



COURT OF APPEAL FOR ONTARIO

CITATION: Becker v. Walgate, 2020 ONCA 491

DATE: 20200805

DOCKET: C66924

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

Martha Leeanne Becker and Jason
    John Becker

Applicants/Plaintiffs (Respondents)

and

Walter Eddy Walgate

Respondent/Defendant (Appellant)

Izaak de Rijcke and Robert J. Fenn, for
    the appellant

Jeffrey D. Ayotte and Michael W.
    Gunsolus, for the respondents

Heard: In writing, with questions by video
    conference on July 2, 2020

On appeal from the order of Justice J.
    Christopher Corkery of the Superior Court of Justice, dated April 11, 2019,
    with reasons reported at 2020 ONSC 2342, 6 R.P.R. (6th) 100, and the costs
    order dated August 30, 2019

Rouleau and Hoy JJ.A.:

I. OVERVIEW

[1]

This appeal arises out of a dispute between
    neighbours at Jack Lake over where the lot line between their properties ends.

[2]

Jack Lake is a reservoir lake within the
    Trent-Severn Waterway. The lot line between the two properties  the most
    westerly parcel of Lot 41 and the most easterly parcel of Lot 42  skews the
    waters edge and strikes the lake at an oblique angle. What water level is to
    be used in determining the termination point of the lot line?

[3]

Does the lot line between Lots 41 and 42 end where
    it intersects with the High Water Mark shown in Registered Plan 33 which
    created the lots in 1958 and which the trial judge found was the waters edge
    of Jack Lake at the Normal Controlled High Water Level, a contour elevation of
    106.33 feet (assumed datum)?

[4]

Or, as the appellant contends, must the determination
    of the terminus of the lot line begin with reference to the waters edge at the
    time of the 1902 Crown patent of lands of which the disputed lands were a part?

[5]

According to the trial judge, approximately 100
    feet of valuable water frontage is at issue.

[6]

We agree with the appellant that the trial
    judges conclusion that the lot line ends at the Normal Controlled High Water
    Level is tainted by reversible error and that the determination of the terminus
    of the lot line must begin with reference to the waters edge of Jack Lake at
    the time of the Crown Patent.

[7]

As we will explain, we return this matter to the
    trial court for determination.

II
    BACKGROUND

[8]

As we return this matter to the trial court, we
    will provide only a brief outline of relevant facts not in dispute.

[9]

Prior to 1902, a lumbermans dam existed on Jack
    Lake.

[10]

The chain of title to Lots 41 and 42 begins with
    a patent from the Crown, dated April 2, 1902.

[11]

By way of the Crown patent, the Crown
    transferred a 152-acre parcel of Crown Land of which Lots 41 and 42 are part to
    Frances L. Robbins. The Crown patent describes the patented lands as shown on
    a Plan of Survey by Ontario Land Surveyor Alfred J. Cameron (the Cameron
    Survey). On the Cameron Survey, Mr. Cameron certifies that it is correct on
    September 23, 1901. There is no reference to or distinction made between high
    water or low water marks on the Cameron Survey.

[12]

The Crown Patent contained the following
    reservation:

saving, excepting and reserving nevertheless,
    unto Us, Our Heirs and Successors the free use, passage and enjoyment of, in,
    over, and upon all navigable waters which shall or may hereafter be found on or
    under or be flowing through or upon any part of the said Parcel or Tract of
    Land hereby granted as aforesaid, reserving also right of access to the shores
    of all rivers, streams and lakes for all vessels, boats and persons, together
    with the right to use so much of the banks thereof, not exceeding one chain in
    depth from the waters edge, as may be necessary for fishery purposes.

[13]

The federal government decided to use Jack Lake
    for water storage and, in 1910, it replaced the lumbermans dam with what is
    referred to in the trial judges reasons as the Dominion Dam.

[14]

In 1932, the Crown settled a claim by the
    successor in title of the patentee, paying her $400 to release the Crown from
    liability for damages caused by the Dominion Dam flooding the land. The release
    describes the lumbermans dam as having held the water at a certain level
    during the Spring of the year, admitted of the said lake being later drained to
    its natural level. It also notes that the Dominion Dam has a crest that is
    210 higher than the lumbermans dam.

[15]

In 1958, the Jack Lake Land Company (JLL)
    subdivided the land by Registered Plan 33, resulting in the creation of Lots 41
    and 42. Registered Plan 33 was surveyed by W.A. Beninger between March 8, 1957
    and May 30, 1958 (the Beninger Survey). His survey shows the line between
    Lots 41 and 42 extending to a heavy curved line marking the limit of Jack Lake
    which the Plan Legend indicates is the High Water Mark. Mr. Beninger tried to
    retrace the Cameron Survey, but his field notes indicate that the Cameron Survey
    was poorly done, as it appeared that Mr. Cameron had only completed a rough
    shore traverse.

[16]

On September 11, 1974, JLL transferred the
    appellants property to Viceroy Construction Company Limited pursuant to the
    legal description in Plan 33. The parties agreed statement of facts indicates,
    and the trial judge found, that after this transaction, JLL ceased to operate.

[17]

In turn, the appellant and the respondents purchased
    their properties pursuant to the legal description in Plan 33. The appellant
    owns the most westerly parcel of Lot 41, and the respondents own the most
    easterly parcel of Lot 42.

[18]

Since the registration of Plan 33, other
    surveyors have completed plans and surveys of lands within Plan 33, but the
    line between Lots 41 and 42 remains the boundary between the parties
    properties. A further subdivision of Lot 41 on May 1, 1978 and a building
    location survey of Lot 41 by Thos. E. Lyons, dated February 22, 1989, also
    described the water boundary as the High Water Mark.

[19]

Plans of subdivisions of Lot 42 in 1987, 1991
    and 2002 described the water boundary as Normal Controlled High Water Level
    Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Regd Plan No 33. The
    1987 and 1991 plans also include the notation The Original High Water Mark of
    Jack Lake cannot be determined with any certainty therefore a portion of Lot 27
    Concession 9 may lie in front of Parts 1 and 3.

III THE
    TRIAL JUDGES REASONS

The expert evidence

[20]

Each party called a surveyor as an expert
    witness. Both were qualified by the trial judge to provide opinions as to where
    the terminus of the lot line between Lots 41 and 42 lies and how that end point
    is determined. The respondents expert was Shawn OConnor. The appellants
    expert was Paul Miller.

[21]

The trial judge reviewed their evidence. He
    preferred the evidence of Mr. OConnor over that of Mr. Miller, and, where Mr.
    Millers evidence was inconsistent with that of Mr. OConnor, he accepted Mr.
    OConnors evidence. In particular, he accepted Mr. OConnors evidence that
    the Normal Controlled High Water Level (NCHWL) of Jack Lake had not changed
    since Plan 33 was surveyed.

[22]

In Mr. OConnors opinion, on a controlled body
    of water the meaning of high water mark is clear: it is the NCHWL. Further,
    during the navigational season on the Trent-Severn Waterway, from the long
    weekend in May through to the Thanksgiving weekend in October, Parks Canada
    maintains the lake at the NCHWL, 106.33 feet (a.d.).
[1]
During the remainder of the
    year, Parks Canada maintains the lake at the normal controlled low water level,
    approximately three feet lower.

[23]

Mr. OConnor believed that Mr. Beningers survey
    was completed in the winter of 1957-1958, that Mr. Beninger determined the High
    Water Mark based on a shore traverse at that time, and, accordingly, that what
    he marked as the High Water Mark on his survey was in fact the normal
    controlled low water level.

[24]

In contrast with Mr. Millers opinion, Mr.
    OConnor opined that the Cameron Survey and the Beninger Survey both clearly
    show that water was being held back. Both show an island and a bay that would
    not have existed if water had not been held at similar levels. While in Mr.
    OConnors view the water level in both surveys is similar, he stated that it
    was impossible to determine with any precision the level of Jack Lake in 1902,
    when the land was patented.

[25]

Based on the cross-sectional area of water
    flowing through the dam, Mr. Miller estimated the elevation of the original water
    level of Jack Lake to be 909.1
[2]
feet or 100.3 feet (a.d.), plus or minus 0.3 feet. However, the trial judge
    expressly rejected his opinion because Mr. Miller did not explain how he used
    the cross-sectional area of water flowing through the dam to arrive at his
    opinion and, absent any explanation, it was impossible to assess the validity
    of his opinion or determine if it fell within his area of expertise, namely
    surveying.

The trial judges analysis

[26]

The trial judge described his task as
    determining what water level is to be used to determine the termination point
    of the line between Lots 41 and 42 where it strikes the lake.

[27]

The trial judge properly began with this courts
    decision in
Gibbs v. Grand Bend (Village)
(1995), 129 D.L.R. (4th) 449
(Ont. C.A.), at p. 461, where
    Finlayson J.A. reviewed the legal principles governing the use of extrinsic
    evidence in interpreting a grant of land.

[28]

In brief, if the terms of a conveyance are
    clearly defined, extrinsic evidence is not admissible to contradict the conveyance
    or transfer. Extrinsic evidence may be introduced in the case of latent
    ambiguity for the purpose of ascertaining the intention of the grantor. A
    latent ambiguity is one that arises only when the deed is applied to the land
    it purports to describe.

[29]

The trial judge noted that the use of the term
    high water mark by surveyors in Ontario to define a natural boundary has a
    long and confusing history:

Although the common law had recognized the
    boundary between land and non-tidal waters as the waters edge, throughout the
    early part of the last century, provincial Crown policy was that the Crown
    owned the beds of navigable waters to the high water mark, including any dry
    land between the variable waters edge to the high water mark. This policy was
    enacted in statute in 1940 by amendment to the
Bed of Navigable Waters Act
,
    S.O. 1911, c. 6.[1], which also provided a statutory definition of high water
    mark.

Although the amendment was repealed in 1951,
    restoring the common law, the Crown maintained its policy asserting ownership
    to the high water mark. It was not until 1970 that this policy was rejected and
    the common law was confirmed by Stark J. in
Ontario (Attorney General) v.
    Walker
, [1971] 1 O.R. 151 (H.C.J.), affirmed [1972] O.R. 558 (Ont. C.A.),
    affirmed [1975] 1 S.C.R. 78 (S.C.C.).

[30]

He quoted from p. 181 of
Walker v. Ontario
    (Attorney General),
[1971] 1 O.R. 151
    (H.C.J.), affd [1972] 2 O.R. 558 (C.A.), affd [1975] 1 S.C.R. 78
:

[A]ny Crown patent which indicates that one of
    the boundaries of the lands granted is to be a boundary of water, then it
    establishes that boundary as at the waters edge and not upon any bank or high
    water mark unless, of course, the grant clearly reserves by description or
    otherwise a space between the lands granted and the water boundary or unless
    the boundaries of the lot can be so clearly delineated by reference to an
    original plan of survey as to clearly except or reserve to the Crown a space
    between the lands granted and the waters edge.

[31]

He further noted that in
Tiny (Township) v.
    Battaglia
, 2013 ONCA 274, 305 O.A.C. 372, this court held that
Walker
is not limited to Crown grants and surveys, but applies to any conveyance.

[32]

However, the trial judge found that
Walker
does not apply to controlled bodies of water:

Walker
was
    not considering controlled bodies of water but inland non-tidal waters where
    the distinction of high and low water marks
will not hold
. On a
    controlled body of water, the distinction
does hold
. There are
    regulated high and low water levels: maximum, minimum, normal high and normal
    low levels.

On controlled bodies of water, in my view,
    High Water Mark presumptively refers to the line where the land meets the
    water at the normal controlled high water level, absent clear evidence that a
    water level lower than the NCHWL was intended to be conveyed.

[33]

He then concluded that Plan 33 is not ambiguous:
    the line between Lots 41 and 42 terminates where it intersects with the High
    Water Mark, which is the waters edge of Jack Lake at the NCHWL, 106.33 feet
    (a.d.). He stated that it was open to JLL to choose this boundary.

[34]

According to the trial judge, the fact that Mr.
    Beninger erroneously illustrated the location of the High Water Mark line on
    the plan does not compromise his unambiguous adoption of a natural boundary.
    The line on the plan is only representative of this clear natural boundary.

[35]

Further, he stated that if there were a latent
    ambiguity, his conclusion would not have changed:

Nothing in the extrinsic evidence available to
    me is inconsistent with my conclusion. The JLL Company intended to create
    waterfront lots. They provided for the construction of boathouses with boat
    slips. There was no admissible evidence permitting the court to determine that
    they conveyed all or retained some of their land.

[36]

Finally, he concluded that if the lot line
    terminated beyond its intersection with Jack Lake at the NCHWL, the respondents
    (who were the applicants below) have a riparian right of access along the line
    beyond the intersection point with the NCHWL.

IV THE
    ISSUES ON APPEAL

[37]

We would frame the issues that must be addressed
    on this appeal as follows:

1.

Did the trial judge err in concluding that it is
    unambiguous that the term High Water Mark in Plan 33 means the NCHWL? If so,
    does the term High Water Mark in Plan 33 create a latent ambiguity?

2.

If the term High Water Mark in Plan 33 creates
    a latent ambiguity, does the trial judges finding that the intent of JLL was
    to set the NCHWL as the water boundary constitute a reviewable error?

3.

If the trial judge erred in finding that the
    intent of JLL was to set the NCHWL as the water boundary, what is the boundary
    of Lots 41 and 42, and thus, the terminus of the lot line between them?

4.

What is the consequence of the trial judges
    alternative finding that the respondents have a riparian right of access along
    the lot line, beyond the intersection point with the NCHWL?

V
    ANALYSIS

1. Did the trial
    judge err in concluding that it is unambiguous that the term High Water Mark
    in Plan 33 means the NCHWL?

[38]

Respectfully, in our view the trial judges
    conclusion that the term High Water Mark in Plan 33 is unambiguous and means
    the NCHWL, which is 106.33 feet (a.d.), is clearly wrong.

[39]

Plan 33 does not define what is meant by High Water
    Mark. It does not use the term Normal Controlled High Water Level or refer
    to 106.33 feet (a.d.). The trial judges conclusion that High Water Mark in
    Plan 33 means the NCHWL, which is 106.33 feet (a.d.), necessarily relied on
    extrinsic evidence, presumably the evidence of Mr. OConnor and the plans of
    subdivision prepared decades after Plan 33 which describe the water boundary
    for Lot 42 as the Normal Controlled High Water Level Contour of Elevation 106.33
    (feet) Also Limit of Lot 42 Regd Plan No 33.

[40]

The trial judges conclusion that the term High
    Water Mark in Plan 33 is unambiguous seems rooted in his view that
Walker
has no application to controlled inland bodies of water. However, his reasons
    for coming to that conclusion are unclear. In any event, it is unnecessary for
    us to determine whether
Walker
applies to controlled inland bodies of
    water.

[41]

Even if
Walker
does not apply to
    controlled, inland bodies of water, the reference to High Water Mark in Plan
    33 still creates a latent ambiguity. The trial judge acknowledged that Mr.
    Beninger erroneously illustrated the location of the High Water Mark. Even Mr.
    OConnor acknowledged that there seems to be some ambiguity, resulting from
    the Beninger Survey. When the Beninger Survey is applied to the land it
    purports to describe, the lake-ward boundary is ambiguous. It is not clear that
    High Water Mark means the NCHWL, as opposed to, for example, the maximum water
    level, or the water level depicted by the line on the Beninger Survey. Nor is
    it clear, in the absence of extrinsic evidence, that the NCHWL was 106.33 feet
    (a.d.) at the time of the Beninger Survey. Extrinsic evidence is necessary to
    resolve this ambiguity by ascertaining the intention of the grantor.

2. If there is a
    latent ambiguity, does the trial judges finding that the intent of JLL was to
    set the NCHWL as the water boundary constitute a reviewable error?

[42]

Again, respectfully, the trial judges
    conclusion that JLL intended to set the NCHWL as the water boundary in Plan 33
    cannot stand.

[43]

The trial judge said this at paras. 72 and 74 of
    his reasons:

The line between Lots 41 and 42 terminates
    where it intersects the High Water Mark which is the waters edge of Jack
    Lake at the NCHWL, 106.33 feet (a.d.). It was open to the JLL Company to choose
    this boundary.



Nothing in the extrinsic evidence available to
    me is inconsistent with my conclusion. The JLL Company intended to create
    waterfront lots. They provided for the construction of boathouses with boat
    slips. There was no admissible evidence permitting the court to determine that
    they conveyed all or retained some of their land.

[44]

Essentially, the trial judge says that because
    he could not determine the water boundary of JLLs land, he does not know
    whether JLL retained any land following its transfer. And, since he did not
    make that determination, there is nothing inconsistent with his conclusion that
    JLL intended to select the NCHWL as the water boundary in Plan 33. In effect,
    JLL might have conveyed all that it owned and, in any event, it conveyed
    sufficient title to permit the owners to construct the boathouses and slips
    referred to in the transfer documents.

[45]

However, on this record, the only reasonable
    inference is that JLL intended to transfer the full extent of the title that it
    had, whatever that title might be. The parties agreed statement of facts
    indicated, and the trial judge found, that JLL ceased operations after it
    transferred the property in 1974. It would not have made commercial sense for
    JLL to retain any land included in the Crown patent that was below the NCHWL  what
    the parties refer to as drowned land.

[46]

This was the conclusion reached in
Lackner
    v. Hall
, 2012 ONSC 3951, 23 R.P.R. (5th) 243, revd on costs 2013 ONCA
    631, 36 R.P.R. (5th) 165;
Michnick v. Bass Road Beach Assn.
,
2015
    ONSC 1936, 55 R.P.R. (5th) 63; and
Municipality Northern Bruce Peninsula v.
    Rauchfleisz
,
2019 ONSC 5460, 8 R.P.R. (6th) 82. In those cases, the
    court found that the owners intended to transfer all the property they owned.

[47]

This intention is even captured in the agreed statement
    of facts. Both parties agreed that Beninger attempted to retrace the Cameron Survey.
    In other words, Plan 33 was intended to include all the land originally
    patented to Francis L. Robbins.
[3]

[48]

As in
Lackner
,
Michnick
, and
Municipality
    Northern Bruce Peninsula
,
the use of the term High Water Mark in
    Plan 33 must be considered in historical context. As the trial judge noted, the
    use of the term high water mark by surveyors in Ontario to define a natural
    boundary has a long and confusing history, finally resolved by
Walker
.

[49]

The trial judges statement that there was no
    admissible evidence permitting the court to determine whether JLL conveyed all
    or retained some of their land is incorrect. There was evidence based on which
    the trial judge could have made this determination, on a balance of probabilities,
    namely, the evidence described above.

3. What is the
    boundary of Lots 41 and 42, and thus, the terminus of the lot line between
    them?

[50]

There is no dispute that in the Crown patent the
    Crown did not except or reserve a space between the lands granted and the
    waters edge. Thus, given the intention of JLL to convey all the land that it
    owned, to determine the terminus of the lot line between Lots 41 and 42, the
    trial judge was required to begin by determining the boundary of what JLL
    owned: the waters edge of Jack Lake at the time of the Crown patent.
[4]
While this was undoubtedly a
    difficult task, and perhaps impossible to determine with certainty, the trial
    judge was required to make a finding on a balance of probabilities based on the
    evidence before him.

[51]

Although the trial judge made several findings
    of fact based on the release signed in 1932 and the other evidence, he did not
    determine what the waters edge of Jack Lake was at the time of the Crown
    grant. The findings he did make include:

·

from some unknown date before the Cameron Survey
    in 1901 until the construction of the Dominion Dam in 1910, the lumbermans dam
    held the water of Jack Lake at a certain level during the Spring and then
    drained it to its natural level;

·

the release signed in 1932 addressed additional
    flooding caused by the Dominion Dam, above that of the lumbermans dam;

·

the release does not state the elevation of the
    crest of either dam;

·

the Dominion Dam can hold Jack Lake to a level
    of 108.5 feet (a.d.);

·

the crest of the lumbermans dam was lower than
    108.5 feet (a.d.) or there would have been no additional flooding from the
    Dominion Dam;

·

the crest of the Dominion Dam is 2 feet 10
    inches higher than the lumbermans dam. Since the Dominion Dam is capable of
    holding Jack Lake to a level of 108.5 feet (a.d.), the crest of the lumbermans
    dam was at least 105.66 feet (a.d.), which is 108.5 less 2 feet 10 inches or
    2.83 feet;

·

the crest of the lumbermans dam was greater
    than or equal to 105.66 and less than 108.5 feet (a.d.); and

·

the waters edge in the Cameron Survey could be
    at any level between 100.00 and 108.5 feet (a.d.).

[52]

The trial judge also concluded that it was
possible
that the lumbermans dam could have held Jack
    Lake in the springtime to the same level as the NCHWL of the new Dominion Dam,
    106.33 feet (a.d.). (The trial judge presumably refers to the springtime level
    because, while the Cameron Survey was certified to be correct as of September
    23, 1901, the Crown patent was granted on April 2, 1902.)

[53]

Further, he found that although Mr. Beninger
    erroneously illustrated the High Water Mark on the Beninger Survey and was
    unable to retrace the Cameron Survey, it was
possible
that Mr. Beninger used the same water boundary as Mr. Cameron.

[54]

However, as we have said, the trial judge made
    no finding about the waters edge of Jack Lake at the time of the Crown patent.
    The finding that it was
possible
that the lumbermans
    dam could have held Jack Lake in the springtime to the same level as the NCHWL
    of the new Dominion Dam, 106.33 feet (a.d.) is not a finding that the water
    level of Jack Lake at the time of the Crown patent was
probably
the NCHWL.

[55]

In our view, this issue should be returned to
    the trial court for determination.

[56]

We will address a further issue which we
    conclude should also be returned to the trial court for determination.

[57]

In their factum, the appellant addresses a
    further issue: did accretion or erosion after the Crown patent alter the legal
    boundary? This issue was not adverted to in the trial judges reasons and it is
    unclear whether it was a live issue at trial or whether the trial judge did not
    address it because of the manner in which he resolved the first issue.

[58]

The appellant submits that, at common law,
    accretion and erosion so slow and gradual as to be in a practical sense
    imperceptible in its course and progress as it occurs alter a water boundary:
Attorney
    General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd
, [1915]
    AC 599, at p. 613;
Van Diepen v. Thomson
, 2011 ONSC 2020, 4 R.P.R.
    (5th) 204, at paras. 151-153.

[59]

In contrast, a sudden and artificial change in
    water elevation leaves the boundary as it was:
Attorney General of British
    Columbia v. Neilson
, [1956] S.C.R. 819 at p. 826;
McLeay et al. v.
    City of Kelowna et al.
, 2004 BCSC 325, 19 R.P.R. (4th) 206, at paras. 20-21.

[60]

We understand the appellant to argue either that
    the boundary of the Crown patent was fixed at the outset because the
    lumbermans dam had suddenly and artificially altered the water level, or that
    the construction of the Dominion Dam suddenly and artificially raised the water
    level and fixed the boundary. In either case, accretion or erosion did not
    alter the boundary.

[61]

The respondents do not appear to take issue with
    the legal principles cited by the appellant, though they dispute that there was
    sufficient evidence to demonstrate that the building of the Dominion Dam
    resulted in a sudden increase in water level sufficient to fix the legal
    boundary, and they note that erosion can result from artificial causes. They
    argue that there is evidence of significant erosion along the disputed segment
    between 1958 and 1987 and that this was sufficient to move the legal boundary. Again,
    it is unclear whether the respondents advanced this position at trial.

[62]

The trial judges findings of fact include that the
    Dominion Dam caused additional flooding above that of the lumbermans dam. However,
    he did not determine whether the flooding caused by the lumbermans dam or the
    Dominion Dam was such as to fix the legal boundary at the waters edge of Jack Lake
    at the time of the Crown patent.

[63]

Similarly, the trial judges reasons do not
    advert to the issue of the impact of erosion or accretion on the terminus of
    the lot line between Lots 41 and 42, and he made no findings on this issue.

[64]

Thus, we conclude that the effect of erosion or
    accretion on the water boundary since the time of the Crown patent, if any, should
    also be returned to the trial court. The determination of the waters edge of
    Jack Lake, at the time of Crown patent, and the effects of erosion or accretion
    on that boundary, if any, will determine the terminus of the lot line between
    Lots 41 and 42.

4. What is the
    consequence of the trial judges alternative finding that the respondents have
    a riparian right of access along the lot line, beyond the intersection point
    with the NCHWL?

[65]

Returning this matter to the trial court cannot
    be avoided by relying on the trial judges alternative finding that the
    respondents have a riparian right of access along the lot line.

[66]

At para. 75 of his reasons, the trial judge said
    this:

Finally, had I been persuaded that the
    disputed line terminates somewhere beyond its intersection with Jack Lake at
    the NCHWL, I would have nevertheless found that the applicants have a riparian
    right of access along the line beyond the intersection point with the NCHWL.

[67]

It is unclear whether the respondents asserted
    below that they had a riparian right of access that permitted them to build and
    maintain a dock on the disputed lands. It is undisputed that the respondents
    already have access to Jack Lake. Indeed, counsel for the respondents advised
    that the respondents have a lakeside dock at another point on their waterfront
    and that the dispute between the parties was triggered when they wished to
    construct a second dock on the disputed lands. The trial judge gave no reasons
    for his conclusion, nor did he explain what the riparian right of access he
    provided for was to consist of.

[68]

The trial judges conclusion that the
    respondents have a riparian right of access along the line beyond the
    intersection point with the NCHWL cannot stand.

VI
    DISPOSITION

[69]

The appeal is allowed. The trial judges order,
    dated April 11, 2019, is set aside. The issue outlined at paragraph 64 above,
    which will determine the terminus of the line between Lots 41 and 42, as well
    as any issue of riparian rights that may arise are returned to the trial court.

[70]

The appellant is entitled to his costs of the
    appeal. If the parties are unable to agree on the costs of the appeal, they may
    make written costs submissions within 21 days following the release of these
    reasons, not to exceed three pages.

[71]

The trial judges order as to costs, dated
    August 30, 2019, is also set aside. The issue of costs before the trial judge
    is reserved to the trial court, to be determined after determination of the terminus
    of the line between Lots 41 and 42 and any issue of riparian rights that may
    arise.

Released:
PR
AUG 5 2020

Paul Rouleau J.A.

Alexandra
    Hoy J.A.

I
    agree C.W. Hourigan J.A.





[1]

Mr. OConnor used an assumed datum (a.d.) of 100 feet
    for the sill of the east dam of the Dominion Dam, as a starting point for the
    other elevations he referred to in his report and testimony.



[2]

Mr. Millers elevation measurements referenced to the
    CGVD28 datum, a datum which closely approximates the mean sea level to be
    zero.



[3]
Indeed, in his report, Mr. OConnor referred to a letter from Mr.
    Beninger, written in 1981, in which Mr. Beninger opined that [i]n my opinion
    Regd Plan 33 includes all land originally patented to the Robbins and no
    private land remains outside of Regd Plan 33.



[4]
The waters edge of Jack Lake at the time of the Crown patent does
    not necessarily mean the waters edge on the day of the Crown patent in April,
    when the water level may have been unusually high. In
Principles of Boundary
    Law in Canada
(Guelph: Four Point Learning, 2016), Izaak de Rijcke states
    that [i]n Ontario, the feature, which marks a water boundary, has been generally
    accepted as the waters edge in its normal, calm condition: at p. 340
    (emphasis added). Similarly, the
Canadian Encyclopedic Digest
says that
    [w]hen applied to navigable, non-tidal bodies of water, the terms bank, line
    of the bank, shore, line of the shore, margin of the water and waters
    edge are synonymous as lines of demarcation. So also to the bank of the lake,
    to the lake and to the shore mean
to the edge of the
    water in its natural condition at low water
 (emphasis added): CED 4th (online),
Boundaries and Surveys
, (I.3.(c)) at § 51.


