Reasons for Judgment

Court File No.: CV-19-00001462
Date: 2025-03-06
Ontario Superior Court of Justice

Between:
Grape Island Property Owners Association Inc., Plaintiff
– and –
Corporation of the City of Orillia, Defendant

Appearances:
Christopher Du Vernet and Carlin McGoogan, for the Plaintiff
Robert Wood, for the Defendant

Heard: September 17, 18 and 19, 2024 and by way of written submissions

Judge: J.R. McCarthy

Introduction

[1] Those of a certain age often hearken back to the good old days. It was a simpler and slower-paced time when what we now know as modern technology was either non-existent or in its infancy. A time when entertainment on a cottage summer night might involve a round of cards or a board game, accompanied by the sounds of top 40 music on a transistor radio. A time when tradition, custom, word of mouth, or a simple invitation brought people together to socialize over a barbeque or around a campfire. A time when one received news of the outside world from a neighbour, the radio, or coveted newspapers. A time when government regulation seemed, if not absent, then at least benign and unoppressive.

[2] There was no internet. Social media consisted of small announcements in the classified sections of newspapers. People handwrote letters and kept journals. Notices of upcoming concerts, gatherings, and festivals were found on flyers stapled to telephone poles or fence posts.

[3] City folk escaped on weekends and holidays to enjoy Simcoe County, with its serenity, tranquility, greenery, peaceful surroundings, slower pace, famous beaches, pretty waterfronts, and charming small towns.

[4] As their families had for generations before them, people battled through highway traffic to vacation at their cottages and trailers. For many, these often small, humble, and even threadbare dwellings offered an escape from pollution, a respite from traffic and crowds, an intimacy and connection with nature, a tonic for the mind and spirit, and an opportunity to establish or continue family traditions.

[5] Cottage neighbours, who might not see each other from the end of one summer season to the following spring, would, once the ice on the lake had melted and the warmer temperatures of May had arrived, return to their seasonal homes to rekindle friendships, and reengage with their adopted communities.

Grape Island and the City of Orillia

[6] For almost 60 years, the cottagers, and in time, a scattering of full-time residents of Grape Island (respectively, the “islanders” and the “island”) were able to avail themselves of an affordable, reliable, private, and convenient means to access their cottages and homes just 800 feet from the mainland shore of the City of Orillia (the “City”). These were the two seasonal docks they installed on the City water lot at the end of the Forest Avenue South road allowance (referred to as the “water lot”).

[7] The City acquired the water lot in 1949. It is 66 feet wide and extends 100 feet into Lake Simcoe.

[8] In line with City Policy 1.6.1.1, enacted on July 31, 1956 (the “1956 policy”), the islanders began installing docks on the water lot.

[9] Since the mid 1950’s, the Grape Island Property Owners Association Inc. (“GIPOA”) has represented the interests of most, if not all, of the islanders. GIPOA has been generally responsible for the installation, maintenance and removal of the water lot docks.

[10] The City showed little interest in the water lot or docks for more than half a century. The City grew and expanded, and its population swelled, but little changed for the islanders – season after season, and indeed decade after decade, they made use of the docks to both access their properties and to bring across services and materials from the mainland.

[11] Then somebody complained … someone whose voice was heard in the echelons of the City.

[12] As a result, things became political, then heated, then litigious.

[13] In response, beginning in 2016, the City took steps to assert its jurisdiction over the water lot. After several failed attempts to find a permanent solution, the City ordered GIPOA to remove its docks. The City then replaced the GIPOA docks with a dock for public use (“the City dock”). It then proceeded to impose rules, which regulate the use of both the City dock and other activities that take place upon and from the water lot.

[14] GIPOA now finds itself in an unfortunate situation: what the islanders assumed was a permanent, exclusive, affordable, and reliable arrangement for the use of the water lot docks to access their properties has now been taken over entirely by the City.

GIPOA’s Claim: Proprietary Estoppel

[15] GIPOA claims entitlement to exclusive and permanent use of the docks under the equitable doctrine of proprietary estoppel. The duration and nature of GIPOA’s use of the water lot, coupled with the City’s actual knowledge of and acquiescence to GIPOA’s use of that water lot, entitles GIPOA to: (i) a declaration that the City is estopped from excluding GIPOA from placing its docks on the water lot; and (ii) an easement over the said water lot.

[16] GIPOA asks the court to apply the test for proprietary estoppel set out by the Supreme Court of Canada in Cowper-Smith v. Morgan, 2017 SCC 61, para 15:

An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over the property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word.

The City’s Position: Proprietary Estoppel

[17] The City asserts that GIPOA has failed to establish the facts necessary to attract a remedy under the doctrine of proprietary estoppel. Alternatively, GIPOA’s claims must be dismissed as a matter of law.

[18] The City cites Immeubles Jacques Robitaille inc. v. Quebec (City), 2014 SCC 34, paras 19-30, and argues that GIPOA has failed to establish the following essential criteria for a remedy under the doctrine:

(a) That the City, through acquiescence, made a clear and unambiguous promise, to GIPOA that the City i) would never enforce the 1956 policy; ii) would never revoke the 1956 policy; and iii) would never seek to limit GIPOA’s uses of the water lot;

(b) That the City would honour its promise to GIPOA even if: i) GIPOA installed two docks in place of a single dock permitted under the 1956 policy; ii) GIPOA’s use of the water lot constituted a nuisance for neighbouring property owners; iii) GIPOA’s docks contravened the zoning applicable to the water lot; iv) GIPOA’s docks encroached outside the boundaries of the water lot and extended in front of neighbouring properties; and v) GIPOA was not or was no longer a valid proxy or agent for the island property owners;

(c) That GIPOA perceived the City had made such a promise;

(d) That GIPOA reasonably relied on the City’s promise; and

(e) That GIPOA suffered a detriment because of its reliance on the City’s promise.

Even if GIPOA has made out a claim to a remedy under proprietary estoppel, the City argues that any rights that might flow from that cannot prevail against the municipality’s rights both to enact by-laws and to introduce and vary policy.

Public Law Principles in Proprietary Estoppel

[19] The Supreme Court in Immeubles, para 20, recognized the long-standing common law principle that “the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision”.

[20] These “public law” principles have been applied as recognized maxims in many courts. In Langley (Township of) v. Wood, 1999 BCCA 260, paras 12-13, the British Columbia Court of Appeal held that:

a) “As a general rule, municipal rights, duties and powers, including the duty to carry out the provisions of a statute, are of such public nature that they cannot be waived, lost or vitiated by mere acquiescence, laches or estoppel”; and

b) "The right of a municipality to carry out its bylaws is well established.... The doctrine of estoppel can never interfere with the proper carrying out of the provisions of Acts of Parliament.” [Citation omitted.]

[21] In Immeubles, para 19, the Supreme Court emphasized the strict requirement for promissory estoppel to prevail against a public authority: “In the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts.”

[22] This “unambiguous promise” was described by the Court in Cowper-Smith as a “representation or assurance”. The Court went on to cite the House of Lords decision, Thorner v. Major, [2009] UKHL 18, para 56, which described the requirement as follows: “…the promise must be unambiguous and must appear to have been intended to be taken seriously”: Cowper-Smith, at para. 26 (citations omitted). Likewise, at para. 5 of Thorner, Lord Hoffman stated that the question is whether “the meaning … conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon.”

The GIPOA Properties

[23] GIPOA currently owns three properties: a parking lot on the mainland, a short distance from the water lot (the “Parking Lot”), the community lot at the northern end of the island (the “Community Lot”), and the private lane down the centre of the island (“Ivy Lane”) (collectively, the “GIPOA Properties”).

Historical Background: 1949–2010

[24] As late as 1949, Forest Avenue had not yet been extended to the shore of Lake Simcoe. That year, developer Hugh Grant (“Grant”) advised the Orillia Town Council (now the City Council) that he wished to build a dock at the foot of Forest Avenue to serve the island.

[25] That same year, Grant registered a plan of subdivision, Plan of Subdivision 948 (“Plan 948”), to subdivide the island into 52 lots with a centre laneway.

[26] On July 26, 1949, the Town resolved to extend the foot of Forest Avenue to the shore of Lake Simcoe.

[27] By 1950, at least two cottages had been constructed on Grape Island.

[28] On December 3, 1951, Town Council adopted Resolution 503, which read in part:

…whereas there is no public dock in Orillia fronting on Lake Simcoe, AND WHEREAS the Town is acquiring a water lot in front of Forest Ave. which can be used to construct thereon dock facilities to serve the public requiring such a convenience. THEREFORE be it resolved that the Minister of the Department of Public Works be requested to construct as soon as possible suitable public dock facilities at the above-mentioned location.

[29] By 1952, the parking lot was in place and barges were operating from the water lot, bringing materials and services to the island.

[30] On November 18, 1952, the Town acquired the water lot from the Crown. In the letters patent, the Crown reserved a “right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons.”

[31] In March 1954, the predecessor association to GIPOA received a transfer of the GIPOA properties for no consideration from Grant. The next month, GIPOA was incorporated.

[32] On March 30, 1955, GIPOA sent a letter to the Town “requesting the erection of a dock at the foot of Forest Ave.”

[33] On July 31, 1956, Orillia Town Council adopted Resolution 290, which became Policy 1.6.1.1 (the “1956 policy”), and read:

That the property owners of Grape Island be permitted each year to erect a temporary dock at the foot of Forest Avenue on the town waterlot, such dock to be removed on or about September 1.

[34] In late 1961, GIPOA purchased land to expand the overcrowded mainland parking lot.

[35] In 1962, GIPOA began to install a second seasonal dock at the water lot.

[36] By the mid-1960’s, there were over 44 cottages on Grape Island.

[37] Throughout the succeeding decades, GIPOA continued to install two seasonal docks on the water lot. GIPOA was never required to pay any rent, taxes, or fees for the use of the water lot. GIPOA was never required to obtain a permit for its docks. GIPOA has consistently paid municipal taxes on the GIPOA properties.

[38] Throughout these same decades, City officials and members of the City fire and building departments made regular use of the docks to gain access to the island for inspections and site visits.

[39] The City did not require GIPOA or the islanders to install the docks. The islanders themselves organized work parties to install and remove the docks each season.

[40] In the late 1990s or early 2000s, GIPOA complied with a City request that it not store the docks on any portion of the Forest Avenue road allowance.

[41] GIPOA installed two new docks in the mid-1980s, each measuring 40 feet in length and five feet in width.

The 2010 Exchange and Encounter

[42] In March 2010, Jim Boys (“J.B.”) of GIPOA and Ian Sugden (“Sugden”), the relatively new City General Manager of Planning, Development, and Compliance, exchanged emails.

[43] J.B. informed Sugden that:

…private island docks located on the mainland are there for our access to and from our properties whether it is people or equipment and material, in boats or Barges. The city to date has not had an issue with this. The hope is that they won’t in the future. We have always tried to wherever possible avoid bothering our neighbours to either side of the road but as you can imagine there have been issues from time to time.

[44] Sometime between April 9 and 12, 2010, Sugden met with J.B. at the water lot to discuss the issues identified in their recent email exchange. Sugden then attended the island for a site visit. At the time, the GIPOA docks at the water lot were not yet installed for the season.

[45] During the site visit, Sugden and J.B. did not discuss the number of docks that GIPOA maintained at the water lot. However, Sugden had learned from the email exchange that GIPOA maintained “docks” on the mainland water lot.

[46] Nothing of significance followed over the next six years.

The Events of 2016

[47] In late August 2016, GIPOA asked the City to investigate an alleged encroachment on the water lot by the property owners to the west (the “Hunters”). In turn, the Hunters complained about GIPOA’s uses of the City’s water lot, which they claimed constituted a nuisance.

[48] The City investigated.

[49] A drawing prepared by Head Start Construction in September 2016 revealed that the Hunters’ dock was encroaching on the water lot. The Hunters’ dock had encroached on the City’s water lot for approximately 50 years. At the same time, it was determined that a portion of the most easterly of the GIPOA docks was encroaching on the adjacent Smith lot to the east.

[50] In December 2016, the Hunters applied for a licence of occupation (“LOO”) which the City granted sometime after September 2020.

[51] At the request of the City, beginning in 2017 and through to the end of 2020, GIPOA installed only one dock at the water lot instead of the customary two.

[52] In May 2017, GIPOA applied for its own LOO, which was never granted.

[53] On June 21, 2017, GIPOA, the Hunters, and the Smiths signed a “Joint Proposal” for the resolution of the issues at the water lot (the “Joint Proposal”).

[54] In January 2018, City Council enacted a Temporary Use By-law (“TUB”) with zoning policies to govern the water lot for two years, and a second by-law to govern boat mooring and barging. The City also convened a “Working Group” to facilitate further negotiation between the concerned parties during that two-year period.

[55] In March 2018, the City enacted a TUB that permitted GIPOA to install one dock at the water lot. The dock would be limited to 30 metres (100 feet) in length. The TUB set the applicable zoning setbacks to 0.0 metres on the east, and 6.0 metres on the west of the water lot.

[56] In April 2018, City Council enacted By-law 2018-34, which became Chapter 538 of the City’s Municipal Code (“Chapter 538”) and which came to govern City-owned water lots. Chapter 538 prescribes:

• no overnight mooring on docks;
• an emergency mooring space to be maintained on each dock;
• a requirement for barging companies to obtain permits; and
• no barging on Mondays, Fridays, the weekend, and holidays for the period between May 16 and October 14 inclusive.

[57] In August 2019, GIPOA commenced the present litigation.

[58] In April 2020, GIPOA advised the City that only GIPOA members who were “current with all membership dues and assessments” would be permitted to use GIPOA’s assets, including its docks.

[59] In September 2020, City Council repealed the 1956 policy and directed staff to install a City-owned dock on the water lot. Beginning in 2021, the City has installed and maintained the City dock at the water lot. GIPOA is now prohibited from installing or maintaining docks at the water lot.

[60] The City dock is for public use. It is 60 feet long and six feet wide. It includes an emergency mooring space that is 6.0 metres (20 feet) long, at which no unattended boats are permitted. The City aims to have the City dock installed during the first two weeks of April, and by May 1 at the latest. The City dock has to date remained in place until early November.

[61] Whereas the GIPOA docks provided 160 feet of dock space, the City dock provides only 120 feet of usable dock space, including the 20-foot emergency space where any boat that moors must be attended by its owner. No overnight mooring is permitted.

[62] Prior to the City’s enactment of Chapter 538, the GIPOA docks could be used for barging seven days per week; the barging season historically commenced as early as late May and concluded in mid-October.

[63] Barging from the water lot’s concrete pier is now only permitted between 8:00 a.m. and 8:00 p.m. during specified times of the year. Between May 16 and October 14, barging is not permitted on Mondays, Fridays, Saturdays, Sundays, or on statutory holidays. Before May 16 and after October 14, there is nominally no limit on barging days; however, those dates are outside of the typical barging season. Barges may operate from the City’s water lot using the concrete pier. Since 2021, barge operators have been obliged to obtain an annual barging permit from the City, and a road occupancy permit for each job on the island.

Trial Evidence

GIPOA – Jim Boys

[64] Jim Boys (“J.B.”) testified on behalf of GIPOA. He made for an excellent witness. He was sensible, candid, knowledgeable, informative, and balanced. J.B. has a 70-year history at the island, as a youngster, a seasonal cottager, a board member, a director, a water taxi operator, and, latterly, a full-time resident.

[65] J.B. described how City officials came and went from the water lot over the years, how they made use of the GIPOA docks, how a handful resided near the water lot in plain view of both the docks, and the volume and variety of activity that went on there.

[66] J.B. provided a detailed history of the use of the water lot and the docks, emphasizing how they offered the islanders safe, direct, and sheltered access to and from the tip of the island, only 800 feet from the water lot. With the nearest marina being some four miles distant, separated from the island an open, often rough, and unpredictable expanse of Lake Simcoe, the water lot was, for 60 years, the safest, most direct, and most practical means of accessing the island.

[67] J.B. described the variety of third-party vehicles that utilized the docks to access the island for waste removal, septic service, hydro servicing, etc. He described how the City constructed a concrete pier wall at the water’s edge of the water lot in 1960-1961 which facilitated barging of building materials, propane and septic trucks, and other servicing vehicles.

[68] The GIPOA docks were a beehive of activity between May and November, available for use 24 hours per day, 7 days per week, with 160 feet of mooring available. GIPOA was entirely responsible for the installation, removal, maintenance, and storage of the docks each season. For 40 years, the docks were simply stored at the foot of the water lot, after which, at the request of the City, GIPOA moved the docks to its parking lot.

[69] The original wood docks were replaced by two new docks in the mid 1980s. These featured steel frames with plastic wood decking and each offered 80 feet of mooring.

[70] When the dock and boat rack of the landowners to the west of the water lot (the Hunters) began to interfere with the boat traffic around the GIPOA docks, the association asked the City to investigate the matter.

[71] When complaints were registered by the Hunters and other landowners adjacent to the water lot, GIPOA endeavoured to cooperate with the City and the complainants to find a mutually acceptable solution. In 2017, GIPOA duly applied for the LOO as the City requested and paid the non-refundable fees. It agreed to participate in mediation and worked together with the adjacent landowners to prepare the Joint Proposal in June 2017. It abided by the TUB.

[72] J.B. described the challenges that GIPOA and its members now face because of the City’s 2021 decision to replace the GIPOA docks with a public dock. These include: the congestion and accompanying dangers wrought by public use of the City dock for fishing and swimming; the severely reduced footage (45%) for docking vessels; the elimination of overnight mooring; the distance between the island and other mainland access points; the severe limitations placed on barging activities and the inconvenience, delays, and uncertainty this entails. There are now only between 60 and 63 days during which barging is permitted.

City of Orillia – Gayle Jackson

[73] Gayle Jackson (G.J.) is the Chief Administrative Officer and City Clerk of the City of Orillia. She has worked at the City for 35 years and has held various positions over the years.

[74] In her testimony, G.J. explained how City policy is made by a council resolution and that the City’s policy manual is its guiding document. She described the City’s waterfront as “sacred” with the City being dedicated to its protection for public use. Since at least 2008, it has been City policy that road allowances fronting on the water are not to be conveyed.

[75] G.J. also explained how by-law enforcement is carried out on a reactive basis, secondary to a complaint. She described how the Forest Ave. road allowance water lot problem came to light after a complaint revealed that a property owner’s dock and boat lift were encroaching on the City water lot. Further investigation revealed that there were two docks at the water lot as opposed to the one allowed under the 1956 policy. A resolution was adopted by Council on January 30, 2018, which resulted in a working group of interested parties, a TUB, and the opportunity for the stakeholders to apply for a LOO. The City learned that 22 lot owners on Grape Island had withdrawn from GIPOA. By September 2020, a “long term” solution was arrived at whereby the City would fund and install its own dock on the water lot. The 1956 policy was repealed.

City of Orillia – Ian Sugden

[76] Ian Sugden (“Sugden”) was the City’s General Manager of Planning, Development and Compliance between 2008 and 2024. He was at the forefront of the issues and challenges surrounding the water lot in the crucial years between 2016 and 2021.

[77] Sugden confirmed that the City enforces its by-laws on a reactive basis. In April 2010, Sugden investigated concerns about tree removal from the water lot and whether the island dock was being used for commercial purposes. Sugden was primarily concerned about the water lot dock fitting within the water lot road allowance; he was unaware of the City’s 1956 policy at the time.

[78] The water lot “crisis” was sparked by successive complaints received by the City. The first complaint pertained to the Hunters’ dock encroachment onto the water lot, and the second was about activities taking place on the GIPOA docks. This prompted the City to commission a drawing that showed that GIPOA’s second dock extended well beyond the water lot line and was encroaching on 377 Victoria Crescent. Sugden pointed out that Zoning By-law 2014-44 stipulated a limit of one dock per lot and setback requirements of 4.5 metres from the lot line and 15 metres from the shoreline.

[79] The 2016 complaints prompted Sugden to look at the 1956 policy for the first time. He discovered that the policy permitted the installation of one annual dock and that no authorization or request for a second dock existed. A TUB was then passed, which temporarily permitted GIPOA to install only one 30-metre-long, 3-metre-wide dock.

The TUB remained in effect between March 2018 and March 2020. The re-zoning by-law passed in 2020 permitted the installation of one dock measuring 30 metres by 3 metres with setback requirements. The new by-law was compliant with the Lake Simcoe Protection Plan and the Orillia Official Plan and recognized the importance of public access to the waterfront.

[80] Under cross-examination, Sugden could offer little in the way of an explanation for why the Hunters received a LOO while GIPOA did not. Nor could he explain why the option of a lease arrangement between the City and GIPOA never materialized. When pressed, Sugden admitted that he likely understood that GIPOA was installing two docks as far back as his 2010 site visit. Still, he insisted that he was then unfamiliar with the 1956 policy and, therefore, had no reason to seek enforcement of it.

City of Orillia – Roger Young

[81] Roger Young, the City’s Manager of Operations for Roads and Parks explained how the City aims to install the City dock by May 1 each year. Barging now requires an online application, and in some cases, a temporary road occupancy permit is required. Barging is only permitted 3 days per week from May 16 to October 14. No permits have been denied, and they typically take 3 to 5 days to process.

Analysis

[82] After careful consideration, I have arrived at the conclusion that the City’s position must prevail and that GIPOA’s claim cannot succeed.

(a) Proprietary Estoppel

[83] I am not persuaded that GIPOA has made out a claim for proprietary estoppel.

[84] To be sure, the City did nothing outwardly (and very little internally, as it turns out) to exercise and affirm any kind of jurisdiction over the water lot for the 60 years between the implementation of the 1956 policy and the City becoming aware of the encroachments and violations of the policy in 2016. That said, in the circumstances of this case, I am of the view that the City was not required to do anything pro-actively to maintain its complete jurisdiction over the water lot in these “intervening years”.

The 1956 Policy

[85] I find it useful to start with a review of the wording of the 1956 policy itself since it served as the impetus for the islanders placing first one and then two docks on the water lot:

That the property owners of Grape Island be permitted each year to erect a temporary dock at the foot of Forest Avenue on the town waterlot, such dock to be removed on or about September 1.

[86] One, the policy is no more than a statement of intention. It was put in place by way of a council resolution. In this way, it very much resembles the December 3, 1951, resolution wherein Town Council resolved that “…the Town is acquiring a water lot in front of Forest Ave which can be used to construct thereon dock facilities to serve the public requiring such a convenience”.

[87] Two, the policy is permissive, not contractual. It does not transfer or convey any legal or equitable interest. The City allowed the erection of a dock; it did not command, direct or even encourage it.

[88] Three, the “permission” was granted to “the property owners of Grape Island” and not to any association, incorporated or otherwise. Thus, the permission was in favour of a group capable of definition at any moment in time but also subject to inevitable additions and subtractions.

[89] Four, the policy reads very much like an informal permit or arrangement, which is not supported by consideration. There is nothing binding or contractual about it.

[90] Five, the policy permits the annual erection of “a” dock, not two.

[91] Six, the policy has no expiration or end date.

[92] Seven, the policy does not grant exclusive use of the water lot or the exclusive right to install a dock to the islanders (let alone to GIPOA), nor is there any language that could be construed as barring members of the public at large from making use of the water lot for any number of activities.

[93] Eight, there is no mention of the concrete pier, which was installed several years after the policy and from which barging has historically taken place. Thus, what has been an important feature of GIPOA’s historical use of the water lot is not contemplated in the 1956 policy.

[94] Finally, there is nothing about the policy that even hints at the City surrendering or sharing its proprietary rights or divesting itself of any jurisdiction over the water lot.

[95] In summary, I am not persuaded that any reasonable person in 1956 or at any time thereafter would have read the 1956 policy and concluded that it meant to impart any kind of interest, legal or equitable, in the water lot. At most, it lead to an arrangement from which the islanders derived some obvious benefit on an annual basis.

Unambiguous Promise or Assurance

[96] There is no evidence that any City employee or representative provided GIPOA with an unambiguous promise or assurance that the City would never enforce the single dock allowance in the 1956 policy, never seek to regulate or curtail any nuisance-like conduct arising out of GIPOA’s use of the water lot, or never revoke or vary the scope of the permit granted under the 1956 policy in response to changing circumstances. Indeed, there is no evidence that the 1956 policy was ever discussed between GIPOA and the City or that it was even discussed or reviewed by the City prior to 2016.

Acquiescence Amounting to Laches

[97] While the City may have silently acquiesced to the 1956 policy continuing, there is no evidence that City officials were aware that the two docks installed on the water lot were contravening the one dock stipulation. Nor is there any evidence that the City or its officials were aware of the encroachment of the docks on neighbouring properties, or the nuisance effects associated with GIPOA’s use of the docks. Even if properly pleaded, there could be no basis for GIPOA to succeed on the equitable doctrine of laches. Acquiescence in the context of laches requires that after the deprivation of its rights and having full knowledge of their existence, the relevant entity delays acting under those rights, which gives rise to an inference that the entity has waived those rights: see M.(K.) v. M.(H.).

Silence and Duty to Disclose

[98] In Ryan v. Moore, 2005 SCC 38, para 76, the Supreme Court held that, except in certain circumstances, silence cannot constitute a representation for the purpose of estoppel:

Silence or inaction will be considered a representation if a legal duty is owed by the representor to the representee to make a disclosure, or take steps, the omission of which is relied upon as creating an estoppel. [Citations omitted.]

[99] I am not persuaded that there was any legal duty on the City, as “representor”, to disclose or take steps to explain or clarify the nature, duration, import, or significance of the 1956 policy to the “representee” GIPOA. The 1956 policy was a simple statement of intention that did nothing more than permit GIPOA to install its dock on the water lot on an annual basis.

The City’s Knowledge

[100] GIPOA has failed to prove that the City had knowledge that its own rights on the water lot were inconsistent with those of GIPOA. Nor was there evidence that the City, as possessor of those legal rights, understood GIPOA’s mistaken belief in its rights. Until 2016, there was no circumstance in the long history post-dating the 1956 policy which would have behooved the City to assert its rights, confirm its jurisdiction, or exercise its authority as a municipality, landowner, or policymaker.

[101] I am not prepared to impute any knowledge to either Sugden or other City officials about GIPOA’s historical non-compliance with the strict wording of the 1956 policy. One, I have no reason to reject Sugden’s evidence that, at the time of his innocuous email exchange with J.B. and his site visit in the spring of 2010, he was familiar with the 1956 policy, a document that was buried within a manual with which he was relatively unfamiliar. Two, Sugden’s 2010 sketch of one dock at the water lot was based upon information he received from J.B. and was prompted by his interest in ensuring that the dock complied with applicable zoning; it did not arise out of any complaints about the docks, which had not yet been installed for the season. Three, there is insufficient evidence to establish that City officials who lived near the water lot or used the docks to access the island were aware that the 1956 policy permitted only one dock. Finally, there is no reference anywhere of City politicians or officials turning their minds to an investigation into GIPOA’s compliance with the 1956 policy prior to 2016.

Enforcement Policy

[102] The evidence of the City points to a by-law and policy enforcement “system” that was largely driven by complaints. Except for parking infractions, the City investigates only when it receives a complaint. While this is a passive, even complacent, approach to enforcement, it is understandable. There are over 11,000 property parcels in the City of Orillia. The evidence of the City was that neither municipal building inspectors nor fire department personnel using the docks to access the island for matters under their jurisdiction would have had responsibility for enforcing a decades-old, relatively obscure, and very specific City policy. No application was ever brought seeking the installation of a dock by or on behalf of GIPOA; nor was there any complaint received about the docks prior to 2016. There would have been scant reason for officials to investigate whether the docks complied with City by-laws and policies.

[103] As stated by the Court of Appeal in Kosicki v. Toronto (City), 2023 ONCA 450, para 19, “it is not realistic to expect a municipality to monitor the entirety of its land for signs of encroachment.”

[104] The Court of Appeal upheld the conclusion of the application judge in that case. The application judge held that the City was simply unable to patrol its lands against potential adverse possession, and the same vigilance of a private landowner could not be expected of a municipality: Kosicki, at para. 19.

[105] I would apply this reasoning to the City’s enforcement of its policies and by-laws. It is not realistic to expect a municipality to monitor the use of its lands for the purpose of heading off claims for proprietary estoppel.

GIPOA’s Expectations

[106] There is no contemporaneous evidence in the intervening years between 1956 and 2016 that GIPOA perceived there to be an explicit or implied promise by the City that GIPOA could make use of the water lot in a way other than under the 1956 policy and other than at the pleasure of the City.

[107] To the contrary, J.B.’s email to Sugden on March 19, 2010 suggests that GIPOA well understood the nature of the arrangement:

The private island docks located on the mainland are there for our access to and from our properties whether it is people or equipment and materials, in boats or Barges. The city to date has not had an issue with this. The hope is that that they don’t in the future. We have always tried to wherever possible avoid bothering our neighbours on either side of the road but as you can imagine there have been issues from time to time.

[108] This is not language employed by someone confident (or even hopeful) that GIPOA had any proprietary rights to the water lot. Rather, such language is consistent with GIPOA’s understanding that the City retained its jurisdiction over its property.

[109] As well, GIPOA implicitly recognized the City’s jurisdiction over the water lot in 2017 by removing the second dock when it was asked to do so and applying for a LOO.

[110] Finally, the 2017 Joint Proposal acknowledged “that the City of Orillia owns the Forest Avenue Road Allowance and Waterlot and that City of Orillia Zoning By-Laws and Policies govern the use of these city properties.”

Reasonable Reliance

[111] Even if I were to find that the City’s conduct was perceived by GIPOA as an assurance that it would continue to enjoy the unfettered and exclusive use of the water lot, I am unable to conclude that GIPOA’s perception was reasonable.

[112] One, no one complained or voiced concern about GIPOA’s use of the water lot before August 2016. There was, therefore, no basis upon which GIPOA could have reasonably believed that the City had abdicated its authority over the water lot or abandoned any right it might have to either enforce or change its own policy, or to pass applicable by-laws.

[113] Two, if at any time since 1962, GIPOA had had regard to the strict wording of the 1956 policy, it would have recognized that its unauthorized installation of a second dock on the water lot represented a breach of the very policy under which the arrangement was in place.

[114] Three, even if years of inaction, indifference, or perceived acquiescence of certain officials to the installation of the two docks left the impression that the City was not proactive in enforcing the 1956 policy, this could not have allowed GIPOA to form a reasonable belief that the City had given an assurance that it would not enforce or vary the 1956 policy when circumstances required. GIPOA could not have reasonably perceived that the City made “a clear and unambiguous promise … in order to induce [them] to perform certain acts” as contemplated by the Supreme Court in Immeubles, at para. 19.

[115] Four, I am persuaded that had GIPOA sought legal advice in the intervening years, it would have been advised that the 1956 policy was established by a municipal resolution. Any grant of a proprietary right to be held in perpetuity on municipal lands would have been made under sections 5(3) and 9 of the Municipal Act, 2001, SO 2001, c 25 (the “Municipal Act”) pursuant to a by-law. GIPOA might also have been advised that a municipal resolution is best understood as a short-term policy direction, with the municipality reserving the right to change policies: see Tanner v. Brockton (Municipality), 2011 ONSC 6329, paras 34-47.

[116] Finally, I am not persuaded that GIPOA could have reasonably interpreted Plan 948 as a promise to the association about access to the water lot. The approving authority for the Grape Island subdivision was a ministry of the provincial Crown, not the City. Nothing on Plan 948 can be reasonably interpreted to indicate that Forest Avenue South (the future water lot) was to serve as an access point to the island.

Detrimental Reliance

[117] There is no compelling evidence that GIPOA relied on the alleged promise of the City to its detriment.

[118] Property owners on the island began building cottages in 1950, with 26 lots having been sold by the beginning of 1952.

[119] The City enacted the 1956 policy, four years after Grant first assured the island property owners that they would receive title to the GIPOA properties (1952) and two years after GIPOA acquired the GIPOA properties (1954). Although the City acquired the water lot in 1952, it only enacted the policy in 1956.

[120] GIPOA did acquire the additional land to expand the parking lot in 1961, but this appears to have been motivated by space requirements rather than by any reliance on assurances from the City. The same can be said about the installation of the second dock in 1962, which was not contemplated in the 1956 policy and was most certainly never authorized by the City. GIPOA acquired no property after 1961, and there is no evidence to suggest that GIPOA, relying on the City’s assurance about the water lot, declined to pursue alternative arrangements for an access point on the mainland.

[121] Even if it suffered some detriment, GIPOA enjoyed a net benefit from using the water lot and the docks for over 60 years. GIPOA never had to pay any rent or taxes to make use of the water lot. GIPOA installed its docks voluntarily. The City never compelled them to do so. GIPOA could operate a water taxi service and facilitate barging without licence or docking fees. GIPOA members were able to avoid longer and presumably more costly “commutes” from local marinas to the island. Reliance on the mainland parking lot to park their vehicles before boating over to their properties on the island was a reality for islanders several years before the 1956 policy was enacted.

[122] Finally, it is difficult to reconcile that GIPOA relied on certain rights it had obtained by virtue of the City’s acquiescence or promise when it did not understand what rights it might have enjoyed at the time of the alleged reliance. J.B. candidly admitted that GIPOA never acted under any belief that it had “historical rights” or that the City had abdicated the right to enforce its policy prior to 2018.

(b) Proprietary Estoppel vs. The Public Interest

[123] In Immeubles, para 20, the Supreme Court emphasized that “the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision”.

[124] I am persuaded that the public interest in this case would trump any proprietary estoppel claim from which GIPOA might benefit. The Court of Appeal has made it clear that there is a good reason why municipal land put to public use is presumptively immune to adverse possession claims. In Kosicki, paras 17-18, the Court stressed two considerations:

First, a municipal authority which allocates land-use according to statute cannot be said to “sleep on its rights” in relation to land designated as parkland, or for conservation or as an open space.

Second, adverse possession cannot be said to result in better uses of land than those pursued by public authorities. As reflected in municipal zoning laws, there is an important public interest in the allocation of land for different uses, including land for transportation and industry, land for residential development and land for parkland, conservation, or open spaces.

[125] In this case, there is evidence that Orillia Town Council cited the public interest as far back as 1951 when resolving to purchase the water lot. The Council minutes contain the following:

[T]he Town is acquiring a waterlot in front of Forest Ave. which can be used to construct thereon dock facilities to serve the public requiring such convenience.… [T]he Minister of the Department of Public Works be requested to construct as soon as possible suitable public dock facilities…

[126] I am not persuaded that the City ever abandoned the priority given to the public interest on any of its road allowances or water lots, including the Forest Ave. water lot. The City has compiled information and prepared reports that address boat launch operations and waterfront matters. In a 2014 report on city road allowances, the City referred to the standing informal policy that lake access road allowances would not be sold but would be kept open for public use. The Forest Avenue road allowance is referenced and marked as “NO” under “sale potential”.

[127] On the evidence before me, there is no basis upon which the rebuttable presumption described in Kosicki could be displaced.

(c) Proprietary Estoppel vs. Express Legislative Powers

[128] Sections 8 and 10 of the Municipal Act, 2001, SO 2001, c 25, bestow a broad and extensive authority on municipalities to legislate in the public interest, to regulate activities in the community, and to deal with municipal assets. The relevant portions are reproduced below:

Scope of powers
8 (1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.
(2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force.
(3) Without limiting the generality of subsections (1) and (2), a by-law under sections 10 and 11 respecting a matter may,
(a) regulate or prohibit respecting the matter;
(b) require persons to do things respecting the matter;
(c) provide for a system of licences respecting the matter.
(4) Without limiting the generality of subsections (1), (2) and (3) and except as otherwise provided, a by-law under this Act may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate.
10 (1) A single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public.
(2) A single-tier municipality may pass by-laws respecting the following matters:
4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.
5. Economic, social and environmental well-being of the municipality, including respecting climate change.
6. Health, safety and well-being of persons.
7. Services and things that the municipality is authorized to provide under subsection (1).
10. Structures, including fences and signs.
11. Business licensing.

[129] In the case at bar, there can be no doubt that By-law 2018-34, the temporary zoning by-law that followed, and the permanent zoning at the water lot were all legitimate means for the City to regulate its affairs and property in response to the issues and challenges that came to its attention beginning in 2016.

[130] Imposing the remedy sought by GIPOA would be tantamount to undoing these municipal enactments, which are clearly within the City’s authority. There is no appeal of these impugned by-laws before me. I have no jurisdiction to substitute my view of what might be a fair and balanced solution for the residents and stakeholders at the water lot for the views of the Council they elected to represent them.

(d) Proprietary Estoppel as a Fetter on Council’s Legislative Discretion

[131] Even if the City had promised in word or actions that it would never repeal, retract, or enforce the 1956 policy, such a promise would have illegally fettered City Council’s legislative discretion and would be unenforceable. This is not to be confused with a municipality’s ability to make contracts, which can be legally binding.

[132] I am not aware of any authority that states that municipal policies are unalterable. Indeed, a policy, being a mere statement of intention, is usually designed to chart a course of action or provide guidance to those who operate under it. It is not in the nature of a contract.

[133] Even enacted by-laws can be changed. Indeed, municipalities must reserve themselves the right to rescind or change by-laws to properly manage their affairs, respond to changing circumstances, and responsibly serve the citizens to whom they are accountable.

[134] Policies must change as circumstances demand. Absent exceptional circumstances, it would be highly unreasonable for any citizen or interest to expect that a municipal policy would never change.

[135] I adopt the reasoning of the Alberta Court of Queen’s Bench in the case of Edmonton Regional Airports Authority v. North West Geomatics Ltd., 2002 ABQB 1041, paras 96-97, a case in which liability was sought against a municipality because of it pursuing different and opposing policies at a later date. At paras. 96-97, the court stated that:

The reality is that civic policies will change as circumstances dictate, and it is not reasonable for any individual or corporate citizen to argue that an investment made is predicated on a given set of circumstances remaining unchanged.

The flaw in North West’s argument is that if it were accepted, every policy change enacted by a municipality would give rise to liability. This would mean that every road opening, every road closure, every decision to construct new roads in one area and not another, and every other decision which could be perceived as impacting values would be actionable. This would have the effect of completely paralyzing government.

[136] Applying this logic to the case at bar must lead to the same conclusion. In the absence of contractual obligations or bad faith on the part of the City, I find that the City was free to both enforce its 1956 policy, and repeal or amend that policy as it saw fit. To hold otherwise would be to fetter the legislative competence of City Council. The remedy sought by GIPOA would effectively amount to this court usurping the decision and policy-making ability of a statutorily empowered and democratically elected body.

[137] Therefore, even if the proprietary estoppel claim were found to be valid, the rebuttable presumption against claims for possessory title to municipal property put to public use should be extended to GIPOA’s claim in proprietary estoppel.

Disposition

[138] The sympathy of the court certainly lies with GIPOA and the islanders who have lost control over their historical mainland access to their island properties. It must have been enormously frustrating and greatly disappointing not to have been granted the LOO.

[139] One is left to wonder why the City would invite GIPOA to apply for the licence and pay the accompanying non-refundable fees if an approval was not going to be the outcome. Granting the neighbouring landholder a LOO while denying it to GIPOA also leaves room for nagging questions about unfairness. The City’s reliance on the fact that some of the islanders had withdrawn from GIPOA strikes me as somewhat disingenuous. That said, it is not the function of this court to speculate; nor would a finding regarding the City’s motive have made any impact on the outcome of the present litigation. In this instance, the City is answerable to its citizens, not to this court.

[140] For the reasons set out above, I am unable to conclude that there is a remedy available to GIPOA at law or in equity.

[141] GIPOA’s claim is therefore dismissed.

[142] Should the parties be unable to agree on the issue of costs or on other ancillary matters, they may take out an appointment to appear before me to address those issues.

J.R. McCarthy
Released: March 6, 2025