Municipality of Middlesex Centre v. MacMillan et al., 2015 ONSC 2988--re: Beds of Navigable Waters Act
Muncipality of Middlesex Centre (applicant)
David Ronald MacMillan, Janice Lynn McIntosh (respondent)
HEARD: January 15 and 16, 2015 NOTE: reversak on appeal below
 The subject property consists of agricultural land (the “property”) located on Vanneck Road in the Municipality of Middlesex Centre (“Municipality”). The property is owned by the respondents, David MacMillan and Janice McIntosh (collectively, the “respondents”).
 The Municipality seeks a declaration that the farm drain watercourse located on the property (the “watercourse”) is not “navigable” and, therefore, does not create a “natural” severance of the property. The respondent, Her Majesty the Queen in Right of Ontario (the “Crown”), supports the Municipality’s position on this application.
 The decision of Heeney R.S.J. dated December 3, 2012 in these proceedings restricts any declaratory relief granted by me on this application to only that portion of the watercourse that crosses the property. To underscore the limited effect of my decision on this application, I note the comments of Heeney R.S.J. as follows:
To be clear, no precedent will be set by the decision in this case which will affect the rights of landowners upstream or downstream of the subject property, nor the rights of the applicant or other governmental authorities with respect to those other lands.
Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
 Designating the watercourse as “navigable” has the effect of creating a natural severance of the property since the Crown retains title to this “navigable” watercourse by operation of law with title to the abutting lands on either side of the watercourse remaining with the respondents.
 In 1997, the prior owners of the property and relatives of the respondents, applied for a severance of the property pursuant to the provisions of the Planning Act, R.S.O. 1990, c. P.13. They sought to sever the property to create a non-farm residential lot.
 Many years later and after acquiring the property, the respondents purported to convey a portion of the property held jointly by them to Mr. MacMillan, alone. No Planning Act consent was obtained. Instead, the respondents hired a surveyor, Jason Wilband. Mr. Wilband deposited a Reference Plan on title to the property on April 9, 2010. In this Reference Plan, he indicated that the watercourse intersecting the property was a navigable watercourse comprising unpatented Crown land.
Summary of the Evidence
 Water in the watercourse flows southwest and is located on the property as it crosses Vanneck Road from the former London Township into the former Lobo Township. Eventually, the water flows into the Sydenham River and on to Lake St. Clair.
 In 1969 drainage works were undertaken on the watercourse under the authority of the Drainage Act. The watercourse is now known as the “Bear Creek municipal drain”. The purpose of the works was to add greater depth and, therefore, more capacity to the channel than originally existed.
(a) the circumference of four trees lining the embankment of the watercourse suggest their age is between 100 and 200 years;
(b) Mr. Mahlon Burwell prepared the London Township plan in 1819, based on his recollections and his field notes. On the London Township plan the watercourse on the property is showing as an “S” configuration;
(c) as of 1878, the watercourse is shown on an Army Survey as a single crossing;
(d) The drainage works consisted of lowering the bottom of the channel and cutting a new channel easterly. The channel was re-aligned over approximately 160 feet of the property. The 1969 drainage works did not result in any significant change to the location of the watercourse on the property;
(e) the practice of original surveyors was to survey along what are now the concession lines. Natural features, such as creeks, were noted and recorded but were not measured in terms of how far they extended on either side of the surveyed line; and
(f) Mr. Wilband opined that the watercourse that exists on the property today is the same crossing shown as the first arm of the “S” curve on the 1819 London Township plan.
 While initially the Municipality challenged whether the 1969 drainage works altered the waterway such that it could no longer be considered the “same” waterway existing at the time of the original Crown grant in 1831, this position was not strenuously argued on the hearing of the application. The Municipality concedes there is a creek that traverses the property and that it is one and the same as the watercourse observed by Mr. Burwell in 1819.
(a) that the watercourse was approximately 3 feet deep prior to the 1969 drainage works carried out by the Municipality;
(b) that a watercourse that is 33 feet in width and having a depth of at least 3 feet would be able to support a small vessel or float logs; and
(c) the watercourse was navigable in 1831 and, therefore remains, the property of the Crown.
(a) the original Crown grant of 1831;
(b) the original survey notes of Mr. Burwell;
(c) the Township of London Plan of 1819 prepared by surveyor, Burwell; and
(d) his own measurements taken of and survey conducted of the property.
(a) in an excerpt from “History of Canada 1889”, Bear Creek (of which the watercourse forms part), among other bodies of water, was described as follows:
Bear Creek, the Wye, the two forks of the Thames, and a hundred minor creeks, give a stream to almost every farm, and, with the greater river, contribute to render bridge and culvert construction a permanent local industry of no small importance;
(b) a survey map obtained from the historical Atlas of Middlesex County 1878, shows the watercourse and J.W. Robson as the original owner of the property;
(c) excerpts from the book “Heritage of Lobo 1820 – 1990”, containing historical letters of a woman by the name of Johanna Atwood writing about her father finding land in Lobo near Big Bear Creek and also diary entries by Johanna’s father, Major James Atwood made in 1836. In one entry, Major Atwood describes how the Sydenham River that crosses the Townline into London just to the southeast of Vanneck Road was too deep to cross; and
(d) an excerpt from “Miscellaneous papers collected by Guy St.-Denis relating to navigation on Sydenham Rivera, 1833, 1835”contains a copy of a petition made in 1933 by Robert Johnston, on behalf of immigrant settlers in several townships, including the Township of Lobo, to prove the River of Bear Creek to have been navigable from Lake St. Clair to Underwood’s Mill in Caradoc comprising a length of 100 miles and requesting that trespassers be prevented from obstructing the natural course of the navigation and fishery. These same papers contain a notice dated two years later in August 1835 relating to a petition toimprove the navigation of Bear Creek. (emphasis added)
 In contrast to the evidence of Mr. Wilband, the Municipality’s expert, Izaak de Rijcke, opines that the watercourse is not navigable. In his opinion letter dated September 1, 2011 he arrives at the following conclusions after considering the factors listed in the leading case of Coleman v. Ontario (Attorney General), 1983 CarswellOnt 1313 (H.C.J.) (“Coleman”) as adopted in Canoe Ontario v. Reed, 1989 CanLII 4237 (ON SC), 1989 CanLII 4237 (ONSC) (“Canoe”) and Simpson v. Ontario (Ministry of Natural Resources), 2012 ONSC 473 (Div. Ct.) (“Simpson”):
In my opinion, the Sydenham River does not meet the threshold test of “navigability” described by Justice Eberhard in the Simpson decision. For the most part, the physical passability of the creek by way of a limited watercraft such as a canoe is only possible today as a result of the evacuation work done in or about 1969 in conjunction with the Bear Creek enhancement as a municipal drain. Furthermore, there was no evidence of any historic utilization of the watercourse as a means of powering a grist mill, sawmill, or any other commercial enterprise in pioneer days or in the late 1830s when the subject lands were patented by the Crown. Historic uses do not appear in any fashion for this site as a result of any millpond that might have existed, and there is no evidence today that the Sydenham River was ever harnessed for waterpower purposes. In current times, one would be hard-pressed to think of the Sydenham River at this location as a source of recreational use. It does not appear attractive for purposes of cross-country skiing or snowmobiling in the winter time. The flat dry land on either side would be much preferred route. Likewise, cross-country skiing in the winter time appears to be a recreational activity that would be preferred on the dry flat upland, rather than on unstable ice that may have resulted from sporadic surges in water during the wintertime. This is not an attractive site for canoeing. My understanding of the features and history described in Simpson are completely different from what was observed at this site.
 With respect to any evidence of actual public use at or about the time of the original Crown grant, Mr. McMillan testified on his cross-examination conducted May 28, 2013, (page 32, Q&A 90 and 91) as follows:
Q. Or can you even tell me on your map or some place where you say it allows two points of public access, where it was navigable from point A to get, for public purpose from point A to a point B?
A. No, I cannot.
Q. You have no information that shows it was ever used for any public purpose?
A. No, I do not.
 The only evidence filed by the Crown in support of its position on the application, is the affidavit of Richard J Thompson sworn November 28, 2012. Mr. Thompson is employed by the Ministry of Natural Resources (“MNR”) in the District of Aylmer and holds the position of Lands and Waters Technical Specialist in MNR, Aylmer District.
 At paragraph 37 of his affidavit, Mr. Thompson states the MNR’s position on the issue of “navigability as follows: “It is MNR’s view that it is inappropriate for the BNWA to be used for the purpose of obtaining a natural severance and circumventing the Planning Actand its processes. It is for the foregoing reasons that MNR declined to provide an opinion on navigability to the Property Owner’s counsel.”
 On his cross-examination conducted May 28, 2013 (page 30, Q&A 123) he reiterates this position: “You know, people do funny things; I’ve seen a farmer – run a surface drain across his property and file a registered plan for a natural severance. So if I sound somewhat bias I have reason to be because I’ve seen this legislation abused to its full extent. It was never meant to circumvent the Planning Act and its processes.”
Position of the Respondents
 The respondents submit that if the watercourse was navigable at the time of the original Crown Grant in 1831, a natural severance occurs by operation of law. Whether the natural severance offends sound planning policies, as argued by the Municipality and the Crown, is irrelevant.
 The respondents do not dispute that they wish to utilize the natural severance to construct a non-farm residential dwelling on the severed portion of the property for commercial gain. They argue there is nothing inappropriate or improper about their motives. In fact, the concept of a natural severance was first suggested by the Municipality’s planner.
(a) Mr. de Rijcke is not impartial since he was retained by the Municipality shortly after the respondents deposited the Reference Plan on title to the property and well before this application was commenced;
(b) Mr. de Rijcke did not conduct his own measurements of the watercourse;
(c) Mr. de Rijcke did not conduct his own research as to the historical uses of the property;
(d) Mr. de Rijcke did not conduct his own assessment of the age of the trees lining the banks of the watercourse; and
(e) his evidence during cross-examination with respect to the motivation of settlers in 1831 was unsubstantiated without any factual or academic basis.
 The policies and procedures dated February 26, 2007 of the MNR place a positive obligation on the MNR to consult historical records when giving an opinion as to the navigability of a particular watercourse. Mr. Thompson declined to provide an opinion and did not follow the policies and procedures of the MNR suggesting he is biased and lacks independence.
 The respondents submit the test for “navigability” is not whether the waterway was navigated in 1831 but; rather, whether the waterway was capable of navigation. The respondents rely on the recent decisions of Simpson and O’Donnell v. Ontario (Attorney General) and Obratoski v. Ontario (Attorney General), 2013 ONSC 590 (CanLII) (“O’Donnell”) (both courts adopting the test for navigability established in Coleman as further refined in Canoe) to support their position that they need not show historical actual or current actual use of the watercourse; rather, only, that the watercourse is capable of being used by the public, whether recreationally or commercially, for transportation.
 In relying on O’Donnell, a decision released after this application was commenced, the respondents submit the facts before the court inO’Donnell are similar to the facts before me. In O’Donnell the property owners sought a declaration of navigability with respect to a watercourse traversing their properties so as to create a natural severance of the properties. Relying entirely on the survey and field notes from the time of the Crown grant wherein the watercourse is referred to as a “small creek”, and a letter authored by a long-time resident of the area dated March 21, 1999 wherein he states that he has observed logs floating down the water (the balance of the letter being found by the court to be “unsupported opinion”), the court concludes that the watercourse in question (likely a tributary of Chippewa Creek) is navigable.
 Counsel for the respondents submits that I need only satisfy myself on a balance of probabilities that the watercourse was wide enough and deep enough to float a small craft in 1831 and that the watercourse was part of a larger body of water. Here, the respondents argue, the watercourse is, and always has been, part of the Sydenham River and Bear Creek. Based on the field notes of Mr. Burwell, the dimensions of the watercourse were sufficient to float a small craft (i.e., a raft or canoe) at the time of the Crown grant.
Position of the Municipality
 The Municipality submits that something more than simply meeting the dimensions (width and depth) for floatability of objects is required. It must be established it was capable of public use, whether recreational or commercial. Public use, as opposed to private use, requires more than simply meeting floatability requirements.
 The Municipality argues there is no evidence of the watercourse being used for, or ever being used for, transportation, whether commercial or recreational. Counsel for the Municipality argues that the principles in Coleman and Canoe remain undiluted and have not been watered down by the recent decision in O’Donnell. Proving that the watercourse had dimensions sufficient to float a log or canoe in 1831, is not enough.
(a) Mr, Wilband misrepresented the evidence in his affidavit. He states that Mr. de Rijcke did not visit the property when in fact he did attend the property and viewed the watercourse;
(b) Mr. Wilband has no prior experience with respect to assessing the navigability of a watercourse. His experience is limited to the classroom; and
(c) Mr. de Rijcke is trained as both as a surveyor and as a lawyer and is experienced in assessing navigability.
 The Municipality argues that the respondents must prove that the watercourse must have had, or was capable of having, “public utility” in 1831. Therefore, the respondents’ position must fail as they have not proffered any evidence of actual public use in 1831 and have not put before the court any evidence that the watercourse was capable of public use in 1831. The Municipality says that the essential attribute of “navigability” is that the public may use it as of right for the purposes of passage as a public waterway or highway. The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public.
 The Municipality submits that evidence of entry points for the public along the watercourse is critical to establishing “public utility”. If the watercourse was only ever intended to be used privately then it cannot be capable of public navigation. The Municipality relies onCanoe where Doherty J. states:
In essence, the test for navigability developed in Canada is one of public utility. 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: Gordon v. Hall,  O.W.N. 417, 16 D.L.R. (2d) 379 at pp. 382-3 (H.C.J.); Welsh v. Marantette (1983), 1983 CanLII 1855 (ON SC), 44 O.R. (2d) 137, 3 D.L.R. (4th) 401, 27 C.C.L.T. 113 (H.C.J.); Re Coleman and A.-G. Ont., supra, at pp. 617-18.
Position of the Crown
 The Crown supports the Municipality’s position on the application. The Crown argues that it is an abuse of the BNWA to allow it to be used to frustrate sound planning principles embodied in the Planning Act.
 Notwithstanding that a significant portion of the materials before me on the application was devoted to addressing the issue of whether the present watercourse is the same watercourse existing in 1831, this fact was not seriously challenged by the Municipality in its argument on the application.
 For purposes of my analysis, I find that the present watercourse on the property is the same watercourse located on the property in 1831 and identified by Mr. Burwell in his field notes and in the Township Plan in 1819.
 The respondents concede that they bear the onus and must prove, on a balance of probabilities, that the present watercourse located on the property was capable of navigation as of the date of the Crown grant in 1831.
 As a preliminary matter, I will address the Crown’s position that the respondents have acted improperly in filing the Reference Plan claiming a natural severance of the property. The respondents cannot be criticized for using the natural characteristics of the property for their own commercial gain. Motive is irrelevant for purposes of the analysis of the issue of navigability.
 As noted earlier in these reasons, the seminal cases on “navigability” are Coleman and Canoe. In Coleman the court at paragraph 15 set forth the nine principles governing a determination of “navigability” as follows:
(1) A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort – at largest steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water. A.G. Quebec v. Fraser (1906), 1906 CanLII 58 (SCC), 37 S.C.R. 577, aff’d sub nom, Wyatt v. A.G. Quebec,  A.C. 489 (P.C.), A.G. Quebec v. Scott (1904), 1904 CanLII 30 (SCC), 34 S.C.R. 603, and Keewatin v. Town of Kenora, supra.
(2) In the context of the Canadian economy where the timber trade has developed, “navigable” also means “floatable” in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms. Leamy v. The King (1916), 1916 CanLII 52 (SCC), 54 S.C.R. 143, and Fraser case, supra. (I note here that this development follows the corresponding development of the law in the United States.)
(3) A river or stream may be navigable over part of its course and not navigable over other parts; its capacity for navigation may therefore be determined by the courts independently at different locations. The Fraser case, supra, and the Leamy case, supra.
(4) To be navigable in law a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used. The Keewatin case, supra, and The Tadenac Club Ltd. v. Hebner, 1957 CanLII 117 (ON SC),  O.R. 272 (Gale J., Obiter).
(5) To be navigable in law, according to the Québec decisions, the river or stream must be capable of navigation in furtherance of trade and commerce; the test according to the law of Québec is thus navigability for commercial purposes. Leamy v. The King, supra; A-G. Québec v. Fraser, supra. This was also the test in some of the earlier United States cases. So far as the law of Ontario is concerned, the commercial test was alluded to in Gordon v. Hall, supra, per McRuer C.J.H.C. obiter, but as I shall indicate, I do not consider the commercial test an element of the law of Ontario.
(6) The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public. This concept does not embrace uses such as irrigation, power, fishing, or other commercial or non-commercial uses that do not depend upon its character as a public aqueous highway for passage. In law a river or stream is not navigable if it is used only for the private purposes, commercial or otherwise, of the owner, See Gordon v. Hall, supra, citing U.S. authorities at pages 382-3.
(7) Navigation need not be continuous but may fluctuate seasonally. See Gordon v. Hall, supra.
(8) Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points. See Keewatin, supra, andStephens v. MacMillan, 1954 CanLII 79 (ON SC),  O.R. 133 (H.C.).
(9) It would seem that a stream not navigable in its natural state may become so as a result of artificial improvements – see per Mulock C.J.O. in Rice Lake Fur Company Ltd. v. McAllister (1925) 56 O.L.R. 440 at pp. 449 – 50, cited obiter by Gale J. In the Tadenac case, supra, at p. 275. See also, Stephens v. McMillan, supra.
• Whether the river is navigable is a question of law and of fact.
• To be navigable a stream must be capable in its natural state of being traversed by at least a small craft, even one which might draw less than 1 foot of water.
• A stream may also be navigable if it is “floatable” – that is, capable of use to float logs, log – rafts and booms.
• To be navigable in law a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used.
• Navigation need not be continuous but may fluctuate seasonally.
• Where a proprietary interest asserted depends on a Crown grant, navigability is initially to be determined as at the date of the Crown grants.
 In the present case certain of these criteria have been met and are not in dispute. The watercourse traverses the property and is part of a larger system that feeds into the Sydenham River and eventually Lake St. Clair. The watercourse is not “land-locked” such as is the case of a pond or small lake and, therefore, its use is not, theoretically, limited to the private use of the property owners.
 The depth of the watercourse is presently and, based on the evidence of Mr. Burwell, also was at the time of the original grant, sufficient to float a small craft or a log. There is no suggestion the water does not flow freely along the watercourse or that its flow is obstructed in any meaningful way. There may be seasonal fluctuations in the depth and flow of the watercourse but the parties agree this evidence is not determinative of the issue: See the seventh and eighth criterion in Coleman. The watercourse was, therefore, “navigable” in fact at the time of the original Crown grant.
 No case was provided to me which delineates the features a waterway must possess to be considered “capable of public use”. The Municipality argues that in order to establish capability of public use a watercourse requires points of access to the public both upstream and downstream of the property.
 This proposition causes me some concern. Must those points of access be well established? Must they have actually existed at the time of the original grant in order to support a finding of “capable of public use”? Must they be located on the property in question? For commercial public use, does it require that a commercial enterprise be located upstream whether or not that commercial enterprise in fact used the waterway as part of its business?
 There is a dearth of case law addressing the specific evidence required to establish a watercourse as being “capable of public use”. I suspect this is because the case law has been primarily focused on instances where there is actual public use and the public seeks to impose rights of access to a waterway located on private land; or where the focus has been on the “flow” of the watercourse or the dimensions required for floatability; or where there has been evidence of actual public use at the time of the Crown grant thus rendering the need for evidence of capability for public use unnecessary. O’Donnell may be the singular case to address this issue.
 The Municipality has emphasized the lack of evidence of any actual public use, present or at the time of the Crown grant. Subsumed within the lack of evidence of actual use is the lack of evidence of any actual points of public access. Evidence of actual public use is not required. So too, evidence of actual points of access along the watercourse upstream and downstream of the property is not required. While actual current public use and actual points of current access may be of assistance in determining what the actual use was at the time of the original grant, it is not a precondition to establishing navigability.
I conclude therefore that if the stream is navigable in fact for the purposes of transportation or travel, or is floatable, whether for large or small craft of shallow draft, it is navigable in law without the necessity of applying the test of its usefulness for trade and commerce, a test which may well have been apt when the country was developing in the course of settlement, but is now no longer realistic in the light of modern conditions. I do not believe this does violence to the principles of the common law. I believe I am not precluded from taking this approach by judicial decisions in Ontario applicable to Ontario law, and it is consonant with what I regard as the persuasive authority of the decisions in (1934), 7 F. Supp.. 885, affirmed 81 F. (2d) 70, and Collins v. Gerhardt, supra. On this view of the matter I find that Bronte Creek is now and at the time of the Crown grant in 1827 to be regarded as navigable in law irrespective of its usefulness as a highway for commercial purposes.
 Trite to say that actual use, both historical and present day, is the best evidence of a watercourse’s capability of public use. That said, other “lesser” evidence will suffice to meet the evidentiary burden.
 In O’Donnell the court commented on the quality and extent of the evidence necessary to meet the evidentiary burden. In finding the watercourse under consideration navigable the court commented as follows:
 Trying to determine navigability as of the date almost 200 years ago is an uncertain exercise, at least in the case of waterways of this nature. No doubt the degree of difficulty increases as the years continue to roll by. Evidence of personal observations made at the time becomes less available. I have no evidence about climate changes, or any topographical changes, or of any obstructional changes either upstream or downstream which could affect the present situation compared to that which existed at the time of the Crown grant.
 In O’Donnell the court had scant evidence before it of historical use at the time of the Crown grant. What evidence it did have was unreliable, unsupported and anecdotal. Despite the weaknesses in the evidence it was found sufficient to meet the evidentiary burden.
 In Simpson v. Ontario (Ministry of Natural Resources), 2011 ONSC 1168 (CanLII) at para 30, the court held that although there existed an absence of irrefutable proof of any actual use of the watercourse, including an absence of irrefutable proof that a mill was constructed, logs were floated or canoeing took place, the dimensions of the Wye River were capable of supporting these activities at the time of the Crown grant and the watercourse was navigable at law.
 Notwithstanding the great lengths gone to by both sides involved in this litigation to discredit the other’s expert, neither the opinion of Mr. Wilband nor the opinion of Mr. de Rijcke is particularly helpful in resolving this issue.
 Instead, I find the evidence of Mr. MacMillan gleaned from his research of the historical records and the measurements and observations of Mr. Burwell contained in his field notes compelling. The totality of this evidence is sufficient to find that it is more probable than not that the watercourse was not only “capable of public use” in 1831 but was actually used by the public. Its dimensions could support commercial and/or recreational use. We know that it was of sufficient depth to support irrigation activity. At times at or about the time of the Crown grant, the watercourse was difficult to traverse due to its depth. A petition to “improve navigability” of Bear Creek was brought on behalf of numerous affected landowners a mere four years after the original grant. This suggests there was widespread navigation of Bear Creek which includes the watercourse. There is no evidence of points of access whether current or historical. Such evidence is not required. The watercourse is part of a larger river system which ultimately finds its way to Lake St. Clair. It was capable of constituting an aqueous highway for public commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes.
 Accordingly, the Municipality’s application must fail. I make a declaration that the waterway was navigable in 1831 and, therefore, title to its bed was retained by the Crown creating a natural severance of the property. This declaratory relief applies only to the property and does not affect the interests of other property owners.
 Unless the parties are able to reach an agreement as to the payment of costs of the application, the respondents shall file their costs submissions not to exceed 5 pages double-spaced excluding any Costs Outline, Bill of Costs and/or Offers to Settle within 15 days and thereafter the Municipality and the Crown shall file their responding submissions not to exceed 5 pages double-spaced excluding any Costs Outline, Bill of Costs and/or Offers to Settle within 10 days. The respondents shall file any reply submissions within 5 days thereafter.
Justice A.K. Mitchell
DATE: May 8, 2015
ONTARIO COURT OF APPEAL
Doherty, Epstein and Huscroft JJ.A.
Heard: February 4, 2016
On appeal from the order of Justice A. Mitchell of the Superior Court of Justice, dated May 8, 2015, with reasons reported at 2015 ONSC 2988.
 David Ronald MacMillan and Janice Lynn McIntosh (the “respondents”) own and live on a 10-acre lot near London, Ontario. They decided to construct a second house on the property and sell that house. However, the applicable zoning laws allowed only one house per lot. The respondents could build the second house only if they could divide their 10-acre lot into two lots. An attempt by a previous owner to obtain a severance under the Planning Act, R.S.O. 1990, c. P.13, had failed.
 As luck would have it, Bear Creek (the “Creek”) runs through the middle of the respondents’ property. If the Creek is a “navigable body of water or stream” within the meaning of s. 1 of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4 (the “Act”), the land forming the bed of the Creek is Crown land, creating a natural severance of the parts of the respondents’ lot on each side of the Creek. What was one 10-acre lot would become two lots of about five acres each.
 The respondents retained a land surveyor who offered the opinion that the Creek was a navigable stream. Acting on that opinion, the respondents registered a reference plan prepared by the surveyor on title to their 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. The respondents conveyed Part 2 to Mr. MacMillan alone. He applied for a permit to build a home on Part 2.
 The Municipality of Middlesex Centre (the “appellant”) did not agree that the Creek was a navigable stream. It brought an application seeking a declaration that the Creek was not a navigable stream and a further declaration that the purported conveyance of Part 2 to Mr. MacMillan was void as contrary to the Planning Act. The Province was named as a respondent in the application. It supported the position taken by the appellant. The application judge dismissed the application holding that the Creek was a navigable stream, making the bed of the Creek Crown land and creating a natural severance of the respondents’ property into two lots, one to the north of the Creek and one to the south.
 The appellant appeals from the order dismissing the application. It claims that the application judge misapprehended relevant evidence and considered irrelevant evidence in concluding that the Creek was a navigable stream. The appellant submits that the errors were sufficiently material to the outcome to overcome the deference owed by this court to the application judge’s fact finding. The respondents resist the appeal arguing first that the application judge carefully reviewed the relevant case law and, second, that her findings were reasonably open to her on the totality of the material filed on the application. The Province did not participate in the appeal.
 The respondents’ property is part of Lot 32 located at the north end of Concession 10 in London Township (now “the Municipality of Middlesex Centre”). The property extends to the north to Ilderton Road, the dividing line between Concessions 10 and 11 in London Township and to the west to Vanneck Road, the dividing line between London Township and Lobo Township.
 The Creek flows in a generally southwesterly direction across the respondents’ property, under Vanneck Road and into Lobo Township. Eventually, the Creek flows into the Sydenham River which in turn flows into Lake St. Clair about 100 kilometres to the southwest of the respondents’ property.
 Before addressing the question of navigability, I will briefly refer to two other issues that were raised on the application, but have now fallen by the wayside. The first issue arises out of the Province’s argument on the application that the respondents were “abusing” the Act by using it to circumvent the Planning Act. There can be no doubt that the respondents were attempting to use the Act, and in particular s. 1, to avoid the limits on severance imposed by the Planning Act. It is equally clear that the Act was never intended as an alternative means to achieve severance.
 The application judge held, at para. 49, that the respondents’ motive for advancing its claim was irrelevant to her determination of whether the Creek was a navigable stream. I agree. Navigability is essentially a factual question based upon an assessment of the capabilities of the waterway at the time of the Crown grant. The answer to that question cannot turn on the motive of the party advancing or resisting the navigability claim over 100 years after the Crown grant. The Creek is or is not a navigable waterway. If s. 1 of the Act is having an unforeseen and unacceptable impact on effective land management in the Province, the Legislature can amend the Act. I observe that this is hardly the first case in which s. 1 has been relied on to achieve severance of a lot: see e.g. Coleman v. Ontario (Attorney General) (1983), 143 D.L.R. (3d) 608 (Ont. H.C.), at p. 611; O’Donnell v. Ontario (Attorney General), 2013 ONSC 590, at para. 3. To date, there has been no legislative reaction.
 The Province and not the appellant advanced the argument before the application judge that non-compliance with the Planning Act or other planning laws should somehow influence the determination of whether the Creek was navigable. The appellant has not supported that position on appeal and the Province has not participated in the appeal.
 The second issue that occupied some time on the application but has now disappeared is a factual one. The appellant led evidence on the application in support of the contention that the course of the Creek as it presently runs through the respondents’ property is very different from that which had existed at the time of the original Crown grant in 1831. This was important because navigability is determined as at the time of the original Crown grant. The respondents took the position that any deviation in the watercourse was minor and of no significance.
 The evidence on this issue is not easy to follow. Most of the evidence focusses on the part of the Creek that passes from the respondents’ property under Vanneck Road into Lobo Township and the work done in 1969 to deepen the Creek for drainage purposes. By the end of the application, the appellant had conceded that the Creek as it traverses the respondents’ property follows the same waterway that existed at the time of the initial Crown grant (see reasons, at paras. 17, 44-45). The appeal has proceeded on the same basis.
 Under the common law of England, title to the bed of a navigable stream depended on whether the stream was tidal or non-tidal. If the former, the Crown retained title of the bed. If the latter, the landowner on either side held title to the mid-point of the stream: seeThe Keewatin Power Company v. The Town of Kenora (1908), 16 O.L.R. 184, at pp. 188-89 (C.A.). However, in Ontario, unlike England, a public right of navigation did not depend on ownership of the bed of the body of water in question. The public right of navigation in Ontario extended to all navigable waters. As Professor LaForest puts it, “the rule is that if the waters are de factonavigable, the public right of navigation exists there, whether the waters are tidal or non-tidal.”: see G.V. LaForest, Water Law in Canada: the Atlantic Provinces, (Ottawa: Information Council, 1973) at pp. 178-80; The Tadenac Club Ltd. v. Hebner et al.,  O.R. 272, at pp. 274-75 (H.C.).
 In 1911, the Ontario Legislature abandoned the common law distinction between tidal and non-tidal navigable waters for the purposes of determining title to the bed of waters. Section 2 of the The Bed of Navigable Waters Act, S.O. 1911, c. 6 provided that subject to an express grant by the Crown, title to the bed of any navigable water did not pass with the Crown grant and remained with the Crown. Subject to specified exceptions, the Act applied retroactively to Crown grants that preceded its enactment.
 The present equivalent of s. 2 of the 1911 Act is s. 1:
Where land that borders on a navigable body of water or stream, or on which the whole or part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
 The parties agree that the original Crown grant of the respondents’ property in 1831 did not contain an express grant of title to the Creek bed and that no express grant has been made since then. The parties also accept that s. 1 of the Act applies retroactively to the Crown grant of 1831 and that the navigability of the Creek must be determined as of that date: see Coleman, at p. 612. If the Creek was a navigable stream in 1831, title to the Creek bed resides in the Crown. If the Crown has title to the Creek bed, the Creek bed severs the respondents’ lot into two lots, one north and one south of the Creek.
 A stream is navigable if there is a right of navigability along that stream. The right of navigability is a right of reasonable passage for public purposes along a waterway. The right is akin to the public right of passage on a highway: Coleman, at p. 613; Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (H.C.), at p. 502. The right of navigability entitles the public to use the waterway as a means of transportation. The right does not extend to use for purely private purposes, or to other uses such as fishing and irrigation: see LaForest, Water Law in Canada, at pp. 178-82; Coleman, at p. 614.
 The right of navigability can only exist if the waterway is physically capable of being traversed by a boat of some sort. However, what Henry J. in Coleman, at p. 613, referred to as “navigable in fact”, does not, standing alone, establish a right of navigability. Navigability cannot be measured only by regard to the depth and width of the waterway. In addition to being physically capable of use for transportation by boat, the waterway must also be capable for use as transportation in relation to a public purpose such as commerce, agriculture, or recreation: LaForest, Water Law in Canada, at p. 180; Coleman, at pp. 614, 616-17.
 The requirement that a waterway be capable of practical public use is a reflection of the public nature of the right of navigability. In my view, the meaning of the word “navigable” in s. 1 of the Act must be informed by, and be consistent with, the nature of the right of navigability. As explained in Canoe Ontario, at p. 502:
In essence, the test for navigability developed in Canada is one of public utility. 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.
Navigability should depend on public utility. If the waterway serves, or is capable of serving, a legitimate public interest in that it is, or can be, regularly and profitably used by the public for some socially beneficial activity, then, assuming the waterway runs from one point of public access to another point of public access, it must be regarded as navigable and within the public domain. [Emphasis added. Citations omitted.]
 Because the right of navigability is a public right that exists independent of any prior grant of the right and of the actual exercise of the right, navigability is determined by the waterway’s realistic potential to meet the criteria of navigability. The actual exercise of the right of navigability through public use of the waterway is not a prerequisite to the existence of the right, or a finding of navigability under the Act. If the waterway is capable of serving a “legitimate public interest”, it may be navigable: Canoe Ontario, at p. 503.
 Although actual public use is not a prerequisite to a finding of navigability, the absence of any evidence that the waterway was used for any practical public purpose can provide circumstantial evidence that the waterway did not have the capacity to serve any public purpose and was therefore not navigable.
 The public utility rationale underlying the right of navigability is also evinced by the requirement that the waterway runs from one point of public access to another point of public access. The public does not have the right to go across private land to get onto a navigable waterway, but must access the waterway from a point of public access. Similarly, the public does not have a right to go across private land upon leaving the navigable waterway. Egress must be by way of a route to which there is a right of public access. Absent proof of those two points of public access, the waterway between those points, no matter how wide or deep, has no practical value to the public as a means of transport and can serve no public utility.
 Navigability is determined by reference to a specific location along the waterway. The question is not whether Bear Creek as a whole is navigable, but rather whether the Creek as it runs over the respondents’ property is navigable: Coleman, at p. 614.
 The appellant accepts that the application judge identified the correct legal principles relevant to the definition of “navigable” in s. 1 of the Act. The appellant’s submissions focus on the application judge’s findings of fact, at para. 67, underpinning her conclusion that the Creek was navigable:
Instead, I find the evidence of Mr. MacMillan gleaned from his research of the historical records and the measurements and observations of Mr. Burwell contained in his field notes compelling. The totality of this evidence is sufficient to find that it is more probable than not that the watercourse was not only “capable of public use” in 1831 but was actually used by the public. Its dimensions could support commercial and/or recreational use. We know that it was of sufficient depth to support irrigation activity. At times at or about the time of the Crown grant, the watercourse was difficult to traverse due to its depth. A petition to “improve navigability” of Bear Creek was brought on behalf of numerous affected landowners a mere four years after the original grant. This suggests there was widespread navigation of Bear Creek which includes the watercourse. There is no evidence of points of access whether current or historical. Such evidence is not required. The watercourse is part of a larger river system which ultimately finds its way to Lake St. Clair. It was capable of constituting an aqueous highway for public, commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes.
 In the above passage, the application judge identifies three areas of the evidence in support of her finding that the Creek was navigable:
- the measurements and observations made by Mr. Burwell, the land surveyor who in 1819 surveyed London Township along what is now Vanneck Road;
- evidence from various sources of the depth of the Creek at least at the point where it crossed what is now Vanneck Road into Lobo Township; and
- evidence of petitions seeking to maintain and improve the navigability of Bear Creek placed before the government in 1833 and 1835, shortly after the initial Crown grant of the respondents’ property in 1831.
 The evidence relied on by the application judge was reasonably capable of establishing that the Creek was “navigable in fact”. Mr. Burwell, the original surveyor, calculated the width of the Creek at some 33 feet where it passed from the respondents’ property into Lobo Township. Mr. Wilband, the respondents’ surveyor, measured the width at 25 feet at about the same point. Other evidence, including anecdotal evidence in at least one historical text, indicated that the Creek had sufficient depth at that site, especially at certain times of the year, to permit transportation by boat along the Creek. On the totality of the evidence, the application judge could reasonably conclude that the Creek was wide enough and deep enough to allow a person to travel by boat along the Creek over at least part of the respondents’ property.
 The evidence of potential practical public use, apart from the dimensions of the Creek, was considerably slimmer. The only evidence referred to by the application judge capable of establishing capacity for public use was the evidence of the petitions filed with the colonial government in 1833 and 1835 respecting the navigability of Bear Creek. The 1833 petition was brought by Robert Johnson, a resident of the Township of Adelaide. Adelaide is located two townships to the southwest of the respondents’ property.
 Mr. Johnson brought the 1833 petition on behalf of “a numerous majority of immigrant settlers in the several townships of Adelaide, Warwick, Brooke, Lobo, Caradoc”. Those townships are all to the southwest of London Township.
 Mr. Johnson’s petition said, in part, that the petitioners:
[A]re prepared to prove that the said river of Bear Creek to have been navigable for time immemorial from Lake St. Clair to Underwood’s Mill in Caradoc compromising an extent of upwards of one-hundred miles but Maps Taylor and Company. Millers and divers other persons have recently and completely obstructed the natural course of the navigation and the fishery thereof by having erected mill dams and other acts of Trespass they persist in constructing although your petitioner has given due notice to the offending parties to abate without effect.
 The petitioner requested the government’s immediate assistance to end the “illegal infraction of the laws for protection of navigation, commerce and fisheries”.
 The 1835 petition sought a “Charter authorizing the improvement of the Navigation of Bear Creek, in the Western District.” In 1835, the Western District included Warwick and Brooke, two of the townships referred to in the 1833 petition. It did not include the Townships of Lobo, Adelaide or Caradoc. Those townships, like London Township where the respondents’ property was located, were part of the London District in 1835. As the name implies, the Western District was to the west (and somewhat to the south) of London Township and extended to Lake St. Clair.
 The 1833 and 1835 petitions are strong evidence of the potential public utility of the Creek in the Western District generally and as described in the 1833 petition, between Underwood’s Mill in Caradoc and downstream, southwest, to Lake St. Clair. There is no evidence of where in Caradoc Township Underwood’s Mill was located. The respondents’ property is located upstream from Underwood’s Mill and the Western District. Lobo Township lies between Caradoc Township and London Township where the respondents’ property is located. There is no evidence of the distance along the Creek between Underwood’s Mill and the respondents’ property. Perhaps most importantly, there is no evidence about the state of the Creek between Underwood’s Mill and the respondents’ property at the time of the Crown grant. On the record before the application judge, there was no way of knowing whether that part of the Creek was capable of serving any practical public purpose.
 The application judge found that the petitions indicated “widespread navigation of Bear Creek which includes the watercourse”. In my view, the petitions provided evidence of navigation on the part of the Creek referred to in the petitions. However, without evidence of the state of the Creek between the location described in the 1833 petition and the respondents’ property, it was unreasonable and speculative to infer that the navigability of the Creek as it passed over the respondents’ property was the same as or similar to the navigability of the Creek several kilometres downstream. The evidence of the 1833 and 1835 petitions, standing on their own without any evidence describing the Creek between Underwood’s Mill and the respondents’ property, could not reasonably assist in establishing the potential practical public utility of the Creek as a means of public transportation through the respondents’ property.
 The application judge was left only with the evidence of the dimensions of a part of the Creek as it passed from the respondents’ property into Lobo. There was little, if any, evidence about the dimensions of the Creek in other parts of the respondents’ property. There was no evidence of any public use for transportation related purposes of the Creek as it passed over the respondents’ property. Nor was there any evidence of at least two points of public access that would have allowed the public at the time of the Crown grant to access the Creek without committing trespass, travel along the part of the Creek running over the respondents’ property and leave the Creek without trespassing on private property. Without evidence of the public’s ability to legally access and egress the part of the Creek passing over the respondents’ property, that part of the Creek could have no potential practical public utility as a means of transportation.
 The evidence at its highest shows that a person could travel by boat over some part of the Creek as it passes along the respondents’ property. There is no evidence of any practical purpose for doing so in 1831. The evidence is incapable of supporting a finding that as of the Crown grant, the part of the Creek that travelled along the respondents’ 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”: seeCanoe Ontario, at p. 502.
 In her helpful submissions, counsel for the respondents, in addition to arguing that the evidence could support the application judge’s findings, advanced two other arguments in support of her submission that the appeal should be dismissed. Counsel argued that it would be unfair to the respondents to find against them on the question of navigability given the holding in O’Donnell. Counsel submits that in O’Donnell, the trial judge held that the stream was navigable on evidence which was arguably significantly weaker than the evidence mustered by the respondents. Counsel submits that the respondents should be entitled to rely on O’Donnell as creating a reasonable expectation that the Creek as it runs through their property would also be found to be navigable.
 Cases turn on their own facts. O’Donnell dealt with a different stream and a different set of facts. This court is not asked to review the correctness of the decision made in O’Donnell and I do not propose to do so.
 The result in O’Donnell can create no reasonable expectation of any particular result in this case. The respondents are entitled to have their case decided on its own facts according to the law of navigability in this Province. As I have endeavoured to demonstrate, navigability is about more than the width and depth of a stream. If O’Donnell can be read as suggesting otherwise, it does not represent the law in this Province.
 Counsel for the respondents also argued that in assessing the evidence offered by the respondents in support of their navigability claim, the court should make some allowance for the difficulty inherent in proving a state of affairs as of 1831. Certainly, the court cannot demand a quality of evidence which, in the circumstances, is not reasonably available. Consequently, the court will carefully consider reputable historical sources like those proffered in this case without becoming unduly concerned about the technical confines of evidentiary rules like the hearsay rule.
 I do not agree, however, that this court should approach the evidence offered by the respondents any differently than the evidence offered by the appellant. The respondents had the onus of establishing navigability as of 1831. Neither side had an advantage over the other in producing evidence relevant to that question.
 Nor, in my view, is there any reason for the Court to feel any need to lend a sympathetic ear to the respondents’ evidence. The respondents are trying to get around the Planning Act. As indicated above, that motive has no impact on the meaning of navigability under the Act. The motive does, however, discourage any inclination to rush to the respondents’ assistance with a benevolent interpretation of the evidence.
 The evidence was not capable of establishing that the Creek as it passed over the respondents’ property was a navigable stream within the meaning of s. 1 of the Act. Title to the bed of the Creek does not lie with the Crown. There is no natural severance of the respondents’ property.
 I would allow the appeal, set aside the order of the application judge, and substitute an order in the terms of the relief sought in paras. 51(a)(i)-(v) of the appellant’s factum. As agreed, the appellant, as the successful party on the appeal, shall have its costs of the appeal fixed at $8,000, inclusive of disbursements and relevant taxes.
 The application judge awarded costs to the respondents in the amount of $50,000. That order may change in light of this court’s disposition. The court will receive written submissions of no more than five pages as to the appropriate cost order on the application. The appellant will serve and file its written submissions within 21 days of the release of these reasons. The respondents will serve and file their response within 21 days of receipt of the appellant’s submissions.
Released: “DD” “JUN 16 2016”
“I agree Gloria Epstein J.A.”
“I agree Grant Huscroft J.A.”
 The waterway running through the respondents’ property is given various names in the material. The appellant prefers to call it a drainage ditch and the respondents prefer to call it part of the Sydenham River. Ultimately, the name is irrelevant. I will call it Bear Creek, the name used in the historical material.
 Navigable can also mean floatable in the context of the timber trade. I need not address that concept in these reasons: see Coleman, at p. 614.
 An Act to repeal part of an Act passed in the thirty-eighth year of His late Majesty’s Reign, entitled “An Act for the better division of this Province” and to make further provision for the Division of the same into Counties and Districts, S.U.C. 1821 (2 Geo. IV), c. 3, s. 11; An Act to form certain Townships in the London District into a County, and to attach certain Townships in the Counties of Middlesex and Kent, in the London and Western Districts, S.U.C. 1835 (5 Will. IV), c. 45, ss. 2-3.
 The material does contain a map with a scale of Lobo Township. The map is taken from a text entitled “The Heritage of Lobo 1820-1990”. As near as I can tell, the Creek travels a distance of about 13 kilometres across Lobo Township. The distance between the respondents’ property and Underwood Mill is therefore something more than 13 kilometres.