Creek not a navigable waterway, Ontario’s court rules in severance dispute

TORONTO – A couple who tried to get around local zoning laws by arguing a creek on their property was in fact a navigable waterway has come up dry.

In a decision Thursday, the Ontario Court of Appeal ruled against David MacMillan and Janice McIntosh, owners of a four-hectare lot near London, Ont.

They had wanted to divide the lot and have a house on each half in violation of zoning rules. To get around the prohibition, they argued Bear Creek, that runs through the middle of the property, was a navigable body of water or stream, which would have had the effect of making the creek bed Crown land and cut the property into two lots.

Among other things, MacMillan and McIntosh leaned on a land survey from 1819 and petitions filed with the colonial government in 1833 and 1835 respecting the navigability of Bear Creek. The Municipality of Middlesex Centre rejected the notion that the creek, which it called a drainage ditch, was a navigable stream.

However, a lower court justice sided with the couple.

In overturning that decision, the Appeal Court reached back to Ontario legislation enacted in 1911 — The Bed of Navigable Waters Act — that retroactively gave provincial title to navigable waters.

All sides agreed the Crown grant of the land in question in 1831 made no mention of the creek bed. However, if the creek was deemed a navigable stream in 1831, title to its bed would reside with the province and the creek would naturally divide the property as the couple claimed it did.

That left the Appeal Court to grapple with whether the creek was in fact navigable — meaning the public had a right to use it as a means of transportation.

The right, however, depends on whether the waterway is capable of being traversed by boat, the court said, but it must also be usable for transportation in relation to a public purpose such as commerce, agriculture or recreation.

“In essence, the test for navigability developed in Canada is one of public utility,” the Appeal Court noted. “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.”

However, the Appeal Courtsaid no solid evidence exits to show the creek — at least as it crosses the property at issue — was a navigable stream.

“Title to the bed of the creek does not lie with the Crown,” the court said in its ruling. “There is no natural severance of the respondents’ property.”

The court also noted the navigable waters act was never intended as a way to subvert planning laws.