



COURT OF APPEAL FOR ONTARIO

CITATION: Mihaylov v. Long Beach Residents' Association, 2018
    ONCA 871 DATE: 20181030

DOCKET: C64906

Rouleau, Watt and Paciocco JJ.A.

BETWEEN

Emil Mihaylov and Sofia
    Mihaylov

Applicants (Appellants)

and

Long Beach Residents Association, Attorney
    General of Canada, and
Her Majesty the Queen in Right of Ontario as Represented by the
Minister of Natural Resources

Respondents (Respondents)

Stephen Jackson, for the appellants

Liz Tinker, for the respondent Attorney General of Canada

Glenn Frelick, for the respondent Her Majesty the Queen
    in Right of Ontario

Ryan ONeill, for the respondent Long Beach Residents
    Association

Heard and released orally: October 25, 2018

On appeal from the order
    of Justice Edward M. Morgan of the Superior Court of Justice dated January 3,
    2018, with reasons reported at 2018 ONSC 14.

REASONS FOR DECISION

[1]

The appellants purchased land near the western shore of Sturgeon Lake in
    2012 and commissioned a survey of their property later that year. According to
    the survey, the easterly limit of the appellants property abuts land owned by
    the respondent, Long Beach Residents Association. The appellants claim that
    the portion of Long Beachs land lying between their property and the shore of
    Sturgeon Lake was originally part of the parcel they purchased and should now
    be conveyed to them. The application judge, they submit, erred in dismissing
    their claim.

[2]

We disagree.

[3]

Central to the appellants submission is that the application judge
    erred in concluding that the lakes shoreline has been moved further east by
    depositing landfill on parts of what is now Long Beachs lot. Specifically, the
    application judge found that Long Beachs property was originally a water lot
    conveyed by the province to the federal government and that fill was deposited thereon
    to construct a wharf. In our view, the application judges factual finding is
    well-grounded in the evidence and we see no basis upon which to interfere.

[4]

We note further that several surveys of the property  including the
    survey commissioned by the appellants  rely on existing survey monuments and indicate
    that the boundary lies where the application judge determined it to be.

[5]

The appellants also argue that the application judge erred in dismissing
    their claim for interference with riparian rights. Assuming without deciding
    that riparian rights attached to the appellants property in 1946  the
    conveyance predating the conveyance of the water lot to the federal government
    and upon which the appellants rely for their claim to riparian rights  any
    such riparian rights would now have been extinguished pursuant to ss. 4 and 15
    of the
Real Property Limitations Act
,
    R.S.O. 1990, c. L.15
. This follows from the application judges
    finding that the property acquired by the appellants could not have abutted the
    lake due to the landfill that has been present on the adjoining lot since at
    least 1999. Any possible claim against the Crown has therefore long been
    extinguished.

[6]

With respect to the costs order in the court below, the respondent Crown
    in Right of Ontario has not sought leave to appeal. As a result, the appeal and
    cross-appeal are dismissed. Costs to the Long Beach Residents Association are fixed
    at $4,629.43 all-inclusive; to the Attorney General of Canada at $9,424.71
    all-inclusive; and to the Crown in Right of Ontario at $6,000 all-inclusive.

Paul Rouleau
    J.A.

David Watt J.A.

David M. Paciocco
    J.A.


