Court of Appeal for Ontario
Date: 2019-07-04 Docket: C65515
Justices: Lauwers, van Rensburg and Trotter JJ.A.
Parties
Between
Roger Blanchard and Donna Blanchard Plaintiffs (Appellants)
and
Donald Tripp, Ethel Tripp, Steven Tripp and Joyce Lavalle Defendants (Respondents)
Counsel
Daniel J. Wyjad, for the appellants
Michael M. Miller, for the respondents
Hearing and Appeal
Heard: April 23, 2019
On appeal from: The judgment of Justice James A.S. Wilcox of the Superior Court of Justice, dated May 16, 2018, with reasons reported at 2018 ONSC 3076, 74 M.P.L.R. (5th) 229.
Reasons for Decision
Background
1This appeal arises in the context of litigation concerning road access to the appellants' land. In 2009, the appellants purchased two adjoining parcels of land in the District of Parry Sound. In 2013, they commenced an application claiming unimpeded access to their land, using Trussler Road, a road that is located in part on public lands and in part on lands owned by the respondents.
2The appellants claimed a declaration that Trussler Road is a public highway, and in the alternative that it is a common road or an access road as defined under the Road Access Act, R.S.O. 1990, c. R.34. They sought an interim and permanent mandatory injunction preventing the respondents from closing, barricading or otherwise blocking their use of Trussler Road, as the means of access to their land.
3In 2017, and after the application had been converted into an action, both sides brought motions for summary judgment. R.S.J. Gordon, with reasons reported at 2017 ONSC 1260, dismissed the appellants' claims under the Road Access Act. He adjourned the appellants' motion in so far as it sought a declaration that Trussler Road is a public highway.
4The subject of the present appeal is a judgment by Wilcox J. (the "motion judge"). After hearing the appellants' summary judgment motion, he dismissed their claim that Trussler Road had become a public road, and then dismissed the appellants' action in its entirety.
5At issue on appeal is whether the motion judge committed any reversible error when he concluded that the appellants had not established that Trussler Road is a "public highway", and in refusing them a declaration and an injunction protecting their use of the road.
6For the reasons that follow, the appeal is dismissed.
Facts
7The appellants' land is located in the Township of Laurier. Laurier is an unorganized township, meaning that it has no municipal government. The appellants purchased two parcels (part of Lot 11, Concession 14 and part of Lot 12, Concession 13) in 2009 as vacant land with no road access. A condition of the Agreement of Purchase and Sale was that the buyers would obtain written permission from the owners of a private roadway for access to the property. The appellants never obtained such permission from the respondents and waived the condition. Later, the appellants built a cottage on one of the parcels.
8The respondents Donald, Ethel and Steven Tripp (jointly) and Joyce Lavalle own neighbouring properties. The Tripps own three parcels (part of Lot 11, Concession 14, part of Lot 12, Concession 14 and Lot 13, Concession 14) while Ms. Lavalle owns part of Lot 12, Concession 13. The respondents access their properties using Trussler Road, which runs across the Tripp and Lavalle properties. They claim that the parts of the road that cross their lands remain private property. Other parts of Trussler Road pass over public lands, and there is no dispute that they are open to the public.
9From Trussler Road, a "spur road" leads to the appellants' lands. The appellants assert that the spur road, together with Trussler Road, provide vehicular access to their properties. They have abandoned their claim for relief in relation to the spur road. Only access to Trussler Road is at issue in this appeal.
Legal Framework
10The appellants' claim that Trussler Road is a public highway relies on s. 261 of the Municipal Act, R.S.O. 1990, c. M.45, as repealed by 2001, c. 25, ss. 484(1), 485(1). Section 261 of the Act provided as follows:
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.
11The appellants claim that Trussler Road had the status of a public highway under s. 261 as of December 31, 2002, and therefore was carried over by s. 26 of the Municipal Act, 2001, S.O. 2001, c. 25, which provides, among other things, that all highways that existed on December 31, 2002 are highways under the new scheme unless they have been closed.
12Before the motion judge, the appellants argued that Trussler Road met the requirements of s. 261 of the Municipal Act to constitute a public highway because: (a) it had been a colonization road, such that public money had been spent on opening it; (b) statute labour was "usually performed" on the road; or (c) the road was dedicated and accepted as a public road.
13The motion judge rejected the respondents' argument that the Municipal Act definition of "public highway" does not apply to the determination of whether a road in an unorganized township is a public highway. After considering the evidence, he rejected the appellants' claim that Trussler Road had been part of a colonization road (at paras. 57 to 73) and that statute labour had been "usually performed" on the road (paras. 74 to 98). The appellants do not challenge these conclusions. They appeal only the dismissal of their claim that Trussler Road had become a public highway through its dedication and acceptance as a public road.
Dedication and Acceptance Doctrine
14The law respecting dedication and acceptance is well-settled, and was correctly stated by the motion judge. Whether there was dedication and acceptance is a question of fact to be decided in each case on a balance of probabilities: Reed v. Town of Lincoln (1974), 1974 CanLII 513 (ON CA), 6 O.R. (2d) 391, at pp. 400-402 (C.A.); O'Neil v. Harper (1913), 1913 CanLII 538 (ON CA), 13 D.L.R. 649, at p. 653 (Ont. S.C. (A.D.)). The claimant must prove that the owner had the actual intention to dedicate and that the intention was carried out, and was so accepted by the public. A long period of use of a road by the public can be evidence both of an intention to dedicate and of acceptance by the public. The intention to dedicate may be expressed in words or in writing, but is more often a matter of inference: Cook's Road Maintenance Assn. v. Crowhill Estates (2001), 2001 CanLII 24149 (ON CA), 196 D.L.R. (4th) 35 (Ont. C.A.), at para. 22.
15After setting out the applicable principles, the motion judge considered the evidence. He noted that the affidavits produced by the appellants with respect to the use of the road by various members of the public over the years were undermined by affidavits filed by the respondents, and that, since the non-party deponents were not cross-examined, many of the contradictions remained unresolved.
16The motion judge concluded that, on balance, he did not find that the appellants' evidence supported an intention to dedicate Trussler Road to public use, or an acceptance of it by the public. He characterized the instances of use of the road as situations of "neighbourly tolerance" rather than dedication to public use. And he stated that there was insufficient evidence of the use of the road by the general public for there to be a finding of acceptance. The motion judge also pointed to the fact that typically acceptance would require a municipal by-law, work done, or the expenditure of public money to maintain the road – actions that clearly and unequivocally indicate a municipality's intention to assume the road. In this case, in the context of an unincorporated municipality, the province had not used any legal process to assume the road, nor was there evidence of the expenditure of public funds or work done on the road (with the possible exception of some statute labour) to demonstrate an intention to accept the road as a public road.
Appellants' Arguments on Appeal
17The appellants make a number of arguments on appeal.
Argument 1: Province as Owner
18First, the appellants say that the motion judge erred in finding that the possibility that the province may become an owner militated against a finding of a public road by dedication and acceptance. The appellants argue that a road can be a public road and still remain in private ownership and be maintained by people who use the road.
19Contrary to the appellants' assertion, the motion judge's discussion of this issue at paras. 128 to 139 of his reasons did not inform his conclusion that the disputed lands were not a public highway. The motion judge had already decided (at para. 126) that dedication and acceptance had not been made out on the evidence, when he went on to set out the various arguments of counsel about whether dedication and acceptance would mean that the province would become the owner of the road, and the respondents' position that the action had been improperly constituted because the province had not been named as a defendant. The motion judge noted that "given the substantial possibility that the Province would become the owner of Trussler Road if it was found to be a public road", if the action were to have continued, he would have directed the province be added as a party (at para. 137). We therefore do not give effect to this argument on appeal.
Argument 2: Neighbourly Tolerance
20Next, the appellants assert that the motion judge erred in concluding that the long history of use of the road by various people was a case of neighbourly tolerance rather than evidence of public dedication of the road. They say that the term "neighbourly tolerance", which was used in Reed, would apply to public use of a road only in the short term or in the early stages of development and not in the present case, where the Trussler Road has been used by members of the public for some 80 years.
21Reed was a case where a municipality claimed that a road over private property had become a public highway through dedication and acceptance, in its defence to a claim for trespass. Martin J.A. stated, at p. 396, that an intention to dedicate a road as a public highway "ought not to be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop." He observed that the owner of the property may well, "in a neighbourly spirit", permit local residents to use such a road for their convenience without having any intention of dedicating the road as a public highway, and that the inference of neighbourly tolerance is "more likely when dedication is sought to be established at a period when the area is in a relatively early stage of its development".
22After noting that the evidence was conflicting with respect to the use of the road in dispute, Martin J.A. concluded that, considered as a whole, the evidence was consistent with the use of the road by local residents for their convenience, by neighbours and friends and by hunters and sightseers, with the tacit permission of the owners. Although the case does not set out in any detail the evidence that was considered, the period of use at issue appears to have exceeded 26 years.
23While we agree that Reed is distinguishable on its facts, it remained open to the motion judge here to conclude that the history of use of the road passing over the respondents' property resulted from the acquiescence or tolerance of the owners, and was not evidence in itself of the owners' intention to dedicate the road to public use. There is nothing in Reed or any other authority to suggest that a long period where various people are permitted to use a road over private lands would always or inevitably constitute proof of implied dedication and acceptance. While the period of time over which a road over private property has been used by members of the public is no doubt relevant, the function of the court remains to determine, on all the evidence, including the type of use and the explanations for why such use was tolerated or permitted, whether dedication and acceptance have been established.
24In conclusion on this point, we disagree with the appellants' submission that the motion judge misapplied "neighbourliness" as a principle of law. This was simply his characterization of what occurred – a factual conclusion, not a principle of law, that was open to him on the evidence.
Argument 3: Severance Evidence
25Next, the appellants assert that the motion judge failed to consider, or misunderstood, the evidence in relation to severances of Charles Trussler's lands in 1976 – evidence suggesting that Mr. Trussler, who was a roads commissioner from as early as 1948[1] and a long-time resident of the area, considered Trussler Road to be a public highway.
26We disagree. At paras. 114 to 116 of his reasons, the motion judge referred to the evidence that, when Mr. Trussler was selling part of his land in 1971 (Lot 13, Concession 13) he expressly indicated that the land was served by a public road, which appears on an attached sketch to be Trussler Road. (The severance application – which is in fact dated December 1976, and so refers to a sale to Iris Stevens, the sister-in-law of Ethel Tripp, that took place in 1977 – indicates that the lands intended to be severed and the lands intended to be retained were accessible by "public travelled road or street".) And in 1977, when Mr. Trussler sold part of Lot 12, Concession 13, what appears to be Trussler Road is shown on a sketch of the property. The motion judge noted that this was "one example of possible express dedication". The motion judge then referred to other evidence – in Donald Tripp's affidavit – that when he bought his lands from Mr. Trussler in 1969, the road to the property, Trussler Road, was over land owned by Mr. Trussler. Mr. Tripp deposed that he sought an easement, but because the quoted surveying cost exceeded the land's value, he bought the land in Lot 11, Concession 14 from Mr. Trussler in 1973. As the motion judge concluded, "If Charles Trussler had thought that Trussler Road was a public road, there would have been no reason for the Tripps to need an easement, let alone to purchase the property to ensure that there was access to the lots that they owned further down the road." The motion judge also noted that, if Mr. Trussler had intended to make the road public, "he could have used the process in the Statute Labour Act, but apparently did not."
27There is no merit to the argument that the motion judge ignored or misunderstood this evidence. He considered the evidence about the severance applications in the context of the other evidence that he mentioned, and refused to draw the inference sought by the appellants. This he was entitled to do.
Argument 4: Contradictory Affidavits
28The appellants also argue that the motion judge's conclusion that the affidavits were contradictory was erroneous. They say that the only real contradiction was about a gate on the road, and whether and in what circumstances it was locked. The appellants say that the motion judge placed undue reliance on evidence that the gate, which was used to keep livestock from escaping, was locked at times by Mr. Trussler and, after 1969, by Mr. Tripp.
29We disagree with the submission that the motion judge erred in concluding that the affidavits were contradictory, or that he over-emphasized the evidence about the gate. The broader point that the affidavits addressed, in relation to the dedication and acceptance issue, was the use of various parts of the road over the historical period beginning when all of the lands were owned by Mr. Trussler. In particular, they addressed whether the various parts of the road in dispute were regarded as private land, and thus required the permission of the owners for their use. This evidence was indeed contradictory with respect to the claim that the use of the various parts of the road by members of the public over a number of years led to an inference of dedication and acceptance. As for the gate located on Mr. Tripp's land, the motion judge was entitled to accept Mr. Tripp's evidence that he had installed a new gate to replace a gate installed by Mr. Trussler at the CNR crossing, and that the gate was locked to keep cattle off the railway and trespassers out. In any event, this was only part of the evidence that was mentioned by the motion judge, and was not determinative of his finding that the appellants had not established an intention to dedicate the road to public use or an acceptance of the road by the public.
Unresolved Legal Issue
30Finally, we note that, before the motion judge, the respondents argued that the concept of dedication and acceptance of a public road had no application to an unorganized township because there were statutory mechanisms available for the province to become the owner of a road. The motion judge noted that there was contradictory law on whether there can be a dedication of lands in an unorganized township, and he assumed, without deciding, that dedication and acceptance could apply. As the appellants observe, this court would need to determine the issue if the appeal were to be allowed.
31The respondents repeat this argument in response to the appeal and both parties invited this court to determine the issue that was left unresolved by the motion judge.
32We are not prepared to do so. The motion judge proceeded on the assumption that dedication and acceptance would apply, and then concluded that the appellants had not established dedication and acceptance on the evidence. We are satisfied that the motion judge committed no reversible error when he reached this conclusion. This is sufficient for the determination of the appeal, and it is therefore unnecessary to express any opinion on whether, if capable of being proven, dedication and acceptance would apply in the context of private lands in an unorganized township.
Disposition
33The appeal therefore is dismissed. The appellants shall pay costs of the appeal to the respondents in the agreed amount of $22,000, inclusive of disbursements and applicable taxes.
P. Lauwers J.A.
K. van Rensburg J.A.
G.T. Trotter J.A.
Footnote
1Roads commissioners had the power to open road allowances where they had been laid down in the original surveys, or roads in lieu, and direct the performance of statute labour thereon. Mr. Trussler was commissioner for the Sausage Lake road division; however, it was not established that Trussler Road was part of that division: Reasons of the Motion Judge, at paras. 77 and 97.
