



COURT OF APPEAL FOR ONTARIO

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

DATE: 20160616

DOCKET: C60543

Doherty, Epstein and Huscroft JJ.A.

BETWEEN

Municipality of Middlesex Centre

Applicant (Appellant)

and

David Ronald MacMillan, Janice Lynn McIntosh and
    Her Majesty the Queen in Right of Ontario

Respondents (Respondents in Appeal)

James D. Virtue, for the appellant

Analee J.M. Ferreira and E.
    Cormier, for the respondents David MacMillan and Janice McIntosh

No one appearing for the
    respondent Her Majesty the Queen in Right of Ontario

Heard:  February 4, 2016

On appeal from the order of Justice A. Mitchell of the Superior
    Court of Justice, dated May 8, 2015, with reasons reported at 2015 ONSC 2988.

Doherty J.A.:


I



[1]

David Ronald MacMillan and Janice Lynn McIntosh (the respondents) own
    and live on a 10-acre lot near London, Ontario.  They decided to construct a
    second house on the property and sell that house.  However, the applicable
    zoning laws allowed only one house per lot.  The respondents could build the
    second house only if they could divide their 10-acre lot into two lots.  An attempt
    by a previous owner to obtain a severance under the
Planning Act
,
    R.S.O. 1990, c. P.13, had failed.

[2]

As luck would have it, Bear Creek (the Creek)
[1]
runs through the middle of the respondents property.  If the Creek is a navigable
    body of water or stream within the meaning of s. 1 of the
Beds of
    Navigable Waters Act
, R.S.O. 1990, c. B.4 (the Act), the land forming
    the bed of the Creek is Crown land, creating a natural severance of the parts
    of the respondents lot on each side of the Creek.  What was one 10-acre lot
    would become two lots of about five acres each.

[3]

The respondents retained a land surveyor who offered the opinion that the
    Creek was a navigable stream.  Acting on that opinion, the respondents
    registered a reference plan prepared by the surveyor on title to their property
    showing the creek bed as Crown land and dividing their property into Part 1
    north of the Creek and Part 2 south of the Creek.  The respondents conveyed
    Part 2 to Mr. MacMillan alone.  He applied for a permit to build a home on Part
    2.

[4]

The Municipality of Middlesex Centre (the appellant) did not agree that
    the Creek was a navigable stream.  It brought an application seeking a
    declaration that the Creek was not a navigable stream and a further declaration
    that the purported conveyance of Part 2 to Mr. MacMillan was void as contrary
    to the
Planning Act
.  The Province was named as a respondent in the
    application.  It supported the position taken by the appellant.  The
    application judge dismissed the application holding that the Creek was a
    navigable stream, making the bed of the Creek Crown land and creating a natural
    severance of the respondents property into two lots, one to the north of the
    Creek and one to the south.

[5]

The appellant appeals from the order dismissing the application.  It
    claims that the application judge misapprehended relevant evidence and
    considered irrelevant evidence in concluding that the Creek was a navigable stream. 
    The appellant submits that the errors were sufficiently material to the outcome
    to overcome the deference owed by this court to the application judges fact
    finding.  The respondents resist the appeal arguing first that the application
    judge carefully reviewed the relevant case law and, second, that her findings
    were reasonably open to her on the totality of the material filed on the
    application.  The Province did not participate in the appeal.


II



[6]

The respondents property is part of Lot 32 located at the north end of
    Concession 10 in London Township (now the Municipality of Middlesex Centre). 
    The property extends to the north to Ilderton Road, the dividing line between
    Concessions 10 and 11 in London Township and to the west to Vanneck Road, the
    dividing line between London Township and Lobo Township.

[7]

The Creek flows in a generally southwesterly direction across the
    respondents property, under Vanneck Road and into Lobo Township.  Eventually,
    the Creek flows into the Sydenham River which in turn flows into Lake St. Clair
    about 100 kilometres to the southwest of the respondents property.


III



[8]

Before addressing the question of navigability, I will briefly refer to
    two other issues that were raised on the application, but have now fallen by
    the wayside.  The first issue arises out of the Provinces argument on the
    application that the respondents were abusing the Act by using it to
    circumvent the
Planning Act
.  There
    can be no doubt that the respondents were attempting to use the Act, and in
    particular s. 1, to avoid the limits on severance imposed by the
Planning
    Act
.  It is equally clear that the Act was never intended as an
    alternative means to achieve severance.

[9]

The application judge held, at para. 49, that the respondents motive
    for advancing its claim was irrelevant to her determination of whether the
    Creek was a navigable stream.  I agree.  Navigability is essentially a factual
    question based upon an assessment of the capabilities of the waterway at the
    time of the Crown grant.  The answer to that question cannot turn on the motive
    of the party advancing or resisting the navigability claim over 100 years after
    the Crown grant.  The Creek is or is not a navigable waterway.  If s. 1 of the
    Act is having an unforeseen and unacceptable impact on effective land
    management in the Province, the Legislature can amend the Act.  I observe that
    this is hardly the first case in which s. 1 has been relied on to achieve
    severance of a lot:  see e.g.
Coleman v. Ontario (Attorney General)
(1983), 143 D.L.R. (3d) 608 (Ont. H.C.), at p. 611;
ODonnell v. Ontario
    (Attorney General)
, 2013 ONSC 590, at para. 3.  To date, there has been no
    legislative reaction.

[10]

The Province and not the appellant advanced the argument before the
    application judge that non-compliance with the
Planning Act
or other planning
    laws should somehow influence the determination of whether the Creek was
    navigable.  The appellant has not supported that position on appeal and the Province
    has not participated in the appeal.

[11]

The second issue that occupied some time on the application but has now
    disappeared is a factual one.  The appellant led evidence on the application in
    support of the contention that the course of the Creek as it presently runs
    through the respondents property is very different from that which had existed
    at the time of the original Crown grant in 1831.  This was important because
    navigability is determined as at the time of the original Crown grant.  The
    respondents took the position that any deviation in the watercourse was minor
    and of no significance.

[12]

The evidence on this issue is not easy to follow.  Most of the evidence
    focusses on the part of the Creek that passes from the respondents property
    under Vanneck Road into Lobo Township and the work done in 1969 to deepen the
    Creek for drainage purposes.  By the end of the application, the appellant had
    conceded that the Creek as it traverses the respondents property follows the
    same waterway that existed at the time of the initial Crown grant (see reasons,
    at paras. 17, 44-45).  The appeal has proceeded on the same basis.


IV



navigability

[13]

Under the common law of England, title to the bed of a navigable stream
    depended on whether the stream was tidal or non-tidal.  If the former, the
    Crown retained title of the bed.  If the latter, the landowner on either side
    held title to the mid-point of the stream:  see
The Keewatin Power Company
    v. The Town of Kenora
(1908), 16 O.L.R. 184, at pp. 188-89 (C.A.).  However,
    in Ontario, unlike England, a public right of navigation did not depend on ownership
    of the bed of the body of water in question.  The public right of navigation in
    Ontario extended to all navigable waters.  As Professor LaForest puts it, the
    rule is that if the waters are
de facto
navigable, the public right of
    navigation exists there, whether the waters are tidal or non-tidal.:  see G.V.
    LaForest,
Water Law in Canada: the Atlantic Provinces
,
(Ottawa: Information Council, 1973) at
    pp. 178-80;
The Tadenac Club Ltd. v. Hebner et al.
, [1957] O.R. 272,
    at pp. 274-75 (H.C.).

[14]

In 1911, the Ontario Legislature abandoned the common law distinction
    between tidal and non-tidal navigable waters for the purposes of determining
    title to the bed of waters.  Section 2 of the
The
Bed of Navigable Waters
    Act
, S.O. 1911
, c. 6
    provided that subject to an express grant by the Crown, title to the bed of any
    navigable water did not pass with the Crown grant and remained with the Crown. 
    Subject to specified exceptions, the Act applied retroactively to Crown grants
    that preceded its enactment.

[15]

The present equivalent of s. 2 of the 1911 Act is s. 1:

Where land that borders on a navigable body of water or stream,
    or on which the whole or part of a navigable body of water or stream is
    situate, or through which a navigable body of water or stream flows, has been
    or is granted by the Crown, it shall be deemed, in the absence of an express
    grant of it, that the bed of such body of water was not intended to pass and
    did not pass to the grantee.

[16]

The parties agree that the original Crown grant of the respondents property
    in 1831 did not contain an express grant of title to the Creek bed and that no
    express grant has been made since then.  The parties also accept that s. 1 of
    the Act applies retroactively to the Crown grant of 1831 and that the
    navigability of the Creek must be determined as of that date:  see
Coleman
,
    at p. 612.  If the Creek was a navigable stream in 1831, title to the Creek bed
    resides in the Crown.  If the Crown has title to the Creek bed, the Creek bed
    severs the respondents lot into two lots, one north and one south of the
    Creek.

[17]

A stream is navigable if there is a right of navigability along that
    stream.  The right of navigability is a right of reasonable passage for public
    purposes along a waterway.  The right is akin to the public right of passage on
    a highway:
Coleman
, at p. 613;
Canoe Ontario v. Reed
(1989),
    69 O.R. (2d) 494 (H.C.), at p. 502.  The right of navigability entitles the
    public to use the waterway as a means of transportation.  The right does not
    extend to use for purely private purposes, or to other uses such as fishing and
    irrigation:  see LaForest,
Water Law in Canada
, at pp. 178-82;
Coleman
,
    at p. 614.

[18]

The right of navigability can only exist if the waterway is physically
    capable of being traversed by a boat of some sort.
[2]
However, what Henry J. in
Coleman
, at p. 613, referred to as
    navigable in fact, does not, standing alone, establish a right of
    navigability.  Navigability cannot be measured only by regard to the depth and
    width of the waterway.  In addition to being physically capable of use for
    transportation by boat, the waterway must also be capable for use as
    transportation in relation to a public purpose such as commerce, agriculture,
    or recreation:  LaForest,
Water Law in Canada
, at p. 180;
Coleman
,
    at pp. 614, 616-17.

[19]

The requirement that a waterway be capable of practical public use is a reflection
    of the public nature of the right of navigability.  In my view, the meaning of
    the word navigable in s. 1 of the
Act
must be informed by, and be
    consistent with, the nature of the right of navigability.  As explained in
Canoe
    Ontario
, at p. 502:

In essence, the test for navigability developed in Canada is
    one of public utility.
If a waterway has 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, the waterway is
    considered navigable.




Navigability should depend on public
    utility.
If the waterway serves, or is capable of serving, a legitimate
    public interest in that it is, or can be, regularly and profitably used by the
    public for some socially beneficial activity, then, assuming the waterway runs
    from one point of public access to another point of public access, it must be
    regarded as navigable and within the public domain.  [Emphasis added. Citations
    omitted.]

[20]

Because the right of navigability is a public right that exists independent
    of any prior grant of the right and of the actual exercise of the right,
    navigability is determined by the waterways realistic potential to meet the
    criteria of navigability.  The actual exercise of the right of navigability
    through public use of the waterway is not a prerequisite to the existence of the
    right, or a finding of navigability under the
Act
.  If the waterway is capable of serving a
    legitimate public interest, it may be navigable:
Canoe
    Ontario
, at p. 503.

[21]

Although actual public use is not a prerequisite to a finding of
    navigability, the absence of any evidence that the waterway was used for any
    practical public purpose can provide circumstantial evidence that the waterway did
    not have the capacity to serve any public purpose and was therefore not navigable.

[22]

The public utility rationale underlying the right of navigability is
    also evinced by the requirement that the waterway runs from one point of public
    access to another point of public access.  The public does not have the right
    to go across private land to get onto a navigable waterway, but must access the
    waterway from a point of public access.  Similarly, the public does not have a
    right to go across private land upon leaving the navigable waterway.  Egress
    must be by way of a route to which there is a right of public access.  Absent
    proof of those two points of public access, the waterway between those points,
    no matter how wide or deep, has no practical value to the public as a means of
    transport and can serve no public utility.

[23]

Navigability is determined by reference to a specific location along the
    waterway.  The question is not whether Bear Creek as a whole is navigable, but
    rather whether the Creek as it runs over the respondents property is navigable:
Coleman
, at p. 614.


V



[24]

The appellant accepts that the application judge identified the correct
    legal principles relevant to the definition of navigable in s. 1 of the
Act
. 
    The appellants submissions focus on the application judges findings of fact,
    at para. 67, underpinning her conclusion that the Creek was navigable:

Instead, I find the evidence of Mr. MacMillan gleaned from his
    research of the historical records and the measurements and observations of Mr.
    Burwell contained in his field notes compelling.  The totality of this evidence
    is sufficient to find that it is more probable than not that the watercourse
    was not only capable of public use in 1831 but was actually used by the
    public.  Its dimensions could support commercial and/or recreational use.  We
    know that it was of sufficient depth to support irrigation activity.  At times at
    or about the time of the Crown grant, the watercourse was difficult to traverse
    due to its depth.  A petition to improve navigability of Bear Creek was
    brought on behalf of numerous affected landowners a mere four years after the
    original grant.  This suggests there was widespread navigation of Bear Creek
    which includes the watercourse.  There is no evidence of points of access
    whether current or historical.  Such evidence is not required.  The watercourse
    is part of a larger river system which ultimately finds its way to Lake St.
    Clair.  It was capable of constituting an aqueous highway for public,
    commercial and/or recreational use at the time of the original Crown grant
    regardless of whether or not it was considered by the public useful for such
    purposes.

[25]

In the above passage, the application judge identifies three areas of
    the evidence in support of her finding that the Creek was navigable:

·

the
    measurements and observations made by Mr. Burwell, the land surveyor who in
    1819 surveyed London Township along what is now Vanneck Road;

·

evidence
    from various sources of the depth of the Creek at least at the point where it
    crossed what is now Vanneck Road into Lobo Township;  and

·

evidence
    of petitions seeking to maintain and improve the navigability of Bear Creek
    placed before the government in 1833 and 1835, shortly after the initial Crown
    grant of the respondents property in 1831.

[26]

The evidence relied on by the application judge was reasonably capable
    of establishing that the Creek was navigable in fact.  Mr. Burwell, the
    original surveyor, calculated the width of the Creek at some 33 feet where it
    passed from the respondents property into Lobo Township.  Mr. Wilband, the
    respondents surveyor, measured the width at 25 feet at about the same point.  Other
    evidence, including anecdotal evidence in at least one historical text,
    indicated that the Creek had sufficient depth at that site, especially at
    certain times of the year, to permit transportation by boat along the Creek.  On
    the totality of the evidence, 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.

[27]

The evidence of potential practical public use, apart from the
    dimensions of the Creek, was considerably slimmer.  The only evidence referred
    to by the application judge capable of establishing capacity for public use was
    the evidence of the petitions filed with the colonial government in 1833 and 1835
    respecting the navigability of Bear Creek.  The 1833 petition was brought by
    Robert Johnson, a resident of the Township of Adelaide.  Adelaide is located
    two townships to the southwest of the respondents property.

[28]

Mr. Johnson brought the 1833 petition on behalf of a numerous majority
    of immigrant settlers in the several townships of Adelaide, Warwick, Brooke,
    Lobo, Caradoc.  Those townships are all to the southwest of London Township.

[29]

Mr. Johnsons petition said, in part, that the petitioners:

[A]re prepared to prove that the said river of Bear Creek to
    have been navigable for time immemorial from Lake St. Clair to Underwoods Mill
    in Caradoc compromising an extent of upwards of one-hundred miles but Maps
    Taylor and Company.  Millers and divers other persons have recently and
    completely obstructed the natural course of the navigation and the fishery
    thereof by having erected mill dams and other acts of Trespass they persist in
    constructing although your petitioner has given due notice to the offending
    parties to abate without effect.

[30]

The petitioner requested the governments immediate assistance to end
    the illegal infraction of the laws for protection of navigation, commerce and
    fisheries.

[31]

The 1835 petition sought a Charter authorizing the improvement of the
    Navigation of Bear Creek, in the Western District.  In 1835, the Western
    District included Warwick and Brooke, two of the townships referred to in the
    1833 petition.  It did not include the Townships of Lobo, Adelaide or Caradoc. 
    Those townships, like London Township where the respondents property was located,
    were part of the London District in 1835.
[3]
As the name implies, the Western District was to the west (and somewhat to the
    south) of London Township and extended to Lake St. Clair.

[32]

The 1833 and 1835 petitions are strong evidence of the potential public
    utility of the Creek in the Western District generally and as described in the
    1833 petition, between Underwoods Mill in Caradoc and downstream, southwest,
    to Lake St. Clair.  There is no evidence of where in Caradoc Township Underwoods
    Mill was located.  The respondents property is located upstream from Underwoods
    Mill and the Western District.  Lobo Township lies between Caradoc Township and
    London Township where the respondents property is located. There is no
    evidence of the distance along the Creek between Underwoods Mill and the
    respondents property.
[4]
Perhaps most importantly, there is no evidence about the state of the Creek
    between Underwoods Mill and the respondents property at the time of the Crown
    grant.  On the record before the application judge, there was no way of knowing
    whether that part of the Creek was capable of serving any practical public purpose.

[33]

The application judge found that the petitions indicated widespread
    navigation of Bear Creek which includes the watercourse.  In my view, the petitions
    provided evidence of navigation on the part of the Creek referred to in the
    petitions.  However, without evidence of the state of the Creek between the
    location described in the 1833 petition and the respondents property, it was
    unreasonable and speculative to infer that the navigability of the Creek as it
    passed over the respondents property was the same as or similar to the
    navigability of the Creek several kilometres downstream.  The evidence of the 1833
    and 1835 petitions, standing on their own without any evidence describing the
    Creek between Underwoods Mill and the respondents property, could not
    reasonably assist in establishing the potential practical public utility of the
    Creek as a means of public transportation through the respondents property.

[34]

The application judge was left only with the evidence of the dimensions
    of a part of the Creek as it passed from the respondents property into Lobo. 
    There was little, if any, evidence about the dimensions of the Creek in other
    parts of the respondents property.  There was no evidence of any public use for
    transportation related purposes of the Creek as it passed over the respondents
    property.  Nor was there any evidence of at least two points of public access that
    would have allowed the public at the time of the Crown grant to access the
    Creek without committing trespass, travel along the part of the Creek running
    over the respondents property and leave the Creek without trespassing on
    private property.  Without evidence of the publics ability to legally access
    and egress the part of the Creek passing over the respondents property, that
    part of the Creek could have no potential practical public utility as a means
    of transportation.

[35]

The evidence at its highest shows that a person could travel by boat
    over some part of the Creek as it passes along the respondents property.  There
    is no evidence of any practical purpose for doing so in 1831.  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
Canoe
    Ontario
, at p. 502.

[36]

In her helpful submissions, counsel for the respondents, in
    addition to arguing that the evidence could support the application judges
    findings, advanced two other arguments in support of her submission that the
    appeal should be dismissed.  Counsel argued that it would be unfair to the
    respondents to find against them on the question of navigability given the
    holding in
ODonnell
.  Counsel submits that in
ODonnell
, the
    trial judge held that the stream was navigable on evidence which was arguably
    significantly weaker than the evidence mustered by the respondents.  Counsel
    submits
that the respondents should be
    entitled to rely on
ODonnell
as creating a reasonable expectation that the Creek as it runs through
    their property would also be found to be navigable.

[37]

Cases turn on their own
    facts.
ODonnell
dealt with a different stream and a different set of facts.  This court is not
    asked to review the correctness of the decision made in
ODonnell
and I do not propose to do so.

[38]

The result in
ODonnell
can create no reasonable expectation of any
    particular result in this case.  The respondents are entitled to have their
    case decided on its own facts according to the law of navigability in this
    Province.  As I have endeavoured to demonstrate, navigability is about more
    than the width and depth of a stream.  If
ODonnell
can be read as suggesting otherwise, it does not
    represent the law in this Province.

[39]

Counsel for the
    respondents also argued that in assessing the evidence offered by the
    respondents in support of their navigability claim, the court should make some
    allowance for the difficulty inherent in proving a state of affairs as of 1831. 
    Certainly, the court cannot demand a quality of evidence which, in the
    circumstances, is not reasonably available.  Consequently, the court will
    carefully consider reputable historical sources like those proffered in this
    case without becoming unduly concerned about the technical confines of evidentiary
    rules like the hearsay rule.

[40]

I do not agree, however,
    that this court should approach the evidence offered by the respondents any
    differently than the evidence offered by the appellant.  The respondents had
    the onus of establishing navigability as of 1831.  Neither side had an
    advantage over the other in producing evidence relevant to that question.

[41]

Nor, in my view, is
    there any reason for the Court to feel any need to lend a sympathetic ear to
    the respondents evidence.  The respondents are trying to get around the
Planning
    Act
.  As indicated above, that motive
    has no impact on the meaning of navigability under the Act.  The motive does,
    however, discourage any inclination to rush to the respondents assistance with
    a benevolent interpretation of the evidence.


VI



conclusion

[42]

The evidence was not
    capable of establishing that the Creek as it passed over the respondents
    property was a navigable stream within the meaning of s. 1 of the Act.  Title
    to the bed of the Creek does not lie with the Crown.  There is no natural
    severance of the respondents property.

[43]

I would allow the appeal, set aside
    the order of the application judge, and substitute an order in the terms of the
    relief sought in paras. 51(a)(i)-(v) of the appellants factum.  As agreed, the
    appellant, as the successful
party on the appeal, shall have its
    costs of the appeal fixed at $8,000, inclusive of disbursements and relevant
    taxes.

[44]

The application judge awarded costs to the respondents in the amount of $50,000. 
    That order may change in light of this courts disposition.  The court will
    receive written submissions of no more than five pages as to the appropriate cost
    order on the application.  The appellant will serve and file its written
    submissions within 21 days of the release of these reasons.  The respondents will
    serve and file their response within 21 days of receipt of the appellants
    submissions.

Released: DD  JUN 16 2016

Doherty J.A.

I agree Gloria Epstein J.A.

I agree Grant Huscroft J.A.





[1]
The waterway running through the respondents property is given various names
    in the material.  The appellant prefers to call it a drainage ditch and the
    respondents prefer to call it part of the Sydenham River.  Ultimately, the name
    is irrelevant.  I will call it Bear Creek, the name used in the historical
    material.



[2]
Navigable can also mean floatable in the context of the timber trade.  I need
    not address that concept in these reasons:  see
Coleman
, at p. 614.



[3]

An Act to repeal part of an Act passed in the thirty-eighth year of His late
    Majestys Reign, entitled An Act for the better division of this Province and
    to make further provision for the Division of the same into Counties and
    Districts
, S.U.C. 1821 (2 Geo. IV), c. 3, s. 11;
An Act to form certain
    Townships in the London District into a County, and to attach certain Townships
    in the Counties of Middlesex and Kent, in the London and Western Districts
,
    S.U.C. 1835 (5 Will. IV), c. 45, ss. 2-3.



[4]
The material does contain a map with a scale of Lobo Township.  The map is
    taken from a text entitled The Heritage of Lobo 1820-1990.  As near as I can
    tell, the Creek travels a distance of about 13 kilometres across Lobo Township. 
    The distance between the respondents property and Underwood Mill is therefore
    something more than 13 kilometres.


