December 1, 2022 | Danny McMullen and Luke Giffen
Navigating Rough Waters – A look at a potential storm for owners of lakefront properties
While we swiftly move towards the snowy and cold months of winter, it has us at Northview thinking of the bright and sunny days of summer. A weekend away from the hustle and bustle at a friend’s cottage with not a care in the world. But in real estate law, you can never really escape the intricacies and questions that come up. This is especially true with the situations that can arise in the course of owning a cottage that backs onto the waterfront. Without further adieu, let’s dive into the deep waters of lake access as it relates to cottage properties.
We can turn to the recent decision in Blackwell et al. v. Genier et al. for an interesting development in water access. The situation is all-too common. The applicants and respondents both owned cottages on Silver Lake in Ontario. The applicants held title to a large portion of the surrounding shoreline and lakebed area. In 2013, four of the respondents acquired a property near the applicants that included a smaller portion of the shoreline and lakebed. When the respondents starting using jet skis on the lake, the applicants brought forth an application that such activities “interfered with their reasonable enjoyment of the property.”
In the application, much debate was given to the meaning of “navigable water.” Here, the application judge decided to use the new definition of navigable water, and thus the application was dismissed. On appeal, it was found that the application judge erred in using the new definition but this was a question more of statutory interpretation and is less important for our real estate law pursuits.
The applicants hold title to nearly all of the lakebed, with land patents being granted in 1928, 1933, and 1937. In the applicants’ application, they requested a declaration that “they are the owners and occupiers of their respective portions of the bed of Silver Lake and that the respondents and the public are prohibited from entering their property without express permission.” If granted, this would obviously have immediate impacts on their neighbours. In order to fully enjoy their jet skis, they would need to either contain themselves to their small plot of lakebed or ask for access. Another group of respondents to this application own a property on the lake but their title affords them none of the lakebed. They argued that if the applicants were successful in their argument to control the entire lakebed (even when not owning all of it), their shoreline property value would diminish.
In the end, the Court of Appeal came to an interesting conclusion. Because of the far-reaching implications that such a decision could have if finding for the applicants, they found it inappropriate to make the declaration sought. The court cited the thousands of lakes in Ontario nearly identical to Silver Lake with owners in similar situations. Continuing, Justice Lauwers noted that because of the implicit intersection with federal and provincial legislation, this is a case where “judicial minimalism” is warranted. In a dissent, Paciocco J.A. noted that because the applicants initiated the action and then narrowed it for tactical reasons in the application’s natural progression, they should not be permitted to then reframe the action as it would be unfair to the respondents to have the issue tried again. But because the issue wasn’t truly heard on its full merits as Lauwers J.A. stated, it is understandable why they will be allowed to bring a fresh application.
As it stands, the applicants are free to bring forth a fresh application on notice to the Crown with appropriate parties to the hear the reasoning. If successful, the coming application could send tidal waves towards all lakefront property owners with land that represents a fraction of what a neighbouring property owns. We’ll be following the situation closely and provide an update as soon as possible.
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, please reach out to us and we’ll provide assistance based on your personal situation.
 Blackwell v Genier, 2022 ONCA 539 at para 21.
 Ibid at para 22.
 Ibid at para 8.