Krogh v. Fairchild, 2019 ONSC 1198

1The 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.

2The 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.

3There 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.

4The 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.

5As 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.