DATE: 20060502
DOCKET: C42109
COURT OF APPEAL FOR ONTARIO
SIMMONS, CRONK AND ROULEAU JJ.A.
B E T W E E N :
992275 ONTARIO INC. AND KARIN WINKELMANN
David A. S. Mills and Geoff Cobham
for the appellants/respondents by cross-appeal
(Appellants/Respondents by cross-appeal/Plaintiffs)
- and -
FRANK KRAWCZYK AND LESLEY SCOTT-KRAWCZYK
Michael M. Miller for the respondents/appellants by cross-appeal
(Respondents/Appellants by cross-appeal/Defendants)
Heard: February 7, 2006
On appeal from the judgment of Justice David Logan of the Superior Court of Justice dated June 7, 2004.
BY THE COURT:
I. Introduction
[1] The trial judge granted the appellants'[^1] claim for a declaration that the part of the Gilleach Lake Road and the Woodbine Lake Trail that passes through the respondents' property (the "Road") is an access road to 992275 Ontario Inc. ("992275") within the meaning of the Road Access Act, R.S.O. 1990, c. R.34 (the "Act"). However, he also declared that 992275 is not entitled to use the Road for its own purposes, except to enter or leave its property in its motor vehicle, and he denied the appellants' claim for costs. In addition, the trial judge denied the respondents' request for an order under the Act closing the Road. Finally, although not referred to in the formal judgment, the trial judge stayed the parties' damage claims pending the disposition of an outstanding criminal charge against Axel Winkelmann, the spouse of the personal appellant.
[2] The appellants submit that the trial judge erred in restricting their right to use the Road and in denying their claim for costs.
[3] The respondents submit that the trial judge erred in declaring that the Road is an access road and in directing that the parties' damage claims be stayed. Further, if the Road is an access road, they submit that because there is an unopened road allowance adjacent to the northern boundary of the appellants' land, the trial judge erred in proceeding on the basis that s. 2(1) of the Act prohibits closing the Road without a court order. Finally, if s. 2(1) of the Act prohibits closing the Road without a court order, the respondents contend that the trial judge erred in denying their request for an order closing the Road.
[4] Given the nature of the issues raised and the fact that they are interrelated, we will begin with the respondents' issues and will also address the appellants' issues as they arise.
II. Discussion
(1) Status of the Road
[5] The respondents argued that to qualify as an access road, a road must have been used for motor vehicle access by the access seeker with the landowner's acquiescence or consent. They claimed that there was no evidence that they, or their predecessors in title, had ever acquiesced or consented to such use of the Road by the appellants or their predecessors in title and, in any event, there was no evidence of such prior use by the appellants or their predecessors in title.
[6] We see no error in the trial judge's finding that the Road is an access road within the meaning of the Act. In our view, contrary to the respondents' submissions, the status of a road as an access road does not depend on the use of the road by the party claiming that the road is an access road. The definition of access road set out in s. 1 of the Act requires only that "a road located on land not owned by a municipality … serv[e] as a motor vehicle access route to one or more parcels of land"[^2]; there is no requirement that a specific party use a road in order for it to be an access road.
[7] In this case, there was evidence at trial capable of supporting the trial judge's finding that "the Woodbine Trail and the Gilleach Lake Road 'serve(s) as a motor vehicle access route …' to … the lots owned by the added defendant, Natividade ("Nati") Topp"[^3]. In our view, that finding alone was sufficient to justify the conclusion that the Road is an access road within the meaning of s. 1 of the Act.
(2) Use of the Road
[8] That said, we see no statutory basis for declaring that the Road is an access road to or for the benefit of particular parties. As already noted, a road meets the statutory definition of an access road where it "serves as a motor vehicle access route to one or more parcels of land". While there is a reference in the definition to an access road "serv[ing] one or more parcels of land", there is no reference to an access road serving particular parties.
[9] Similarly, we see no statutory basis for imposing conditions either permitting or restricting the use of an access road. There is no provision in the Act relating to the use that may be made of an access road. Rather, s. 2(1) of the Act prohibits impeding access over an access road except in certain circumstances and prescribes the conditions under which an access road may be closed. In our view, the Act authorizes neither specifying individuals who are entitled to use an access road nor imposing conditions permitting or restricting the use of the road. See Whitmell v. Ritchie (1994), 1994 858 (ON CA), 20 O.R. (3d) 424 (C.A.) at para. 14, leave to appeal to S.C.C. denied, [1994] S.C.C.A. No. 459. However, as we will explain later, a finding that a road is an access road establishes only a relatively limited privilege.
(3) Closure of the Road without a Court Order: Section 2(1)
[10] We reject the respondents' submission that the trial judge erred by proceeding on the basis that s. 2(1) of the Act prohibits closing the Road without a court order.
[11] Section 2(1) of the Act prohibits closing an access road without a court order where closing the access road "prevents all road access to one or more parcels of land." The respondents claim that an unopened road allowance adjacent to the northern boundary of the appellants' property provides viable alternate access to the relevant parcels of land. Further, they contend that the trial judge erred by failing to apply the test set out in Bogart v. Thompson, [2002] O.T.C. 329 (S.C.J.), namely, that in order to trigger the prohibition in s. 2(1) of the Act, an access seeker must demonstrate that construction of a road on an unopened road allowance is impossible, not just inconvenient and expensive.
[12] In his reasons, the trial judge did not address the issues of what is the appropriate test for determining whether the prohibition in s. 2(1) of the Act applies and whether the existence of an unopened road allowance is even relevant to that question. However, assuming without deciding that the respondents' position on those issues is correct, we are not satisfied that the trial judge made any error by proceeding on the basis that s. 2(1) of the Act prohibits closing the Road without a court order.
[13] In our view, it is implicit in the trial judge's reasons that he concluded that there is a significant amount of water from various sources (beaver dams, marshlands, and other large ponds) covering the unopened road allowance. On our review of the record, there was evidence capable of supporting that conclusion. In Bogart, supra, the trial judge said at para. 28"[i]t has been found to be impossible to create road access over water, but not over rough ground [footnotes omitted]." Accordingly, even applying the Bogart test, we are not persuaded that the trial judge erred by proceeding on the basis that the prohibition in s. 2(1) of the Act applies in this case.
(4) Closure of the Road by Court Order: Section 3(1)(b)
[14] However, we reach a different conclusion on the issue of whether the trial judge erred in denying the respondents' request for an order closing the Road under s. 3(1)(b) of the Act. In our view, the trial judge erred by failing to make an explicit finding concerning whether the condition set out in that section was satisfied, namely, whether any of the parties entitled to notice of the application to close the Road have a legal right to use it. As a result of that omission, a new trial is required to determine the issue. We reach this conclusion for the following reasons.
[15] Section 3(1)(b) was added to the Act by an amendment that became effective on January 1, 2003. It provides that a judge may grant a closing order upon being satisfied that the persons described in s. 2(3) of the Act (i.e. persons who would be deprived of motor vehicle access to and from their land if a road closing order was made and who are therefore entitled to notice of an application to close an access road) do not have a legal right to use the access road. Section 3(1)(b) reads as follows:
3.(1) The judge may grant the closing order upon being satisfied that
(b) in the case of an access road that is not a common road, persons described in subsection 2(3) do not have a legal right to use the road.
[16] In this case, the trial judge made no finding concerning whether the persons entitled to be served with notice of the application to close the Road have a legal right to use it. Rather, at para. 31 of his reasons, he said:
I find the applicable words are "the judge may grant the closing order upon being satisfied…" Counsel have not satisfied me that the road should be closed. In my view, the section (3) amendment would have direct implications for closing an access road if an actual application to subdivide or sever the land was made. In that case, it is important for others to be allowed to make their concerns known to Municipal authorities in accordance with Municipal rules and regulations.
[17] In our respectful view, the meaning of the foregoing paragraph is not entirely clear. While it is possible that the trial judge may have reached a conclusion concerning whether the persons entitled to be served with notice of an application to close the Road have a legal right to use it, he did not say what that conclusion was and he did not explain the basis for it. As already noted, there was evidence at trial of a long history of use of the Road by Nati Topp; however, it is far from self-evident whether such use would afford her a legal right to use the Road within the meaning of s. 3(1)(b) of the Act. On a plain reading of s. 3(1)(b), it was incumbent on the trial judge to make a finding on that issue before arriving at any conclusions concerning whether the Road should be closed.
[18] Further, if the trial judge concluded that even if the condition in s. 3(1)(b) of the Act was satisfied, it would be appropriate to make an order closing the Road only in the event of an application to sever or subdivide any of the lands served by the Road, we disagree. Assuming without deciding that a judge hearing a road closing application retains a residual discretion to refuse to close the road where one of the conditions for closing an access road set out in s. 3(1) is satisfied, at least in relation to s. 3(1)(b), the proper exercise of that discretion would require balancing the competing interests of the parties. In our view, a conclusion that an order to close the Road should only be made in the limited circumstances referred to by the trial judge is patently incorrect either because the trial judge does not retain a residual discretion under s. 3(1) to refuse to close an access road if one of the conditions in s. 3(1) is met, or because the conclusion does not reflect the balancing necessary for the proper exercise of the residual discretion.
[19] In addition, the trial judge noted that 992275 purchased its land prior to the date on which the amendment to the Act that added s. 3(1)(b) came into effect. He said at para. 32:
The plaintiffs purchased lot 31 prior to the date the amendment came into effect. Maloney J. said in the Township of Shuniah v. Richard et al. (1982), 1982 1862 (ON SC), 37 O.R. (2d) 471 at p. 477, that:
On behalf of the plaintiff, Mr. Drake submits that s. 37.1(1) is retrospective. He concedes that generally legislation ought not to be applied retrospectively and that in fact there is a presumption against retrospectivity. He suggests however, that this general proposition is altered where there is a claim for an injunction and cites as authority the decision of the English Court of Appeal in Application Des Gaz S.A. v. Falks Veritas Ltd. (1974), 3 All E.R. 51, where Lord Denning M.R. said at pp. 55-56:
In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute, on its true intendment, shows an intention to vary such rights…
[20] If these comments indicate that the trial judge concluded that s. 3(1)(b) should not be applied in this case as doing so would involve applying the section retrospectively, we disagree.
[21] On a plain reading of s. 3(1)(b), while a landowner may apply for a road closing order at any time, the date for determining whether the persons entitled to notice of the application have a legal right to use the access road can be no earlier than the date on which the road closing application is filed. Further, to the extent that a legal right to use an access road may arise through use and the passage of time, s. 3(1)(b) does not alter the date on which the legal right accrues, it does not eliminate rights that have already accrued, and it does not change the effect of events that have already occurred. Therefore, in our view, applying s. 3(1)(b) of the Act in this case would not involve applying the section retrospectively.
[22] In addition, we reject the appellants' argument, premised on Whitmell v. Ritchie, [2003] O.T.C. 413 (S.C.J.), that the trial judge's finding that the Road is an access road should affect our conclusion concerning whether the condition in s. 3(1)(b) of the Act was satisfied. In our view, the trial judge's finding that the Road is an access road does not give persons whose property is served by the Road a legal right to use it within the meaning of s. 3(1)(b).
[23] Rather, at its highest, the trial judge's finding that the Road is an access road establishes only that parties whose road access to other parcels of land would be prevented by an obstruction of the Road are entitled to the privilege of not being treated as trespassers: see Deluca v. Paul Guiho Trucking & Construction Ltd. (1984), 1984 2188 (ON CA), 46 O.R. (2d) 634 (C.A.); and Whitmell v. Ritchie (1994), 1994 858 (ON CA), 20 O.R. (3d) 424 (C.A.), leave to appeal denied, [1994] S.C.C.A. No. 459. These persons are also entitled to the benefit of the legal process stipulated in the Act where a landowner wishes to close an access road. To the extent that the subsequent decision in Whitmell v. Ritchie, [2003] O.T.C. 413 (S.C.J.), stands for a proposition that is inconsistent with our conclusions as set out in this paragraph, in our view, it is not correct.
[24] Further, we note that s. 6(1) of the Act provides as follows:
- (1) Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person.
[25] Finally, we note that if a finding that a road is an access road created a legal right to use the road within the meaning of s. 3(1)(b), the condition in s. 3(1)(b) would make no sense. Under s. 3(1)(b), a landowner may apply to close an access road if the persons entitled to notice of the application to close the access road do not have a legal right to use it. If the fact that the road is an access road itself established a legal right to use the access road, the condition in s. 3(1)(b) could never be met.
[26] In the result, we conclude that the trial judge erred by failing to determine whether any of the parties entitled to notice of the application to close the Road have a legal right to use it.
(5) Damage Claims
[27] Although the issue is not referred to in the formal judgment, we agree that the trial judge erred by staying the parties' damage claims pending the disposition of an outstanding criminal charge. Neither the appellants nor the respondents requested that the trial judge make such an order; moreover, neither counsel (both of whom were also counsel at trial) recalls the trial judge asking for submissions on the subject.
[28] Further, even if the issues in the proceeding below overlap with the issues in the criminal proceeding, we are not persuaded that any prejudice will occur as a result. The standard of proof in a civil case is different from the standard of proof in a criminal proceeding. Accordingly, adverse findings of fact in a civil case generally do not create prejudice in a criminal proceeding. Finally, to the extent that punitive damages may be awarded in the civil action prior to the determination of the criminal proceeding, that is a matter that can be taken into account in the criminal proceeding.
[29] In this case, in light of the conflicting evidence relating to the issue of damages and the absence of relevant findings by the trial judge, the damage claims of the parties should be addressed as part of the new trial that we conclude must be ordered.
III. Disposition
[30] In the result, we would allow the appeal, in part, by deleting the words "to the owner, 992275 Ontario Inc." from paragraph 1 of the judgment, and by setting aside paragraph 2 of the judgment. In addition, we would allow the cross-appeal, in part, by setting aside paragraphs 3, 4 and 5 of the judgment and by directing a new trial of the issues whether the Road should be closed and the damage claims. Further, we would reserve the costs of the original trial to the trial judge conducting the new trial. There will be no order as to costs of the appeal. Costs of the cross-appeal are to the respondents, fixed in the amount of $7,500, inclusive of disbursements and applicable G.S.T.
RELEASED: May 2, 2006 "JS"
"Janet Simmons J.A."
"E.A. Cronk J.A." "Paul Rouleau J.A."
[^1]: Throughout these reasons, we will refer to the appellants/respondents by cross-appeal as the "appellants" and to the respondents/appellants by cross-appeal as the "respondents". [^2]: Section 1 of the Act defines "access road" as follows: "access road" means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land. [^3]: Although the trial judge found that the Road "'serve(s) as a motor vehicle route…' to lot 31 owned by the plaintiffs, and the lots owned by the added defendant, Natividade ("Nati") Topp, the Estate of Oskar Reusch and the Gilleach Lake Hunt Club", on appeal, the appellants relied only on the prior use of the Road by Nati Topp to support their claim that the Road is an access road. In that respect, the appellants acknowledged that there was no evidence at trial that they, or 992275's predecessors in title, have ever used the Road to access the lands now owned by 992275. Similarly, they acknowledged that there was no evidence at trial of any use of the Road by the Estate of Oskar Reusch.