Court File and Parties

CITATION: Bodnar v. Her Majesty the Queen in Right of Ontario, 2015 ONSC 4551

DIVISIONAL COURT FILE NO.: DC-14-0015-JR

DATE: 2015-07-15

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RODNEY BODNAR, Applicant

AND: Her Majesty the Queen in Right of Ontario, as Represented by the Ministry of Natural Resources, Respondents

BEFORE: Then J., Lederman J., Lofchik J.

COUNSEL: Ryan Bodnar, for the Applicant Judith Parker, for the Respondent

HEARD at Thunder Bay: June 22, 2015

Endorsement

Nature of Proceedings

[1] This is an application for judicial review of a decision of the respondent (the “Minister”) to exercise a five percent road reservation on the applicant’s land pursuant to the Public Lands Act R.S.O. 1990, c.P-43 (the “PLA”).

[2] The applicant had purchased two parcels of land (the “Property) in May, 2010. The Property was approximately 15 acres that were initially a part of a 20 acre Crown patent (the “Patent”) that was granted to the original owner, which included “reserving five percent of the acreage hereby granted for Roads and the right to lay out the same where the Crown or its officers may deem necessary.”

[3] On the Property was a road (“the disputed road”) which had been in use for it least 40 years prior to the exercise of the road reservation.

[4] Due to concerns regarding the continued use of this disputed road, including whether the public had a legal right to use the road the respondent contacted the applicant regarding the exercise of the five percent road reservation pursuant to s.65 of the PLA.

[5] In due course, the respondent exercised its road reservation and rejected the alternatives proposed by the applicant.

[6] As a preliminary matter, we heard the Minister’s motion to dismiss this application for judicial review for delay. We reserved decision on this motion.

[7] There is no question that there had been inordinate delay in the commencement of this application – some 28 months after the final decision of the Minister was communicated to the applicant. However, given the lack of substantive evidence of prejudice to the Respondent, we are of the view that the application should not be dismissed on this ground alone.

[8] The applicant takes issue with the Minister’s decision, in particular the process for calculating the land available for roads and the improper purpose for exercising the road reservation.

Size of the Land Available for Road Reservation

[9] The applicant claims that the Minister could only exercise a pro-rated portion of the road reservation equal to the proportion of the total land granted in the Patent actually owned by the applicant.

[10] Further, the applicant submits that the Minister did not take into account the other private roads located on the Property prior to exercising the road reservation and that the Minister should have deducted these roads from the road reservation.

[11] Section 65(1) of the PLA creates a very broad power without any limit on the portion of the lands that are deemed to be reserved to the Crown.

[12] The Patent itself refers to a specific maximum percentage of the total patented land and does not preclude the full five percent being taken from a smaller portion of the granted parcel. This is further confirmed in Policy PL 3.01.01. (the “Policy”).

[13] In any event, the Minister did not exercise the full 5% over the applicant’s lands. The applicant submits that the Minister could exercise only 75% of the 5% reserved to the Crown or 3.75% of the total patented land. The Minister in fact exercised only 3.31% of the total patented land.

[14] Here, the full 5% reserved in the Patent was available for exercise under the PLA and that included the existing roads not created under the PLA.

Purpose For Exercising the Road Reservation

[15] The applicant submits that although s.65 (1) of the PLA is silent as to the purpose of exercising the road reservation, the Patent indicates that the reservation is to be exercised when deemed necessary. The applicant argues that regard must be had to the Policy which refers to an 1866 Order in Council and a statement that “the practice of reserving, and where necessary exercising, a percentage reservation for roads has been used as the only practical means of providing access for settlement [of] much of the province, as it was simply impossible at the time of the grant to foresee what land would be required for future public uses.”

[16] The Order in Council in question has not been produced. Moreover, the reference to the practice of road reservation for settlement purposes is not part of the Policy but is set out as historical background. Thus there is no evidence of a legislative purpose confining the reservation to “settlement”.

[17] “Settlement” is an ambiguous word and in any event the exercise of the road reservation was primarily for the purpose of ensuring continued access by the general public to the Crown lands, the public boat launch and the Crown Shoreline Road.

[18] There is no basis in the evidence to conclude that the exercise of the road reservation in respect of the disputed road was for any improper or unauthorized purpose.

Standard of Review

[19] The Minister`s exercise of road reservation under s.65 (1) of the PLA is a broad discretionary power.

[20] The standard of review is reasonableness. The Minister has substantial discretion in interpreting the PLA and carrying out the broad responsibilities for Crown land and rights under the PLA. The nature of the exercise involves public policy issues and is entitled to deference.

[21] The Minister did consider the various alternative options proposed by the applicant and provided an explanation to the applicant as to why they were not viable. In rejecting these options, the Minister took into account not only the neighbouring private business interests but also the negative impact of possible natural severances and development on lakes and the need to protect water quality and fish habitat and the cost implications involved.

[22] It was reasonable for the Minister to reject the options put forth by the applicant as not being viable and the decision of the Minister to exercise the reservation in respect of the disputed road falls within the range of reasonable outcomes.

Procedural Fairness

[23] The applicant complains that there was no meaningful consultation and that his various alternative options were not taken seriously.

[24] Given the factors set out in Baker v. Canada 1999 SCC 699, [1999] 2 S.C.R. 817, the content of procedural fairness is contextual. Here, the process was not adjudicative; the decision was discretionary and was based on the Ministers assessment of what is in the public interest; the Minister was not taking away the applicants rights as the applicants title to his lands was always subject to the right of the Crown to lay out roads in the Patent and s.65 of the [PLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p43/latest/rso-1990-c-p43.html); the applicant was given notice and there was ample consultation with the applicant about the alternative possibilities; and the applicant was given adequate reasons for the Ministers final decision.

[25] In these circumstances, there was no procedural unfairness.

Conclusion

[26] For these reasons, the application is dismissed.

[27] The Minister will have its costs of the application fixed at $11,000, all inclusive (an amount agreed upon by counsel) payable by the applicant within 30 days.

THEN, J.

LEDERMAN, J.

LOFCHIK, J.

Released: July 15, 2015