COURT OF APPEAL SUMMARIES (August 3 – 7, 2020)Becker v. Walgate, 2020 ONCA 491 (CanLII)
[Rouleau, Hoy and Hourigan JJ.A.]
Izaak de Rijcke and Robert J. Fenn, for the appellant
Jeffrey D. Ayotte and Michael W. Gunsolus, for the respondents
Keywords: Real Property, Boundaries, Riparian Rights, Attorney General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd,  AC 599, Attorney General of British Columbia v. Neilson,  S.C.R. 819
This appeal arises out of a dispute between neighbours at Jack Lake over where the lot line between their properties ends. 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 water’s edge and strikes the lake at an oblique angle. At issue was what water level was to be used in determining the termination point of the lot line. Approximately 100 feet of valuable water frontage was at issue. In particular, the issues for determination by the trial judge were:
a) whether the lot line between Lots 41 and 42 ends where it intersects with the “High Water Mark” shown in Registered Plan 33 which created the lots in 1958, which the trial judge found was the water’s edge of Jack Lake at the Normal Controlled High Water Level (NCHWL), a contour elevation of 106.33 feet (assumed datum); or
b) whether, as the appellant contended, the terminus of the lot line began with reference to the water’s edge at the time of the 1902 Crown patent of lands, of which the disputed lands were a part.
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 judge’s 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 judge’s alternative finding that the respondents have a riparian right of access along the lot line, beyond the intersection point with the NCHWL?
1. Yes. The trial judge’s conclusion that the term “High Water Mark” in Plan 33 is unambiguous and means the NCHWL, which is 106.33 feet (a.d.), was clearly wrong. Plan 33 does not define what is meant by “High Water Mark”. This conclusion necessarily relied on extrinsic evidence, presumably the evidence of Mr. O 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 Reg’d Plan No 33”.
2. Yes. The trial judge’s conclusion that JLL intended to set the NCHWL as the water boundary in Plan 33 cannot stand. The trial judge’s statement that there was no admissible evidence permitting the court to determine whether JLL conveyed all or retained some of their land was incorrect. There was evidence based on which the trial judge could have made this determination, on a balance of probabilities. Essentially, the trial judge said that because he could not determine the water boundary of JLL’s land, he did not know whether JLL retained any land following its transfer. And, since he did not make that determination, there was 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.
However, on this record, the only reasonable inference was 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”.
3. The determination of the boundary of Lots 41 and 42, and thus, the terminus of the lot line between them, should be returned to the trial court for determination. 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 water’s 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. The trial judge’s conclusion that the respondents had a riparian right of access along the line beyond the intersection point with the NCHWL cannot stand. 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. It was 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. The respondents have a lakeside dock at another point on their waterfront. The dispute between the parties was triggered when they wished to construct a second dock on the disputed lands.