore’ mean to the edge of the water in its natural condition at low water” (emphasis added): CED 4th (online), Boundaries and Surveys, (I.3.(c)) at § 51.

[62] On the evidence before me, I am satisfied that the edge of the water, in its natural condition at low water, is south of the breakwall, whereby a beach is visible. It follows that this represents the southerly boundary of the defendants’ land. It is not necessary, for purposes of this case, to be any more specific than that, since the breakwall itself is south of the plaintiffs’ land. Thus, since I have found the water’s edge to be south of the breakwall, it cannot be said that the plaintiffs’ land abuts the water’s edge. Instead, the tongue of land owned by the defendants falls between the two.

[63] The plaintiffs have provided no authorities to support their contention that periodic flooding of lake water onto the plaintiffs’ land has the effect of converting the land over which the water flows into lake bottom, title to which then vests in the Crown, to the detriment of the titled owner of the land over which the floodwaters pass. Indeed, one case relied upon by the plaintiffs, Douglas Lake Cattle Company v. Nicola Valley Fish and Game Club, 2021 BCCA 99, dealt with, among other issues, the boundary of a lake that flooded annually in the springtime. It held that the boundary of the lake is not the extent of the floodwater, but rather the “natural boundary” to which the lake returns, where the water is there so often and common as to leave a distinctive mark.

[64] The plaintiffs did provide some authority for the argument that “long contact” with a body of water may give rise to riparian rights. In Izaak De Rijcke, Principles of Boundary Law in Canada – 2016, at pg. 369, the author states the following:

Without citing the decision in Volcanic, other cases have found that long contact with a body of water – even if artificially induced to manage storm water or regulated in order to facilitate navigation, may nonetheless give rise to riparian rights.

[65] The footnote to that comment cited Epstein v. Reymes, [1973] S.C.R. 85, where water had been artificially diverted to the respondent’s land in a defined channel, for a period exceeding forty years. That gave rise to a right in the respondent to a continued flow of the water.

[66] There is no evidence of long contact between Lake Erie and the land of the plaintiffs in the case at bar. At best, there is periodic flooding of water from the lake, over or through the breakwall, onto the plaintiffs’ land. That is quite a different thing from the plaintiffs’ land actually forming the shore of the lake. The photographic evidence is clear and consistent that even when water levels were high, the rocks of the breakwall on the defendants’ land remained above water and, in my view, constituted the shore of the lake at that place and time.

[67] For example, Ex. F to the affidavit of Andrew Donnelly is a photo taken by Kim Husted, surveyor, on May 14, 2018. It shows a survey stake delineating the southerly boundary of the plaintiffs’ property. Mr. Donnelly described this in para. 18 of his affidavit as “showing the southerly boundary stake placed into the water of Lake Erie”. What the photo actually shows is a stake placed in the middle of the breakwall of large stones, with the edge of the lake several feet to the south of it. While the base of the stones have water around them, the surfaces of the stones are well above the level of the lake, such that one could easily walk on the stones without getting one’s feet wet. Looking at the view of the edge of the lake as it recedes into the distance in the photograph, it is clear that the level of the breakwall, and of the land abutting it to the north, are well above the level of the lake.

[68] The plaintiffs rely on a survey completed at their request in October, 2020 by Rasch and Hyde Inc. This survey was prepared for purposes of this litigation and does not feature in any title documents. It purports to show a section of land at the southerly end of the plaintiffs’ land “covered with water”, and designates that as Part 3 on the survey. It shows the “water’s edge” on June 4, 2020 to be approximately one metre north of the property line for much of its length, expanding to include a “pool of water” at the east end. However, the accompanying photos taken by the surveyor at the time of the survey show the breakwall of rocks to be well above the surface of the lake, and do not support a conclusion that the shore of the lake has effectively moved a meter or more to the north of the breakwall. While there are some rocks at the eastern end of the breakwall that are labelled as “submerged”, they are well south of the property line. The “pool of water” would be more accurately described as a large mud puddle, and is surrounded by trees and other vegetation. No evidence was obtained from the surveyor to explain his notations, since no affidavit from him was filed by the plaintiffs.

[69] It is clear that this survey was done, and the accompanying photos were taken, at a time when the lake level was quite high. I am satisfied that the water level observed by the surveyor in June, 2020, was a temporary situation. Photos taken in previous years, particularly in 2017 to 2019, show a substantial beach south of the breakwall. Photos taken by Hudson subsequent to this survey, in November, 2020 and March, 2021, show the lake having receded, leaving a visible beach between the water’s edge and the edge of the rock breakwall.

[70] I decline to attach any weight to this survey, except to indicate that on that particular day, water had flooded over or through the breakwall and was pooled on the ground in the area indicated. To borrow the words of Trotter J.A., speaking for the court in English v. Perras, 2018 ONCA 649, at para. 38:

… it is impossible to get beneath the surface of his survey. There is no explanation for his conclusion on the issue that is the very subject matter of this litigation. Without more, it was worthless.

[71] Since the plaintiffs are claiming riparian rights, it is worthwhile to review some of the authorities relied upon by the plaintiffs that define those rights. Doherty J. (as he then was) in Canoe Ontario v. Reed, [1989] O.J. No. 1293 (HCJ), at paras 53-54, discussed the difference between the rights of the public and those of an owner of land adjacent to a navigable waterway:

In Lyon v. Fishmongers’ Co. (1876), 1 App. Cas. 662 (H.L.) at p. 671-672, Lord Cairns clearly drew the distinction between rights which rest with the public as a result of the navigability of a waterway and rights which may rest with an individual landowner:

Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occupier of any lands on the bank, nor is it a right which per se he enjoys in a manner different from any member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place; and it becomes a form of enjoyment of the land and of the river in connection with the land the disturbance of which may be vindicated in damages by an action or restrained by an injunction.

Similarly, in Marshall v. Ulleswater Co., L.R. VII Q.B. at p. 172. Blackburn J. said:

It is well-established law, that where there is a public highway, the owners of land adjoining thereto have a right to go upon the highway from any spot on their own land. They cannot, of course, pass over the soil of others without leave.

[Emphasis added by Doherty J.]

[72] At paras. 28-35, Doherty J. reviewed the law to be applied in determining whether a body of water is a navigable waterway:

I must now turn to the applicable law. The legal meaning of the phrase “navigable waterway” received considerable judicial attention in the late 19th century and in the early part of this century. Those authorities are carefully considered and analysed in the scholarly judgment of Henry J. in Re Coleman and A.G. Ont. (1983), 27 R.P.R. 107, 143 D.L.R. (3d) 609 (Ont. H.C.). I have found his judgment most helpful as it deals with a waterway (the Bronte River) which is similar in many ways to the Credit River. I accept the following conclusions drawn by Henry J. from the earlier authorities:

(i) 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.

(ii) 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 or booms.

(iii) A river may be navigable over part of its course and not navigable over other parts.

(iv) To be navigable, a river need not in fact be used for navigation so long as it is realistically capable of being so used.

(v) 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 (e.g. fishing).

(vi) Navigation need not be continuous but may fluctuate with the seasons.

(vii) Where a proprietary interest asserted depends on a Crown grant, navigability is initially to be determined as at the date of the Crown grants (in this case, 1821 and 1822).

[73] Doherty J.A. (as he now is) weighed in again on the law relating to navigable waterways in Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475. He said the following, at paras. 22-23:

The public utility rationale underlying the right of navigability is also evinced by the requirement that the waterway runs from one point of public access to another point of public access. The public does not have the right to go across private land to get onto a navigable waterway, but must access the waterway from a point of public access. Similarly, the public does not have a right to go across private land upon leaving the navigable waterway. Egress must be by way of a route to which there is a right of public access. Absent proof of those two points of public access, the waterway between those points, no matter how wide or deep, has no practical value to the public as a means of transport and can serve no public utility.

Navigability is determined by reference to a specific location along the waterway. The question is not whether Bear Creek as a whole is navigable, but rather whether the Creek as it runs over the respondents' property is navigable: Coleman, at p. 614.

[74] These decisions are a complete answer to the plaintiffs’ claim to riparian rights of access to Lake Erie. The law is clear that they cannot pass over the land of another without leave, in order to exercise access to a navigable waterway. I have concluded that the defendants, and not the Crown, own the tongue of land that lies between the southerly boundary of the plaintiffs’ land and the edge of Lake Erie in its natural condition at low water. This ownership remains operative even when the lake is at high water levels and some of that land is under water. They have denied leave for the plaintiffs to access the lake across their property. Accordingly, the plaintiffs’ have no right to access the lake from the southerly boundary of their land.

[75] These decisions also dispel any argument that the ponds or puddles that occur on the plaintiffs’ land at times of high water might, themselves, constitute a navigable waterway. One need only look at the photographs to conclude that these puddles could not begin to meet the definition of a navigable waterway outlined above. Counsel for the plaintiffs argued that a boat or canoe could be launched from several points, and the fact that the rocks would make it difficult to do so doesn’t change this. This misses the point completely. The rocks that would make it difficult to launch a boat or canoe are part of the breakwall, located on the defendants’ property. The plaintiffs would need to drag their vessel across those rocks in order to launch it into the lake. They could not do so without trespassing on the defendants’ land. The plaintiffs have no direct access to the navigable part of Lake Erie without doing so.

[76] I conclude that the plaintiffs have no right of access to Lake Erie from the southern boundary of their land, and no valid claim to riparian rights. They similarly have no legal right to demand that the fence, erected by Hudson on the defendants’ land, be removed. There is no genuine issue for trial on these issues. Accordingly, the plaintiffs’ claim for injunctive relief in their Notice of Motion, as well as all corresponding claims in their Fresh As Amended Statement of Claim based upon the grounds pleaded in this motion for judgment, are dismissed on a final basis.

Damages for Trespass

[77] I have already noted that Hudson, in 2017, trespassed on the plaintiffs’ land, in the course of clearing his own property. Trees and brush were cleared and mulched, and the bank was landscaped.

[78] Hudson admits having trespassed on the plaintiffs’ property, but claims he was unaware as to where the precise location was of the western boundary of his property. However, the law is clear that, so long as the trespasser’s actions were voluntary, it constitutes an actionable trespass, even if the trespasser honestly but mistakenly believed that they had a lawful right of entry or that the land was theirs: see Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 at para. 21.

[79] Liability, therefore, is clear. The only issue is quantum of damages, which will not require a trial to assess. The applicable principles in assessing damages for trespass are very helpfully set out by Chappel J. in Rossiter, at paras. 26-7 (footnotes omitted):

Trespass to land is a tort that is actionable per se, and therefore does not require proof of actual damages. However, if a trespasser does cause an injury to the land which they have trespassed upon, the usual measure of damages is the amount by which the value of the land has decreased as a result of the injury. The cost associated with restoring the property to the state it was in prior to the commission of the trespass is an appropriate means of carrying out the damages assessment if the court is satisfied that this cost represents a reasonable estimate of the diminished value of the property. Where the cost of repair is being considered in assessing damages, the court must satisfy itself that those costs are reasonable, practical and fair in the circumstances. In considering this issue, some of the factors which the court must consider are:

1. The cost of repairs as compared to the reduction in the value of the property resulting from the trespass;
2. The time, logistics and property damage involved in carrying out the repair work;
3. The likely success of the repair efforts;
4. The reasonableness of the plaintiff’s wish to restore the property to its former state and the actual benefit to the plaintiff of the restoration work, as compared to the cost to the defendant of carrying out that work over and above the decreased value of the property;
5. The use to which the plaintiff made the property, and the impact which the trespass had on that use.

The principles set out above regarding assessment of damages for trespass provide some guidance to the court in carrying out the damages assessment. The overriding principle, however, is that damages for trespass are “at large,” meaning that in assessing damages, the court should take all relevant circumstances into account and reach an intuitive assessment of the loss which it considers the plaintiff has suffered. The process of assessing damages in trespass is therefore not a precise and exact science requiring the judge to engage in complex calculations or analyses regarding the change in value of the land.

[80] The plaintiffs have filed a report from Ian Buchanan, a senior management ecologist, entitled “Slope Replanting Restoration Plan”. It presents a plan to restore a Carolinian forest ecosystem that had been cleared by the defendant. It recommends planting a total of 75 trees of various species, along with 25 shrubs. The total cost of implementing the plan is $7,010. The plaintiffs claim damages in that amount.

[81] The defendants filed an affidavit from Jeffery Scott in response. He has been in the forestry business for over 30 years and owns his own nursery. He points out that the majority of the trees that had been removed were dead ash trees, which had been killed by the infestation of the emerald ash borer. They have no commercial value. He disagreed with a number of the recommendations made by Mr. Buchanan. He pointed out that few Carolinian trees are native to this particular area, except black walnut, which were not cleared by Hudson. Many of the trees that are proposed to be planted were not in abundance, and many were not even present, prior to the clearing work done by Hudson. Some trees, such as the Kentucky coffeetree, almost never grow in this area of Lake Erie, due to the type of soil. He also provided a price list from his own nursery to demonstrate that the prices quoted by Mr. Buchanan of approximately $40 per tree are inflated. Similar species at his own tree farm cost between $12 and $15 each.

[82] Mr. Scott’s opinion is supported by the Arborist Report of Aric Friesen. He similarly was of the view that few of the trees that Mr. Buchanan recommended to be planted are currently found on the existing slope. He was of the view that planting 75 trees and 25 shrubs was unnecessary to restore the area.

[83] The defendants take the position that a suitable quantum of damages would be 50 trees at an average cost of $25, for a total of $1,250.

[84] I accept that most of the trees removed were dead ash, and that getting rid of them might be seen as an improvement rather than a detriment to the plaintiffs’ land. Indeed, the photographs of the cleared area show that the final product of the clearing done by Hudson is objectively attractive. However, it is not up to him to decide what the plaintiffs’ land should look like, and whether it should be changed from a wild, natural state to a cleared, mulched and manicured slope.

[85] I thus conclude that, while the estimates given for replanting of trees are of some assistance in providing an overall range for the damages assessment, compensation is primarily owed to the plaintiffs for the invasion of their property rights in such a significant, and avoidable, way.

[86] Without making any claim to scientific precision, I assess the plaintiffs damages for trespass at $5,000. They will have final judgment against the defendants in that amount.

Result

[87] In the result, the plaintiffs’ claims in paras. (a) and (b) of their Notice of Motion, are dismissed.

[88] The plaintiffs’ claims in paras. 1(b) to (i) of the Fresh As Amended Statement of Claim, insofar as they are based on breaches of the CNWA, and on an alleged breach of their riparian rights, are dismissed on a final basis. Counsel for the plaintiffs will advise, in their written submissions as to costs, whether the plaintiffs’ claims for adverse possession and for a proscriptive easement are being abandoned. If they are, I will make an order in due course dismissing those claims as abandoned, which will dispose of the balance of the plaintiffs’ claims. If they are not, they will remain live issues for trial, subject to the right of the defendants to bring a further motion for summary judgment in advance of trial.

[89] The plaintiffs shall have final judgment against the defendants for trespass in the amount of $5,000. The plaintiffs are entitled to prejudgment interest on that award at the prescribed rate.

[90] I make no order regarding the defendants’ counterclaim for damages for trespass, since no cross-motion for judgment regarding that claim is properly before the court.

[91] I encourage the parties to resolve these remaining issues, as well as the issue of costs. If they are unable to do so, I will accept brief written submissions on costs from the defendants within 15 days, with the plaintiffs’ response to follow within 10 days thereafter, and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.

T. A. Heeney J.

Released: March 24, 2022