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When is a Partially Navigable Creek Navigable/Not Navigable for Practical Public Use: Court of Appeal

Case: Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475

Keywords: Bear Creek; Navigable Waters; Practical Public Use; Beds of Navigable Waters Act, R.S.O. 1990, c. B.4; Planning Act, R.S.O. 1990, c. P.13; Coleman v. Ontario (Attorney General) (1983), 143 D.L.R. (3d) 608 (Ont. H.C.); O’Donnell v. Ontario (Attorney General), 2013 ONSC 590;

Synopsis:

The Respondents, Mr. David MacMillan and Ms. Janice McIntosh own and live on a 10-acre lot near London, Ontario. They decide to construct and sell a second home on the property. Zoning laws and rules under the Planning Act, R.S.O. 1990, c. P.13 have the practical effect of allowing just one house per lot and forbidding severance of the property.

Bear Creek runs through the middle of the Respondents’ property. Pursuant to s. 1 of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4, if Bear Creek is a “navigable body of water or stream”, the land which forms the bed of Bear Creek is Crown land; a natural severance is thereby fortunately created and so what was one lot would become two.

The Respondents retain an expert who offers the opinion Bear Creek is a navigable stream. The Respondents register a reference plan accordingly and convey one of two 5-acre lots to Mr. MacMillan alone, who applies for a permit to build the second home.

The Appellant Municipality of Middlesex Centre opposes the Respondents’ attempt to “get around the planning act” (see para. 41); does not agree Bear Creek is a navigable stream. The Appellant brings an application seeking a declaration to this effect but the Application judge dismisses the application and holds that Bear Creek is a navigable stream.

The Appellant appeals from this decision and the Court of Appeal agree with their view – the Application Judge misapprehended relevant evidence and these errors are sufficiently material to overcome the deference owed to an Application Judge’s finding of fact. The appeal is granted.

Importance:

Citing Coleman v. Ontario (Attorney General) (1983), 143 D.L.R. (3d) 608 (Ont. H.C.), at p. 611 and O’Donnell v. Ontario (Attorney General), 2013 ONSC 590 (CanLII), at para. 3, the Court of Appeal noted, “…this is hardly the first case in which s. 1 has been relied on to achieve severance of a lot” (see para. 9).

A stream like Bear Creek will be considered “navigable” only if there is a right of navigability (reasonable passage for public purposes) along the waterway. This right exists where the waterway in question is physically capable of being traversed by a boat (although “navigable” can also mean floatable in the context of the timber trade as per Coleman, at p. 614). The Court of Appeal also stated the right of navigability is dependent upon a practical public use, meaning in addition to just being physically capable of use for transportation, the waterway must also be capable of use for transportation in relation to a public purpose such as commerce, agriculture, or recreation (see para. 18).

The Court of Appeal held the evidence relied on by the Application Judge was reasonably capable of establishing Bear Creek was “navigable in fact”. Moreover, the Court stated the Application Judge “…could reasonably conclude that the Creek was wide enough and deep enough to allow a person to travel by boat along the Creek over at least part of the respondents’ property” (see para. 26) [Emphasis added].

But there was insufficient evidence Bear Creek satisfied the practical public use component of the analysis (see para. 27). The Court of Appeal determined that evidence was only available with respect to the dimensions of part of Bear Creek – there was limited evidence about the Creek’s dimensions elsewhere. Moreover, there was no evidence, for example, of “at least two points of public access”, or “evidence of the public’s ability to legally access and egress the part of the Creek passing over the respondents’ property” (see para. 34).

As such, referring to Canoe Ontario v. Reed (H.C.J.), 1989 CanLII 4237 (ON SC) at p. 502, the Court of Appeal held “The evidence is incapable of supporting a finding that as of the Crown grant, the part of the Creek that travelled along the respondents’ property provided ‘real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access’” (see para. 35).

The Court of Appeal concluded there was insufficient evidence to establish Bear Creek was a navigable stream within the meaning of s. 1 of the Beds of Navigable Waters Act; title to the bed of Bear Creek does not lie with the Crown and so there is no natural severance of the Respondents’ property.

Counsel for the Appellant Municipality of Middlesex Centre: James Virtue (Siskinds, London)

Counsel for the Respondents David MacMillan and Janice McIntosh: Analee Ferreira and Elizabeth Cormier (Patton Cormier Ferreira, London)

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Posted: Wednesday, June 22, 2016