Erik v McDonald, 2017 ABQB 756

Court of Queen’s Bench of Alberta Citation: Erik v McDonald, 2017 ABQB 756 Date: 20171213 Docket: 1401 12164 Registry: Calgary Between: Mary-Lou Erik and 1196679 Alberta Ltd. Applicants - and - Debbie McDonald also known as Debbie Sparks, Doug Sparks, Ernest H. Domshy, Rose Domshy, Sanit Chanhao, Kanokwan Promcharoenwatana, and Her Majesty the Queen In Right of Alberta Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.E.

Romaine _______________________________________________________ [ 1 ] On January 23, 2017, I issued a decision in this hotly-contested dispute among neighbors who own property in the Bearspaw area. The facts of the case are set out in my decision at 2017 ABQB 39 . [ 2 ] The dispute arose when the defendant Debbie McDonald and her partner Doug Sparks erected a fence across a portion of the Pederson Reservoir that covers parts of lands owned by several parties, including the applicants, Mary-Lou Erik and 1196679 Alberta Ltd.

The issues to be determined in the application were the extent and limits of rights of the owners of lands bordering the reservoir to the use of the reservoir waters, and whether the fence built by Ms McDonald and Mr Sparks was lawfully erected. [ 3 ] I found that both the applicants and the defendants had the right to access the reservoir for recreational purposes, despite its man-made nature. I found that the fence interfered with that right and must be removed. The applicants were granted an order:

(

a) declaring that Ms McDonald and Mr Sparks did not have the right to erect and maintain a fence on the mid-reservoir property line between the McDonald lands and the applicants’ lands; (

b) granting a permanent injunction requiring Ms McDonald and Mr Sparks to remove the existing fence; (

c) declaring that the applicants and the defendants, together with their successors in title, have the right to recreational use of the Pedersen Reservoir, including traversing it by canoe or kayak, without interference from each other; and (

d) granting leave to seek the balance of the relief claimed in the Statement of Claim or any amendment thereto at a later time. [ 4 ] On May 9, 2017, the applicants applied for an order finding Ms McDonald and Mr Sparks in contempt of court for failure to remove the fence, advice and directions relating to other fences constructed during the course of litigation, an order directing the removal of these new fences and solicitor-client costs. [ 5 ] Ms Erik reported, and Ms McDonald confirmed, that during the course of the litigation Ms McDonald and Mr Spark had erected two new fences in and across the reservoir.

Ms Erik also advised that at the time of swearing her affidavit, May 9, 2017, the defendants had only removed the fence posts of the original fence and had failed to remove the remainder, leaving parts of the fence to float on the water. [ 6 ] Ms McDonald relied on the fact that my decision only addressed one fence in refusing to remove the new fences. Ms McDonald’s counsel advised in a letter dated March 9, 2017 to Ms Erik’s counsel that Ms McDonald would remove the original fence “as soon as reasonably practicable” if Ms Erik’s partner would remove the snow that had been piled on the fence.

The letter stated that, if Ms Erik’s partner did not do that, Ms McDonald would wait for the snow to melt before removing the fence, and may not be able to remove the fence posts until the following winter. [ 7 ] This letter also stated that: ... my clients understand that Justice Romaine has granted your clients the right to access all the water in the Pedersen Reservoir. As such, [Ms McDonald] will be installing access gates that are large enough for canoes and kayaks to pass through on the other two fences as soon as reasonably practicable.

These gates must be shut after use by your clients. [ 8 ] Ms McDonald indicated in her affidavit of May 19, 2017 that she had removed the fence posts of the original fence, but that the mesh and other parts could not be removed because of ice conditions. During the week of March 21, 2017, she installed access gates in the other two fences. She removed the rest of the original fence on May 11, 2017. [ 9 ] At the hearing before me on May 2, 2017, the parties could not agree about the position and extent of the new fencing.

I asked that the parties collaborate to produce a map of the reservoir showing the position of the two new fences. Apparently, they were unable to do so. Ms.

Erik’s counsel advised that Ms McDonald had not agreed to a proposed statement of facts, and, in late June, each of the parties filed affidavit evidence indicating the position of the fences and the area of the reservoir affected by the fences. [ 10 ] Ms McDonald advised that she was not able to sign the proposed agreed statement of facts as she wished to verify certain measurements and the agreed statement of facts contained an aerial photo that was not properly authenticated.

However, the additional affidavits filed on her behalf did not add any useful information about the new fences that had not been provided by Ms Erik’s affidavit. [ 11 ] Although my original decision did not address the two additional fences, I made the following comments with respect to access to the reservoir: [36] Even if the land under the reservoir is private property, the water in the reservoir is not private property.

Therefore, as noted by Mr Brayford, residents who have legal access to land adjoining the reservoir (in this case by virtue of their ownership of the land that adjoins the reservoir ) are entitled to traverse in or on the water within the reservoir as long as they do not trespass on a private shoreline or touch the allegedly privately-owned bed of the reservoir. [37] Without the fence, Ms. McDonald would have no right to prevent her neighbours from using the water or reservoir for recreational purposes.

She has sought to interfere with the rights of the landowners with legal access to Crown-owned water by erecting the fence. She relies on

Schedule 1 of the Water Act (Ministerial) Regulation , which allows the erection of a fence “in or adjacent to a water body”. [38] In context, the regulation makes sense: owners of agricultural land who wish to prevent their stock from wandering or landowners who wish to provide additional security against trespassers on their property may well wish to place a fence “in or adjacent to” the water that encroaches on part of their land.

However, the fact that the erection of such a fence water does not require the approval of the Director under the Water Act does not mean that a fence creates ownership of the Crown-owned water that it encloses, or eliminates the rights of others to access such water. [39] There can be no trespass of property that one does not own. ... [52] In the circumstances of the creation of the reservoir and its long history, I find that both the applicants and the defendants have the right to access the reservoir for recreational purposes, despite its man-made nature.

The erection of the fence interferes with that right, and it must be removed. As long as the applicants do not cross the shore of Ms McDonald’s lands, they are not, and have not been, trespassers.

[53] As noted by Cory, J in dissent in Welsh v Marentette , 1985 CarswellOnt 724 at para 63 : In this province, the water belongs to the Crown. All owners with the right of access to the water should be entitled to use that water for all reasonable purposes. The only limitations upon their use should be that it does not unreasonably interfere with the rights of the other riparian owners.

The law should discourage neighbours from interfering with those living near to them by unduly inhibiting the reasonable use and enjoyment of the water that flows between their properties. [ 12 ] Thus, any new fencing in the reservoir that prevents or unduly interferes with the recreational use of the reservoir by the applicants (or the defendants) is an unwarranted interference with the right of access, and must be removed. [ 13 ] From the affidavit evidence that has been provided, I am satisfied that the new fences across the Pedersen Reservoir on the boundary of the McDonald lands with the Chanhao lands and on the boundary of the McDonald lands with the Domshy lands are an interference with the right of access and must be removed as soon as reasonably practicable. [ 14 ] Since the original fence that was the subject of the first decision was completely removed prior to this application being heard, I do not find Ms McDonald and Mr Sparks to be in contempt of my first judgement. [ 15 ] Although Ms McDonald and Mr Sparks were unreasonable in their

interpretation of my original decision, and have by their conduct required the applicants to bring this application, I am unable to find that their conduct warrants solicitor-client costs. [ 16 ] However, Ms Erik is entitled to double the costs of a contested application under

Schedule C of the Rules of Court, with additional costs of $1,000 for filing an additional affidavit given that it was not necessary and that Ms McDonald’s affidavit did not disclose any material difference in the information I requested. Dated at the City of Calgary, Alberta this 13 th day of December, 2017. B.E. Romaine J.C.Q.B.A. Appearances: C. Richard Jones / Marc-Elie Scott for the Applicants Mary-Lou Erik and 1196679 Alberta Ltd. Gillian S. Holowisky for the Defendants Debbie McDonald and Doug Sparks