Middlesex Centre (Municipality) v. MacMillan et al., 2016 ONCA 475
Judge | Doherty, Epstein and Huscroft, JJ.A. |
Court | Court of Appeal (Ontario) |
Case Date | February 04, 2016 |
Jurisdiction | Ontario |
Citations | 2016 ONCA 475;(2016), 351 O.A.C. 114 (CA) |
Middlesex Centre v. MacMillan (2016), 351 O.A.C. 114 (CA)
MLB headnote and full text
Temp. Cite: [2016] O.A.C. TBEd. JN.021
Municipality of Middlesex Centre (applicant/appellant) v. David Ronald MacMillan, Janice Lynn McIntosh and Her Majesty the Queen in Right of Ontario (respondents/respondents in appeal)
(C60543; 2016 ONCA 475)
Indexed As: Middlesex Centre (Municipality) v. MacMillan et al.
Ontario Court of Appeal
Doherty, Epstein and Huscroft, JJ.A.
June 16, 2016.
Summary:
MacMillan and McIntosh owned and lived on a 10-acre lot in the Municipality of Middlesex Centre. They decided to construct a second house on the property and sell that house. The applicable zoning laws allowed only one house per lot. An attempt by a previous owner to obtain a severance under the Planning Act had failed. A creek ran through the middle of the property. If the creek was a "navigable body of water or stream" within the meaning of s. 1 of the Beds of Navigable Waters Act, the land forming the bed was Crown land and created a natural severance of the property. MacMillan and McIntosh retained a land surveyor who opined that the creek was a navigable stream. They registered a reference plan prepared by the surveyor on title to the 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. They conveyed Part 2 to MacMillan, MacMillan applied to build a home on Part 2. The Municipality applied for a declaration that the creek was not a navigable stream and a further declaration that the purported conveyance of Part 2 to MacMillan was void as contrary to the Planning Act. The Province was named as a respondent in the application. It supported the Municipality's position.
The Ontario Superior Court, in a decision with neutral citation 2015 ONSC 2988, dismissed the application, holding that the creek was a navigable stream, making the creek's bed Crown land and creating a natural severance of the property into two lots. The Municipality appealed.
The Ontario Court of Appeal allowed the appeal. The evidence relied on by the application judge was reasonably capable of establishing that the Creek was "navigable in fact", but it was incapable of supporting a finding that as of the Crown grant, the part of the Creek that travelled along the 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". The evidence was not capable of establishing that the creek as it passed over the property was a navigable stream within the meaning of s. 1 of the Beds of Navigable Waters Act.
Waters - Topic 4724
Navigable waters - Definitions - Navigable - What constitutes - See paragraphs 13 to 41.
Words and Phrases
Navigable body of water or stream - The Ontario Court of Appeal considered the definition of this phrase as set out in s. 1 of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4 - See paragraphs 13 to 41.
Counsel:
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.
This appeal was heard on February 4, 2016, by Doherty, Epstein and Huscroft, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on June 16, 2016.
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Court Of Appeal Summaries (July 18, 2022 ' July 22, 2022)
...1 S.C.R. 821, Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (Ont. H.C.), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Interpretation Act, R.S.C.......
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Court Of Appeal Summaries (August 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......
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Court Of Appeal Summaries (August 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......
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COURT OF APPEAL SUMMARIES (AUGUST 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......
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Chippewas of Saugeen First Nation et al. v. The Attorney General of Canada et al.,
...There is sometimes an issue about whether or not the water is navigable: see, e.g., Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, 132 O.R. (3d) 497, at paras. 19-21, 35. There is no issue about navigability here – obviously, the Great Lakes are navigable. [142]......
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Herold Estate v. Canada (Attorney General),
...effect, governing grants made before the first version of the Act came into force in 1911: Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, 132 O.R. (3d) 497, at para. [59] The Act specifically and retrospectively regulates the meaning of a grant from the Crown. If t......
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Douglas Lake Cattle Company v. Nicola Valley Fish and Game Club,
...[Emphasis added.] [129] He employed the same analysis in the Ontario Court of Appeal in Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, where he emphasised the words I have highlighted above and added: [22] The public utility rationale underlying the right of navigability is al......
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Blackwell v. Genier,
...Lake is not navigable water because navigation on the lake does not have public utility: Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, 132 O.R. (3d) 497, at para. 19, quoting Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (Ont. H.C.), at p. 502. They offered evidence that Sil......
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Court Of Appeal Summaries (July 18, 2022 ' July 22, 2022)
...1 S.C.R. 821, Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (Ont. H.C.), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Interpretation Act, R.S.C.......
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Court Of Appeal Summaries (August 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......
-
Court Of Appeal Summaries (August 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......
-
COURT OF APPEAL SUMMARIES (AUGUST 23-27, 2021)
...2015 BCCA 117, Gibbs v. Grand Bend (Village) (1995), 129 D.L.R. (4th) 449 (Ont. C.A.), Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Neilson v. British Columbia (Attorney General), [1956] S.C.R. 819, McLeay et al v. City of Kelowna et al., 2004 BCSC 325, Clarke v. Canada (Att......