Court File and Parties

CITATION: Krogh v. Fairchild, 2019 ONSC 1198

DIVISIONAL COURT FILE NO.: 18-2417 DATE: 2019/02/19

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, Mulligan and Raikes JJ.

BETWEEN:

Peder Krogh and Maida Murray Applicants/Appellants by Appeal

– and –

Robert Fairchild Respondent/Respondent by Appeal

Shawn J. O’Connor, for the Applicants/Appellants by Appeal

Robert Fairchild, Respondent/Respondent by Appeal – Self-Represented

HEARD at Ottawa: February 19, 2019

Oral Reasons

THE COURT (Orally)

[1] The appellants’ appeal from the Order of Mr. Justice Hurley dated August 8, 2018 in which he found that a trail across the appellants’ land was an “access road” within the meaning of s. 1 of the Road Access Act, R.S.O. 1990, c. R. 34, and he declined to exercise his discretion to order the road closed pursuant to s. 3(1), although he imposed a number of conditions on the respondent’s use.

[2] The appellants argue that the application judge erred in law by finding that the trail was an access road - first, because it had not been used to access the respondent’s property prior to his purchase in 1988, and second, because the road was only made accessible by the respondent’s repair and maintenance, which was done without permission and as an act of trespass over a number of years.

[3] There was ample evidence to support the application judge’s finding that the owners prior to the appellants gave the respondent permission to use the road by motor vehicle and that he had used the road for many years as his only vehicular access to his landlocked property. There is no evidence that the prior owners objected to the work performed by the respondent on the road at the time or subsequently when he drew it to their attention in a letter in 2008. Accordingly, we see no basis to interfere with the finding that the road was an access road.

[4] The application judge exercised his discretion under s. 3 of the Act to refuse to order closure and to impose conditions. The appellants argue that the application judge should have ordered closure because of s. 3(1)(b) - namely, the respondent has no legal right to use the road. However, s. 3(1) gives the application judge a discretion whether to order closure. See Margettie v. Snell 2009 ONCA 838 at para. 42. He was aware that the respondent had no legal right to use the road, given his finding on the easement claim. However, he considered the competing interests including the respondent’s length of use, access to land where his wife’s ashes were interred and lack of disruption to the appellants. He imposed a number of conditions that are within the spirit of the Act, aiming to peacefully resolve this type of access dispute. The Order allowing temporary displacement of a fallen tree is a reasonable condition open to him under s. 3(2) and again reflects the spirit of the Act.

[5] As the appellants have identified no error of law or palpable and overriding error of fact, the appeal is dismissed. Costs to the respondent fixed at $1,000.00 all inclusive.

___________________________ Swinton J.

Mulligan J.

Raikes J.

Date of Reasons for Judgment: February 19, 2019

Date of Release: February 20, 2019

CITATION: Krogh v. Fairchild, 2019 ONSC 1198

DIVISIONAL COURT FILE NO.: 18-2417 DATE: 2019/02/19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Mulligan and Raikes JJ.

BETWEEN:

Peder Krogh and Maida Murray

Applicants/Appellants by Appeal

– and –

Robert Fairchild

Respondent/Respondent by Appeal

ORAL REASONS

THE COURT

Date of Reasons for Judgment: February 19, 2019

Date of Release: February 20, 2019