Forest Ave South Road Allowance and Water Lot

The Forest Avenue South road allowance (municipal road allowance) includes a municipally owned concrete pier located at the shoreline, which extends into a municipally owned water lot.  In 1956, City of Orillia Policy 1.6.1.1 was established to authorize the property owners of Grape Island to erect one temporary dock at the pier to allow residents to get to and from Grape Island.

Over the past years, the Grape Island Property Owners Association (GIPOA) has taken the lead in coordinating the construction, maintenance, and annual installation and removal of the temporary dock authorized under the City's Policy 1.6.1.1.  In recent years conflict has arisen between the GIPOA and surrounding land owners to the east and west of the municipal road allowance.  This conflict has resulted in the submission of a number of complaints to the City from both the GIPOA and mainland residents as it relates to the use of the existing GIPOA dock, the installation of a second dock installed by the GIPOA (without municipal authorization), the use of the City's existing concrete pier by commercial barges, encroachments of surrounding land owners into the municipal water lot and Forest Avenue South road allowance, and the impacts that these various uses have on the City's property and surrounding properties.

 Background
  • Forest Avenue South is a public road, that is owned and maintained by the City of Orillia.  The Forest Avenue South road allowance terminates at the shoreline of Lake Simcoe.  The City of Orillia owns a concrete pier at the southernmost end of Forest Avenue South.  The concrete pier provides a Waterfront Landing, or public access to Lake Simcoe.  Abutting the end of the Forest Avenue South Road Allowance, is a water lot that is also owned by the City of Orillia.
  • In 1956, the Council of the then Town of Orillia, established a policy that authorized the property owners on Grape Island to erect a single temporary dock at the concrete pier to allow residents to get to and from Grape Island.  That 1956 Policy remains in effect, and is part of the  City of Orillia Policy Manual (Policy 1.6.1.1).
  • Over recent years, conflict has arisen between the Grape Island Property Owners Association (GIPOA) and surrounding land owners to the east and west of the municipal road allowance.
  • This conflict has resulted in the submission of a number of complaints to the City from both the GIPOA and mainland residents as it relates to the use of the existing GIPOA dock, the installation of a second dock installed by the GIPOA (without municipal authorization), use of the existing concrete pier by commercial barges and encroachments of surrounding land owners into the municipal water lot and Forest Avenue South road allowance.
  • In order to legally permit some of the existing uses, Council of the City of Orillia passed a Temporary Use By-law No. 2018-20 (TUB) in the spring of 2018.  That same spring, the Council of the City of Orillia adopted amendments to Chapter 538 that govern how and when the City’s road allowances and Waterfront Landings may be used for barging purposes.  These two by-laws were passed to address the concerns of the City and the parties involved.
  • When it was initially passed, the TUB contained an expiry date of March 5, 2020, and was established as a temporary solution to allow the Forest Avenue South Working Group time to “work together to develop a long-term solution for all”.   As the TUB was about to expire this March, and litigation against the City had been commenced by GIPOA, City of Orillia Council passed a by-law to extend the time period for the TUB until March 5, 2021 to allow the matters of concern to be resolved while still permitting the placement of the permitted structures on the City-owned road allowance and water lot.
  • These issues have been reported on through previous staff reports.
  • Through Report ED-19-12 staff informed Council that the GIPOA had advised City staff that GIPOA had retained a solicitor.
  • Staff recommended to Council that the Forest Avenue South Working Group be dissolved, because the GIPOA chose to retain a solicitor to represent the GIPOA in its dealings with the Working Group. As the City’s participation in the Working Group was not supported by solicitor representation, continued efforts would not have been consistent with Council’s mandate to “work together to create an amicable solution to the challenges in this area”.
  • Additionally, the City’s solicitor recommended that City staff not meet with another party’s solicitor without legal representation present, even on a “without prejudice” basis (“without prejudice” is a term that refers to the understanding that communications will not be used as evidence in court proceedings or seen as an admission of liability).
  • Council subsequently passed a resolution dissolving the Forest Avenue South Working Group, directing staff to collect feedback from Grape Island residents and neighbours of the road allowance as it pertains to the core issues regarding the use of the road allowance and water lot, and directing staff to prepare a report outlining options for a solution which takes into account the feedback obtained.
  • On June 26, 2019, staff advised Council (through the June 28 Council Information Package memo) that the above noted staff report would be brought forward to Council in September 2019.
  • Since this time, staff have undertaken an online survey, which received 59 responses, and developed several options for inclusion within the impending staff report.
  • On August 15, 2019, the City was served with a Statement of Claim that a legal proceeding has been commenced by the GIPOA against the City of Orillia.
  • In their Statement of Claim, the GIPOA claims that their members should have complete and unfettered access to the Forest Avenue South road allowance, municipally owned water lot, municipally owned concrete pier and two dedicated GIPOA docks at all times of day, throughout the year, using any type of vessel and loading any type of materials.  The Statement of Claim did not seek relief from the provisions of Chapter 538
  • The GIPOA claims that the City’s regulation of Forest Avenue South road allowance through the use of a Temporary Use By-law is unlawful.
  • The GIPOA relies on the legal doctrine of “proprietary estoppel” to claim that the City is not entitled to restrict GIPOA’s use of the municipal water lot at the base of the Forest Avenue South road allowance.  If GIPOA succeeds with this type of claim, they will be able to continue their existing uses of the City’s waterlot.
  • The GIPOA is also seeking damages in the amount of $150,000 per vacant lot and $50,000 per lot with a cottage (approximate value of $3.1 million).
  • Council approved funding in the amount of $75,000 to retain a solicitor (Robert Wood, BLG) to submit a Statement of Defence on behalf of the City and directed staff to claim costs against the Grape Island Property Owners’ Association through the Statement of Defence.
  • The GIPOA also served the City with a Request to Admit, by which the Plaintiff attempted to seek the City’s admission that the allegations made within the GIPOA’s Statement of Claim are true.
  • The City's Statement of Defence was filed on September 20, 2019.
  • The City subsequently responded to the Request to Admit, and referred the GIPOA to the City’s Statement of Defence. 
  • The term of the Temporary Use By-law (TUB) has been extended to March 5, 2021.
 Current Status and Next Steps
 Staff Reports
 Relevant Policies and By-laws
  • City Policy 1.6.1.1 Grape Island Mainland Dock
  • Chapter 538 Use of City Road Allowances and Water Lots
    • This By-law includes provisions related to the use of City road allowances and water lots, and includes provisions related to barging, mooring, and road occupancy permits.
    • This by-law permits barging at the Forest Avenue South water lot for those who have obtained a barge permit, but restricts the mooring of barges between the hours of 8 p.m. and 8 p.m., as well as between May 16-October 14 annually on any Friday, Saturday, Sunday, Monday, or statutory holiday (barging is permitted beween May 16-October 14 on any Tuesday, Wednesday, Thursday).
    • For full details, please review the above by-law.
  • Temporary Use By-law 2018-20 (TUB) 
    • Note that the term of the TUB has been extended.  It will now expire on March 5, 2021.
 Other Relevant Documents
  • Joint Proposal (Submitted by the GIPOA and neighbouring property owners. This document has been redacted to remove information regarding identifiable individuals. This proposal was subsequently withdrawn from the July 17, 2017, Council Committee agenda at the GIPOA's request)
 Legal Matters
 Frequently Asked Questions (FAQ)
 
 

Who owns the water lot at the base of the Forest Avenue South road allowance? 

 

The City of Orillia owns the Forest Avenue South road allowance and adjacent water lot. 

 

Why is the City involved in this matter? 

  • Since 2015/2016, the City has received numerous complaints associated with the use of the Forest Avenue South Road Allowance, the concrete pier and the City's water lot.  
  • As it would in any circumstance where its ratepayers have filed a complaint, the City conducted an investigation into the issues.  
  • During the investigation it was discovered that the Grape Island Property Owners Association (GIPOA) had placed two docks on the City's waterlot whereas Policy 1.6.1.1 permitted only one dock.  In addition, it was discovered that some docks and structures located on property adjoining the road allowance encroached onto the City's lands and water lot, and were not in compliance with the City's Zoning By-law.
  • Due to the complexity of the situation, staff reported to Council and requested Council's direction regarding how to attempt to address the various issues. 
  • In 2018, Council directed the formation of a Working Group to attempt to come to a solution that would be acceptable to all parties.

Why did the City choose to defend itself against the GIPOA Statement of Claim?

  •  Under the Rules of Civil Procedure, when the City is served with a “statement of claim” from a plaintiff, the time allowed to file a “statement of defence” is short.  If the City fails to respond to a statement of claim, the court will be entitled to assume that the City has admitted all of the allegations set out in the statement of claim, and the plaintiff will be entitled to obtain a default judgment against the City. 
  • In the case of the GIPOA’s statement of claim, the GIPOA asked the court to declare that the City’s property rights as owner of the Forest Avenue South waterlot were subordinate to the GIPOA’s rights of “unfettered access” to the waterlot, and that Council had no authority to regulate the GIPOA’s use of City-owned lands.  The GIPOA also asked the court to order that the City pay approximately $3.1 million to the GIPOA, for alleged damage done to all of the lots on Grape Island. 
  • The City reviewed the GIPOA’s statement of claim and quickly determined that it was not prepared to admit the GIPOA’s allegations, and that the GIPOA’s allegations in fact had little merit in light of the prevailing law governing: (a) the public’s use of municipally-owned lands, (b) the legislative authority of municipal councils, which cannot be fettered by contract, and (c) the GIPOA’s lack of legal “standing” to claim damages to property that it does not own. 
  • The City thus issued a statement of defence in response to the GIPOA’s statement of claim.  The GIPOA’s claims were nonetheless legally and factually complex and the City incurred substantial legal costs to respond to the GIPOA’s statement of claim, which the City will seek to recover in the litigation.
 

What is Policy 8.1.5.1.? 

Some residents of Grape Island have approached City staff to ask about Policy 8.1.5.1 of the City of Orillia Policy Manual.  Policy 8.1.5.1 "Sale of Water Lots - Adjacent Property Owners" is a policy that was passed by the Council of the City of Orillia in 1992 to provide direction to City staff when the City receives a request for municipal comment from the Ministry of Natural Resources and Forestry (MNRF) when that Ministry has been asked to sell a portion of the Crown-owned lake bed to an abutting landowner (i.e. the proposed creation of a new water lot).  This policy is used by City staff to guide how comments are provided by the City to the MNRF.  This policy does not apply to the City-owned water lots.

This policy was updated in April 2019 to reflect the change in the department name referenced within the Policy. You can review the change within Report CD-19-06, but for easy reference the change listed on page 15 of that agenda says:

8.1.5.1. Adjacent Property Owners - “Replace reference to “Public Works (Engineering Division) and Development Services Departments” with “Development Services and Engineering Department”

 

Is the City of Orillia attempting to sell the water lot at the southern end of Forest Avenue South? 

  • The City of Orillia does not have any intention at this time to sell the municipally owned water lot at the base of Forest Avenue South.
  • Policy 1.7.1.1  - Real Property, Provision 3.3 states that “To protect the long term public access to Lakes Couchiching and Simcoe, road allowances adjacent or leading to the shoreline shall not be conveyed out of municipal ownership unless specifically authorized by Council.”
  • The City of Orillia Parks, Recreation and Culture Master Plan further states that “In general, all undeveloped road allowances (i.e. road right of ways that are not currently being utilized for a vehicular road) should not be released from the City’s ownership.” (page 79)
  • This report goes on to state that “Unless it is absolutely certain there are no current or future uses for the land areas regarding circulation, parks and open space, community service or any other public benefiting function, it is recommended that all road allowances be maintained for public use, particularly those providing water access. Where road allowances have worn pathways from pedestrian or bicycle use, they are obviously a public transit corridor and should be incorporated into the City’s circulation system.” (page 79)
  • Any road allowance that is considered for sale should also go through a standard review process by the various boards or commissions having potential use for the land (i.e. Active Transportation and Trails Advisory Committee, Economic Development Committee, Municipal Heritage Committee, Recreation Advisory Committee, etc.).” (page 79)
 

What consultations have taken place in regards to this matter? 

  • City staff have met with representatives of the GIPOA and the property owners adjacent to the Forest Avenue South Road Allowance on various occasions since 2016.
  • In January 2018, Council directed staff to form a Forest Avenue South Working Group ("Working Group"). 
  • The Working Group, which was comprised of staff, Council representatives, representatives of GIPOA and affected mainland property owners, met for over a year to discuss solutions to the issues that would be agreeable to all parties.
  • GIPOA advised that it wished to bring a lawyer to the Working Group meetings and at that point the City determined that the Working Group was no longer appropriate.
  • Council directed City staff to survey the residents of Grape Island directly (that is, not through GIPOA) regarding the use of the City's waterlot.  This survey was completed in the summer of 2019.
  • Most recently, City staff surveyed the residents of Grape Island directly regarding the frequency of their use of the dock on the City's water lot.  The results of that survey are contained in a Council Information Package dated May 22, 2020.

Has the City advised the GIPOA solicitor that the City is not willing to negotiate?

  • No, the City has not advised the GIPOA solicitor that the City is not willing to negotiate. 
  • The City's objective is to find a long term solution to the land use conflicts at the base of Forest Avenue South. 
  • For these reasons the City has sought to ensure transparency in the process, carry out ongoing consultations with affected residents, and facilitate discussions between ratepayers to allow a grassroots solution between neighbours to come forward. 
  • When the GIPOA attempted to introduce a solicitor into the Working Group discussions this changed the dynamic of the discussion from a collaborative informal approach, to a formal discussion with legal implications. 
  • When the GIPOA commenced legal proceedings against the City of Orillia this further changed the dynamic of the ongoing relationship between the City and the GIPOA, as the City must ensure that it is acting within the best interest of all residents and limiting exposure to legal claims (which in turn cost the taxpayer).

Can the Grape Island Property Owners’ Association (GIPOA) restrict non-member access to the garbage bin located on the GIPOA Parking Lot? 

All City of Orillia taxpayers are entitled to an annual allotment of garbage tags. However, there is no trash pickup available on Grape Island. For this reason GIPOA has contracted with the waste management department to have a collection bin placed at their Forest Avenue property for use by their members. The volume of the bin is determined by the number of residents represented, and fees associated with its use are paid by the association. (This is similar to the way an apartment building or condominium complex deals with garbage pickup).  The City does collect garbage from the property through that contract, but GIPOA’s Forest Avenue parking lot is private property and the City cannot interfere with the GIPOA’s rules as to who is allowed to access the collection bin on that site.

If you are not an association member, you can contact Greg Preston of the City’s Environmental Services and Operations Department at 705-325-2444 so arrangements can be made for you to receive your yearly entitlement of garbage tags directly. You would then have to tag your garbage and bring it to the Waste Diversion Site directly at 100 Kitchener Street in Orillia. Placing garbage at the curb of Forest Avenue will not be permitted.

Another option would be for non-members to consider working out an arrangement with the association to use the Forest Avenue Depot, and pay a fee to help cover the costs of waste collection from the depot.

If a non-member of GIPOA can’t use the GIPOA parking lot, can we park on the street?

Parking is permitted on both sides of Victoria Crescent, and on Forest Avenue (north of Victoria Crescent). Parking is prohibited on Forest Avenue South between Victoria Crescent and the water’s edge. All parking on Forest Avenue South is subject to winter parking restrictions in the traffic and parking by-law.

Can the GIPOA restrict non-member Grape Island residents from using the dock at the base of Forest Avenue Road South if it’s on the municipal water lot? 

Policy 1.6.1.1. addresses the dock at the base of Forest Avenue Road South. Policy 1.6.1.1. states: “THAT the property owners of Grape Island be permitted each year to erect a temporary dock at the foot of Forest Avenue on the town water lot, such dock to be removed on or about September 1st.”

This Policy is intended to provide access to Grape Island for all Grape Island property owners. The City has not authorized the GIPOA to restrict access to the GIPOA dock in any way, and the City is therefore investigating the extent to which GIPOA has placed restrictions on the use of this dock. 

A survey was undertaken in the spring of 2020.The survey was sent to all property owners who provided the City with an email address through the Forest Avenue South Mailing List last fall. The survey garnered only 14 responses and is therefore not fully representative of the current situation.  

Since undertaking the survey, staff have been advised by residents of Grape Island that the GIPOA due date for payments of membership fees (including fees for litigation) has been moved to June 30, 2020. Therefore, the City will not have an accurate understanding of how many Grape Island residents will remain as members of the association (and subsequently how many non-members will be impacted by the GIPOA dock restrictions) until after this date. Staff therefore propose to re-survey Grape Island residents in early July to assess the impact of GIPOA’s attempts to restrict access to the GIPOA dock. 

Does the City own Ivy Lane or “the Cove” on Grape Island?

No, Ivy Lane, Block 51 and part of Block 52 have never been owned by the City.  These lands were transferred to the “Trustees of the Grape Island Community Association” by Hugh Grant, the original developer of the island, in 1952.

 

Forest Avenue South Mailing List 

To receive updates regarding the Forest Avenue South encroachment matters, please sign up to the Forest Avenue South Mailing List.
 Contact Information
If you have questions related to the Forest Avenue South road allowance, please contact Laura Thompson, Senior Manager of Business Development at lthompson@orillia.ca or Ward Councillors Ted Emond or David Campbell.

 

Contact(s)