Greater Madawaska, 2016 ONSC 4813
DIVISIONAL COURT FILE NO.: DC-16-00002185-0000
DATE: 2016/08/05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. ASTON, G. TAYLOR, J. THORBURN JJ.
BETWEEN:
PIOTR MARCINIAK and ELZBIETA MARCINIAK
Plaintiffs/Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF GREATER MADAWASKA
Defendant/Respondent
K. Marciniak, counsel for the Applicants
P. Mirsky, counsel for the Respondent
HEARD at Ottawa: June 15, 2016
THORBURN J.:
REASONS FOR DECISION
Relief Sought
[1] The Applicants, Piotr and Elzbieta Marciniak, seek judicial review of the Township’s refusal to process their Application to close the road allowance and sell them the portion of the road allowance that abuts the south-western boundary of their cottage property at 36 Longstreet Lane.
[2] This refusal to consider the Application to purchase the unopened road allowance is set out in the letter of June 17, 2014 from the Township to the Applicants.
The Position of the Applicants
[3] The Applicants submit that they are entitled to fair consideration of their Application and were denied that right when the Township failed to consider their Application and send it to other public bodies for their consideration.
[4] The Applicants further submit that after it declined to accept their Application, the Township accepted the neighbours’ Application to purchase the road allowance and sent it on to public bodies for their consideration.
[5] The Applicants claim the Township was biased in favour of the neighbours as evidenced by the way the Township treated their Application and by the fact that it failed to do anything to stop the neighbours from making unauthorized alterations to the road allowance by cutting down trees, bringing in gravel and building a dock on the land.
[6] The Applicants claim the Township’s actions were unlawful, the process was unfair and the decision not to consider their Application was made in bad faith in favour of others to the detriment of the Applicants. The Applicants assert that the bad faith includes unreasonable and unfair conduct within the meaning of the McMillan Bloedel decision para. 153.
The Township’s Position
[7] The Township maintains that this is a road allowance which is property that belongs to the Township. The Official Plan is the result of the planning process in the area.
[8] Access to waterfront is an issue for the Applicants’ neighbours.
[9] Staff tried to assist the Applicants and their neighbours to resolve their dispute regarding the road allowance, and the Application submitted by the neighbours would have afforded access to water to all.
[10] The Township has the right to govern the disposition of the road allowance. Given the dispute amongst the neighbours, the Township has decided to keep the road allowance closed and deny all parties the right to purchase the road allowance.
[11] Furthermore, the Township maintains that the issue of alterations to the road allowance (the neighbours’ cutting down trees, putting in gravel and building docks) has been addressed.
The Evidentiary Background
[12] The Applicants purchased their cottage property on November 16, 2011. The property is a waterfront lot that fronts onto Centennial Lake.
[13] The existing plans did not show how close their cottage was to the property boundaries and they failed to obtain a survey. Their cottage property is very close to a road allowance.
[14] On the other side of the road allowance there are other properties.
[15] There is a further property that is not a waterfront property and does not have access to water. The road allowance provides alternate access to water for some lots.
[16] At the time the Applicants purchased their property, the road allowance was thick with trees and vegetation.
[17] In May 2013, the Applicants inquired with the Township as to how to apply to purchase the road allowance adjacent to their property. They were provided with and completed an Application form.
[18] On November 2013, the Applicants arrived at their cottage and discovered that several trees and shrubs had been cleared and gravel had been placed on the road by the neighbours without authorization from the Township. The Applicants complained several times to the Township.
[19] On January 9, 2014, the Township advised that it would send a letter advising the neighbours that no alteration to the road allowance could be made without the consent of the Township.
[20] Again on May 3, 2014, the Applicants arrived at their cottage and discovered that the road allowance had been further cleared by the neighbours and a dock built on the road allowance without authorization.
[21] The Township advises that the neighbours have now been warned and there has been no further clearance although it is not aware of the extent of the clearance as this is a remote area. The neighbours have not been penalized.
[22] On April 30 2014, the Applicants again submitted an Application to close road allowance and to allow them to purchase it. The process is set out in the Application process form. Point #8 in the Application form provides that the clerk “shall provide notice to public bodies of the Application”.
[23] On June 25, 2014, the Township emailed a letter dated June 17, 2014 stating the following:
[T]he Application will not be processed as per the policies of the County of Renfrew Official Plan. Section 2(21)(a)(i) of the County of Renfrew Official Plan calls for the preservation of unopened road allowances that lead to water and are or will be used for public waterfront use or access. The subject road allowance, therefore, will remain unopened.
[24] On October 24, 2014, the municipal council of the Township met and accepted an Application from the Applicants’ neighbours to close the same road allowance.
[25] On November 6, 2014, the Township sent a letter advising that it would not process the Applicants’ Application. The letter reads:
Please be advised that the Township has received the second Application to close and sell the above noted unopened road allowance to your clients. Following a review of the Application, the township has decided that the subject Application will not be processed.
Please note that the alternative public access described in your letter received on October 8, 2014, in the opinion of the Land Use Planner, is not considered to be in close proximity to the subject unopened road allowance. Furthermore, your clients’ Application to close and sell the subject unopened road allowance could compromise the access to other privately owned property in the area.
Since your clients’ last Application was refused, another party has applied to purchase the subject unopened road allowance. This party has resolved the access issue and the proposal would not compromise access to anyone’s private property. Based on By-Law 12-2008, Council addresses unsolicited offers to purchase property on a first come first serve basis. Since your clients’ previous Application was refused, the current applicants were able to apply to purchase the subject unopened road allowance.
To date, Council has approved, in principle, the request and the Application will continue to move through the closure and sale process. Official notice will be provided in accordance with the Township’s by-laws.
[26] On December 15, 2014, the Applicants commenced this Application for judicial review.
Key Issues
[27] The key issues are:
• Were the Applicants denied their right to procedural fairness and or did the municipality act in bad faith?
• Was the Township’s decision not to proceed with the Applicants’ request reasonable?
Court’s Jurisdiction:
[28] The Divisional Court has jurisdiction to hear Applications for judicial review by virtue of sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to those provisions, the Divisional Court has jurisdiction to grant any relief an applicant would be entitled to including an order for mandamus, or to quash a proceeding or decision, in relation to the exercise of a statutory power.
Analysis and Conclusion
[29] The road allowance is a public roadway owned by the Township.
[30] The Township has the obligation to consider community planning and the interests of the community at large.
[31] The Official Plan calls for the preservation of unopened road allowances that lead to water (as this one does) when the road allowance is, or will be, used for public waterfront use or access. As a precondition to any sale, the road allowance has to be declared “surplus” by the Township.
[32] Township staff determined that the first Application submitted by the Applicants did not meet this requirement and therefore did not refer it to Township council.
[33] The Township decided to accept for consideration only, the neighbours’ competing Application. It was considered but never finally approved.
[34] When the Applicants’ Application was resubmitted, it was sent with a letter outlining their answer to the concerns regarding waterfront access and suggesting that the neighbour use another road allowance. Further and different reasons were given in the Township’s letter of November 6, 2014: that another party had also applied to close and purchase the same unopened road allowance; that the alternative public access to the waterfront proposed by the Applicants was inadequate in the opinion of the Township’s Land Use Planner; and that the Applicants’ proposal would compromise access to other privately owned property in the area.
[35] The Township has said they will not proceed with either the Applicants’ or their neighbours’ Application as it is not prepared to sell some or all of the road allowance, unless or until the competing claims and interests of all abutting owners, including the Applicants, had been resolved. The Township does not want to take sides as between neighbours.
[36] The Township has reasonably decided it will not declare the property surplus unless and until the needs and interests of the four abutting owners to gain access to their properties and water have been addressed in a manner that avoids an unfair and prejudicial result. This is consistent with its obligation to all members of the community.
[37] There has been no resolution of the competing interests of owners whose property abuts the unopened road allowance.
[38] The Township further advises that it has notified the neighbours that no further alteration of the road allowance is to take place by the neighbours without the consent of the Township and that since that time, no further alterations have taken place nor will take place.
[39] There is no legal right to require the Township to divest itself of its title to the unopened road allowance. Moreover, even if this matter were sent back for reconsideration by the Township, there is no dispute that the Township has the right to refuse to sell the road allowance and that there are reasonable grounds as laid out by the Township in this proceeding, for so doing.
[40] For these reasons, we find that the decision by the Township not to sell the road allowance either to the Applicants or to their neighbours to be reasonable and supported by the evidence.
[41] The actions of the Township in failing to consider the Application under these circumstances and its actions to control alterations to the road allowance, although belated and insufficient to have prevented the unauthorized alterations by the neighbours, do not constitute bad faith on the part of the Township.
[42] The Application is therefore dismissed.
“Justice J. Thorburn”
THORBURN J.
“Justice D. R. Aston”
ASTON J.
“Justice G. Taylor”
TAYLOR J.
Released: August 5, 2016
Greater Madawaska, 2016 ONSC 4813
DIVISIONAL COURT FILE NO.: DC-16-00002185-0000
DATE: 2016/08/05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. ASTON, G. TAYLOR, J. THORBURN JJ.
BETWEEN:
PIOTR MARCINIAK and ELZBIETA MARCINIAK
Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF GREATER MADAWASKA
Respondent
REASONS for decision
THORBURN J.
Released: August 5, 2016