COURT FILE NO.: 458-08

DATE: 20090521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Low and van Rensburg JJ.

B E T W E E N:

bert whitmell and Judith whitmell

Applicants/Appellants

• and -

steven james ritchie and magdalene ritchie

Respondents/Respondents in appeal

Bert Whitmell and Judith Whitmell, appearing in person

John Weingust, for the Respondents

HEARD at Toronto: April 23, 2009

LOW J.

1This is an appeal from the order of O’Neill J. dated July 11, 2008 dismissing the appellants’ application under the Road Access Act, R.S.O. 1990, c. R.34 as amended (the Act) for an order to close an access road on their land (the access road). The access road provides the sole motor vehicle access to the respondents’ cottage property. The properties are located in the district of Parry Sound and the parties have been in litigation over the access road for 20 years.

THE GOVERNING STATUTE

2The Act is brief, comprising only eight sections. The following sections are engaged here:

1. 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;

2. (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.

(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 by either,

(a) handing the notice to an adult person who is a tenant or occupant of the land; or

(b) posting the notice on the land in a place and manner that makes the notice conspicuous to an occupant of the land.

3. (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 interest 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.

6. (1) Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person.

3Section 3 of the Act as reproduced above came into effect on January 1, 2003. It reflected an amendment to the Act made as a result of lobbying by the appellants. Prior to the amendment, s. 3 read as follows:

3. The Judge may grant the closing order upon being satisfied that the closure of the road is reasonably necessary to prevent substantial damage or injury to the interest of the applicant or is reasonably necessary for some purpose in the public interest and the judge may impose such terms and conditions as the judge considers are reasonable and just under the circumstances, including a requirement that a suitable alternate road be provided.

THE REASONS OF THE APPLICATION JUDGE

4The application judge dismissed the application on two grounds. He held that s. 3(1) of the Act reserves to the court a residual discretion to refuse to order an access road closed even if a condition set out in that section is met permitting a closing order to be granted. He held that the discretion is to be exercised by balancing the competing interests of the parties. He held that even accepting that the respondents do not have a legal right to use the road, they nonetheless had acquired, through 19 years of litigation and various court orders, the right not to be treated as trespassers and, in the circumstances, the court should not review afresh the appellants’ argument that their interests had been injured such that the road should be closed.

5Second, he held that the application was, “if not an abuse of the process of the court, at least a lack of respect for the finality of a court order”. In this, I infer that the application judge was alluding to the doctrine of res judicata as on August 29, 2005, an order of the Superior Court had been issued on consent, providing, inter alia, that the respondents, their invitees or their agents "will only use the access road to and from their property in or on a vehicle".

6The application judge did not conduct an analysis into and did not make a finding as to whether or not the respondents had a legal right to use the road.

THE ISSUES AND THE POSITIONS OF THE PARTIES

7The issues that arise on this appeal are (a) whether the application was an attempt to relitigate an issue that was res judicata; (b) if not, whether the respondents have a legal right to use the access road; (c) if the respondents do not have a legal right to use the road, whether there is a residual discretion in the court to refuse to grant a closing order; and (d) if so, whether the application judge erred in principle in exercising his discretion to refuse to grant the closing order.

8The appellants’ position is that the respondents do not have a legal right to use the road. They argue that because of the repeal of the old section 3 and the enactment of the new section 3 which came into effect on January 1, 2003, any court orders made prior to the amendment and giving rights to the respondents, including the right to maintain the road, were wrong when first made and are in any case no longer valid. They argue that the change to section 3 of the Act in 2003 and recent decisions of the Court of Appeal require that a closing order be granted.

9The respondents’ position is that the application judge made no errors of fact or law.

STANDARD OF REVIEW

10The standard of review was not the subject of submissions by the appellants, who appeared in person. It is uncontroversial, however, that on an appeal from a judge deciding an application, questions of law are to be reviewed on a standard of correctness. Questions of fact and questions of mixed fact and law will be interfered with only if there is a palpable and overriding error unless, in the case of the latter, there is some extricable error in principle amounting to an error in law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). The exercise of a discretion is grounded in findings of fact and is reviewed on a standard of deference unless it can be shown that the application judge proceeded on an error in principle.

HISTORY OF LITIGATION BETWEEN THE PARTIES

11Some of the relief sought and orders granted in the course of the plethora of litigation between these parties are relevant to the determination of the issues raised on this appeal. There have been in excess of 15 legal proceedings arising from the appellants’ desire to close the road and their actions to prevent the use of the road by the respondents and their invitees. The majority of the legal proceedings have been commenced by the appellants. In addition to applications under the Act for a closing order, they have launched criminal trespass charges as well as civil actions for damages.

12The following is a summary of the orders and findings that impact on the determination of the appeal.

13Prior to the respondents acquiring their property in 1989, their predecessors in title had used the access road under a license granted by the appellants and paid an amount each year toward the maintenance of the road. When the respondents acquired the property, the appellants would not enter into an agreement with them permitting them to use the road.

14Instead, in 1989, the appellants brought an application to close the road. The application was decided by Murphy J. who ordered that the application “will not be allowed nor will it be dismissed”. He ordered that the appellants may close the access road by means of a gate from November 1 to May 1 each year, that they were to provide a key to the respondents, and that from May 1 to November 1 each year, the respondents, their spouses, children, grandchildren and their invitees “are entitled to use the access road, which may be closed to all others”. The respondents were to bear the costs of maintenance of the road to the 1989 standard and were to pay the appellants $250 per year. The order also required the appellants to remove trees that had been transplanted by them to obstruct the access road.

15The appellants appealed the order to the Divisional Court which allowed the appeal on the grounds that the order made by Murphy J. had conferred a right in respect of ownership of land which was contrary to the intent of the Act. It ordered the access road closed.

16The respondents appealed to the Court of Appeal. In Whitmell v. Ritchie (1994), 1994 858 (ON CA), 20 O.R. (3d) 424, the Court of Appeal, per Weiler J.A., reversed the Divisional Court order closing the road, holding that a refusal to close the access road did not amount to a grant of a right of way but was merely a recognition that persons in the respondents’ position enjoy the privilege created by the Act of not being considered trespassers:

This court has already decided in Deluca v. Paul Guiho Trucking & Construction Ltd. (1984), 1984 2188 (ON CA), 46 O.R. (2d) 634, 10 D.L.R. (4th) 267, that s. 6(1), which directs that no right of ownership of land is conferred by the Act, must be read in the full context of the remainder of the Act and in particular s. 2(1), which is the starting point for the other provisions of the Act. In Deluca Thorson J.A. held at pp. 639-40 that it makes no sense to interpret s. 6 as saying that, notwithstanding the prohibition against obstructing an access road in s. 2(1), upon application, the owner of the property has a right to have the road closed on the basis of his rights of ownership.

The Divisional Court, in a terse reference to Deluca, indicated that it did not consider itself bound by unspecified dicta in that case. With respect, the interpretation of s. 6 was clearly part of the ratio of the decision. In any event, we agree that Thorson J.A. properly interpreted the statute. The Divisional Court's interpretation of s. 6 constituted an error of law.

17In Deluca et al. v. Paul Guiho Trucking & Construction Ltd. Thorson J.A. wrote:

11 Counsel for the appellants concedes that the road across the plaintiffs' property falls within the above-quoted definition in s. 1 of an "access road", and that the damage or injury done by the defendant to the plaintiffs' interests as a result of the use of the road was and is insufficient to warrant a judge acting under s. 3 to make an order closing the road, assuming that such an order were to be applied for by the plaintiffs. Counsel argues, however, that because s. 6 provides that nothing in the Act shall be construed to confer any right in respect of the ownership of land where such right does not otherwise exist at law, the Act itself cannot be said to grant any right or licence to use an access road on the plaintiff's property for access to other parcels of land, specifically in this case, to the defendant's property. Moreover, relying on the concluding portion of s. 6(1) which provides that nothing in the Act affects any alternative remedy at law available to "any applicant or other person", counsel argues that the remedy of damages for trespass remains available to the plaintiffs, unimpaired by any of the Act's provisions.

12 With respect, I think this argument misconstrues the purpose and effect of s. 6(1) of the Act, the beginning portion of which in any event speaks only of rights in respect of the ownership of land. Section 6(1) must be read in the full context of the Act. In particular, it must be read in the context of s. 2(1), which in relation to "access roads" provides the starting point from which the Act's following other provisions proceed. I am unable to agree, as counsel for the appellants would have it, that the main or "real" purpose of the Act is to establish a mechanism for the adjudication, following a "cooling-off " period provided for in the Act, of applications brought by persons seeking the closing of such roads. Rather, it seems to me, the main or principal purpose of the Act is to avoid the problems, including the very real risks of violence to persons and property, which are so often encountered in disputes involving these kinds of roads, by making it an offence in the first place, punishable by a substantial fine, for any person to obstruct an access road in circumstances where to do so would have the result of preventing access to other lands by those for whom the road serves as a motor vehicle access route. There is, of course, no offence committed if the closure of such a road is made in any of the circumstances described in cls. (a) to (d) of s. 2(1), of which a judge-ordered closure following an application to close the road is but one example. Even in this circumstance, however, the judge may not grant the closing order unless he is satisfied that the closure is ''reasonably necessary" under the strict terms set out in s. 3.

18The appellants’ application for leave to appeal to the Supreme Court of Canada was denied.

19In the meantime, the respondents encountered difficulty with access to their property over the road and brought a motion for injunctive relief. On December 21, 1995, Marchand J. ordered that the access road be made accessible by means of motor vehicle access in that the respondents or the appellants be allowed to repair and maintain same, that the chain across the access road be removed and that the Whitmells be restrained from preventing the Ritchies from fixing the access road for the purpose of making it accessible for motor vehicle use.

20The appellants appealed the order of Marchand J. which was dismissed by the Court of Appeal in June 1996. In its endorsement at [1996] O.J. No. 2156, (C.A.) the court stated (at para. 1), “Whether or not the appellants had an obligation to restore and maintain the access road to the respondents’ cottage, they are not entitled to obstruct the respondents in their efforts to make the road passable so that the respondents may have the benefit of the statute.”

21In August 1996, the respondents retained the services of William Tucker of Tucker Logging Construction to repair the access road. When Tucker brought his equipment to do the repair work, the appellant Judith Whitmell stopped him from gaining access to the road and threatened him with a charge of trespass if he did not leave.

22The respondents then brought an application heard by Loukidelis J. for an order finding the appellants in contempt of the order of Marchand J. dated December 21, 1995. On September 5, 1996, Loukidelis J. found the appellants in contempt of the order of Marchand J. and made an order restraining the appellants from interfering with the respondents’ agents entering on the access road to repair it. In oral reasons ([1996] O.J. No. 3187 (Ont. Gen. Div.)) Loukidelis J. stated, at para. 2:

I am not prepared to revisit the whole issue of the parties’ rights vis-à-vis the access road. This has been dealt with by numerous other courts. The respondents’ request for a declaration canceling the applicants’ access due to deteriorating road conditions when the applicants have been constantly prevented from using and repairing the road would be manifestly unfair.

23The appellants appealed the order of Loukidelis J. to the Court of Appeal which dismissed the appeal on August 11, 1998. In its endorsement ([1998] O.J. No. 3411) the court stated (at para. 6):

It is apparent to us as it must have been to the judge in appeal that the appellants intended and still intend to use every means available to them to prevent the respondents from exercising their rights of access. There is no suggestion of remorse or apology on their part in the material before us. Indeed they appear more determined than ever to justify their conduct in continually frustrating the attempts of the respondents to make use of the access road. For this court to ignore their conduct would raise the perception that our courts are futile and ineffective in the face of defiance to our orders.

24After William Tucker had made repairs to the road in 1999, the appellants sued him personally and obtained summary judgment granted by Belch J. requiring Tucker to remove gravel from the road in order to restore the property to its former state as a lawn. The respondents were not joined as parties in the action. William Tucker appealed the summary judgment to the Court of Appeal which reversed it on the basis that the materials were insufficient to justify summary judgment but also observing that the proper and necessary parties were not before the court in that the Ritchies, whose interests were affected, had not been joined.

25In 2000, the respondents brought an application under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, requiring the appellants to take no further proceedings against them except with leave of a judge of the Superior Court of Justice. The application was granted by Karam J. who made a finding that the Whitmells had persistently and without reasonable grounds instituted vexatious proceedings.

26The appellants appealed the order of Karam J. to the Court of Appeal which dismissed the appeal on January 23, 2002.

27While the foregoing and other legal proceedings concerning the access road were going on, the appellants, who had contacts in the Ontario Legislature, lobbied for a change to section 3 of the Act. They were successful, and in October 2001, the old section 3 was repealed and the present section 3 was substituted, with the change coming into force on January 1, 2003.

28The new section 3 appears to add a ground upon which a closing order may be granted. Under the old section 3, the judge was empowered to grant a closing order only if satisfied that the closure is reasonably necessary to prevent substantial damage or injury to the applicant’s interests or is reasonably necessary for some purpose in the public interest. The new s. 3 adds the additional ground at s. 3(1)(b): in the case of an access road that is not a common road, that persons described in s. 2(3) do not have a legal right to use the road.

29Upon the amendment coming into force, the appellants launched an application for leave, in compliance with the s. 140 order of Karam J., to commence an application for a closing order. They believed that the amendment to s. 3 provided new legal grounds for an order to close the access road, such that fresh proceedings would not be an abuse of process.

30The application came on before Bolan J. who dismissed it (see [2003] O.T.C. 413). Bolan J. wrote:

3 It is the position of the Applicants that the Respondents do not have a legal right to use the road and the Court can now order it closed. The issue is whether this amendment breathes new life in the Applicant's on-going quest to prevent the Respondents from exercising the legal right granted to them by the Court of Appeal of Ontario when it dismissed an Application by the Applicants to close the access road. (See Exhibit "A" to the Affidavit of the Respondent Steven James Ritchie). The effect of this Order dated September 8, 1994 is that the Respondents have had continuous legal and lawful access over the road since September 8, 1994.

4 There is no evidence before me in the Application to even suggest that the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the Applicants or some other purpose in the public interest. There is no evidence of any change since the Ontario Court of Appeal’s ruling of September 8, 1994.

5 The real reason for this Application is the Applicants’ determination to prevent the Respondents from using this access road. In its endorsement found at Exhibit "F" to the Affidavit of Steven James Ritchie (see Respondent Record) and dated August 24, 1998, the Court of Appeal of Ontario said in part:

"The Appellants (the Applicants herein) do not want the Respondents using this access road and are prepared to use any legal means to prevent them from so doing."

and further

"It is apparent to us ...... that the appellants intended and still intend to use every means available to them to prevent the respondents from exercising their right of access."

6 I do not interpret this amendment to mean that rights of access previously acquired by way of Court Orders are to be rescinded even though they may not have had a legal right to use the road at the time. If it were so, it would mean that all previous access orders made by the Courts would be at the mercy of capricious and/or disgruntled owners. It would create chaos for the thousands of cottagers in Ontario who have had continuous legal and lawful access over the roads in question.

31The appellants' leave application was denied. This order was not appealed.

32Because the appellants continued to make it difficult for the respondents to repair the access road and interfered in the use of the road by the respondents’ invitees by laying trespassing charges, the respondents brought an application in May 2005 for an order restraining the appellants from interfering with the use of the road by the respondents’ invitees and trades people, restraining the appellants from interfering with the respondents’ repair of the road and for an order of contempt for violating the order of Loukidelis J. dated September 5, 1996.

33The application came on before Hennessey J. who undertook to mediate a resolution. While the parties might reasonably have desired a consensual and therefore final resolution of the issue after 16 years of conflict and a multitude of legal proceedings, the appellants stated in submissions before this court that they were motivated by a concern that if the application were heard on the merits, there was a significant likelihood that they would be found in contempt of a court order for a second time. Accordingly, with the advice of counsel, the appellants entered into Minutes of Settlement with the respondents.

34As a result of the agreement evidenced by the Minutes of Settlement, there would be no contempt order.

35The parties also agreed that the terms of the Minutes of Settlement were to be incorporated into a court order made on consent. Thus the order of Hennessey J. issued on August 29, 2005. That order provided:

1.This Court orders that after July 1, 2006, the Applicants be permitted to repair the access road to the standard of the 1996 Tucker work, commencing at the fork of the road or highway, and the Respondents will not interfere with the use of the access road by any contractor, nor in any way interfere with attempts by the Applicants to arrange for road repair.

2. This Court orders that the Applicants will replace the posts to hold a chain across where the trees currently hold the chain, to be completed by August 1, 2006, and the Respondents will replace the lock and provide a key to the Applicants by May 15, 2006.

3. This Court orders that the Applicants will not duplicate the key or give it to anyone else, and the Applicants will close the gate after allowing in or out their own vehicles or the vehicles of their guests or agents. If the gate is not locked prior to the Applicants' arrival, the Applicants will not be required to lock it. If the Applicants require a snow removal contractor to plough the access road in their absence, the Applicants or the contractor will give reasonable notice to the Respondents, who will make themselves available to open the lock for the contractor.

4. This Court orders that the Applicants, their invitees, or their agents will only use the access road to and from their property in or on a vehicle, and the Applicants will ensure that they and their guests obey the rules of the road, and that they will not use the road to walk to or from the highway.

5. This Court orders that the Applicants will meet with a road contractor arranged by the Respondents before July 1, 2006 for the purpose of considering the feasibility, placement and costs of an alternate access road.

6. This Court orders that the Respondents will take steps to withdraw the trespass charge now pending against the Applicants’ invitee, LISA BUSCA.

7. This Court orders that the parties herein be responsible for their own legal fees incurred.

36On May 2, 2006, the Court of Appeal released it reasons in 992275 Ontario Inc. v. Krawczyk (2006), 2006 13955 (ON CA), 209 O.A.C. 302; (2006) 268 D.L.R.(4th) 121 reversing 2004 12088 (ON S.C.) in which Logan J. had refused to grant a closing order. The appellants believed that this decision changed their legal position and offered a new opportunity to pursue closure of the road.

37In 2007 the appellants launched a second application under the s. 140 order for leave to commence a new application for a closing order. The appellants argued that because of the Court of Appeal’s decision in 992275, a new application by them for a closing order would not be an abuse of process. The leave application was granted by Gordon J. on June 22, 2007.

THE ISSUES RAISED ON THE APPEAL

Res Judicata

38It is implicit in the reasons of the application judge that he viewed the appellants' most recent application for a closing order as an attempt to relitigate a matter that is res judicata. In my view, the appeal should be dismissed on that basis.

39When the respondents brought their application in 2005 for injunctive relief and for a contempt order against the appellants, the amendment to s. 3 of the Act had been in place for two years. In litigating the application, it was open to the appellants to raise every relevant legal argument available to them, including the argument that the respondents had no legal right to use the access road and that the change to s. 3 of the Act had altered the rights of the parties in relation to each other. It was open to the appellants to have made any arguments that were made in 992275.

40In Lehndorff Management Ltd. v. L.R.S. Development Enterprises Ltd., 1980 393 (BC CA), [1980] 5 W.W.R. 14 (B.C.C.A.) at para. 16, the British Columbia Court of Appeal stated:

The maxim res judicata does not apply to distinct causes of action (Hall v. Hall and Hall's Feed & Grain Ltd. (1959), 1958 271 (AB SCAD), 15 D.L.R. (2d) 638 (Alta .C.A.)), but it does apply where the second action arises out of the same relationship, and the same subject matter, as the adjudicated action, although based upon a different legal conception of the relationship between the parties (Morgan Power Apparatus Ltd. v. Flanders Installations Ltd (1972), 1972 1046 (BC CA), 27 D.L.R. (3d) 249 (B.C.C.A.)). It also applies not only to the point on which the court in the first action was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the first litigation and which the parties, exercising reasonable diligence, might have brought forward at the time (Winter v. Dewar, 1929 270 (BC CA), 41 B.C. R. 336, [1929] 2 W.W.R. 518, [1929] 4 D.L.R. 389 (C.A.)). The principle of res judicata would also apply if the issue in the present action was one of several issues essential for the determination of the whole of the first case, though merely a step in that decision rather than the main point of it. (Fidelitas Shipping Co. v. V/O Exportchleb, [1965] 2 All E.R. 4 (C.A.)).

41More recently, in Hoque v. Montreal Trust Co. (1997), 1997 NSCA 153, 162 N.S.R. (2d) 321 (C.A.) at 333, 339; leave to appeal to S.C.C. refused (1998), 167 N.S.R. (2d) 400 (S.C.C.)., Cromwell J.A. wrote:

Although many of these authorities cite with approval the broad language of Henderson v. Henderson, supra, to the effect that any matter which the parties had the opportunity to raise will be barred, I think, however, that this language is somewhat too wide. The better principle is that those issues which the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred. In determining whether the matter should have been raised, a court will consider whether the proceeding constitutes a collateral attack on the earlier findings, whether it simply asserts a new legal conception of facts previously litigated, whether it relies on "new" evidence that could have been discovered in the earlier proceeding with reasonable diligence, whether the two proceedings relate to separate and distinct causes of action and whether, in all the circumstances, the second proceeding constitutes an abuse of process. (emphasis in original)

42Here, the appellants had the opportunity and should have raised in the 2005 application all of their arguments in support of their position that the access road should not be available to the respondents' use. Rather than litigate the issues to a judgment and risk a finding that they were in contempt for a second time, the appellants elected to settle the litigation by entering into Minutes of Settlement and consenting to the terms being made an order of the court. That, however, does not diminish the estoppel. A judgment by consent is to be regarded as a judgment after a hearing on the merits (see Abramson v. Oshawa (City) (1998), 79 A.C.W.S. (3d) 1252 (Ont. Gen. Div.) at 2; Hees v. National Trust Co., [1946] O.W.N. 544 (H.C.) at 547; and Canada Permanent Corp. v. Christensen, 1929 287 (BC SC), [1929] 2 W.W.R. 198 (B.C.S.C.) at 199.)

43The rights and obligations that the appellants and respondents had in relation to each other concerning the access road were the subject of the 2005 settlement. The consent order was a final disposition of those rights and obligations made in the context of the amended s. 3 of the Act. The issue is therefore res judicata.

DO THE RESPONDENTS HAVE A LEGAL RIGHT TO USE THE ROAD?

44The appellants assert that the respondents have no legal right to use the road.

45The application judge did not conduct an analysis as to whether or not the respondents have a right to use the road as he was able to justify dismissal of the application without doing so. It is, however, an issue that arises on the arguments of the appellants, and, in the hopes that these reasons may assist the parties in achieving finality, it is one that should be dealt with here.

46There is no dispute that the respondents have no easement over the appellants' land. There is no registered easement, no suggestion of an implied grant nor an easement of necessity. Accordingly, there was no legal right to use the road incidental to a property right. Second, there was no license agreement to use the access road as there had been with the respondents' predecessors in title.

47Accepting the two foregoing facts together with the position that the Act creates no property right on the part of the owner of a landlocked parcel to use the road but only a right not to be considered a trespasser when he does so (see Whitmell v. Ritchie, (1994) 1994 858 (ON CA), 20 O.R. (3d) 424), does that demonstrate conclusively that the respondents do not have a legal right to use the road? In my view, it does not.

48The source of a legal right to use the road may arise from statute, from the common law, from rights incidental to a property interest, from agreement or from a court order benefiting the respondents and binding the appellants. At least one and arguably several such court orders existed and were valid at the time of the application below: the orders of Marchand J., of Loukidelis J. and of Hennessey J.

49Even if the court orders pre-dating the 2003 amendment to s. 3 of the Act are disregarded, the consent order made by Hennessey J. post-dated the 2003 amendment and was the result of an agreement. The parties bargained their respective rights and obligations on the subject of the access road. Both the Minutes of Settlement – which constitute an agreement – and the court order incorporating the terms of Minutes of Settlement confer legal rights and create legal obligations that are enforceable in law. Whether they confer legal rights to "use the access road" involves an interpretation of the language of the order and the Minutes of Settlement; in my view, the only reasonable construction of the order of Hennessey J. as a whole and paragraph 4 in particular is that the respondents and their invitees are entitled to use the access road but only in the manner stipulated in the order.

50The appellants rely on the Court of Appeal decision 992275 Ontario Inc. v. Krawczyk in support of their argument that it changed the position of the parties notwithstanding their Minutes of Settlement and the consent order of Hennessey J. in 2005.

51In 992275 the trial judge, after declaring that the trail in question, which was located in part on the defendants’ land, was an access road within the meaning of the Act, refused to make an order closing the road. He relied on the historic use of the trail over time and concluded that he was not satisfied that the road should be closed and that closure of the road would be unjust and unfair. On appeal, the court concluded that the trial judge erred in failing to make an explicit finding concerning whether the condition set out under s. 3(1)(b) of the Act had been satisfied, that is, whether any of the parties entitled to notice of he application to close the road had a legal right to use it. While there was evidence at trial of a long history of use of the road by others (not the applicant), the appeal court noted that it was “far from self-evident whether such use would afford her a legal right to use the road within the meaning of s. 3(1)(b) of the Act.” The court concluded that a finding under s. 3(1)(b) was required before any conclusion could be reached as to whether the road should be closed.

52The appellants argue that the appeal decision in effect overrules the decision of Bolan J. in Whitmell v. Ritchie, [2003] O.T.C. 413 dismissing their application in 2003 for leave to launch an application for a closing order.

53They rely on paragraphs 22 and 23 in 992275:

In addition, we reject the appellants' argument, premised on Whitmell v. Ritchie, [2003] O.T.C. 413 (S.C.J.), that the trial judge's finding that the Road is an access road should affect our conclusion concerning whether the condition in s. 3(1)(b) of the Act was satisfied. In our view, the trial judge's finding that the Road is an access road does not give persons whose property is served by the Road a legal right to use it within the meaning of s. 3(1)(b).

Rather, at its highest, the trial judge's finding that the Road is an access road establishes only that the parties whose road access to other parcels of land would be prevented by an obstruction of the Road are entitled to the privilege of not being treated as trespassers: see Deluca v. Paul Guiho Trucking & Construction Ltd. (1984), 1984 2188 (ON CA), 46 O.R. (2d) 634 (C.A.); and Whitmell v. Ritchie 1994 858 (ON C.A.), (1994), 20 O.R. (3d) 424 (C.A.), leave to appeal denied, [1994] S.C.C.A. No. 459. These persons are also entitled to the benefit of the legal process stipulated in the Act where a landowner wishes to close an access road. To the extent that the subsequent decision in Whitmell v. Ritchie, [2003] O.T.C. 413 (S.C.J.), stands for a proposition that is inconsistent with our conclusions as set out in this paragraph, in our view, it is not correct.

54In refusing leave to the appellants, Bolan J. in Whitmell v. Ritchie, [2003] O.T.C. 413 (S.C.J.) addresses rights acquired by court order but, at the last sentence of paragraph 6 which states, "It would create chaos for the thousands of cottagers in Ontario who have had continuous legal and lawful access over the roads in question", he appears to imply that use of access roads creates legal rights. The observation is obiter dicta, and it is that sentence only which is inconsistent with the holding in 992275.

55992275 did not change the law and it did not alter the positions of the parties. 992275 stands for the proposition (reiterated by the Court of Appeal in 2008795 Ontario Inc. v. Kilpatrick (2007), 2007 ONCA 586, 86 O.R. (3d) 561) that the fact that an access road as defined under the Act provides motor vehicle access to a parcel of land that would otherwise have none does not, in itself, create in the owner of that parcel a legal right to use the road. If it were otherwise, as the court observed, the condition in s. 3(1)(b) could never be satisfied. The decision does not, however, stand for the proposition that owners of such parcels cannot otherwise acquire a legal right to use the road; nor does it stand for the proposition that owners who acquire rights under a court order in relation to the use of an access road do not acquire "legal rights". Clearly a road can be an access road as defined in the Act and at the same time the subject of a grant of easement or an implied easement. Equally, a legal right can be acquired by contract and/or by court order.

56The appellants have also referred the court to Blais v. Belanger, 2007 ONCA 310; (2007), 282 D.L.R. (4th) 98; (2007), 224 O.A.C. 1. The case is relied upon in support of the proposition that the respondents have no right to maintain the road despite the court order to the effect that they do.

57The facts in Blais v. Belanger involved an historical access road that had reverted to nature and had been grown over for 40 or 50 years before the new owner of the landlocked parcel took action to alter the condition of the land following the old route to make it passable. The court held that whether a road was an access road had to be determined by reference to whether the road existed contemporarily, not historically. As there was no analysis by the trial judge on that basis, the finding that the road was an access road could not stand. The court stated, at para. 38, "Landlocked landowners cannot by acts of trespass, bring into being an access road across the land of another." It is in that context that the statement is made at para. 29, "First, those who use an access road on the land of another do not have the right to repair or maintain the road."

58In Blais, there was no agreement and, a fortiori, no court order permitting the owner of the landlocked parcel to repair as is the case here and I do not accept the argument that the case holds that a landlocked owner may not repair even where he has a court order permitting him to do so.

59As there was both an agreement and a court order that the respondents were entitled to use the access road in the manner described therein, I am of the view that had the application judge done the analysis, he could not have held that the respondents had no legal right to use the road.

DOES THE COURT HAVE A RESIDUAL DISCRETION TO REFUSE A CLOSING ORDER?

60The application judge held that the court has a residual discretion to refuse a closing order even if a condition permitting the granting of the order has been shown.

61The issue of whether the Court has such a residual discretion was raised but not determined in the Court of Appeal decision in 992275 and similarly in Blais v. Belanger.

62As this appeal has been decided on the two grounds set out above, it is unnecessary to deal with the issues of whether a residual discretion exists and whether the application judge erred in principle in his exercise of it.

63For the foregoing reasons, the appeal is dismissed.

64The respondents are to have their costs of the appeal, fixed at $6,500. Despite the submissions of respondents' counsel, I do not regard this as a case for substantial indemnity costs.

Low J.

Swinton J.

van Rensburg J.

Released:

COURT FILE NO.: 458-08

DATE: 20090521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Low and van Rensburg JJ.

B E T W E E N:

bert whitmell and Judith whitmell

Applicants/Appellants

• and -

steven james ritchie and magdalene ritchie

Respondents/Respondents in appeal