Court of Appeal Shuts Down Attempt to Re-Litigate Shoreline Boundary
Becker v. Walgate (2025 ONCA 696):
Background
This long-running boundary dispute between neighbours on Jack Lake in the Kawarthas has now been before the courts for a full decade.
Martha and Jason Becker own Lot 42, immediately beside Walter Walgate’s Lot 41. The fight concerns roughly 100 feet of shoreline, valuable waterfront that both sides claim.
The shoreline has changed shape over the years, partly because Jack Lake is part of the Trent-Severn Waterway and has been affected by dams since the early 1900s. The central question has always been:
Where exactly does the lot line between Lots 41 and 42 meet the lake?
The First Round (2019)
At the initial hearing, the Superior Court ruled that the boundary ended at the Normal Controlled High Water Level (NCHWL) — effectively granting the Beckers more waterfront.
However, Mr. Walgate appealed.
The 2020 Court of Appeal Decision
In 2020, the Ontario Court of Appeal disagreed.
It held that the true boundary ends at the water’s edge as it existed in 1902, when the Crown first issued the patent for the land.
The case was sent back to the Superior Court to determine:
- The location of the 1902 water’s edge;
- The effects of erosion or accretion since then; and
- Any resulting riparian rights.
That direction was meant to finally settle the property line.
The New Twist: A “15-Degree Bend”
Before the new hearing took place, the Beckers obtained a fresh expert report suggesting that the lot line should include a 15-degree bend between the NCHWL and the 1902 water’s edge.
If accepted, this would again push the disputed shoreline into their property.
The Beckers launched a new application in 2023 seeking a declaration confirming this bend, and they asked to have that application heard together with the remitted trial.
Mr. Walgate countered with a motion to dismiss, arguing the new claim contradicted the Court of Appeal’s 2020 directions.
The motion judge agreed, finding that the second application was an attempt to circumvent the appellate order and an abuse of process.
The 2025 Appeal
The Beckers appealed that ruling and, alternatively, asked the Court of Appeal to vary its 2020 order to allow them to argue the bend issue.
The Court of Appeal (Favreau, Huscroft, and George JJ.A.) dismissed both the appeal and the motion.
Key Findings
- The Court confirmed that, while the 2020 order didn’t explicitly prohibit new arguments, it must be read in context, it was clearly meant to bring finality to the dispute.
- The “bend theory” was a new argument that could and should have been raised in the original application years ago.
- Trying to reopen the case now amounted to an abuse of process — litigation by instalment.
- The Beckers couldn’t rely on the alleged mistakes of their earlier expert to justify introducing a new theory at this stage.
- The motion to “vary” the 2020 order also failed, as Rule 59.06 only permits limited corrections — not the re-opening of final appellate decisions on new theories.
The Court emphasized the need for finality:
“This litigation has been going on for over ten years. The need for finality is clear.”
Result
- Appeal dismissed
- Motion to vary dismissed
- Costs of $25,000 awarded to Mr. Walgate
Considerations for Real Estate Professionals
This case highlights the importance of:
- Raising all relevant boundary theories and expert evidenceearly in litigation;
- Understanding that once the Court of Appeal has defined the scope of a remitted hearing, that scope is fixed;
- Recognizing the court’s strong commitment to finality and efficient justice, especially in long-running property disputes.
In short, you don’t get a second bite at the apple when it comes to defining property boundaries in Ontario.
Brian Madigan LL.B., Broker