



COURT OF APPEAL FOR ONTARIO

CITATION: Frohlich v. Ferraro, 2017 ONCA 978

DATE: 20171213

DOCKET: C62262

Hourigan and Brown JJ.A. and Himel J. (ad hoc)

BETWEEN

Craig Frohlich

Plaintiff/Defendant in Appeal

and

John Ferraro and Diane Ferraro

Defendants/Appellants in Appeal

G. Edward Oldfield and Christian Ferraro, for the
    appellants

James Bennett and Christopher Clemmer, for the
    respondent

Hear and released orally: December 11, 2017

On appeal from the judgment of Justice Clayton Conlan of
    the Superior Court of Justice, dated May 19, 2016.

REASONS FOR DECISION

[1]

This appeal is about a property dispute between two cottage owners. At
    trial, the court declared that the appellants had entered and trespassed on the
    dry land portion of the respondents water lot. A permanent injunction was
    issued restraining the appellants from entering upon any part of the
    respondents property not covered by water. The appellants counterclaim for an
    easement over that land was dismissed.

[2]

On appeal, the
    appellants raise a number of new arguments in support of their request that a
    judgment be granted declaring that the property boundaries are subject to their
    riparian rights, or, in the alternative, granting an easement, or, in the
    further alternative, declaring a mistrial. They also seek to adduce fresh
    evidence regarding property boundaries.

[3]

In summary, the
    appellants submit that the trial judge erred in failing: to consider the issues
    of riparian rights and accretion, the high water mark, and the intentions of
    the original sub-dividers; to provide sufficient reasons; and, to find on the
    evidence that an easement had been established.

[4]

We do not give effect to
    any of these grounds of appeal.

[5]

The issues of riparian
    rights (either the appellants or the Crowns), accretion, the high water mark
    and the intentions of the original sub-dividers were not argued at trial.
    Indeed, in their written trial submissions, the appellants stated issues of
    riparian rights, erosion and accretion do not applyas they do not have a water
    boundary, in law, to their property. We would not give effect to any of these
    grounds of appeal. The appellants are attempting to fundamentally alter their
    case post-trial. In so doing, they have not offered any credible explanation
    regarding why these issues were not raised at trial. It would be grossly unfair
    to the respondent to force him to respond to an entirely new case on appeal. As
    the proposed fresh evidence is tendered in support of these new arguments, we
    decline to grant leave to admit it.

[6]

With respect to the
    sufficiency of reasons, the appellants make a series of arguments to the effect
    that the reasons raise more questions than provide answers and are therefore
    insufficient. We disagree. For example, t
here was no need for the trial judge to make a finding about
    lot boundaries as the appellants conceded the area of the water lot at trial.
    Similarly, the appellants contention that the trial judge failed to consider
    what use they could make of certain structures is inconsistent with their
    position at trial that there is no effort to seek to build, linger or do
    anything on the plaintiffs land ... except travel for the purpose of accessing
    the water. In short, we are not satisfied that the trial judge failed to
    provide sufficient reasons on any relevant issue.

[7]

On the issue of the
    easement, the appellants primary submission is that the trial judge erred on
    the question of permission because he conflated the issue of the easement
    regarding an island in the water lot with the issue of an easement for access to
    the water. At trial, the appellants did not argue that there were multiple
    easements; they argued that there was one. The trial judge considered that
    argument. The trial judge made findings of fact regarding permission that were
    open to him on the record. He correctly applied the law to the facts he found
    and ruled against the appellants. We see no error in that analysis.

[8]

The appeal is dismissed.
    The appellants shall pay the costs of the appeal to the respondent in the
    all-inclusive sum of $20,000.

C.W. Hourigan J.A.

David Brown J.A.

Himel J.


