Properties come in all shapes and sizes, and some even have unique legal rights. Properties with access to water possess “riparian rights,” which provide for the owners’ exclusive use of water and shoreline. This blog post will explore the concept of riparian rights in Ontario in light of a recent decision that demonstrates how a party may breach the riparian rights of an individual.

What are Riparian Rights?

Riparian rights refer to the legal rights and responsibilities of landowners concerning bodies of water such as rivers, lakes, and streams adjacent to their property. These rights include:

1. Access to Water: Riparian landowners have reasonable access to the adjacent water body.
2. Water Use: Land owners can use the water for domestic purposes but must not interfere with others or the natural flow of the water.
3. Maintenance: Landowners are responsible for waterfront maintenance and compliance with regulations.
4. Water Quality: Riparian landowners can protect their water quality interests.
5. Boundaries: Property boundaries are often defined by the high-water mark.

For various reasons, many developers and riparian landowners construct structures on their lands adjacent to the body of water. However, these buildings can have significant consequences for their neighbours. The infringement of riparian rights caused by such a building was recently considered in the Court of Appeal for Ontario.

Appellants Purchase Cottage with Derelict Boathouse

In Browne v. Meunier, the appellants had purchased a cottage on the St. Lawrence River in 2017. The cottage neighboured a property owned by the respondents which was purchased in 2015. The appellants believed the cottage they had purchased included an old boathouse. However, it was later discovered that the boathouse was constructed in 1969 by the respondent’s predecessors in title and was owned by the respondents.

The appellants confirmed that the boathouse was “located directly in front of their property” by a survey completed in 2018. They soon brought an action that sought, among other things, a declaration that the boathouse interfered with their right to access the St. Lawrence River.

Superior Court Finds Action was Time-Barred

In the first instance, the Court found that the appellant’s riparian rights to access the waters of the St. Lawrence River had been restricted by the boathouse’s location.

The Court was influenced by the case of Glaspell v. Ontario, in which the Court laid down rules related to access, such as:

(i) A riparian owner’s rights are not founded on ownership of the bed of the lake or river but on access to the water;

(ii) a grant of land to the water carries with it to the grantee the right of access to and from the water from any point of his or her own lands;

Since the boathouse was located directly in front of the property, the appellants were prevented from “using their waterfront as they wish.” They would need to navigate around the boathouse and they were prevented from building a dock in that location. This constituted a “substantial obstruction to the water access.”

However, the Court also decided the case was time-barred under the Real Property Limitations Act. Specifically, sections 4 and 15 in the Real Property Limitations Act state that the limitation period is 10 years for a land action, and if such an action is not brought within 10 years, the right to bring an action is extinguished. The appellants claimed that the 10 year limitation period began to run when the violation of their riparian rights was said to have been discovered, but the Court disagreed; the limitation period began to run from 1969 and was extinguished 10 years later, per the operation of the Real Property Limitations Act.

The appellants appealed, claiming that the judge misapprehended the discoverability rule and committed an error by finding the discoverability rule does not apply to section 4.

Court of Appeal Applies Discoverability to Section 4 of the Real Property Limitations Act

The Court of Appeal addressed the discoverability issue in two stages:

(1) analyzing whether the discoverability rule applied to section 4; and

(2) analyzing when the cause of action was discoverable.

Firstly, the Court of Appeal was persuaded by the common law rule of discoverability codified in Pioneer Corp. v. Godfrey, where “discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury.” The wording in section 4 specifically required that an action be brought within 10 years by the person to whom such a right “first accrued.” Thus, the Court of Appeal found that since “the trigger for bringing the action is, expressly, the accrual of the action and not some external event,” discoverability did apply to section 4 of the Real Property Limitations Act.

Nevertheless, the Court of Appeal still found that the case was time-barred. Since the right of action accrued “to some person through whom the person making it or bringing it claims,” the right accrued to the predecessor in title of the appellants. Since the boathouse was constructed directly in front of the property, the infringement of riparian rights would have been “obvious” immediately upon its construction. The right to bring an action was extinguished ten years later in 1979.

The Real Estate Lawyers at Bader Law Help Clients Protect Their Legal Rights

The real estate lawyers at Bader Law represent and advise individual and corporate buyers in real estate transactions in Mississauga and throughout the Greater Toronto Area. Our firm regularly advises individual and corporate clients on various real estate matters and disputes. Our talented lawyers work efficiently to reduce risk, protect clients’ interests, and preserve their substantial financial investments. We help clients review Agreements of Purchase and Sale, resolve title insurance matters, and assist with mortgages and refinancing.

Bader Law ensures that your real estate disputes are resolved in a timely and professional manner. Contact us online or call us at 289-652-9092 to schedule a consultation with a member of our real estate team.