Middlesex Centre (Municipality) v. MacMillan et al., 2016 ONCA 475

• Judge: Doherty, Epstein and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Thursday 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.