Laws v. Wagner, 2023 NSSC 93

SUPREME COURT OF Nova Scotia Citation: Laws v. Wagner , 2023 NSSC 93 Date: 20230313 Docket: SBW-510499 Registry: Bridgewater Between: Anne Laws v. Kevin R. Wagner and Tracy L. Brophy DECISION Judge: The Honourable Justice Joshua Arnold Heard: January 9 and 10, 2023, in Bridgewater, Nova Scotia Counsel: Alexander Cameron, for the Applicant Dennis James, K.C., for the Respondents Overview [ 1 ] The Applicant, Anne Laws, owns a cottage on Ponhook Lake with a shoreline on a horseshoe-shaped cove. The Respondents, Kevin Wagner and Tracy Brophy, bought a property next to Ms. Laws. They also have a shoreline.

The Respondents built a dock that Ms. Laws says impacts her ability to access navigable waters from her own waterfront. She seeks, inter alia , a mandatory injunction to remove the Respondents’ dock, and a prohibitory injunction requiring the Respondents to refrain from obstructing her riparian rights, and specifically prohibiting them from erecting a dock and floats that obstruct her riparian rights. She also asks for general, exemplary, and punitive damages. [ 2 ] The Respondents say that their dock does not interfere with the Applicant’s riparian rights.

Alternatively, they say the Applicant is estopped from seeking the removal of the dock because of an oral agreement. Further, they submit that riparian rights are not absolute and that the court should not exercise its discretion in favour of the Applicant considering the need to balance the parties’ respective riparian rights. [ 3 ] The Respondents also ask for a permanent injunction restraining Ms. Laws from removing or interfering with the dock or interfering with their riparian rights. Facts [ 4 ] The Applicant’s family has owned a recreational property on Ponhook Lake since the 1960s.

The property has approximately 90 feet of shoreline located on a small horseshoe-shaped cove. The Applicant grew up swimming and kayaking on the lake. She became sole owner of the property. In 2018 the Respondents purchased an adjacent property, closer to the head of the cove. Their property has approximately 120 feet of shoreline. [ 5 ] In 2019 the Respondents built Dock 1, adjacent to their boundary with the Applicant, extending into the cove. Dock 1 partially blocked the Applicant’s shoreline and extended close to a dock owned by the Conrads, who live on the other side of the cove.

Disagreements between the three neighbours ensued. On June 28, 2019, there was a meeting between the Respondents, the Applicant and her husband Alan Laws, and the Conrads, to discuss the location of Dock 1. The evidence establishes that all three families wanted a solution regarding the location of the Respondents’ dock, and this meeting was a casual effort to sort out the dispute over access to the

lake. Those involved in the discussion split into groups. Mr. Wagner, Mr. Alan Laws, and Mr. Conrad came to an agreement about the location of the Respondents’ dock. The agreement was not reduced to writing. [ 6 ] The Applicant, who was the actual owner of the Laws property, was not involved in the substantial discussion about the relocation of the dock. When asked about her preference for the location of the dock, Ms. Laws waved her hand in the general area of the west side of her property. Ms.

Laws wrote to a friend after the meeting that the neighbours had come to an agreement about the location of the dock. [ 7 ] The evidence of Mr. Laws was that during the discussion he said that the re-location of the dock was “for now.” Mr. Wagner essentially denied that Mr. Laws made such a comment. Whether or not this was said, I am satisfied that the outcome of this meeting did not constitute a permanent waiver of Ms. Laws’s riparian rights. [ 8 ] The evidence establishes that the dock is not a permanent fixture. It can be moved, reconfigured, and removed seasonally, with relatively little effort. Mr.

Wagner, Mr. Conrad, and some others jumped into the lake and, in approximately 20 to 30 minutes, reconfigured Dock 1 into the present Dock 2, which is the focus of this application. [ 9 ] Dock 2 blocks Ms. Laws’s access to the lake on approximately half of her waterfront. The head of the cove to the west of the Applicant’s property is shallow and rocky. The water level rises and falls seasonally, and it can have just a few inches of water or dry out in parts during the summer.

The Applicant kayaks and swims, and said she uses all areas of the cove, including the head of the cove, since a kayak is maneuverable in shallow water [ 10 ] Dock 2 has a stem and comes to a T-shape at its deepest point. It completely hems in a large portion of the Applicant’s shoreline. Ms. Laws did not sign any agreement waiving her riparian rights, nor did she formalize an agreement with the Respondents prior to the modifications and relocation that resulted in Dock 2. The Applicant did not complain to the Respondents about the location of Dock 2 during the summer of 2019.

Riparian Rights [ 11 ] The Respondents oppose this application on the basis of three issues outlined in their Notice of Contest. First, they argue, Dock 2 does not interfere with the Applicant’s riparian rights. They elaborate, by reference to three “zones” of the Applicant’s shoreline: a. First (1 st ) zone: no part of Dock #2 is off that shoreline. b. Second (2 nd ) zone: there is human-made land between the original shoreline and part of Dock #2. This human-made land does not belong to the Applicant. It belongs to the Crown.

This Crown land, that blocks the Applicant’s access to navigable waters, has been further built up by the Applicant since the fall of 2021, further blocking the Applicant’s access to the navigable waters of the Lake. c. Third (3 rd ) zone: this has no direct access to the navigable waters Lake. It borders the shallow, seasonally drying out, and shoal filled area of the head of the Cove. [ 12 ] Point (

a) is accurate, in that no part of Dock 2 blocks the Applicant’s access to navigable waters from what the Respondents describe as the First (1 st ) zone. [ 13 ] As to point (b), I do not find as a fact that any human-made land belonging to the Crown prevents the Applicant from accessing navigable waters. The Respondents allege that the Applicant created human-made land between the original shoreline and Dock 2, such that the human-made land belongs to the Crown. It is this land that blocks part of the Applicant's access to navigable waters. I am not satisfied on the evidence that the Applicant created human-made land in this way. [ 14 ] Point (

c) is more complicated. I agree with the Applicant that the seminal authority describing common law riparian rights is Water Law in Canada: The Atlantic Provinces (Ottawa: Queens Printer, 1973), by Gerard V. La Forest (as he then was). In that text, the following relevant points are made: 1. The right of access to water from an adjoining property is a property right; 2. Interference with access to the water, being a property right, is actionable per se without proof of damage; 3. The right includes access to and from the water; 4.

A riparian owner has a right of access over the shoal waters of a lake to the deeper waters where navigation begins; 5. No one can permanently obstruct a riparian owner’s right of access; 6. A neighbouring wharf or dock that blocks the riparian owner’s access entitles her to a right of access; 7. The right of access exists in a direct line from every point along the whole frontage of her land on the water.

It is therefore no answer to an action for damages for obstruction of the right that the owner can get to and from the water from another part of her land. [ 15 ] La Forest discusses the protection and definition of the right of access as follows: The most basic of the riparian rights is the right of access to the water; for without it a riparian owner could not enjoy the others. The right of access is a property right, and the owner may, therefore, maintain an action or obtain an injunction against anyone, even the owner of the bed, or the Crown, who interferes with the right.

These remedies are not restricted to the absolute owners; whoever lawfully occupies riparian land, for example a tenant, may bring an action to enforce it. Interference with access, bring a property right, is

actionable per se without proof of damage. While there is early authority for the proposition that an injunction, being a discretionaryremedy, the courts will not grant one for interference with the right if this is against the balance of convenience, later authority in otherareas of the law make it clear that an injunction will ordinarily issue. The right includes access to and from the water. On the sea and in other tidal waters this involves the right to go on the shore, i.e. theland between high and low water mark, for the purpose.

And a riparian owner has a right of access over the shoal waters of a lake to thedeeper waters where navigation practically begins. No one, not even the Crown, can erect any structure on the shore or otherwisepermanently obstruct a riparian owner’s right of access. For example, a permanent boom of logs in front of a riparian owner’s land or aneighbouring wharf that blocks his access would entitle him to a right of action. Indeed, even a temporary interruption can ground anaction unless it is in the reasonable exercise of rights by the person causing the obstruction.

This will be discussed more fully inexamining its relation to the right of navigation. The riparian owner’s right of access exists in a direct line from every point along the whole frontage of his land on the water. It is,therefore, no answer to an action for damages for obstruction of the right that the owner can get to and from the water from another partof his land. [16] In Day v. Valade, 2017 NSSC 175, Wood J. (as he then was) had to determine whether a neighbouring wharf obstructed theapplicants’ riparian rights. Wood J. referenced Corkum v.

Nash (1990), (NS SC), 98 N.S.R. (2d) 364, [1990] N.S.J.423 (S.C.T.D.), where Davison J. adopted the relevant aspects of Water Law in Canada, and stated: [23] A person who owns lands on the shore of a body of water such as Rocky Lake is entitled to exercise what are known as riparianrights in relation to that water, including the right of access. These rights were described in Corkum v. Nash, (NS SC),[1990] N.S.J. 423, as follows: 44 The plaintiff, whose land adjoins the harbour, is a riparian owner.

I refer to Water Law in Canada - The AtlanticProvinces (Ottawa: Queens Printer, 1973) by Gerald V. [La Forest] and Associates at p. 200: The owner of land adjoining a river, stream or lake has certain rights respecting the water therein whether or not he owns the bed. Theserights arise from his ownership of the bank, and from the Latin word for bank, ripa, they derive their name of riparian rights. The owneris similarly referred to as a riparian owner.

It is sufficient for the land to be riparian that it comes in contact with a body of water for a substantial part of every day in the ordinarycourse of nature, but such contact need not continue for the whole of the day.

Thus land that comes in contact with the sea or a tidalstream at high tide is riparian land, and its owner is entitled to riparian rights in respect of it. [Emphasis added] [17] Similarly, if the water in a lake recedes during dryer months (as is the case here), but it comes in contact with the land for asubstantial part of the day in the ordinary course of nature (as is the case here for the majority of the year), that land is riparian.

WoodJ. went on to further clarify what constitutes riparian rights: Riparian rights include the right of access to the water, the right of drainage, rights with respect to the quality of the water and rightsrelating to the use of the water. 45 The main complaint of the plaintiff relates to her impairment of access. LaForest states at p. 202: A riparian owner has a right of access over the shoal waters of a lake to the deeper waters where navigation practically begins. No one,not even the Crown, can erect any structure on the shore or otherwise permanently obstruct a riparian owner’s right of access.

Forexample, a permanent boom of logs in front of a riparian owner’s land or a neighbouring wharf that blocks his access would entitle himto a right of action. The riparian owner's right of access exists in a direct line from every point along the whole frontage of his land on the water. It is,therefore, no answer to an action for damages for obstruction of the right that the owner can get to and from the water from another partof his land. [Emphasis added in Day] 46 In Byron v.

Stimpson, [1878] S.C.R. 697, the defendant built a smokehouse and wharf in front of a 40-foot portion of the lot theplaintiff leased which had a 100-foot boundary on the high water mark of Possamaquoddy Bay and which obstructed access. It was thedefence of the defendant that this was an arm of the sea and that navigable waters were common to all. The plaintiff was found to be ariparian proprietor because of his ownership in the bank of the bay and had rights of property beyond the rights of other subjects of HerMajesty and it is the same right enjoyed by those who abut a highway.

At page 707, Fisher, J. comments: Again he says a man who has a house opening upon a highway has a right to step from his house on the highway, and whether thehighway be a highway of solid earth or a highway of water seems to be perfectly indifferent. The court went on to find that the plaintiff, as riparian proprietor on the bank of the bay, an arm of the sea, had the unobstructed right ofaccess from his land to the navigable waters of the bay. Although title to the shore was in the Crown, he had an unobstructed right ofaccess from his land on the shore to the navigable waters when the tide was out.

The plaintiff was awarded damages. [24] The issue in Corkum was whether the wharf constructed by the defendants, below the high water mark of Glace Bay Harbour,interfered with the plaintiff’s riparian right of access. The court concluded that it did for the following reasons: 48 From these general statements, it can be seen that regardless of whether the foreshore is owned by Cape Breton Development

Company Limited, the Crown or by the defendants by reason of adverse possession, the plaintiff still has the right of access to the watersof Glace Bay Harbour. It also appears that the plaintiff may use any wharves or fill land to obtain access but she is not required to do so.If the structures prohibit access from any point on the boundary of her land and the harbour, she has a good cause of action.

It is clearfrom the evidence, including the photographs and the plan, that there has been an infringement of the plaintiff’s right of access to thewaters of Glace Bay Harbour. [25] The court interpreted the right of access to mean that the riparian owner was entitled to get to the navigable waters adjacent totheir property without interference. [18] In The Upper Ottawa Improvement Co. v.

Hydro-Electric Power Commission, (SCC), [1961] S.C.R. 486, LockeJ. explained for the majority that riparian rights include the right to access the water adjacent to the owner’s land for its ordinary use, aslong as the established riparian rights of other proprietors are not interfered with. That caveat is important in this case. [19] Additionally, what is meant by navigable water depends on the circumstances. For example a kayak can navigate in veryshallow water, whereas a sailboat or speedboat cannot.

As Wood J. noted in Day: [30] ... [T]he riparian right of access entitles the land owner to get to navigable waters from every point on their shoreline withouthaving to travel around a manmade obstruction. What is meant by navigable waters will depend upon all of the circumstances, includingthe nature of the body of water and the land uses associated with the riparian lands. In this case Rocky Lake is a self contained body ofwater, bounded in part by residential properties.

Land owners use the lake for a variety of recreational purposes including swimming,fishing, and boating using small private watercraft such as kayaks, canoes, paddle boats, and sailboats. Because of their centreboards,sailboats will require a greater depth of water than other vessels. According to Mr. Day his sailboats draw approximately three feet ofwater when the centreboard is down. [20] In Browne v. Meunier, 2022 ONSC 3118, Hackland J. dealt with a riparian rights claim where the defendants had an unsightlyboathouse in front of the plaintiff’s shoreline.

The defendants justified the boathouse location because, similar to the Respondents in theinstant case, its location allowed them better access to deep water. Hackland J. noted, regarding the defendants’ position: [12] He explained that one needed to reach the deep channel to make any substantial use of a watercraft. He further explained thathis parents also had a dock on the east side of their property but due to its location relative to the deep channel, they used their boat fromthe boathouse. He pointed out that for many years the Plaintiffs’ predecessor in title, a Mr. and Mrs.

Johnson, never raised any objectionto the use or location of the boathouse. He stated that in the area between the shoreline and the boathouse, the water depth increasesgradually to about 4 feet in an average year. He also offers the opinion that the boathouse is about 50 feet from the shore and given thisdistance, it would not prevent a person on the shore opposite the boathouse from entering the water. He also observes that the waterfrontof the Plaintiffs’ property has “fairly steep banks in the area fronting the water”. I accept all of Mr. Thompson’s factual evidence.

Hewas not cross-examined on his affidavit. [13] In

summary, Mr. Thompson’s testimony establishes that he and his father, the Defendants’ predecessor in title until 1984,built the boathouse in 1969 “off the southwest corner of the property” so as to get the closest deep water access possible in this generallyshallow and swampy area. The boathouse has therefore been in its present location for about 50 years.

There does not appear to havebeen any dispute about the location of the boathouse between either parties’ predecessors in title, until the current application,commenced in March of 2020. [21] Justice Hackland cited Water Law in Canada, and set out the principles that had been developed by the Ontario courts togovern riparian rights: [15] Riparian rights are different from ownership of the bed of the river. They depend upon access to the water. As the OntarioSuperior Court of Justice noted in Glaspell v. Ontario, Ontario courts have laid down the following well established rules: (

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 ownlands; (iii) any grantee of the Crown must take subject to the right of navigation; (iv) a riparian owner has the right to the natural flow and quality of water, subject to the same rights as his or her riparian neighbours; (

v) a riparian owner is entitled to accretions; (vi) a riparian owner and the public have the right of navigation in navigable waters; and, (vii) the right to navigation is a public right, but may be connected with a right to exclusive possession to particular land on the bank. Thelatter right is a private one, invasion of which may form a ground of action for damages (citations omitted). [16] The Plaintiffs contend that as the upland owners of the waterfront on which the boathouse intrudes, they have certain riparianrights at common law which are significantly infringed due to the boathouse’s location.

Specifically, the presence of the boathouse is farmore than what the Plaintiffs consider to be an eyesore; it prevents the Plaintiffs from using their waterfront as they wish. The boathouseconstitutes a substantial obstruction to the water access from the Plaintiffs’ property. They are significantly restricted in the manner inwhich they can access the water. If they wish to take their watercraft out to the deep channel from their present dock, they need to circleout and around the boathouse. They are precluded from building a perpendicular dock extending out from their waterfront.

They arerestricted from the ordinary usages of their watercraft due to the presence of the boathouse just off the shore of their property. [17] The Defendants’ position is that the Plaintiffs can access their waterfront as they are able to launch their small boats into the

water and navigate out to the deep canal, notwithstanding the presence of the boathouse 50 feet off their shoreline. They submit in theirfactum, “Riparian rights of access do not include the right to build or erect structures to make this right of access practical.” Reliance isplaced on an observation of the British Columbia Court of Appeal in District of North Saanich v.

Murray, (BC CA),54 DLR (3d) 306 at 308: A number of American decisions hold that the riparian owner may build a wharf, not because he has a right to erect a structure on theforeshore, but because he has a right of access to the deeper water that he cannot enjoy except by means of a wharf. It is said that he hasthe right to make his right of access practical. That rule has not been adopted elsewhere in Canada or in England.” [18] With due respect, the riparian owner’s right to access the water along their frontage is an important aspect of the ownership oftheir recreational property and should not be minimized.

In my view, the case law does not require a complete obstruction of the uplandowner’s access to the water nor a complete obstruction of the upland owner’s navigation rights. A significant obstruction of these rightswill establish a cause of action. Whether access to the water is obstructed is a question of fact and when chattels such as docks andwatercraft are obstructed or made unusable, it is open to the court to conclude there is an obstruction of the riparian owner’s rights.

Thepresence of an unsightly structure immediately in front of the riparian owner’s waterfront is not in itself a violation of the uplandowner’s riparian rights but can be a factor in considering the level of obstruction of the water access. [22] The court concluded that the plaintiffs’ riparian rights were “significantly restricted by the location of the Defendants’boathouse”, sufficient to establish a violation of their riparian rights (para. 19). [23] In this case, how far the imaginary line from the Applicant’s property extends to allow them to get to navigable waters, andwhat constitutes navigable waters, is less clear.

Ms. Laws uses a kayak which is navigable in very shallow water. Dock 2 thereforeblocks the Applicant’s access to navigable waters.

While the Respondents have their own riparian rights, they cannot exercise their ownright to access navigable waters perpendicular to their shoreline by interfering with their neighbours’ riparian rights and blocking theiraccess to navigable waters. [24] Dock 2 inhibits the Applicant’s riparian rights in that, while she can access navigable waters from limited parts of hershoreline, Dock 2 prevents the Applicant from launching a kayak and accessing navigable waters from the entirety of her shoreline. It isno answer that she can access navigable waters from part of her shoreline. Ms.

Laws has riparian rights, these rights allow her to accessnavigable waters from anywhere on her shoreline, and the Respondents cannot dictate how her rights should be exercised. As Wood J.stated in Day: [31] The Days’ riparian right of access entitles them to place a boat in the lake at any point along their shoreline and travel directlyout from the shore to reach a depth of at least three feet. If the Valade wharf and dock obstructs them from doing so, it is a breach of theirriparian rights. It is clear from the sounding plan prepared by Mr.

Giovannetti and the photographs attached to the Day and Valadeaffidavits, that a boat launched at any point along the Day shoreline can reach depths in excess of four feet without any interference bythe wharf and dock. [32] There was much discussion in the parties’ written materials and at the hearing about the significance of the extended boundaryline as drawn by Mr. Giovannetti. The Days argued that this represents their “direct line” access to Rocky Lake as that term is usedin Corkum. In my view such access refers to travelling in a direction that is perpendicular to the shore.

The Day/Valade boundary formsan angle of approximately 45 degrees with the high water line, which means that the extension crosses the front of the Valade property.That is the reason for its intersection with the wharf which runs perpendicular to the shore. In this case the boundary extension drawn byMr. Giovannetti is irrelevant in determining the limits of the Days’ riparian right of access which does not include travelling at a 45degree angle from shore in front of the Valade property. As a result I must dismiss this aspect of their claim. [25] Day was followed in Sanderson v.

Joan Jay, 2019 ONSC 2117, where Speyer J. said: [32] The plaintiff and the defendant are both riparian owners. They both have a right of access to navigable waters from everypoint along the whole frontage of their land. … [38] In Day v. Valade, the riparian right of access was held to entitle a property owner to place a boat in the lake at any point alongtheir shoreline and to travel directly out from the shore to reach navigable water. A wharf and dock installed on an adjacent property thatobstructed the property owner from doing so, would amount to a breach of their riparian rights. The trial judge in Day v.

Valade foundthat a direct line out from the shore refers to a line that travels in a direction that is perpendicular to the shore, and rejected the argumentthat such a line refers to an extension of the property line. [26] The rising and falling of the tide do not affect riparian rights. Nor does the seasonal change in depth in a lake, whether overshoals or otherwise. There are clearly times during the year when Dock 2 obstructs the Applicant’s ability to access water navigable bya kayak. This constitutes a violation of the Applicant’s riparian rights.

Wharfing Out [27] Part of the confusion regarding the Respondents’ original theory regarding “balancing” access to navigable waters was theirwrongly held belief that they had a right to access navigable waters by building a wharf or a dock at the expense of infringing on theirneighbour’s riparian rights. In their Notice of Contest dated February 7, 2022, the Respondents first denied that there was any violationof the Applicant’s riparian rights, then argued, in the alternative, that the Applicant was estopped by the alleged June 2019 agreement.

Inthe further alternative, the Respondents asserted an entitlement to encroach on the Applicant’s riparian rights in any event: 44. In the alternative, Ground #3: If it is found that all or part of the Respondents’ Dock #2 interferes with some of the Applicant’sriparian rights, the Applicants’ rights are not absolute and must be reasonably balanced for both parties to have reasonable access to thenavigable waters of Ponhook Lake, including being balanced with the riparian rights of the Conrads. [Emphasis added]

[ 28 ] Riparian rights are property rights. Therefore, the “balancing” or “equitable” approach suggested by the Respondents has no place in my considerations. As Van den Eynden, J.A. said for the unanimous court in Shea v. Bowser, 2016 NSCA 18 , holding that the application judge had no authority to order relocation of a right-of-way created by express grant: [22] Counsel for the respondents acknowledges the common law does not support the application judge’s decision. Rather, respondent counsel argues equitable principles should allow the application judge to relocate the ROW.

That submission was made without supporting jurisprudence and is contrary to existing authority. This is not a balancing of rights or equity-based issue. … [27] Property law has its own particular, and at times rigid, set of rules. Courts uphold these rules even though that might result in overturning what may otherwise be a fair result and of benefit to both parties... [ 29 ] As the Applicant points out, the United States courts’ approach to riparian rights has been different than that developed in the Canadian and English common law. In an 1890

article in the Harvard Law Review (4:1, April 15, 1890 at 14), Alfred E. McCordic and Wilson G. Crosby wrote: The right to wharf out to navigable water is unknown to the common law of England. The erection of a wharf upon public lands without the consent of the Crown is a purpresture. There is, however, in the English law what is known as the riparian right of access, incident to lands bordering upon navigable waters. The celebrated case of Lyon v .

Fishmongers’ Company has been understood to decide that this “right of access,” like the riparian right to the appropriation and beneficial use of running water, is a “natural right,” dependant solely on natural relations... [ 30 ] Similarly, in a case comment in the Columbia Law Review (7:6, June 1907 at 412-413), the anonymous author discussed the “nature of the right to wharf out into navigable waters”, noting a recent decision of the New York Court of Appeals holding “that a littoral owner’s right of access comprehends “necessarily and justly, whatever is needed for the complete and innocent enjoyment of that right,” and that the erection of a wharf from high water mark out to the line of navigability was thus a legal enjoyment of that right of access, although the fee to the submerged land was not in the littoral owner but in the sovereign...” The author added that the English common law recognized a riparian right of access as a property interest, “but limits it practically to a mere easement of way, excluding any right to wharf out.” [ 31 ] There is no right in Canada for a landowner to wharf out to navigable waters in an effort to exercise riparian rights, thereby infringing on someone else’s riparian rights.

The Respondents have not provided any authority to suggest that this does not remain good law. The Respondents were wrong basing their decision on American law when configuring Dock 2 in a location that infringes Ms. Laws’ riparian rights. Estoppel [ 32 ] As noted earlier, the Respondents’ first alternative position to their denial that the Applicant’s riparian rights has been violated is that the Applicant is estopped from seeking the removal of Dock 2 by virtue of an agreement allegedly concluded by the parties, as well as their neighbours the Conrads, in June 2019.

According to the Notice of Contest, at para. 43: ... The Applicant is estopped from seeking the removal of Dock #2. In reasonable reliance on the representations of both the Applicant, the Applicant’s husband Allan Laws, and the Conrads, in June 2019, the Respondents reconfigured Dock #1, expending labour and money, to configure the agreed upon Dock #2. Furthermore, because Dock #2 is grand-fathered into the current regulatory scheme under the [ Canadian Navigable Waters Act ], a reconfigured dock could lose its grand-fathered status. [ 33 ] The Respondents built Dock 1 without any neighborly consultation.

Once Dock 1 was placed in the cove, the Conrads, who lived across the cove from the Respondents, complained that it was too close to their dock. This led to some acrimony and discomfort between the Conrads, the Laws and the Respondents, whose summer places are all in tight proximity to each other. Ms. Laws is described, without dispute, as a “peacemaker” at times in the evidence. [ 34 ] A meeting was held between the three couples in June 2019 whereby they discussed a peaceful solution to the dispute over placement of docks in their small cove. Mr. Wagner, Mr. Conrad and Mr.

Alan Laws (who did not own the property) had a discussion among themselves about relocating the dock, in the absence of Ms. Laws. When she was asked during the meeting where she wanted the dock, Ms. Laws waved her arm in the general area of the west side of her property. Dock 1 was then reconfigured in its present location as Dock 2. Ms. Laws did not object at the time.

However, in the late summer of 2020, when the extent of the infringement of her riparian rights reached an unmanageable stress level for her, in part due to the added loss of privacy due to Dock 2’s location, she complained. [ 35 ] Riparian rights are property rights. In all but exceptional circumstances, any waiver of property rights must be clear and in writing.

Section 4 of the Statute of Frauds, R.S.N.S., 1989, c. 442 , states: No interest in land shall be assigned, granted or surrendered except by deed or note in writing signed by the party assigning, granting or surrendering the same, or by his agent thereunto authorized by writing, or by act and operation of law. [ 36 ] The Respondents point to MacIsaac Estate v. Urquhart , 2019 NSCA 25 , as authority for finding a verbal agreement as to respective property rights between Ms. Laws and themselves to be enforceable due to part performance, even if it was not in writing.

However, the facts in that case were very different than those of the case at bar. In MacIsaac Estate , the evidence of both parties supported the existence of a “handshake” agreement of purchase and sale, whose terms were established by the evidence. Hamilton J.A. stated for the court: [47] I adopt Danny’s response to this argument:

[9] The Statute of Frauds exists to prevent fraud, not to facilitate it [Erie Sand and Gravel Ltd v. Seres’ Farms Ltd (2009), 2009ONCA 709 , 97 OR (3d) 241 (CA), ¶49]. The doctrine of part performance was created to prevent the use of the statute as anengine of fraud. “A verbal agreement which has been partly performed will be enforced.” [Hill v. Nova Scotia, (SCC),[1997] 1 SCR 69, ¶11].

Where both parties act in furtherance of their oral agreement, and in particular, where the purchaser has acted tohis or her detriment (as, for example, paying for the property), equity will not allow the vendor to hide behind the Statute ofFrauds [Erie Sand and Gravel, ¶45-46 and 78]. [10] The testimony of Ron and Richard at trial was clear and to the same effect: a. Ron agreed that Richard would have a right to use the lane to access the barn; b. Ron agreed to remove the existing encroachment [Company’s materials] on the land to be sold; and c.

Ron told Richard that he could use (but not own) the garden lot. [11] In reliance on that agreement (as well as on overall agreement to purchase and sell the lands for $150,000), a. Ron obtained a survey that he thought gave Richard the right to use the lane to access the barn; b. Richard moved into the house and made extensive renovations thereto before closing; and c.

Richard paid Ron $150,000.00 (subject to a rebate of a few thousand dollars for repairs not performed by Ron). [12] It is accordingly respectfully submitted that the Statute of Frauds had no application on the evidence and facts before the LearnedTrial Judge. The handshake APS was enforceable according to its terms…. [13] Nor is there anything in this Honourable Court’s decision in United Gulf Developments Ltd v. Iskandar, 2008 NSCA 71, thatalters this conclusion.

United Gulf involved what both the trial judge and this Court considered to be a property development agreementthat was, in effect, an agreement to agree. The written document on its face omitted terms and condition that would have been necessaryto any agreement involving a large and complex property development. That is not the case here, where the testimony of both partiessupported the existence of a complete agreement. [Emphasis in Urquhart.] [37] In this case, the evidence indicates that Ms. Laws was not involved in the principal discussion regarding the relocation of Dock1.

When asked, she waved her arm vaguely in the direction she would consent to Dock 2, but she was never consulted about its exactlocation. Unlike the Urquhart case, the evidence here does not allow the court to determine the specific terms of any agreement, or evento find that an agreement was reached. [38] The Respondents complain that, due to developments in legislation, specifically the effect of the Canadian Navigable WatersAct, any new dock will require them to undertake an application and compliance process. (They say the existing dock is “grandfatheredin.”) The Respondents state in their brief: 96.

If Dock 2 is removed, the Respondents may not be able to install a new dock under the current legislative scheme. Any new dockthe Respondents build would have to comply with the new Navigable Waters Act. Under the new legislation, the Respondents mustcomplete a self-assessment process to determine if they need to apply to install a dock (s. 5(1)). It is anticipated the evidence will showthat by installing a new dock in the Cove, the Respondents would likely trigger the application process. The application process couldalso be triggered by public complaints about a dock.

The application process is an involved process which includes publishing a noticeabout the proposed dock and a period of public comments before the Minister of Transport determines if the dock is permitted (s. 7(3)and (4)). Even in the best-case scenario, this will be a challenging process for the Respondents’ given the Conrads and the Laws’animosity towards them. [As appears in original] [39] Evidence was called confirming the need for the Respondents to make the application process if Dock 2 is moved and theywant to configure another dock.

Nonetheless, the Respondents moved Dock 1 due to complaints from the Conrads. They lost theirability to have Dock 1 grandfathered in. Dock 2 was configured without a clear agreement by Ms. Laws as to where it should go or howit would be configured. She now rightly complains that Dock 2 interferes with her riparian rights. Had the Respondents built Dock 2 inaccordance with Ms. Laws’s riparian rights, it would now be safely grandfathered in. They did not. In the event they face a complianceprocess in constructing a new dock, the Respondents are the authors of their own misfortune.

Their lack of consideration for theirneighbours cannot be used to manufacture an estoppel argument to their benefit. [40] The evidence does not establish that any licence was granted by Ms. Laws to the Respondents allowing them to locate Dock 2in its current position. There was a meeting where Ms. Laws pointed generally to a spot for Dock 2. Even if this amounted to a grant ofa “mere licence”, there was no indication of permanence, and the Respondents had ample notice that Ms. Laws wanted Dock 2 to bemoved out of her riparian area. Ms.

Laws is not estopped from enforcing her right to have Dock 2 moved such as to access her riparianrights. [41] Similarly, I am not remotely satisfied that the Applicant is estopped by the ambiguous outcome of the 2019 discussion fromsubsequently objecting to the placement of the Respondents’ dock. The Respondents rely on the following passage from Cowper-Smithv.

Morgan, 2017 SCC 61: [15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimantexpects that he will enjoy some right or benefit over property; (2) the claimant relies on that expectation by doing or refraining fromdoing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of hisreasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on herword... The representation or assurance may be express or implied...

An inchoate equity arises at the time of detrimental reliance on arepresentation or assurance. It is not necessary to determine, in this case, whether this equity is personal or proprietary in nature. When

the party responsible for the representation or assurance possesses an interest in the property sufficient to fulfill the claimant’s expectation, proprietary estoppel may give effect to the equity by making the representation or assurance binding. [16] Proprietary estoppel protects the equity, which in turn protects the claimant’s reasonable reliance... Like other estoppels, proprietary estoppel avoids the unfairness or injustice that would result to one party if the other were permitted to break her word and insist on her strict legal rights...

As Lord Denning M.R. put it in Amalgamated Investment & Property Co. (In Liquidation) v. Texas Commerce International Bank Ltd. , [1982] 1 Q.B. 84 (C.A.) , at p. 122 : When the parties to a transaction proceed on the basis of an underlying assumption — either of fact or of law — whether due to misrepresentation or mistake makes no difference — on which they have conducted the dealings between them — neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so.

If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. [ 42 ] The Respondents did not act to their own detriment on the basis of the vague communications with Ms. Laws. Their placement of Dock 2 was done with minimal input from the Applicant, and certainly without any representation or assurance that she would never object again. There was no benefit to Ms. Laws, beyond a temporary respite from the ongoing feuding caused by the Respondents’ own behaviour.

Despite baseless attempts to paint the Applicant as an aggressor, it was undisputed and clear on the evidence that the Applicant continually took on the role of peacemaker and sought to minimize conflict – an attribute the Respondents used to their own advantage in a campaign of aggressive behaviour and hostile and threatening communications. There were no exceptional circumstances such that the Statute of Frauds should not apply. Any waiver of Ms. Laws’s property rights should have been clear and in writing. It was not. [ 43 ] Accordingly, I give no credence to the Respondents’ claim of estoppel.

In any event, estoppel is an equitable defence which would require the claimant to come before the court with “clean hands” in relation to the relief sought: Kennedy v. Marcotte Estate , 2022 BCSC 1486 , at para. 67 . As will be apparent from the findings above, I am satisfied that the Respondents’ own behaviour is the cause of the dispute between the parties, and they should not be permitted to benefit from their self-centred disregard for their neighbours’ rights.

Relief [ 44 ] I am satisfied that the Respondents have violated the Applicant’s riparian rights by the placement of their dock and floats, and that such placement constitutes a trespass. The Applicant is entitled to a declaration to that effect. Further, the Applicant is entitled to a permanent injunction to remedy the violation, in particular, requiring the Respondents to remove the dock and floats and enjoining them from further obstruction of Ms. Laws’s riparian rights. [ 45 ] General damages for trespass are often nominal ( Romkey v. Osborne , 2019 NSSC 56 , at para. 169 ).

In this case, I am satisfied that the damages go somewhat beyond that level, given the wilful ongoing trespass since 2020 which has had an ongoing impact on the Applicant’s riparian rights and her ability to make use of her shoreline. I would award damages of $2,500. (See Arbutus Bay Estates Ltd. v. Canada (Attorney General) , 2018 BCCA 259 , at paras. 28-29 ). The Applicant has also requested punitive and aggravated damages.

I am satisfied that the effect of the deprival of riparian rights was aggravated by the campaign of threats and harassment undertaken by the Respondents in relation to the Applicant’s concerns, justifying aggravated damages of $1,000. Finally, I conclude that the Respondent’s actions – exemplified by the threat that “there’s plenty we could do to make life more difficult for people” – were sufficiently “arrogant, high-handed, and malicious” (See Romkey at para. 167 ) to call for punitive damages (as distinct from aggravated damages).

I award punitive damages, also in the amount of $1,000. [ 46 ] The Respondents’ cross-application alleging a breach of agreement and abuse of process by the Applicant is dismissed. Conclusion [ 47 ] Accordingly, the Applicant’s riparian rights have been violated, and the Respondents have committed trespass. The Applicant is entitled to the relief described above. [ 48 ] If the parties are unable to agree as to costs, I will accept written submissions within one month of the release of this decision. Arnold, J.