COURT OF APPEAL FOR ONTARIO
Sharpe, Blair and Rouleau JJ.A.
The Corporation of the Municipality of Sioux Lookout
Applicant (Appellant in Appeal)
and
The Attorney General for Canada, on behalf of Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Ontario, Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, Her Majesty the Queen in Right of Ontario, as represented by the Attorney General, Her Majesty the Queen in Right of Ontario, as represented by the Minister of Natural Resources, Lac Seul First Nation and Northern Nishnawbe Education Council
Respondents (Respondents in Appeal)
Allan D. McKitrick, for the Corporation of the Municipality of Sioux Lookout
Peter H. Griffin and Danalyn J. MacKinnon, for Northern Nishnawbe Education Council
William Major, for Lac Seul First Nation
Walter Myrka and Judie Im, for Her Majesty the Queen in Right of Ontario
Joseph Langan, for the Attorney General of Canada
Heard: October 21, 2010
On appeal from the judgment of Justice H.M. Pierce of the Superior Court of Justice dated April 14, 2010, with reasons reported at 71 M.P.L.R. (4th) 242.
INTRODUCTION
1This appeal arises out of a dispute over which level of government, if any, is responsible for the maintenance of two roads near the town of Sioux Lookout. One road leads to the Lac Seul First Nation (LSFN) Reserve and the other leads to the Pelican Falls Centre, a high school and residence for First Nations students. Until 1998, the territory on which the roads are located was not under the jurisdiction of any organized municipality and the roads were maintained by Ontario pursuant to cost-sharing agreements with LSFN and the respondent Northern Nishnawbe Educational Council (NNEC), the entity that operates the Pelican Falls Centre.
2On January 1, 1998, the appellant Municipality of Sioux Lookout (“Sioux Lookout”) was expanded by the restructuring order of a commission under the Municipal Act, R.S.O. 1990, c. M.45, to include a large territory that includes the roads at issue in this appeal.
3Sioux Lookout applied for a declaration that it did not become responsible for these roads as a result of the restructuring order, and that it has no present responsibility for their maintenance. NNEC applied for a declaration that the Pelican Falls Road lies within the jurisdiction of Sioux Lookout and that Sioux Lookout is responsible for its maintenance and raised certain constitutional issues. The two applications were consolidated. Pursuant to a case management order, the issues to be determined on the hearing of the application were narrowed to: (1) whether any of the roads are , or have been a municipal highway since January 1, 1998, and if so, (2) whether Sioux Lookout is under a duty to repair and maintain any or both of them. This agreement to limit the issues was without prejudice to NNEC and LSFN’s right to advance claims for maintenance and repair against Ontario and Canada in a subsequent proceeding.
FACTS
4The Lac Seul Road is approximately 8.45 km long and has two components. The Goodie Lake Road component runs from the Mill Road to the Frenchman’s Head Road. The Frenchman’s Head Road component runs from the Goodie Lake Road to the boundary of the Lac Seul First Nation Reserve. The Goodie Lake Road was built by the province on provincial Crown land in the 1960s. It was designated as a public forest road under s. 53 of the Public Lands Act, R.S.O. 1970, c. 380 (now s. 51 of the Public Lands Act, R.S.O. 1990, c. P. 43) in 1974. The Frenchman’s Head Road was built by the province on provincial Crown land in the late 1970s. The Lac Seul Road is the only means of road access to the Lac Seul First Nation Reserve. The public has enjoyed an uninterrupted right of passage over the Frenchman’s Head Road and the Goodie Lake Road since each was built.
5The Pelican Falls Road, approximately 6.5 km long, starts at Provincial Highway 664. It runs north past the Radar Base Road, across a CN Railway line, and continues toward the Pelican Falls Centre operated by the respondent NNEC. The road was built by the federal government, but the land south of the railway is provincial Crown land. The province granted the federal government a licence of occupation under the Public Lands Act for the portion between the Radar Base Road and the railway in 1946. A similar licence was granted for the portion between Highway 664 and the Radar Base Road in 1949. While the latter licence was cancelled in 1968, the former licence remains in effect. The road is the only means of road access to the Pelican Falls Centre from Sioux Lookout.
6The public has had access to all of these roads since they were built. The Frenchman’s Head Road and the Pelican Falls Road are roads under the Public Lands Act, and the Goodie Lake Road is a public forest road under the same Act. For many years prior to 1998, the roads were maintained by the Ministry of Transportation (MTO) pursuant to cost-sharing agreements under s. 90 of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50. The costs for the Lac Seul Road were evenly shared between the MTO and LSFN, and those for the Pelican Falls Road evenly shared between the MTO and NNEC.
7The Restructuring Order under the Municipal Act was issued on June 30, 1997 and took effect on January 1, 1998. The accompanying report of the restructuring Commissioner explicitly acknowledged that he had no authority over the funding of provincial highways and their potential assumption by Sioux Lookout.
8Ontario took the position that from January 1, 1998, the roads came under municipal jurisdiction. The MTO repeatedly stated that it would not be responsible for the roads after the restructuring, and proceeded to terminate its cost-sharing arrangements as s. 90 of the Public Transportation and Highway Improvement Act only provides for cost-sharing for roads in territory without municipal organization. However, Ontario did not transfer the roads to Sioux Lookout pursuant to the statutory mechanisms available to accomplish that objective in the Municipal Act and the Public Transportation and Highway Improvement Act. Sioux Lookout disputed any obligation on it to maintain the roads and did not pass any bylaw or resolution to assume the roads, but spent approximately $750,000 on maintenance of the roads between January 1998 and October 2007. It stopped this maintenance as of November 1, 2007 and this litigation ensued. The roads are currently in a state of serious disrepair.
LEGISLATION
9While reference was made by the parties and by the application judge to many different statutes, for convenience I set out here only those provisions that are central to the disposition of this appeal:
Municipal Act, R.S.O. 1990, c. M.45
PART XVIII
HIGHWAYS AND BRIDGES
Definition
258.(1)In this Part, ...
Exception
(2) Except as provided by section 272, this Part does not apply to a provincial road or bridge under the control of the Crown.
What constitutes public highways
- Except in so far as they have been stopped up according to law, all allowances for roads made by the Crown surveyors, all highways laid out or established under the authority of any statute, all roads on which public money has been spent for opening them or on which statute labour has been usually performed, all roads passing through Indian lands, all roads dedicated by the owner of the land to public use, and all alterations and deviations of and all bridges over any such allowance for road, highway or road, are common and public highways.
Highways vested in corporation having jurisdiction over them
262.(1)Unless otherwise expressly provided, the soil and freehold of every highway is vested in the corporation or corporations of the municipality or municipalities, the council or councils of which for the time being have jurisdiction over it under this or any other Act.
Reservation of rights in soil
(2)In the case of a dedicated highway, such vesting is subject to any rights in the soil reserved by the person who laid out or dedicated the highway.
Jurisdiction of councils over highways
- Except where jurisdiction over them is expressly conferred upon another council, the council of every municipality has jurisdiction over all highways and bridges within the municipality.
Proclamation bringing government road or bridge under jurisdiction of municipality
272.(1) The Lieutenant Governor in Council by proclamation may declare that any public road or bridge under the control of the Minister of Transportation shall not be under the control of the Minister after a day named in the proclamation, and such road or bridge after that day ceases to be under the control of the Minister, and no tolls shall be collected thereon.
Maintenance of roads and bridges
284.(1) The council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.
Municipal Act, 2001, S.O. 2001, c. 25
Maintenance
44.(1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Public Lands Act, R.S.O. 1990, c. P.43
Public right of passage
- Except as otherwise provided in this Act, any person may exercise a public right of passage on a road other than a private forest road.
Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P. 50
Transfer to municipality or road authority
29(4) The Lieutenant Governor in Council may direct the transfer of any part of the King’s Highway or any part of any other highway that is under the jurisdiction and control of the Ministry to any municipality in which it is situate and,
(a) it vests in and is under the jurisdiction and control of the municipality on and after the day named by the Lieutenant Governor in Council;
(b) it shall for all purposes be deemed to be part of the road system of the municipality;
I any agreements made or permits granted by the Minister in relation thereto shall continue in force as though made or granted by the municipality; and
(d) all rights, privileges and benefits conferred upon or retained by the Ministry or the Crown in any agreement referred to in clause I shall enure to the benefit of and be binding upon the municipality.
PROCEEDINGS BEFORE THE APPLICATION JUDGE
Positions of the Parties
10As a result of the case management order, the only issue before the application judge was whether the roads had become municipal highways and, if so, whether Sioux Lookout had the duty to maintain and repair them. Sioux Lookout took the position that the answer to both questions was no, while NNEC and LSFN submitted that the answer was yes.
11Ontario’s initial position, as set out in its factum filed for argument of the application, was that Sioux Lookout’s application should be dismissed. However, at the case management meeting and during oral argument, Ontario changed its position. Ontario asked the application judge to grant Sioux Lookout’s application, hold that the roads were never dedicated and that, apart from portions of the Pelican Falls Road that fall under Canada’s authority, the roads were Public Lands Act roads. Ontario maintained, however, that as these are roads under the Public Lands Act, Ontario was not responsible for their maintenance. As I will explain below, before this court Ontario again changed its position and it now asks this court to uphold the judgment of the application judge. Canada’s submissions were restricted to the status of portions of the Pelican Falls Road as against the province and accordingly were not, and Canada maintains ought not to have been, dealt with by the application judge.
Judgment of the Application Judge
12The application judge held that both roads became municipal highways as of January 1, 1998, and that Sioux Lookout was under a duty to repair and maintain them.
13The application judge based her conclusion on the common law doctrine of dedication and acceptance, described at para. 32 of her reasons as “a common law principle that involves the transfer of land from a private owner or the Crown to facilitate creation of a public highway”. While the Municipal Act, 2001, S.O. 2001, c. 25, s. 31 now provides that land can only become a highway if a municipality passes a by-law to that effect, this case fell to be decided according to the law as it stood in 1998, when no similar provision existed in the Municipal Act.
14The application judge found first that there had been “dedication by legislative enactment”. She found that the history of the roads established that they were accepted by public use, and that permission for the public to use the roads flowed from the Public Lands Act, s. 49, which provides that “any person may exercise a public right of passage on a road [on public lands] other than a private forest road.” She found, at paras. 59-60, that ss. 262 and 263 of the Municipal Act “operate as dedication by provincial legislative enactment that took effect upon annexation.” She added, at para. 60, that while the roads were public forest roads under the Public Lands Act, that status was inconsistent “with the scheme of legislative dedication under the Municipal Act.” The application judge made no reference to s. 258(2), which provides that the Part of the Act including ss. 262 and 263 “does not apply to a provincial road or bridge under the control of the Crown” absent a specific declaration by the Lieutenant Governor in Council pursuant to s. 272.
15As an alternative basis for finding dedication, the application judge found that dedication occurred by the province’s conduct. There was extensive documentary evidence that the MTO consistently represented that Sioux Lookout, and not the MTO, would be responsible for the roads after the restructuring.
16Acceptance was evidenced by Sioux Lookout’s expenditure of approximately $750,000 to maintain the roads between 1998 and 2007, as well as its written communications. On this basis, she held that the roads had been municipal highways since January 1, 1998.
17The application judge applied s. 284 of the Municipal Act and s. 44(1) of the Municipal Act, 2001 in determining that Sioux Lookout has a duty to repair and maintain the roads.
POSITIONS OF THE PARTIES ON APPEAL
18Sioux Lookout argues that there was no dedication, whether by statute or conduct, and no acceptance. Sioux Lookout also submits that the application judge erred in her interpretation of the legislation and that in view of the express terms of s. 258(2), ss. 262 and 263 of the Municipal Act do not apply. It also argues that the hearing below was unfair because of restrictions imposed on its reply argument.
19Ontario agrees with Sioux Lookout that the application judge erred in her application of ss. 262 and 263 of the Municipal Act. However, Ontario submits that her application of the common law doctrine of dedication and acceptance by virtue of the conduct of Ontario and Sioux Lookout is correct.
20Sioux Lookout points out that Ontario’s position is contrary to the position it took before the application judge when it did not oppose Sioux Lookout’s request for a declaration that it was not responsible for maintenance of the roads. Sioux Lookout argues that Ontario’s position on this appeal is also inconsistent with representations and agreements made at the case management meeting.
21NNEC and LSFN submit that the application judge did not err in finding both dedication by statute and dedication by conduct.
22Canada restricts its submissions to the portion of the Pelican Falls Road north of the railway, arguing that the order and declaration below should not be upheld to the extent that they purport to determine ownership or jurisdiction of that portion as there was insufficient evidence before the court on this point. Sioux Lookout argues that both Canada and NNEC have changed positions on the northerly part of the Pelican Falls Road since the hearing of the application.
ISSUES
23While Sioux Lookout advances several grounds for appeal, including the submission that Ontario is topped from advancing the position it now advances, it is my view that this appeal can and should be decided on the two substantive legal issues arising from the reasons of the application judge:
Did the application judge err in her interpretation of the legislation?
Did the application judge err in her application of the common law doctrine of dedication and acceptance?
ANALYIS
(b) Did the application judge err in her interpretation of the legislation?
24In my view, the application judge erred in her interpretation of the relevant provisions of the Municipal Act. As I have pointed out, s. 258(2) provides that the Part of the Act that includes ss. 262 and 263 “does not apply to a provincial road or bridge under the control of the Crown” absent a specific declaration by the Lieutenant Governor in Council pursuant to s. 272. There was no such declaration and it therefore follows that ss. 262 and 263, the sections the application judge applied to sustain her theory of “dedication by statute”, have no application on the facts of this case.
25NNEC and LSFN submit that ss. 262 and 263 can be applied on the theory that after the amalgamation order the roads were not “provincial road[s]…under the control of the Crown” for the purpose of s. 258(2). In my view, that submission must be rejected. It begs the very question to be decided: the issue is whether ss. 262 and 263 take the roads at issue from their status as provincial roads to a new status as municipal highways. That question cannot be answered by assuming that the roads are already municipal highways.
(b) Did the application judge err in her application of the common law doctrine of dedication and acceptance?
26The common law doctrine of dedication and acceptance is a mechanism by which a passage over private land becomes a public highway and title is transferred from the owner to a municipality: see W.D. (Rusty) Russell, Russell on Roads, 2d ed. (Toronto: Thomson, 2008) at pp. 79-98. The requirements were set out in Skerryvore Ratepayers’ Assn. v. Shawanaga Indian Band (1993), 1993 CanLII 198 (ON CA), 16 O.R. (3d) 390 at p. 397 (C.A.), leave to appeal denied, [1994] S.C.C.A. No. 63:
At common law, to establish that a road has been dedicated to public use in perpetuity, the party advancing the claim must demonstrate:
(a) an intention on the part of the owner to dedicate; and
(b) acceptance by the public of the road as a highway.
27This court in Broslaw v. North York (City) (1997), 1997 CanLII 987 (ON CA), 35 O.R. (3d) 458 at p. 463 (C.A.) adopted the statement from Tait v. McKellar (Township), 1951 CanLII 88 (ON CA), [1951] O.R. 226 at p. 239 (C.A.): “The question whether land has been dedicated by the owner thereof for use as a public highway is one of fact, and dedication must not be too readily presumed”. Unobstructed use by the public over a substantial period of time is evidence from which an intention to dedicate may be inferred: O’Neil v. Harper (1913), 1913 CanLII 538 (ON CA), 28 O.L.R. 635 at p. 644 (C.A.); Broslaw at p. 463; Reed v. Lincoln (Town) (1975), 1974 CanLII 513 (ON CA), 6 O.R. (2d) 391 at p. 396 (C.A.).
28While dedication is usually by a private owner, there is nothing inherent to the doctrine that prevents it from applying to land owned by the Crown, subject of course to relevant legislation. As this court stated in O’Neil at pp. 644-645: “[t]he Crown certainly may dedicate a road to the public....The presumption of dedication may be made where the land belongs to the Crown or to a private owner”.
29For the following reasons, I conclude that the doctrine of dedication and acceptance has no application to the facts of the present case.
30The application of the doctrine of dedication and acceptance to roads under the Public Lands Act was considered in Clark v. North Kawartha (Township) (2009), 69 M.P.L.R. (4th) 146 (Ont. S.C.), aff’d (2010), 67 M.P.L.R. (4th) 67 (Ont. C.A.). Gunsolus J. held, at para. 53, that the common law doctrine cannot apply to a road governed by the Public Lands Act. Section 49 of the Public Lands Act, quoted above, explicitly provides the public with access to roads on public lands. Gunsolus J. held, at para. 45, that as the public already enjoys a legally protected right of passage, it is not possible to infer dedication from public use:
While an intention to dedicate a road may sometimes be inferred from evidence of use by the public, in this case such an inference cannot be made. The public clearly enjoyed and continues to enjoy use of the Road in question pursuant to the legislated permission as set out in s. 49 of the Public Lands Act.... Since public use of this Road is specifically provided for in the Act, mere use by the public cannot, by itself, be sufficient to infer an intention to dedicate the Road in question, in this case by the Province of Ontario.
31This court upheld that judgment on appeal on the ground that there was a sufficient evidentiary basis for the factual findings that there had been no dedication or acceptance. It did not address the applicability of dedication and acceptance to Public Lands Act roads. However, I agree with the holding in Clark that public use cannot be evidence of an intention to dedicate a road under the Public Lands Act as the public already enjoys the right of access by virtue of the statute.
32It is also important to observe that there are clear statutory mechanisms by which the province can transfer a Public Lands Act road to a municipality. Under s. 29(4) of the Public Transportation and Highway Improvement Act, the Lieutenant Governor in Council may transfer any part of any highway under the control of the Ministry of Transportation to any municipality in which it is situate. A similar mechanism was available in 1998 under s. 272 of the now-repealed Municipal Act. While the road in question would first have to be transferred from the Ministry of Natural Resources to the Ministry of Transportation, this could have been accomplished by the Minister of Transportation under s. 5 of the Public Transportation and Highway Improvement Act.
33The failure to use the statutory mechanisms specifically designed to achieve a transfer of responsibility from the province to a municipality is telling. The law provided a clear statutory mechanism to accomplish the assignment of responsibility for the roads to Sioux Lookout. In my view, in the face of Ontario’s failure to take the steps clearly spelled out in the legislation, it was an error of law to infer an intention to transfer the roads to municipal jurisdiction and responsibility through a strained interpretation of the common law doctrine of dedication and acceptance.
34In view of my conclusion on the issue of dedication, it is not necessary to consider the question of whether Sioux Lookout “accepted” the purported dedication. As the conclusion on dedication resolves the appeal in Sioux Lookout’s favour, it is also not necessary to address the municipality’s submissions that the hearing below was unfair and that the Province’s position on this appeal is inconsistent with representations and agreements made at the case management meeting.
CONCLUSION
35The application judge found that the Province had dedicated the roads by statute, specifically ss. 262 and 263 of the Municipal Act, or by dedication at common law through its conduct. Section 258(2) explicitly provides that Part XVII, which includes ss. 262 and 263, “does not apply to a provincial road or bridge under the control of the Crown.” Accordingly, the application judge erred in finding “dedication by legislative enactment”.
36The application judge correctly found that the roads were roads under the Public Lands Act. There was no room for the common law doctrine to apply to accomplish dedication as evidenced by public use as the public already enjoyed a statutory right of passage over the roads. Moreover, as the province failed to take the steps spelled out in legislation to transfer responsibility for the roads to the municipality, it was an error to infer from the province’s conduct an intention to dedicate, thereby triggering the application of the common law doctrine of dedication and acceptance.
37I recognize that my decision leaves the important issue of who is responsible for the maintenance of these roads unresolved. While we are restricted to deciding the case on the legal principles that apply to the specific issues raised on the appeal, the need for an immediate solution, be it legal, political or some combination of the two, is obvious and I would urge the parties to make every effort to find that solution as soon as possible.
DISPOSITION
38For these reasons, I would allow Sioux Lookout’s appeal, set aside the judgment of the application judge, grant Sioux Lookout’s request for a declaration that the roads are not municipal roads or highways and that Sioux Lookout is not responsible for their maintenance, and dismiss NNEC’s application for a declaration to the contrary.
39As I would set aside the application judge’s judgment in its entirety, it is not necessary for me to deal with the issue raised by Canada.
40The parties may make brief written submissions as to costs. Sioux Lookout is to file its submissions within 15 days of the release of these reasons and the responding parties are to file their submissions within 10 days thereafter.
“Robert J. Sharpe J.A.”
“I agree R.A. Blair J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: December 17, 2010
