When people buy waterfront property, most of them assume they also own the waterfront. However, unless there is an express grant to the bed of navigable water, title to the body of water or stream bordering on or passing through a parcel of land does not pass with title to the property and title remains in the Crown in right of Ontario. For ease of reference, if you are walking along your property towards the water, as soon as your feet are wet, you are on government land.
Canoe Ontario v Reed, 1990 determined what constitutes navigable water:
• Navigability requires the waterway be capable in its nature stated to be traversed by boats;
• Navigable also means floatable in the sense that the river or stream is used or is capable of use for floating logs or log rafts;
• A river may be navigable over part of its course and not over other parts;
• To be a navigable river, it need not be used for navigation but be realistically capable of same;
• A river is not navigable if it is only used for private purposes or if it is used for purposes which do not require transportation along the river;
• Navigation need not be continuous but may fluctuate with the seasons;
• where a proprietary interest asserted depends on a Crown Grant, navigability is initially determined as at the date of Crown Grant;
If the proprietary interest of the bed if navigable waters is held by the government then it may be used by any member of the public who has a legitimate reason to pass over it, including particularly other owners of land fronting on that water.
If you are purchasing a waterfront property contact our Elizabeth Street office in Midland, Ontario by phone at 705-526-3791 for a quote or speak directly to one of our lawyers.
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