CITATION: Blais et al v. Belanger, 2007 ONCA 310
DATE: 20070424
DOCKET: C44843
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SHARPE and JURIANSZ JJ.A.
B E T W E E N :
ROBERT BLAIS and MICHAEL KARCHIE
J. Robert Leblanc, for the appellant
Respondents
- and -
CONTRAND BELANGER
Kelly Gravelle, for the respondents
Appellant
Heard: January 15, 2007
On appeal from the judgment and order of Justice Michael R. Meehan of the Superior Court of Justice dated October 1, 2003 and November 20, 2003, respectively.
JURIANSZ J.A.:
Introduction
[1] This appeal concerns a dispute between neighbours and the application of the Road Access Act, R.S.O. 1990, c. R. 34.
[2] The respondents own a parcel of land identified as part of Lot 10, Concession 4 in the Township of Creighton-Davies (Parcel 29636 in the Sudbury West Section). The appellant owns Parcel 11248 in the Sudbury West Section immediately to the east of the respondents’ property identified as part of Lot 9, Concession 4 in the Township of Creighton-Davies.
[3] The respondents bought their land on November 26, 2001. They brought an application returnable February 1, 2002, alleging that the only way to access their land was by means of a road traversing the appellant’s land. Accordingly, they sought a declaration that the road crossing the appellant’s land “is an access road and a common road within the meaning of the Road Access Act of Ontario”, and an “injunction restricting the [appellant] from constructing, placing or maintaining a barrier or other obstacle of any kind over the said road, or otherwise interfering with the passage of the [respondents] and their invitees over and along the road”.
[4] The matter came before Poupore J. on April 5, 2002. He was satisfied that there was at least some evidence of a “road” and granted an interlocutory injunction requiring the appellant to open the gate he had erected across the road “to allow for traditional access only by the traditional users of the road in question and their ordinary invitees.” He also ordered that the road “may be maintained by the [respondents] in its traditional state without improvement” and ordered it “not be used for any commercial purpose.” His order was to remain in effect until trial or further order of the court.
[5] On April 5, 2002, Poupore J. also made an order on consent “that there be a Trial of the issue as set out in paragraph 1(a) of the Application” – that is the respondents’ claim for a “declaration that the road crossing the [appellant’s] land … is an access road and a common road within the meaning of the Road Access Act”.
[6] Before this issue was tried, the appellant interfered with the respondents’ access by removing a culvert and ploughing portions of a field. In response to the appellant’s actions, the respondents brought a motion for contempt. On March 11, 2003, Gordon J. ordered the culvert replaced and any ploughed portion of land to be returned to the original passable conditions. The parties agreed to adjourn the issue of contempt until after the issue in para. 1(a) of the application had been tried and decided.
[7] The trial of the issue came before Meehan J. who granted judgment dated October 1, 2003, and issued an injunction “granting access under the Road Access Act across [the appellant’s land] to the Applicants, Robert Blais and Michael Karchie to their property”. Meehan J. also ordered that the appellant “open the gate to allow for traditional access by the [respondents] of the road in question and their ordinary invitees.” On November 20, 2003, Meehan J. also found the appellant in contempt and required him to pay the respondents as a penalty substantial indemnity costs fixed at $35,000.
Issues
[8] The appellant advances the following arguments:
The trial judge could not grant an injunction as the trial of an issue was ordered only in relation to the respondents’ claim for a declaration;
The trial judge erred in finding that an access road existed; and
If the appellant is successful on appeal, then the finding of contempt ought to be overturned as he simply would have been trying to enforce his property rights against trespassers.
[9] I would allow the appeal on the basis of the first ground. The trial judge ought not to have granted an injunction when no claim for one was before him. I would therefore set aside the injunction. I would decline to replace the injunction with the relief claimed – a declaration – because in my view, the trial judge misunderstood the purpose of the Act. The trial judge seems to have proceeded on the view that the Act preferred the interests of those who use access roads to reach and leave their property over the rights of property owners. I would therefore remit the matter to be re-determined by another trial judge. Finally, I would uphold the finding that the appellant was in contempt as he failed to obey the interim orders of the court.
[10] Before dealing with each of the issues, it is useful to consider the scheme of the Act.
Overview of the Road Access Act
[11] The Act, a private member’s Bill passed in 1978, is brief and includes only eight sections.
[12] Section 1 defines a “road” as “land used or intended for use for the passage of motor vehicles.” An “access road” is defined as a road, other than a public highway, on private property “that serves as a motor vehicle access route to one or more parcels of land”.
[13] Section 2 prohibits a person from constructing, placing, or maintaining “a barrier or other obstacle over an access road” that “prevents all road access to one or more parcels of land or to boat docking facilities” except in certain enumerated circumstances. The principal exception is if a person has made an application to a judge for an order closing the road and the judge has granted the application. Section 2 requires that a person give ninety days notice of an application to close an access road to those who would be deprived of motor vehicle access to their land by the road’s closing.
[14] Section 3(1), which was amended in 2001 and became effective on January 1, 2003, provides that a judge may grant an order closing a road upon being satisfied that its closure is “reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest”, or where owners or tenants of land served by the road “do not have a legal right to use the road”. Section 3(2), which was added in the amendment of 2001, allows a judge to “impose such conditions on a closing order as … are reasonable and just in the circumstances.”
[15] Sections 4, 5, 7, and 8 are unimportant to this appeal. They deal with interim closing orders, rights of appeal, the offence of knowingly closing a road without a judge’s order, and the temporary closing of public forest roads where an emergency exists.
[16] Section 6(1) provides, “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.”
Issue One: No Application for an Injunction
[17] Poupore J.’s order dated April 5, 2002, ordered “that there be a Trial of the issue as set out in paragraph 1(a) of the Application”. In para. 1(a) of their application, the respondents sought a declaration that the road crossing the appellant’s land was an access road and a common road. The respondents’ claim for an injunction is found in para. 1(b) of their application and thus beyond the purview of Poupore J.’s order and the ambit of the trial. In the particular circumstances of this case I am satisfied that the judge ought to have confined himself to determining the issue that had been ordered and came before him.
[18] An important circumstance is that the trial of the issue in this case was ordered on consent. The parties had jointly decided to proceed by first having the court determine whether the passage was an “access road” under the Act. There are obvious reasons why the appellant would want to proceed in that way. Consistent with his position that there was no access road, he did not bring a responding application to close the road. His expectation was that the trial judge would only adjudicate with respect to the claim in para. 1(a) of the application. If his position turned out to be wrong, and if the judge declared that an access road existed, he could then bring an application to close the road that could be heard together with the respondents’ claim for an injunction.
[19] In my view, upon finding that an access road existed, the trial judge should have confined himself to granting the declaration set out in para. 1(a) of the application, which was the only issue that had been placed before him. By going beyond this issue he interfered with how the parties decided to proceed and foreclosed the appellant’s opportunity to bring an application to close the road before an injunction was issued. This is sufficient reason, in my view, for setting aside the injunction.
[20] There is an additional and more substantive reason for setting aside the injunction. In my view, the trial judge erred in principle in analyzing the evidence upon which he found that an access road existed. I would set aside the injunction for this additional reason and decline to replace it with the declaration that was sought. The reasons why I take this view are set out in the next section.
Issue Two: The Trial Judge Erred in Finding that an Access Road Existed
[21] The trial judge’s finding that an access road existed is a question of mixed law and fact that is largely fact driven. Therefore, it is deserving of deference and considerable care must be taken in interfering with it. Nevertheless, appellate intervention is justified if a trial judge disregards or fails to appreciate relevant evidence, or errs in the application of relevant legal factors: see Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 (C.A.). In this case, appellate intervention is justified since the trial judge failed to apply certain legal factors and did not appreciate evidence relevant to the application of those factors.
[22] The disputed route is only a few hundred feet in length. The appellant recognises there is an access road which, after traversing the property of other landowners, enters the appellant’s property from the east and splits into branches. One branch leads south, down to an old saw mill on Emma Lake. Another branch leads to a landing area on Emma Lake, providing road access to five cottages there. The narrow issue between the parties is whether the access road has a third branch extending east to west, splitting off the access road on the appellant’s property, traversing an open field and an area of bush that straddles the property line between the parties’ properties, and continuing onto the respondents’ property.
[23] The appellant called a number of witnesses who testified that the road on the appellant’s land went south to a landing on the lake and that there was no branch off that road that went west across the field and through the bush to the respondents’ land. The judge reviewed this evidence but preferred the evidence that supported the respondents’ position.
[24] The respondents testified that after they purchased their property in November 2001 they would access their property in a 4x4 Chevy truck using the disputed route. They indicated the road was overgrown but was passable for the truck.
[25] The previous owner, Mr. Chevrier, who owned the property from April 1992 to 2001, testified that he had driven to his property in a four-wheel drive vehicle through the bush and across the appellant’s property for nine years. He testified that the bush grows up unless it is kept back.
[26] Mr. Bishop, who is 68 years old and had been going to the area since he was seven, testified that the disputed route was part of an old road that continued across the appellant’s property to the respondents’ property to a flour mill that had closed in the 1940s.
[27] Assessing the weight and credibility of the evidence and testimony of witnesses is well within the purview of the trial judge. He found an access road existed upon accepting the testimony of the respondents, Mr. Chevrier, and Mr. Bishop and rejecting the testimony of the appellant’s witnesses. However, there were two matters addressed in the evidence to which the trial judge did not attach sufficient significance. First, that the route had become overgrown and, second, that the respondents had taken action to alter the condition of the route. Both of these matters were pertinent to the determination of whether a contemporary access road existed. Had they been considered, they may well have led to a different result.
[28] The judge did state that under the Act, persons who use an access road “are not entitled to the use the land for their own purposes except to enter or leave their property in a motor vehicle. Whitmell v. Ritchie (1994), 1994 858 (ON CA), 40 R.P.R. (2d) 165 O.C.A.”. However, this legal principle has ramifications that the trial judge did not seem to appreciate and indeed failed to include in his analysis.
[29] First, those who use an access road on the land of another do not have the right to repair or maintain the road. Modern statutory interpretation insists on reading the words of an Act “in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at 1. There are simply no words in the Act that are capable of being construed, in their grammatical and ordinary sense, of bestowing a right to enter upon the land of another to repair or maintain an access road. In fact, one might envisage that recognition of such a right would lead to myriad disputes such as deciding what repairs are reasonably necessary, determining whether there has been damage to the land in the course of road maintenance, or questions relating to liability for damage suffered by road users caused by repairs made by persons other than the landowner. Absent some legal right in respect of the land, an entry onto and modification of the land of another under the rubric of “road repair or maintenance” would be a trespass. Such an entry goes beyond the limited right recognized by this court in Whitmell v. Ritchie (1994), 1994 858 (ON CA), 20 O.R. (3d) 424 (C.A.). The Act neither expands nor reduces the scope for the acquisition of rights of way or easements under the common law.
[30] Second, the Act does not place any obligation on a landowner to maintain an access road across his or her property. The Act has no words whose grammatical and ordinary sense can be construed to impose an obligation on the landowner to incur costs or exert labour for the benefit of his or her neighbours. Again, the recognition of such an obligation could be expected to generate disputes regarding the standard of road repair and maintenance, the allocation of their costs, and liability for damage allegedly due to lack of repair or maintenance.
[31] The Act is silent on the subject of the repair and maintenance of access roads, except that it does contemplate the expenditure of public money on such roads. Where public money is expended on an access road, it is considered a “common road” under the Act. It is not up to the courts to conjure up a regime to regulate the repair and maintenance of access roads that are not common roads.
[32] Third, since those who use an access road have no right and the landowner has no obligation to repair or maintain it, it follows that an access road could, through deterioration over time, cease to be a road. At this point, it is worth noting that the Act provides no assurance to those who use and depend on an access road that it will continue to be available to them in the future. To the contrary, s. 3 allows the landowner to bring an application to close the road. Section 3 of the Act was amended, effective January 1, 2003, to provide that a judge may grant a closing order simply upon being satisfied that the owners or tenants who would be deprived of motor vehicle access to their land if the road were closed “do not have a legal right to use the road”. This court, in 992275 Ontario Inc. v. Krawczyk (2006), 2006 13955 (ON CA), 209 O.A.C. 302 (C.A.), raised and left open the important question of whether a judge hearing an application to close an access road retains a discretion to refuse the application where one of the circumstances contemplated by s. 3 is established.
[33] In my view, the trial judge did not sufficiently consider evidence that was especially relevant to the application of these legal factors.
[34] The respondent Mr. Blais agreed that the route across the field could be described as “just two tire marks going across an open field”. He also agreed that the route through the bush was only wide enough for an ATV or a small 4x4 truck. He indicated concern that his vehicle would be scratched going through the bush. When the respondents first bought the property they used chainsaws and buzz saws to clear the overgrowth and cut down what Mr. Blais described as “plants” as wide as 3 to 4 inches. This was before they brought their application and before any incident with the appellant. Mr. Blais testified:
Q. And now in terms of the road in question, you indicated that you were worrying about your truck being scratched.
A. Uhm.
Q. Did you take any steps to stop that from happening?
A. Yes, we had brushed a bit, we had chainsaws and buzz saws and picked up the logs that were laying on the road and we just cleared the side a bit. We brushed the branches that were overhanging, that were grown in.
Q. And when did you do this?
A. In the winter after we bought it.
Q. And did you cut down any trees?
A. No.
Q. Did you have to cut down any trees?
A. No.
Q. What’s the largest plant that you cut down when you were brushing?
Q. Maybe three inches, four inches. Just tag alders that had grown in over the years.
[35] The route over the field, according to Mr. Karchie, was a “very beaten path” and through the bush it had “grown in a fair deal”, but it remained obviously a road. Both respondents expressly acknowledged that they had widened the road.
[36] The judge did not advert to Mr. Bishop’s testimony that the “old road” had stopped being used in the 1940s and had been grown over for the last 40 or 50 years. Mr. Bishop testified that the old road, he had in mind, was not used now except once in awhile by people with ATVs.[^1] Certainly evidence of the historical existence of a road is relevant to the determination of whether an access road exists. However, the question under the Act is whether a road that is used or intended to be used by motor vehicles exists contemporarily. In this case, the trial judge placed particular significance on Mr. Bishop’s testimony about the historical existence of the road and insufficient weight on his testimony that the road had been grown over for the last 40 or 50 years.
[37] Mr. Bishop’s testimony, when combined with that of Mr. Chevrier who testified the bush grows up unless it is kept back and that of the respondents that they used buzz saws and chainsaws to clear the overgrowth, called for consideration of whether the road that had been there at one time continued to exist contemporarily.
[38] Mr. Chevrier and the respondents’ testimony that they used small 4x4 vehicles to reach their land, and Mr. Bishop’s testimony of how the route was occasionally used by persons in ATVs, provided only weak evidence of the contemporary existence of an access road. Such vehicles are by their nature capable of off-road travel. Landlocked landowners cannot by acts of trespass, bring into being an access road across the land of another.
[39] In addition to not considering the evidence in the light of these legal factors, in my view the trial judge placed undue weight on the interests of the respondents and their need to reach their landlocked property. This is illustrated by the form and breadth of the injunction he issued, which granted the respondents the general right to cross the appellant’s property to reach their own. The appropriate injunction, if one were to be issued, would have been directed at the landowner to restrain him from constructing, placing, or maintaining a barrier or other obstacle of any kind over the access road except in accordance with the Road Access Act. An injunction of this nature would have accorded appropriate recognition of the appellant’s property rights. As this court observed in Krawczyk, supra, at para. 8, there is no statutory basis for declaring that a road is an access road for the benefit of particular parties.
[40] I would set aside the finding that an access road existed in this case and remit the matter to be re-determined in light of the legal factors I have discussed.
Issue Three: The Contempt Appeal
[41] The parties postponed the hearing of the contempt motion until after the trial. In the order released November 20, 2003, Meehan J. found the appellant in contempt. The appellant submits that the trial judge erred in his finding on this issue. Only brief reasons are required to dispose of this issue.
[42] The appellant was of the view that if he were successful on appeal in establishing that the route across his land was not an access road then the finding of contempt ought to be overturned as he “simply would have been trying to enforce his property rights against trespassers.” That is not so. The contempt was not dependent on the trial’s result. The issue of contempt was whether the appellant had breached the interim orders of Justices Poupore and Gordon. The appellant was not entitled to disregard their orders because he believed the court would ultimately decide the access road issue in his favour. He was bound to comply with the interim orders as long as they remained in effect. The existence of a civil society governed by the rule of law depends on court orders being obeyed: see Jeffrey Miller, The Law of Contempt in Canada (Toronto: Carswell, 1997) at 13-17, 85-99; Nigel Lowe & Brenda Sufrin, Borrie and Lowe on the Law of Contempt, 3d ed. (London: Butterworths, 1996) at 655-56.
[43] Any suggestion the appellant was in technical compliance with the court’s orders has no merit. While he may have opened the gate as ordered, he placed obstacles across the road, removed a culvert, and ploughed a field, all to impede passage. These deliberate acts were calculated to circumvent the judicial process. If, as he feared, the respondents intended to use the road for heavy commercial vehicles in breach of the interim orders, he should have resorted to the legal process and not taken matters into his own hands. As discussed above, a primary purpose of the Act is to prevent landowners from resorting to self-help measures by providing a judicially supervised process for resolving disputes.
[44] The appellant’s disregard of the court’s authority was properly found to be contemptuous.
Conclusion
[45] With respect to the first ground of appeal, I would allow the appeal, set aside the injunction, and not replace the injunction with a declaration. I would remit the second issue to be re-determined by another trial judge. Finally, I would deny the appeal on the third issue and would uphold the judge’s finding that the appellant was in contempt.
[46] Though success is divided, the contempt appeal was not pressed strenuously and occupied little of the court’s time. I would fix costs in favour of the appellant in the amount of $7,500, inclusive of disbursements and G.S.T.
“R. Juriansz J.A.”
“I agree J.C. MacPherson J.A.”
“I agree Robert J. Sharpe J.A.”
RELEASED: April 24, 2007
[^1]: At the appeal, the appellants filed as fresh evidence the affidavit of Mr. Bishop that he had been mistaken at trial. He now deposes that the “old road that was present in the early 1900s that went to the Stobie dam” was located elsewhere. Given my analysis, I find it unnecessary to comment on the fresh evidence.