Summary of Legal Opinions Regarding the Grand Bend Beach Volleyball Issue from Lerners LLP as

requested by the Lambton Shores Community Association

September 14, 2010

Solicitor and Barrister, John W.T. Judson, Lerners LLP, 85 Dufferin Ave. PO Box 2335, London, Ontario,
N6A 4G4, 519-672-4510, jjudson@lerners.ca

File Number 92338-00001

We have been requested to provide you with an opinion on your legal recourse to stop the commercial
use of land known as “ North Beach” in Grand Bend for a volleyball centre operated by a company
known as PVB Enterprises (“PVB”) through a license granted by the Municipality of Lambton Shores.

Issues

Through the course of our investigation, we have identified the following areas which may provide a
legal basis for you to accomplish your goal of stopping PVB’s (and others) commercial use of the North
Beach.

1. Beachfront landowners’ enforcement of rights-of-way benefitting their land

2. Public enforcement of the Eccleston covenant
3. Public enforcement of the right to use the beach as dedicated public land
4. Compliance with the zoning of the land

Analysis and Discussion

Issue 1 : Beachfront landowners’ enforcement of rights –of-way benefitting their land

With respect to the owners of the beachfront properties that hold rights –of-way, it appears from our
preliminary investigations of titles that these valid covenants are enforceable against the owner of the
North beach, the Municipality. (a search revealed that at least 13 deeds contain such a covenant).
Further, it appears that there are multiple beachfront owners who are impacted by the use of the land
by PVB and that the presence of the large- scale volleyball activity would constitute an interference with
the property owners ability to pass freely and unobstructed over the lands they are entitled to use as a
result of the covenant. In such circumstance, a land owner is entitled to bring an application before the
Superior court to effect certain orders confirming their rights under the covenant and restraining other
parties from interfering with those rights.

Issue 2: Public enforcement of the Eccleston covenant

Although it is possible to advance the argument, that the nature of PVB’s activities excludes the public
from portions of the beach and therefore contravenes the Eccleston covenant, it is the opinion that this
ground is not as strong and should only be considered as a secondary option.
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Issue 3: Public enforcement of the rights to use the beach as dedicated public recreational land

In the Gibb decision regarding the main beach in 1995, there was an issue that dealt with determining
whether the public had acquired the rights to the beach by way of a process known as dedication and
acceptance. It appears that there is an argument that the public has acquired rights in the land known
as North Beach and that the use of the beach by PVB interferes with the public’s rights.

In the event that you are able to put forward sufficient evidence to prove the elements required for
dedication and acceptance, then you will be entitled to a declaration similar to that granted in the Gibb
case “that the public is entitled as of right to use, occupy and enjoy the beach”. The next step will be to
prove that PVB’s volleyball operations interfere with such right. You have already provided photographs
that suggest this is the case. In the event that this is proven, you would be entitled to restrain the
owner(the Municipality) and its licensee(PVB) from continuing the offending use.

Issue 4: Compliance with zoning of the land

The property in question is zoned as part of the “Lakeshore Zone” (“LS”) under the Comprehensive
Zoning By-Law for the Municipality of Lambton Shores(By-Law 1-2003). This zone has the following
permitted uses:

- Conservation
- Existing Parking area
- Marine Facilities
- Park
- Passive Recreation

First, looking at the definition of Passive Recreation , it appears that using the beach for volleyball courts
is not consistent with the definition which is aimed at activities which are not active.

A further method of interpreting a zoning by-law is to compare the permitted uses in a zone to those
uses that are not permitted. We suggest this leads to an inference that if the Municipality had intended
Commercial Recreation as a use in the LS zone it would have permitted it as such.

In light of the analysis of the specific uses permitted in the Ls zone, it appears that there is a reasonably
strong argument that the Municipality is allowing its licensee to carry on activities on the North Beach
contrary to the zoning of the property.

Recommendations:

Each of the above discussed grounds have some merit on which you may challenge the continued use of
the North Beach by PVB (and others). From a practical standpoint, an application before the Superior
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Court concerning an interest in land may be the most straightforward route to achieving your goals. This
could be undertaken by the beachfront owners as set out in the discussion of Issue 1 or by the
Association on behalf of the public on the grounds discussed in Issue 3. We are of the opinion that
proceeding on either or both grounds will have a reasonably strong chance of success.