Court File and Parties

Court File No.: CV-20-72 Date: 2022/05/26 Superior Court of Justice - Ontario

Re: Ryan Kyle Browne and Nicole Sophora Browne, Plaintiffs And Marie-Andree Flore Louise Meunier and Michael David Lucas, Defendants

Before: The Honourable Justice Charles T. Hackland

Counsel: David M. Adams, for the Plaintiffs Michael Adams, for the Defendants

Heard: January 4 and 5, 2022, in Kingston via videoconference

Reasons for Judgement

Introduction

[1] The parties are neighbouring property owners whose respective properties both front on a body of water known as Grass Creek, which is in the nature of a bay or inlet on the St. Lawrence River, east of Kingston, Ontario. Both parties have riparian rights which arise because their properties have water frontage. In this proceeding, the Plaintiffs allege that the Defendants’ boathouse, which is situated about 50 feet from and in front of the Plaintiffs’ shoreline, interferes with their riparian right to access the water. The Defendants deny their boathouse interferes with the Plaintiffs’ water access and claim that, in any event, any riparian rights asserted by the Plaintiffs have been extinguished and are statute barred under sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (RPLA).

[2] Accordingly, the two issues are: i.) whether the location of the Defendants’ boathouse interferes with the Plaintiffs’ riparian right of access to the water from their own waterfront property and ii.) whether such claims are statute barred and extinguished by virtue of sections 4 and 15 of the RPLA.

[3] The application herein was converted to an action (with the affidavits serving as pleadings and the cross-examinations serving as discoveries) by order of a motions judge. I have conducted a summary trial of the matter.

THE FACTS

[4] The Plaintiffs Mr. and Mrs. Browne are the owners of property at 1588 Shore Road in Kingston, Ontario, having purchased the property in 2017. Their neighbours to the south, the Defendants Mr. Lucas and Ms. Meunier own 1572 Shore Road and they purchased their property in 2015. The properties are adjoining and border onto the St. Lawrence River shoreline. Prior to purchasing 1588 Shore Road, the Plaintiffs inspected the property and observed the boathouse in question, which they describe as “old and derelict”. They saw it was about 50 feet out in the water in front of their shoreline and assumed it was associated with the property they were about to purchase, making the boathouse in their domain to manage and enjoy. The purchase closed without the issue being further investigated.

[5] Shortly after moving onto the property, the Plaintiffs learned that the boathouse belonged to the Defendants. The Plaintiffs asked the Defendants to consider moving the boathouse to a location in front of the Defendants’ own shoreline and offered to pay for the costs relating to the move. The Defendants declined to do so on the basis that they and their predecessors in title used the boathouse for boat storage and to allow their boats access to the deeper waters, which can only be found in that area of the shoreline.

[6] The Defendant Mr. Lucas explained in his evidence that although he and Ms. Meunier had an extensive shoreline, including a dock and boat launch on the opposite side of their property, the shallow weedy waters along their shoreline are too shallow to allow usage of a boat with a motor. Moreover, while acknowledging the serious state of disrepair of the boathouse, he explained that it is the intention of him and his spouse to make major upgrades to their waterfront, including repairing the list or slant on the boathouse and replacing the deck around the boathouse, which is admittedly crumbling.

[7] Mr. Lucas’ spouse, Mrs. Meunier, an engineer by training, has spent many hours acquiring the necessary governmental permits to go ahead with this work and engineering drawings for the boathouse restoration, both of which have been filed in evidence. Due to this litigation, the boathouse repairs are in abeyance. However, the portion of the wooden walkway out to the boathouse, which crossed a portion of the Plaintiffs’ land, has been replaced and moved back onto the Defendants’ property other planned upgrades elsewhere on the Defendants’ shoreline have also been completed.

[8] In an effort to gain clarification on these issues, the Plaintiffs retained a surveyor in April 2018 to prepare a survey of the waterfront areas of both properties. This survey (the Higginson Survey) is in evidence and has been accepted by both parties. I find this survey to be the best evidence with respect to the configuration of the shoreline on both properties for the boathouse’s location and the related structures. The survey clearly shows the boathouse to be entirely in front of the Plaintiffs’ shoreline and it is located about 50 feet out into the water, situated on Crown land. There has been no express grant of title by the Crown to the portion of the riverbed on which the boathouse sits. However, the relevant authorities appear to recognize the Defendants’ ownership of the structure and as noted, have issued all the required permits to allow the Defendants to repair the structure.

[9] The Plaintiff Mr. Browne takes the position that he and his wife, as the upland owners of the waterfront, have the exclusive right to develop their shoreline and the Ministry of Natural Resources and Forestry previously granted them a work permit which allowed them to build a horizontal dock along their shoreline.

[10] Mr. Browne testified that there is a steep elevation on most of his property fronting the water such that the only low-lying area, which was suitable for a floating dock installation, is in the immediate vicinity of the boathouse which, as noted, is in front of his shoreline. It is his intention to build a family home in the area on which his land gently slopes to the water’s edge. Building in this location would result in a view of the water marred by the unsightly boathouse in dispute. Furthermore, this is the only area of his shoreline suitable for water access, as the balance of the shoreline contains a steep granite cliff. Mr. Browne testified that any additional construction at the current boathouse location would impinge on his use of any docks he hopes to build on his waterfront as well as his access to the waterway. The Plaintiffs assert the presence of the boathouse severely restricts their use and enjoyment of the most desirable feature of their waterfront, which is a 40 foot strip looking out onto the boathouse. They would like to build a perpendicular extension to their present dock to accommodate their pontoon boat. Such an extension would likely interfere with the boathouse. The many photographs in evidence do support the Plaintiffs’ concerns, in the court’s view.

AFFIDAVIT OF MARK THOMPSON

[11] Mr. Thompson filed an affidavit deposing that he is the son of Clifford and Margaret Thompson, predecessors in title to the Defendants at 1572 Shore Road. He lived with his family on the property for many years and visited his parents there until they sold the property in 1984. Mr. Thompson explained that he helped his father construct the boathouse, which was completed in 1969. His father chose to build the boathouse “off the southwest corner of the property because it was the only location from which we could get close to the deep channel”. This seems to be an acknowledgement that the Thompsons understood that the boathouse was not necessarily being constructed off their own shoreline.

[12] He explained that one needed to reach the deep channel to make any substantial use of a watercraft. He further explained that his parents also had a dock on the east side of their property but due to its location relative to the deep channel, they used their boat from the boathouse. He pointed out that for many years the Plaintiffs’ predecessor in title, a Mr. and Mrs. Johnson, never raised any objection to the use or location of the boathouse. He stated that in the area between the shoreline and the boathouse, the water depth increases gradually to about 4 feet in an average year. He also offers the opinion that the boathouse is about 50 feet from the shore and given this distance, it would not prevent a person on the shore opposite the boathouse from entering the water. He also observes that the waterfront of the Plaintiffs’ property has “fairly steep banks in the area fronting the water”. I accept all of Mr. Thompson’s factual evidence. He was not cross-examined on his affidavit.

[13] In summary, Mr. Thompson’s testimony establishes that he and his father, the Defendants’ predecessor in title until 1984, built the boathouse in 1969 “off the southwest corner of the property” so as to get the closest deep water access possible in this generally shallow and swampy area. The boathouse has therefore been in its present location for about 50 years. There does not appear to have been any dispute about the location of the boathouse between either parties’ predecessors in title, until the current application, commenced in March of 2020.

RIPARIAN RIGHTS

[14] The common law recognizes that the owner of land that abuts a lake, river or other body of water possesses ‘riparian rights’ as an incident of ownership of such land. Riparian rights were explained in Water Law in Canada – The Atlantic Provinces (Ottawa: Queen’s Printer, 1973), authored by Gerald V. LaForest and Associates, as follows:

A riparian owner has a right of access over the shoal waters of a lake to the deeper waters where navigation practically begins. No one, not even the Crown, can erect any structure on the shore or otherwise permanently obstruct a riparian owner’s right of access. For example, a permanent boom of logs in front of a riparian owner’s land or a neighbouring wharf that blocks his access would entitle him to a right of action.

The riparian owner’s right of access exists in a direct line from every point along the whole frontage of his land on the water. It is, therefore, no answer to an action for damages for obstruction of the right that the owner can get to and from the water from another part of the land. [Emphasis added.]

See: Corkum v. Nash, 1990 CanLII 4127 (NS SC), [1990] N.S.J. 423 (S.C.), at para. 45; Day v. Valade, 2017 NSSC 175, at para. 23.

[15] Riparian rights are different from ownership of the bed of the river. They depend upon access to the water. As the Ontario Superior Court of Justice noted in Glaspell v. Ontario, Ontario courts have laid down the following well established rules:

(i) a riparian owner’s rights are not founded on ownership of the bed of the lake or river, but on access to the water;

(ii) a grant of land to the water carries with it to the grantee the right of access to and from the water from any point of his or her own lands;

(iii) any grantee of the Crown must take subject to the right of navigation;

(iv) a riparian owner has the right to the natural flow and quality of water, subject to the same rights as his or her riparian neighbours;

(v) a riparian owner is entitled to accretions;

(vi) a riparian owner and the public have the right of navigation in navigable waters; and,

(vii) the right to navigation is a public right, but may be connected with a right to exclusive possession to particular land on the bank. The latter right is a private one, invasion of which may form a ground of action for damages (citations omitted).

[16] The Plaintiffs contend that as the upland owners of the waterfront on which the boathouse intrudes, they have certain riparian rights at common law which are significantly infringed due to the boathouse’s location. Specifically, the presence of the boathouse is far more than what the Plaintiffs consider to be an eyesore; it prevents the Plaintiffs from using their waterfront as they wish. The boathouse constitutes a substantial obstruction to the water access from the Plaintiffs’ property. They are significantly restricted in the manner in which they can access the water. If they wish to take their watercraft out to the deep channel from their present dock, they need to circle out and around the boathouse. They are precluded from building a perpendicular dock extending out from their waterfront. They are restricted from the ordinary usages of their watercraft due to the presence of the boathouse just off the shore of their property.

[17] The Defendants’ position is that the Plaintiffs can access their waterfront as they are able to launch their small boats into the water and navigate out to the deep canal, notwithstanding the presence of the boathouse 50 feet off their shoreline. They submit in their factum, “Riparian rights of access do not include the right to build or erect structures to make this right of access practical.” Reliance is placed on an observation of the British Columbia Court of Appeal in District of North Saanich v. Murray, 1975 CanLII 1015 (BC CA), 54 DLR (3d) 306 at 308:

A number of American decisions hold that the riparian owner may build a wharf, not because he has a right to erect a structure on the foreshore, but because he has a right of access to the deeper water that he cannot enjoy except by means of a wharf. It is said that he has the right to make his right of access practical. That rule has not been adopted elsewhere in Canada or in England.”

[18] With due respect, the riparian owner’s right to access the water along their frontage is an important aspect of the ownership of their recreational property and should not be minimized. In my view, the case law does not require a complete obstruction of the upland owner’s access to the water nor a complete obstruction of the upland owner’s navigation rights. A significant obstruction of these rights will establish a cause of action. Whether access to the water is obstructed is a question of fact and when chattels such as docks and watercraft are obstructed or made unusable, it is open to the court to conclude there is an obstruction of the riparian owner’s rights. The presence of an unsightly structure immediately in front of the riparian owner’s waterfront is not in itself a violation of the upland owner’s riparian rights but can be a factor in considering the level of obstruction of the water access.

[19] I accept Mr. Browne’s testimony and find that the Plaintiffs have proven on a balance of probabilities that their riparian rights to access the waters of Grass Creek and of the St. Lawrence River have been significantly restricted by the location of the Defendants’ boathouse and, subject to the limitation issues discussed below, they have established a violation of their riparian rights.

THE LIMITATION ISSUE

[20] The Defendants contend that a riparian owner’s right to access the water fronting their property is a right of property to which the Real Property Limitations Act 2002, S.O. 2002, c.24 (the RPLA) applies. It is argued that sections 4 and 15 of the RPLA would bar and extinguish the Plaintiffs’ entitlement to bring an action for breach of their riparian rights arising from the presence of this 50 year old boathouse. These sections provide:

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

15 At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. R.S.O. 1990, c. L.15, s. 15.

[21] The Plaintiffs respond that the discoverability principle must be read into the limitation in section 4 of the RPLA, such that the applicable 10 year limitation period began to run only once the Plaintiffs can be said to have ‘discovered’ the violation of their riparian rights arising from the presence of the boathouse. In this case, the Plaintiffs purchased their property in 2017 so their limitation has not expired according to the discoverability principle of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[22] It can be seen that this action squarely presents the issue of whether the RPLA is subject to the discoverability principle, which is found in the Limitations Act, 2002, but not in the RPLA. It would not appear that the question has been definitively decided at the appellate level.

[23] Importantly, section 2(1)(a) of the Limitations Act, 2002, expressly exempts “proceedings to which the Real Property Limitations Act applies” from the application of the 2002 Act. Therefore, the discovery regime in section 5 of the Limitations Act, 2002, should be seen as having no application to matters covered by the RPLA. Further, the legislature selectively put discoverability only into certain sections of the RPLA. For example, section 28 expressly provides for the discoverability rule in cases of concealed fraud. Implicitly then, or on the basis of the expressio unius rule of statutory interpretation, for the remaining sections of the RPLA, the discoverability rule appears to have been intentionally excluded.

[24] The Defendants argue, correctly in my view, that the Plaintiffs’ position that the discoverability principle applies in the present case is not supported by the leading case in the area of limitations and riparian rights, Mihaylov v. Long Beach Residents’ Association, 2018 ONSC 14, affirmed by the Court of Appeal (2018 ONCA 871). In Mihaylov, the Plaintiffs’ predecessors in title had ten years after the construction of a wharf and gravel landfill to make a claim to riparian rights. It was “the interference with the riparian rights of the Applicants’ predecessors in title” that started the ten-year limitation period and not upon the date of the Applicant’s discovery (actual or constructive) of the interference. In fact, the Applicant had only purchased the property in 2012, but by that time, by operation of sections 4 and 15 of the RPLA, the claim to its riparian rights had already been extinguished for all subsequent title holders. It did not matter that the Applicant had purchased the property in 2012, performed a survey in 2012, and then brought an application that was heard in 2017.

[25] The Plaintiffs submit that the discoverability principle does apply to actions under the RPLA. They rely on the observations of J. Wilson J. in Wong v. Wong, 2019 ONSC 3937, at paragraphs 145-147, in which the court stated:

[145] Perkins J., in McConnell v. Huxtable, 2013 ONSC 948, at paras. 81-83, highlighted the uncertainty in the law surrounding the application of the discoverability principles in limitations claims under the RPLA. On appeal, the issue of discoverability applying to the RPLA was not specifically canvassed.[8] However, Faieta J. commented in Wilfert v. McCallum, 2017 ONSC 3853, at para. 27, in obiter, that this court in Stravino v. Buttinelli, 2015 ONSC 1768, at paras. 71-79, has adopted the discoverability principles in the context of the RPLA.

[146] Based upon the case law and common sense I accept the Plaintiffs’ assertion that discoverability principles apply to cases under the RPLA.

[147] While discoverability principles are not specified in the RPLA, they are discussed in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (Limitations Act). Reviewing discoverability under the Limitations Act informs an application of discoverability principles applicable to the RPLA.

[26] I am not persuaded that a common law discoverability concept should be read into the RPLA, at least in the absence of a fraud scenario such as pertained in Wong v. Wong. Rather, in my opinion, the legislature’s choice to omit reference to discoverability in the RPLA (except in specific sections) indicates that discoverability as a general concept was not intended to apply in real property matters. This is in marked contrast to section 5 of the Limitations Act, 2002, which adopts discoverability as a key concept in the application of the general two year limitation period to which that legislation applies. The Court of Appeal did not mention discoverability in its analysis of the application of the RPLA in Mihaylov, which, like the present proceeding, is a riparian rights case.

DISPOSITION

[27] For the reasons set out above, while finding a contravention by the Defendants of the Plaintiffs’ riparian rights to access the water fronting their property arising from the presence of the Defendants’ 50 year old boathouse, I nevertheless find the Plaintiffs’ claim to be statute barred and extinguished by the 10 year limitation period contained in sections 4 and 15 of the RPLA. This action is accordingly dismissed.

[28] If the Defendants wish to seek costs, they must provide a concise written submission within 30 days of the release of these reasons and the Plaintiffs may reply within 30 days of the Defendants’ submission.

Justice Charles T. Hackland

Date: May 26, 2022

COURT FILE NO.: CV-20-72 DATE: 2022/05/26

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Ryan Kyle Browne and Nicole Sophora Browne, Plaintiffs AND Marie-Andree Flore Louise Meunier and Michael David Lucas, Defendants

COUNSEL: David M. Adams, for the Plaintiffs Michael Adams, for the Defendants

REASONS FOR JUDGEMENT

Justice Charles T. Hackland

Released: May 26, 2022