COURT OF APPEAL FOR ONTARIO
Gillese, Blair and MacFarland JJ.A.
BETWEEN
Lynda Margettie, Raymond Young and Robert Young
Applicants, Respondents by Counter-Application (Appellants)
and
Roy Renze Snell and Lizanne Marie Barron
Respondents, Applicants by Counter-Application (Respondents)
D.J. Wyjad, for the appellants
M. Miller, for the respondents
Heard: November 19, 2009
On appeal from the order of Justice J. Stephen O’Neill of the Superior Court of Justice dated January 9, 2009, with reasons reported at (2009), 80 R.P.R. (4th) 244.
1In this appeal, the court must again consider the operation of s. 3 of the Road Access Act, R.S.O. 1990, c. R.34 (the “Act”).
BACKGROUND
2The respondents bought a small commercial property known as Healey Lake Lodge (the “Lodge property”) in 2000. They operate a marina/cottage resort on the Lodge property, in which they provide accommodation at the Lodge, rent out boats, lease car parking spaces to cottagers with only water access to their properties, and operate a small restaurant.
3The appellants own a cottage property on the west side of the Lodge property. They purchased their property in 1982.
4Healey Lake Lodge Road is a municipal road that provides access to the respondents’ property. It runs to the easterly boundary of the Lodge property and connects to a road and parking lot area (the “Road”) that runs across the Lodge property.
5For many years, the appellants used the Road to gain access to their cottage. They have no registered right of way, easement or other such right that would entitle them to such use. There was no evidence that they purchased their property in 1982 on the basis that they were acquiring road access or an easement over the Lodge property.
6Approximately a year after the respondents bought the Lodge property, they discovered that the appellants were using the Road to gain access to their property. They suggested that the appellants share the cost of maintaining the Road but the appellants refused. Later, they offered to permit the appellants to park their vehicle at the Lodge property for the same modest annual fee that they charged other cottagers. These offers were never accepted.
7Crown lands are located to the south of the appellants’ and respondents’ properties. There is a trail on the Crown lands that runs within about six feet of the appellants’ property. The trail has been cut through the bush to enable the hydro pole line on the Crown lands to be serviced. The trail is very rough and while all terrain vehicles can use it (the “ATV trail”), standard passenger vehicles cannot.
8The respondents and one of their neighbours, Martin Bracken, applied to the Ministry of Natural Resources (the “Ministry”) for a permit to construct a road on the “footprint” of the ATV trail. The proposed road – which would have been paid for by the respondents and Mr. Bracken – would have provided motor vehicle access to the appellants’ property and neighbouring cottages. All of the neighbouring cottage owners except the appellants consented to the construction of the proposed road. Other necessary consents were obtained but, based on the appellants’ opposition, the Ministry advised that permission to construct the road would not be given.
9The appellants brought an application for a declaration that the Road is an access road within the meaning of the Act and for an order preventing the respondents from obstructing and preventing use of the Road in any fashion. The respondents brought a counter-application in which they disputed that the Road was an access road but, if it were so found, they asked for an order closing the Road pursuant to s. 3(1) of the Act.
10Justice O’Neill heard the application and counter-application together. He:
i. found that the Road is an access road within the meaning of s. 1 of the Act;
ii. found that the appellants had no alternative road access to their property;
iii. held that the appellants had no legal right to use the Road;
iv. interpreted s. 3(1) of the Act as leaving the court with a residual discretion to refuse to grant a closing order; and,
v. refused to exercise that discretion.
11Accordingly, by order dated January 9, 2009 (the “Order”), the applications judge dismissed the application, granted the counter-application and made a closing order in respect of the Road.
12The appellants appeal. They ask this court to set aside the Order and make an order providing them with access over the Road. They ask that the matter be returned for a further hearing on the merits of the closing order, with each party having the right to file additional evidence. Alternatively, the appellants ask for an order postponing closure of the Road for a period of two years to permit them an opportunity to establish alternate access arrangements.
13The respondents cross-appeal. Their cross-appeal is conditional on the appeal being allowed. In such an event, they ask this court to find that the applications judge had no residual discretion to refuse to close the Road, having found that one of the conditions in s. 3(1) of the Act was satisfied.
14The reasons of the applications judge are thorough and compelling. His approach to the legislation is logical, sound and in accordance with this court’s jurisprudence. For the reasons that follow, I agree with the applications judge’s reasoning and result. Accordingly, I would dismiss the appeal with the result that the cross-appeal falls away.
THE RELEVANT LEGISLATION
15The relevant provisions in ss. 1, 2 and 3 of the Act are set out below.
- In this Act,
“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land; (“chemin d’accès”)
“common road” means an access road on which public money has been expended for its repair or maintenance; (“chemin public”)
“judge” means a judge of the Superior Court of Justice; (“juge”)
“maintain” includes the leaving of a barrier or other obstacle on an access road or common road; (“maintenir”)
“motor vehicle” means a motor vehicle as defined in the Highway Traffic Act; (“véhicule automobile”)
“road” means land used or intended for use for the passage of motor vehicles. (“chemin”)
- (1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights.
(2) No person shall construct, place or maintain a barrier or other obstacle over a common road that as a result prevents the use of the road unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days notice of the application to the parties and in the manner directed by this Act and the judge has granted the application to close the road; or
(b) the closure is of a temporary nature for the purposes of repair or maintenance of the road.
(3) Notice of an application to close an access road that is not a common road shall be served personally upon or sent by registered mail to the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from the owner’s land and, where the owner is not occupying the land, notice shall also be given to a tenant or occupant of the land …
- (1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so.
(2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.
THE JUDGMENT BELOW
16The applications judge found that the Road is an “access road” within the meaning of s. 1 of the Act as it is located on land not owned by a municipality; it is not dedicated and accepted as, or otherwise deemed at law to be, a public highway; and, it serves as a motor vehicle access route to one or more parcels of land.
17The applications judge further found that there is no alternative road access to the appellants’ land. He held that the existing ATV trail, which could arguably constitute a road, does not qualify as “alternative access” because, in its current condition and form, it does not reach the appellants’ property.
18The applications judge then considered whether to grant a closing order in respect of the Road pursuant to s. 3 of the Act. Based on this court’s decision in 992275 Ontario Inc. v. Krawczyk (2006), 2006 CanLII 13955 (ON CA), 268 D.L.R. (4th) 121, he began by observing that a finding that a road is an access road does not give the persons whose property is served by the Road a legal right to use it within the meaning of s. 3(1)(b) of the Act.
19Having found that the appellants had no legal right to use the Road and, hence, that s. 3(1)(b) of the Act was satisfied, the applications judge considered whether he was bound to grant the closing order. He rejected the respondents’ argument that having found that a condition in s. 3(1) had been met, he was bound to close the Road. In his view, a judge hearing a road closing application under s. 3 of the Act retains a residual discretion to refuse to close it, even after one of the conditions therein has been satisfied.
20The applications judge refused, however, to exercise that discretion. He gave the following reasons for concluding that an order should be made closing the Road. The evidence established that on payment of a modest annual fee and subject to some additional conditions, the appellants could use the Road and park within a few feet of where they presently park and thereby gain access to their cottage. Further, he viewed it as being in the public interest to close the Road, given the evidence of the application to the Ministry of Natural Resources for construction of a road over the ATV trail. He found that the weight of the evidence established that if the appellants consent to the construction of the proposed road, permission to construct that road will be granted. The applications judge viewed the public interest as being better served by proceeding in that manner, as it permits competing claims to be reconciled through a common application process rather than by making an order granting the appellants permanent access over the respondents’ property.
THE ISSUES
21The main issue raised on appeal is whether the applications judge erred in making the closing order. The appellants make two arguments in this regard.
They submit that the requirements in ss. 3(1)(a) and (b) of the Act are to be read conjunctively. Accordingly, they contend that once the appellants were found to have no legal right to use the Road (i.e. that the requirements in s. 3(1)(b) of the Act were met), the applications judge erred in failing to consider whether the conditions in s. 3(1)(a) had also been met.
They submit that once the applications judge determined that he might grant a closing order, he erred by failing to properly balance the competing interests of the parties.
22A second issue raised on appeal is whether if the closing order was properly made, its operation should be postponed pursuant to s. 3(2) of the Act to permit the appellants an opportunity to establish alternate access arrangements.
VALIDITY OF THE CLOSURE ORDER
Are the conditions in s. 3(1) of the Act conjunctive or disjunctive?
23For ease of reference, I reproduce s. 3(1) below.
- (1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so.
24The appellants submit that the applications judge erred in granting the closing order based on having found only that the requirements in s. 3(1)(b) were met. As I previously indicated, they argue that ss. 3(1)(a) and (b) are to be read conjunctively, rather than disjunctively. Thus, they say, once the applications judge found that the requirements in s. 3(1)(b) were met, he was required to consider whether the requirements in s. 3(1)(a) were also met. On this argument, it is only if the requirements in both sections are met that the court has the jurisdiction to make a closing order.
25In large measure, the appellants base their submission on their contention that unless the conditions are read conjunctively, s. 3(1)(a) will be meaningless. Their argument runs as follows. If a person has a legal right to use an access road, he or she would have no need to make an application pursuant to the Act in order to enforce their rights. Thus, the Act will be invoked only when the person seeking to use an access road has no legal right to such use. As a result, the condition in s. 3(1)(b) will always be satisfied and s. 3(1)(a) will never become engaged. But, the argument runs, the considerations in s. 3(1)(a) are important and should be part of that which the court takes into consideration when deciding whether to grant a closing order. This can be accomplished by reading the conditions conjunctively.
26I do not accept that s. 3(1) is to be read conjunctively. First and most significantly, such an interpretation runs contrary to the wording of s. 3(1), in which the word “or” is used. On a plain reading, this indicates that the provisions in s. 3(1) are to be read disjunctively.
27Second, such an interpretation is inconsistent with the structure of s. 3(1). On the appellants’ argument, after finding that the requirements of either s. 3(1)(b) or (c) are met, the court must return to determine whether the requirements of s. 3(1)(a) have also been met. Going backwards in an application of s. 3(1) makes little sense. Had the legislature intended to require that the conditions in s. 3(1)(a) must be met as well as either of ss. 3(1)(b) or (c), it would have said so.
28Moreover, while this court has not directly considered this issue previously, it has proceeded on the basis that the provisions in s. 3(1) are disjunctive. In Krawczyk, at para. 18, the court states:
In our view, a conclusion that an order to close the Road should only be made in the limited circumstances referred to by the trial judge is patently incorrect either because the trial judge does not retain a residual discretion under s. 3(1) to refuse to close an access road if one of the conditions in s. 3(1) is met, or because the conclusion does not reflect the balancing necessary for the proper exercise of the residual discretion. [Emphasis added.]
29In 2008795 Ontario Inc. v. Kilpatrick (2007), 2007 ONCA 586, 86 O.R. (3d) 561 (C.A.) at para. 23, Laskin J.A. writing for the court, states:
Here, the record does not disclose that any of the cottagers has a “legal right” under s. 3(1)(b) to use the access road over Lot 18. Thus, the cottagers would not seem to have a defence to an application to close the road.
30And, in Blais v. Belanger (2007), 2007 ONCA 310, 282 D.L.R. (4th) 98 (Ont. C.A.) at para. 32, Juriansz J.A., writing for the court, says:
Section 3 of the Act was amended, effective January 1, 2003, to provide that a judge may grant a closing order simply upon being satisfied that the owners or tenants who would be deprived of motor vehicle access to their land if the road were closed “do not have a legal right to use the road”.
31Finally, I do not accept the premise that underlies this submission, namely, that only those without a legal right to use an access road will invoke the Act. The Act provides an expeditious way of resolving disputes over access roads. It may be that a person with a legal right to use an access road would find it more convenient to have access issues resolved through the Act rather than by an action. Thus, I do not see that reading the provisions in s. 3(1) disjunctively, renders s. 3(1)(a) meaningless or redundant.
32Consequently, I am of the view that once the applications judge found that the conditions in s. 3(1)(b) were satisfied, he was entitled to consider the closing order. He made no error in failing to consider the conditions in s. 3(1)(a), namely, whether closure of the Road was reasonably necessary to prevent substantial damage or injury to the respondents’ interests or for some other purpose in the public interest within the meaning of s. 3(1)(a) of the Act.
Did the applications judge err in failing to balance the parties’ competing interests?
33The appellants submit that once the applications judge determined that he might grant a closing order, he was required to invite the parties to provide further evidence of the effects that such an order would have on their interests. The appellants say such information would include the effects such an order might have on them, including any loss in convenience or diminution in value of their property. Without that evidence, it is argued, the applications judge could not properly discharge his obligation to balance the competing interests of the parties.
34I do not accept this submission for three reasons.
35First, the respondents’ counter-application made it abundantly clear that a closing order was being sought. The applications judge was entitled to assume that the parties had provided the court with the information necessary to have that matter decided. It was not for the applications judge to second-guess counsel and adjourn the matter on his own motion.
36Second, in my view, the applications judge had sufficient evidence of the parties’ competing interests in order to balance them. In his reasons, he recognizes that the appellants had a long-standing practice of using the Road, noting that they have used it to gain access to their property since 1982. Having found that the appellants had no alternative road access to their property, he clearly understood the effect that a closing order would have on them. However, in recognition of the appellants’ need for access to their cottage, he identified two practical alternatives that would give them such access. The applications judge took into consideration the respondents’ attempts to resolve the matter of access, including through offering the appellants the right to lease a parking space at a modest annual fee, as other cottagers do. He also considered the application to the Ministry in respect of the ATV trail and the fact that it could provide the appellants with access to their property. In light of the alternative access solutions available to the appellants, the applications judge was not inclined to exercise his discretion in a way that restricted the ownership rights of the respondents by making the Lodge property permanently subject to a road access order. In my view, the applications judge’s reasons demonstrate that he was alive to, and balanced, the parties’ competing interests.
37Third, I reject the assumption that underlies this argument, namely, that the exercise of discretion was limited to a consideration of the competing interests of the parties. While the parties’ interests are relevant considerations, I see nothing in s. 3(1) (or otherwise in the Act) which limits the court to a consideration of only those interests.
38In the present case, the applications judge considered the process that ensued following the application to the Ministry of Natural Resources. He was of the view that the public interest was better served by having competing claims reconciled through that process. I see nothing improper in his having taken into consideration that public interest factor. Although the public interest is mentioned in s. 3(1)(a) but not s. 3(1)(b), that does not mean that the public interest can have no bearing on whether to exercise the residual discretion to refuse to make a closing order when s. 3(1)(b) is engaged. Once the court is satisfied that one of the requirements in s. 3(1) has been met, it has the power to grant the closing order. In determining whether to exercise its residual discretion and refuse to make such an order, the court must consider all relevant factors.
39I acknowledge that this court has indicated that in relation to s. 3(1)(b), the proper exercise of discretion requires a court to balance the parties’ competing interests. At para. 18 of Krawczyk, the court stated:
Assuming without deciding that a judge hearing a road closing application retains a residual discretion to refuse to close the road where one of the conditions for closing an access road set out in s. 3(1) is satisfied, at least in relation to s. 3(1)(b), the proper exercise of that discretion would require balancing the competing interests of the parties.
40However, while this quotation makes it clear that the court must balance the parties’ competing interests, I do not read it as limiting the court solely to a consideration of those interests. In the circumstances of this case, the applications judge did not err by taking into consideration the nature of the application process to the Ministry and its likely result.
POSTPONING THE OPERATION OF THE CLOSING ORDER
41The applications judge was not asked to postpone the operation of the closing order. Consequently, he cannot be faulted for failing to consider that possibility. While it is not appropriate to raise such a matter for the first time on appeal,1 the record is sufficient to permit a response. Given the alternatives available to the appellants that provide access to their property, as identified by the applications judge, there is no need to give them time to establish alternate access arrangements. Immediate access can be had if, like their fellow cottagers, they lease a parking space from the respondents. While the proposed road may not be available immediately, it too provides an alternative mechanism for access.
A Concluding Comment on s. 3(1) of the Act
42Given my conclusion, strictly speaking it may not be necessary to decide whether the applications judge correctly interpreted s. 3(1) as leaving him with a residual discretion to refuse to grant the closing order. Had it been necessary to decide the matter, I am inclined to the same view. Section 3(1) provides that the judge “may” grant a closing order. It is trite law that words are to be given their plain meaning. The word “may” is permissive. If a judge may grant the closing order, the converse is also true – he or she may refuse to grant the closing order.
THE CROSS-APPEAL
43In light of my conclusion on the main appeal, the cross-appeal falls away.
DISPOSITION
44Accordingly, the appeal and cross-appeal are dismissed with costs to the respondents fixed at $9,000, all inclusive.
RELEASED: November 27, 2009 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree R.A. Blair J.A.”
“I agree J. MacFarland J.A.”
Footnotes
- See, for example, Wasauksing First Nation et al. v. Wasausink Lands Inc. et al. (2004), 2004 CanLII 15484 (ON CA), 184 O.A.C. 84 (C.A.) at paras. 101-2; leave to appeal denied, [2004] S.C.C.A. No. 200.
