Nilson et al. v. Zagrodney et al. [Indexed as: Nilson v. Zagrodney]
52 O.R. (3d) 106
[2000] O.J. No. 4839
Docket No. C33632
Court of Appeal for Ontario
Morden, Charron and Borins JJ.A.
December 22, 2000
Highways--Closing--Sale of closed highway--Validity --Municipality failing to comply with requirements for sale of closed highway--Court having discretion to refuse to declare sale void on grounds of delay in bringing action--Subsequent purchasers having defences under Limitations Act and under Land Titles Act--Land Titles Act, R.S.O. 1990, c. L.5--Municipal Act, R.S.O. 1950, c. 243, ss. 470, 487.
This appeal concerned a strip of land that was the driveway and the sole means of access to a property owned by Z and his common law wife H. The strip of land had been part of a public highway, and in 1956, pursuant to s. 470 of the Municipal Act and By-law 1535, the Town of Kenora had stopped up the highway. At the time of the passage of the 1956 by-law, all the surrounding land was owned by D. The 1956 by-law, however, included a larger portion of land than was intended and, in 1958, the Town passed By-law 1584, which repealed the 1956 by- law and corrected the description of the lands of the road closing. Later in 1958, the Town sold the strip of land to D. At the time of the sale to D, the Rs owned a property known as Parcel 20851, which they had purchased from D. Parcel 20851 abutted the strip of land sold to D. Before selling the strip of land to D, the Town did not pass a by-law pursuant to s. 487 of the Municipal Act, which provides that if a municipality determines to sell a stop ped-up highway, it shall fix the price and give the abutting owner a right of first refusal. In 1972, the respondents purchased Parcel 20851. In the 1990s the relationship between the respondents and Z began to deteriorate, and in 1991, Z installed a fence along the strip of land. In 1999, the respondents brought an application for declaratory relief, and the applications judge held that the transfer to D of the strip of land and all subsequent transfers were void for failure to comply with the provisions of the Municipal Act. The applications judge held that the strip of land was still a public highway and the property of the Town. Z and H appealed.
Held, the appeal should be allowed.
The applications judge was wrong in concluding that the 1956 by-law was not relevant to the analysis. The 1956 by-law effectively stopped up the highway, and the 1958 by-law could not be considered in isolation. The 1958 by-law confirmed the closing of the road. The next question was whether there was any contravention of s. 470 of the Municipal Act with respect to the road closing. The answer to this question was negative. Insofar as the strip of land was concerned, the 1958 by-law simply confirmed the stopping-up that was already in effect. The repeal of the 1956 by-law contained in the 1958 by-law did not have any retroactive effect so as to give the Rs any rights under s. 470 of the Municipal Act which they did not otherwise have. The sale of the strip of land to D, however, raised different concerns because the Town did not pass a by-law under s. 487 of the Act. Under that section, the Rs were entitled to a right of first refusal. The Town's failure to comply with s. 487, however, did not affect the validity of the 1958 by-law confirming the closing of the highway. As for the transfer to D, the applications judge appeared to be of the view that he had no discretion but to declare the transfer void. However, in Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 SCC 82, [1991] 1 S.C.R. 326, which was not cited to him, the Supreme Court of Canada rejected the proposition that there was no discretion to refuse the remedy in an appropriate case. In this case, the declaration should have been refused on the basis of delay. The right of the respondents' predecessors in title to bring an action to set aside the transfer to D accrued in 1958 and there was no explanation for the delay in taking action. Further, even if the transfer to D was declared void, it did not follow that all subsequent transfers were also void. The appellants advanced defences under both the Limitations Act and the indefeasibility of title provisions of the Land Titles Act. There was no basis for rejecting these defences.
APPEAL from a judgment of Stach J. (2000), 2000 ON SC 22628, 29 R.P.R. (3d) 175, 183 D.L.R. (4th) 564 (Ont. S.C.J.) declaring that the appellant did not have ownership in a strip of land.
Cases referred to Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 SCC 82, [1991] 1 S.C.R. 326, 78 D.L.R. (4th) 175, 5 M.P.L.R. (2d) 1, 121 N.R. 323; Jones v. Tuckersmith (Township) (1917), 1917 SCC 606, 45 O.L.R. 67, 47 D.L.R. 684 (S.C.C.); Tonks v. York (Township) (1966), 1966 SCC 16, [1967] S.C.R. 81, 59 D.L.R. (2d) 310, affg 1965 ONCA 25, [1965] 2 O.R. 381, 50 D.L.R. (2d) 674 (C.A.) (sub nom. Reid v. York (Township)) Statutes referred to Land Titles Act, R.S.O. 1990, c. L.5, s. 87 Limitations Act, R.S.O. 1990, c. L.15, s. 4 Municipal Act, R.S.O. 1950, c. 243, ss. 470(1), 487 Municipal Code of Québec, R.S.Q., c. C-27.1 Road Access Act, R.S.O. 1990, c. R.34 Authorities referred to Wade, Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988)
Richard S. Literovich, for appellants. Gary M. Caplan, for respondents, Alistair Nilson and Maryanne Nilson. Rene Larson, for respondent, the Corporation of the Town of Kenora.
The judgment of the court was delivered by
CHARRON J.A.:--
1. Overview
[1] This appeal involves a neighbours' dispute over a strip of land in the Town of Kenora, Ontario. The strip of land lies to the north of the property owned by the respondents and it is part of the driveway that leads to the property owned by the appellants. The issue is whether the land in question is the private property of the appellants, over which the respondents may have limited or no access, or a public highway owned by the Corporation of the Town of Kenora, over which all parties, as members of the public, would have access.
[2] The dispute revolves around the validity of a municipal by-law passed in 1958 stopping up the land in question as a public highway and a subsequent transfer of the land by the municipality to the appellants' predecessors in title. The applications judge held that the by-law, the transfer to the appellants' predecessors in title, and all subsequent transfers were void for failure to comply with the provisions of the Municipal Act, R.S.O. 1950, c. 243 in force at the time. It is my view that there is no basis to invalidate the 1958 by-law and, hence, the land in question was effectively stopped up as a public highway. Further, while the transfer to the appellants' predecessors in title may have been open to attack for failure to comply with the Municipal Act, it is my view that the applications judge erred in rejecting the defences advanced by the appellants as subsequent purchasers for value without notice. Consequently, I conclude that the land in question is the private property of the appellants. Whatever access the respondents may have over the land in question, if any, is a matter which is beyond the scope of this appeal.
2. The Facts
[3] The appellant Michael William Zagrodney ("Dr. Zagrodney") is a dentist who resides on the north shore of the Lake of the Woods in Kenora, Ontario. The appellant Nadine Hodges ("Hodges") is his common-law wife. Dr. Zagrodney purchased his property in 1984, including the land in issue in this litigation. Hodges became a joint owner of the property in 1998. The land in issue is essentially the driveway to Dr. Zagrodney's property and it provides the sole means of access to it. Dr. Zagrodney was not aware at the time of purchase that there could be any issue as to the validity of his title. The issue raised on this application arises from events that occurred in the 1950s.
[4] Prior to 1956, the land in issue was a public highway, part of Old Colonization Road. In 1956, a portion of Old Colonization Road, including the land in issue, was stopped up pursuant to By-law 1535 ("the 1956 by-law") of the Corporation of the Town of Kenora ("the Town"). However, the 1956 by-law mistakenly included a larger portion of land than was intended and, in 1958, the Town passed By-law 1584 ("the 1958 by-law") to correct the description of the land in the 1956 by-law. The 1958 by-law set out the correct description of the land, again including the land in issue, and repealed the 1956 by-law. The land in issue was subsequently transferred the same year to the predecessor-in-title of Dr. Zagrodney, Harvey Duguay.
[5] The land in issue lies to the north of Parcel 20851. Parcel 20851 was purchased by the respondents Alastair Nilson and Maryanne Nilson ("the Nilsons") in March 1972 and is still owned by them. When the Nilsons purchased their property, they were mistakenly advised by their solicitor that the land to the north of their property was still a public highway. It was not until 1986 that they became aware that it had been stopped up by the 1956 by-law, as corrected by the 1958 by-law, and that it was no longer considered a public highway. In the years that followed, the Nilsons had a number of discussions with the Town and with Dr. Zagrodney over this issue. The relationship between the parties began to deteriorate in or about 1990 and, in the fall of 1991, Dr. Zagrodney installed a fence along the southerly edge of his driveway which prevented the Nilsons from parking along the north side of their property and from accessing their property from that side. The Nilsons still had, and continue to have, access to their property, however, since they also own a parcel of land to the west of Parcel 20851, which parcel, in turn, abuts to the public highway.
3. The Application Brought by the Nilsons and the Decision Below
[6] In 1999, the Nilsons brought this application for declaratory relief in respect of the land in issue and for a mandatory order compelling the appellants to remove the fence they had erected. The Nilsons alleged that the 1958 by-law did not comply with the requirements of the Municipal Act ("the Act") as it was in 1958 in two respects. First, the Nilsons alleged that the 1958 by-law deprived the Rabys, the then owners of Parcel 20851, of their rights of ingress and egress to and from their land contrary to s. 470(1) of the Act. Second, they alleged that the Town contravened s. 487 of the Act when they sold the land to Duguay by failing to (a) fix a price for the land in issue and (b) give the Rabys the first right of refusal before selling it to Duguay.
[7] The relevant provisions of the Act read as follows:
470(1) A by-law shall not be passed for stopping up, altering or diverting any highway or part of a highway if the effect of the by-law will be to deprive any person of the means of ingress and egress to and from his land or place of residence over such highway or part of it unless in addition to making compensation to such person, as provided by this Act, another convenient road or way of access to his land or place of residence is provided.
487(1) . . . where the whole or any part of a highway is legally stopped up, if the council determines to sell such original allowance or such stopped-up highway, the price at which it is to be sold shall be fixed by the council, and the owner of the land which abuts on it shall have the right to purchase the soil and freehold of it at that price.
(2) Where there are more owners than one, each shall have the right to purchase that part of it upon which his land abuts to the middle line of the stopped-up highway.
(3) If the owner does not exercise his right to purchase within such period as may be fixed by the by-law or by a subsequent by-law, the council may sell the part which he has the right to purchase to any other person at the same or greater price.
[8] The applications judge accepted the Nilsons' position and, on February 9, 2000, rendered a judgment holding that the land in issue was a public highway that was owned by the Town, not the appellants. Based on his finding that the Town did not comply with the provisions of the Act, he held that the part of the 1958 by-law that purported to stop up the public highway north of Parcel 20851 (the land in issue) was void and that the subsequent transfer of this land to Duguay and all subsequent transfers were also void. The applications judge found that the 1956 by-law was irrelevant to this analysis. He further rejected all defences advanced by the appellants, including the indefeasibility of title provisions in the Land Titles Act, R.S.O. 1990, c. L.5, the provisions of the Limitations Act, R.S.O. 1990, c. L.15, the common-law doctrine of laches or estoppel and the common-law doctrine of good faith purchaser for value without notice. The applications judge made a declaratory judgment i n accordance with his findings and ordered the Town to remove the fence at its own expense. He made no order as to costs.
[9] The appellants appeal this decision on several grounds.
4. The Appellants' Position
[10] First, the appellants argue that the applications judge erred in finding that the 1956 by-law was irrelevant to the analysis. They submit that the 1956 by-law complied with the requirements of the Act and that it effectively stopped up the land in question as a public highway. Hence there was no further need to comply with s. 470(1) of the Act at the time the 1958 by-law was passed since the latter by-law simply corrected a technical error. The appellants submit further that, in the circumstances, the ultimate transfer to Duguay in 1958 of the legally stopped-up road was also valid.
[11] Second, the appellants argue that even if the court finds that the Town did not comply with the Act in passing the 1958 by-law and in selling the land to Duguay, they are nonetheless entitled to rely on the provisions of the Land Titles Act which, in essence, codify their common-law rights as subsequent purchasers for value without notice.
[12] Third, the appellants submit that the Nilsons' application has long been barred under the provisions of the Limitations Act which provide for a 10-year limitation period for bringing an action to recover land.
[13] Fourth, the appellants submit, even in the absence of any statutory defences, that the Nilsons' application should have been dismissed on the ground of delay.
[14] Finally, the appellants submit, regardless of the outcome, that their costs should be paid by the Town both in this court and below.
5. The Town's Position
[15] The Town takes no position other than to submit that no costs should be awarded against it regardless of the outcome. It submits that it has adopted a neutral and cooperative position throughout the litigation and that it should not be penalized in costs.
6. Analysis
[16] In my view, the applications judge erred in finding that the land in issue was still a public highway and the property of the Town. The fundamental error lies in the failure to distinguish between the stopping-up of the public highway and the subsequent transfer to Duguay. Different requirements of the Act come into play with respect to each one of the Town's actions.
[17] Insofar as the stopping-up of the highway is concerned, the requirements of s. 470(1) of the Act must be considered and, on this point, the applications judge erred in finding that the 1956 by-law was irrelevant to the analysis. In my view, the 1958 by-law cannot be considered in isolation and, in the circumstances of this case, the 1956 by-law is of crucial importance because it effectively stopped up the lands in issue as a public highway and this effect was simply confirmed by the 1958 by-law.
[18] The sale of the stopped-up highway to Duguay, on the other hand, brings s. 487 of the Act into play. The Town did not pass a by-law approving the sale of the land to Duguay. [See Note 1 at end of document] Hence, there is no issue with respect to the validity of any by-law. Rather, it is the absence of a s. 487 by-law (fixing a price for the land and giving the Rabys a right of first refusal) which must be considered, along with its effect on the transfer to Duguay and on subsequent transfers of the disputed land. On this point, it is crucial to distinguish between Duguay and subsequent purchasers for value without notice. I will deal with each of the Town's actions in turn.
(a) The stopping-up of the public highway
[19] The stopping-up of the public highway in relation to the land in issue was first effected by the 1956 by-law. At the time the 1956 by-law was passed, the stopping-up of Old Colonization Road did not raise any access issues under s. 470(1) of the Act with respect to the land in issue because Duguay owned all the surrounding land at the time, including Parcel 20851, which is now owned by the Nilsons. [See Note 2 at end of document] It was only after the 1956 by-law was passed that Parcel 20851 was sold to the Nilsons' predecessors in title, the Rabys, a few weeks before the 1958 by-law was passed.
[20] Hence the 1956 by-law did not have "the effect of depriving any person of the means of ingress and egress to and from his land" within the meaning of s. 470(1), and no further action was required by the Town at the time to effectively stop up that part of Old Colonization Road covered by the 1956 by- law. It is agreed that the land in issue formed part of the lands described in the 1956 by-law. Hence, it was effectively stopped up as a public highway as of that time.
[21] The question then becomes whether there was any contravention of s. 470(1) when the 1958 by-law was passed insofar as the Nilsons' predecessors in title were concerned. In my view, there was not. When the Rabys purchased Parcel 20851 from Duguay, the abutting lands in issue were no longer a public highway. The 1958 by-law did not effect any change with respect to Parcel 20851 and its owners' rights in respect to it. The only effect that it had was to delete that portion of land that had mistakenly been included in the 1956 by-law. Insofar as the land in issue was concerned, the 1958 by-law simply confirmed the stopping-up that was already in effect. The repeal of the 1956 by-law contained in the 1958 by-law did not have any retroactive effect so as to give the Rabys any rights under s. 470(1) that they were not otherwise entitled to immediately before its passing.
(b) The sale to Duguay
[22] The sale of the land in issue to Duguay a few months after the 1958 by-law was passed raises different considerations. At that time, the Rabys were owners of abutting lands within the meaning of s. 487(1) of the Act and, consequently, it was incumbent upon the Town to (a) fix a price for that part of the lands that it intended to sell to Duguay that abutted the Rabys' property (the land in issue) and (b) give the Rabys the right of first refusal.
[23] In my view, the applications judge was entitled to draw the inference that there had been no compliance with s. 487 of the Act on the basis of the record before him. His conclusion is set out at para. 8 of his reasons [p. 568 D.L.R.]:
As it happened, Raby acquired title to Parcel 20851 from Duguay on April 8, 1958, approximately 6 weeks before the Town passed by-law No. 1584 (on May 26, 1958). The Town has no records and no documentation to suggest the Town entered into any kind of negotiation with Raby on or after May 26, 1958, respecting road access for Parcel 20851. Nor does the Town have records or documentation to indicate that it either fixed a price for or offered to sell to Raby that part of Colonization Road upon which his parcel abutted, to the middle line of Colonization Road. From the background before me I infer that the Town had not performed a sub-search of title prior to the enactment of By-law No. 1584 and, at the time of enactment, was quite unaware of Duguay's sale of Parcel 20851 to Raby weeks earlier. It follows from this that the Town--probably unwittingly--did not comply with the provisions of the Municipal Act at any material time. More particularly, it did not comply with s. 487(1) and (2).
[24] Hence, the applications judge was correct in finding that there was no compliance with s. 487(1) and (2). However, as I have indicated earlier, I disagree with the applications judge's conclusion that the failure to comply with s. 487 had any effect on the validity of the 1958 by-law. That by-law was valid and it effectively confirmed the stopping-up of the road effected in 1956. It is the sale to Duguay which becomes reviewable by reason of the Town's failure to comply with s. 487.
[25] The applications judge relied principally upon Tonks v. York (Township) (1966), 1966 SCC 16, [1967] S.C.R. 81, 59 D.L.R. (2d) 310 in support of his conclusion that the transfer of the land in issue to Duguay was void. He summarized the decision in Tonks as follows (at paras. 15, 16 and 17) [pp. 569-70 D.L.R.]:
In Tonks, the Township of York closed a public roadway and sold part of it to the defendant Christopher Tonks, then the reeve of the township, without compliance with s. 477 of the Municipal Act (the equivalent of s. 487 in the case before me). There, as here, that provision compels the municipality, if it decides to sell, to fix a price and offer it to the abutting owner. In effect Tonks had secretly arranged to buy the land in the name of a nominee. Eventually, Hazel Reid and John Reid, the owners of an abutting property, brought an action for a declaration that the by-law, and the sale of the closed road thereby authorized, were null and void; they sought an order setting aside the sale. Relying upon the Limitations Act, the trial judge dismissed the action. The Court of Appeal reversed the judgment at trial, holding that non-compliance with (s. 487) of the Municipal Act results in a void transaction. On separate but additional grounds the Court of Appeal character ized the conduct of Tonks as fraudulent and set aside the transaction upon that ground also. Effectively, the Court of Appeal set aside only that part of the municipal by-law which authorized the sale to Tonks and declared the deed of conveyance to Tonks to be null and void. The decision of the Court of Appeal in Tonks was affirmed on further appeal.
The judgment of the Supreme Court of Canada in Tonks, 1966 SCC 16, [1967] S.C.R. 81, was delivered by Judson J. At page 85 he stated:
I agree with the judgment of the Court of Appeal that if the provisions of [s. 487] of the Municipal Act are not observed the council is without authority and a by-law authorizing sale is void and is open to attack notwithstanding that more than a year has elapsed from the date of its passing.
After setting out the provisions of [s. 487], Judson J. continued:
Words could not be plainer. The council was under no compulsion to sell, but if it determined to sell, it had to sell in accordance with these provisions. It fixed no price and it made no offer to the abutting owners. Council had no authority whatever to make this sale to Tonks. It was not within its competence to pass any by-law authorizing such a sale or the execution of a deed to Tonks. This is the effect of Jones v. Tuckersmith, and I agree with the analysis of that case in the reasons of the Court of Appeal.
[26] The applications judge then referred to this court's judgment in Tonks [1965 ONCA 25, [1965] 2 O.R. 381, 50 D.L.R. (2d) 674 (C.A.)] where Porter C.J.O. set out his analysis of Jones v. Tuckersmith (Township) (1915), 1915 ON CA 528, 23 D.L.R. 569, 33 O.L.R. 634 (C.A.), referred to in that preceding excerpt. Further to this analysis, Porter C.J.O. held that a failure to comply with the provisions identical to those in question in this case is a matter that goes to the jurisdiction of the municipality. Porter C.J.O. stated as follows [at p. 388 O.R.]:
From this decision and the terms of the statute, in my view, it would follow that the selling of a road allowance without offering it to abutting owners is not a matter over which council has jurisdiction. Nor is the by-law one which becomes unimpeachable after the elapse of one year. The council had no authority. It was not a matter over which council had authority subject to certain conditions. The Chief Justice [in Jones v. Tuckersmith] was treating it as void and not merely voidable. Since, in the case at bar, the land was never offered to adjoining owners, the council never had the authority to offer it to other bidders.
[27] It is on the basis of these cases that the applications judge held that the transfer to Duguay was void. It would appear from the applications judge's reasons that he was of the view that he had no discretion but to declare the transfer void. The decision of the Supreme Court of Canada in Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 SCC 82, [1991] 1 S.C.R. 326, 78 D.L.R. (4th) 175 was not cited to him by counsel, nor was it referred to by counsel on this appeal. This court queried counsel on whether Port Louis had any application to this case.
[28] In Port Louis, the validity of certain municipal loan by-laws was disputed on the basis that their adoption was not in accordance with the provisions of the Municipal Code of Québec, R.S.Q., c. C.27.1 that required public notices convening electors as a condition precedent to their coming into force and effect. The Supreme Court held that the insufficiency of the public notices was a serious illegality but that it did not involve a lack of jurisdiction or even a defect affecting the overall exercise by the municipality of its powers. I query, in light of the reasoning in Port Louis, whether Porter C.J.O.'s analysis in Jones is still authoritative. However, the Supreme Court made no reference to Tonks in Port Louis. In light of that fact and of the express language in Tonks, I am of the view that Tonks is still good authority and that the failure to comply with s. 487 of the Act deprived the Town of any competence to sell the lands to Duguay, and the applications judge was correct in finding that the transfer was void.
[29] However, and perhaps more importantly, the Supreme Court in Port Louis rejected the proposition, in a matter involving absolute nullity, that the judge hearing the case has no discretion to refuse the remedy in an appropriate case, for example, where there has been undue delay. As the court noted, citing Professor Wade's text Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988) at p. 696, "a void act is in effect a valid act if the court will not grant relief against it."
[30] In my view, the remedy should have been refused in this case on the basis of delay. The right of the Nilsons' predecessors in title to bring an action to set aside the transfer of the land in issue to Duguay accrued at the time of the transfer on August 11, 1958. No action was taken and no explanation has been advanced. The Nilsons' own delay cannot be excused. They filed their application on January 12, 1998, more than 26 years after they became owners, and approximately 12 years after they say that they first became aware in 1986 that Dr. Zagrodney owned the land in issue. On this ground alone, it is my view that the applications judge should have exercised his discretion and refused to grant any remedy in relation to the transfer to Duguay.
[31] Even if the remedy is granted and the transfer to Duguay is declared void, it does not follow that all subsequent transfers are also void. The facts in this case are not at all like those in Tonks, where the original transferee was still the owner of the property and had been guilty of fraud in relation to the impugned transaction. There was no defence available to him and the transaction was set aside. The rights of subsequent purchasers who act in good faith and without notice did not arise in Tonks. In this case, while there may have been grounds to set aside the conveyance to Duguay, had it been attacked at the time he was still the owner of the land in issue, the appellants' title is subject to different considerations.
[32] The appellants advanced defences under both the Limitations Act and the Land Titles Act. Section 4 of the Limitations Act provides for a 10-year limitation period on any action to recover land. It is uncontested that the appellants' property, including the disputed land, is included in a Certificate of Title issued pursuant to the Land Titles Act. Section 87 of the Land Titles Act provides for the indefeasibility of title for transfers registered under the Act, subject to certain exceptions set out in the Act.
[33] The applications judge noted that the provisions in both statutes were subject to exceptions in the case of a public highway and, since "the offending portion of Colonization Road never lost its character as a public highway", he held that these statutory defences were not available to the appellants. As stated earlier, the applications judge erred in finding that the disputed land was still a public highway. Consequently, there was no basis for rejecting the appellants' defences under either statute.
7. Costs
[34] In my view, the appellants have not advanced any argument that would warrant this court's interference with the applications judge's discretion in refusing to order costs against the Town. I would not grant leave to appeal on the issue of costs.
8. Disposition
[35] For these reasons, I would allow the appeal, set aside the judgment of Stach J., and dismiss the respondents' application with costs to the appellants both here and below payable by the respondents. I would make no order as to costs for or against the Town.
[36] The respondents' Notice of Application sought alternative relief under the Road Access Act, R.S.O. 1990, c. R.34 in the event that the land in issue did not revert back to the Town. In light of the applications judge's conclusions, no findings were made in this respect and no submissions were made on appeal on the question of access. It is my view that the dismissal of the respondents' application should be without prejudice to seek relief under the Road Access Act if they are so advised.
Order accordingly.
Notes
Note 1: As noted by the applications judge in endnote no. 1 in his decision, the Town council authorized the transfer to Duguay by resolution passed at a regular meeting of council on July 28, 1958.
Note 2: To the extent that the 1956 by-law mistakenly included a larger portion of Old Colonization Road than what was intended (which larger portion would arguably give rise to access issues with respect to the property owners to the south of that portion of land), the mistake was effectively corrected by the 1958 by-law. In any event, this mistake is of no consequence to the land in issue.