2008795 Ontario Inc. v. Kilpatrick et al. [Indexed as: 2008795 Ontario Inc. v. Kilpatrick]
86 O.R. (3d) 561
Court of Appeal for Ontario,
Laskin, Cronk and Lang JJ.A.
August 30, 2007
Highways -- Access -- Road Access Act allowing owner of access road to close it without court order if there is alternate road access to landlocked property -- "Alternate road access" meaning motor vehicle access over another existing road -- Municipally regulated unopened road access not constituting "alternate road access" -- Payment of user fee for existing access road as alternative to owner closing road not constituting "alternate road access" -- Road Access Act, R.S.O. 1990, c. R.34.
The Road Access Act stipulates that the owner of an access road generally cannot close it without a court order, but implicitly allows the owner to close the road without a court order if there is "alternate road access" to the landlocked property. The respondents were a group of cottagers. Their sole existing motor vehicle access to their cottages was over a road located on a lot owned by the appellant. The previous owner of the lot charged the respondents a $500 annual fee for use of the road. The appellant demanded $2,000. The respondents refused to pay, and the appellant closed the road to them. The appellant sued two of the respondents in trespass. The respondents sought an injunction preventing the appellant from interfering with their use of the road to get to and from their cottages. The actions were consolidated. The trial judge dismissed the trespass action and granted the respondents' request for an injunction on condition that they continue to pay a $500 user fee. The appellant appealed, arguing that the respondents had "alternate road access" to their cottages in one of two ways: over a municipally regulated unopened road allowance, or over the existing access road on payment of the user fee sought by the appellant.
Held, the appeal should be dismissed.
The trial judge correctly concluded that "alternate road access" means motor vehicle access over a different, existing road. An as yet unopened road allowance does not qualify. Nor does the same road, on payment of a user fee.
APPEAL from the judgment of Howden J., [2006] O.J. No. 2692, 46 R.P.R. (4th) 78 (S.C.J.), granting an injunction preventing the appellant from interfering with the respondents' use of access road.
Cases referred to Blais v. Belanger, 2007 ONCA 310, [2007] O.J. No. 1512, 224 O.A.C. 1, 54 R.P.R. (4th) 9, 2007 ONCA 1512 (C.A.), consd Atkins v. Carter, [2004] O.J. No. 2203 , 23 R.P.R. (4th) 311 (S.C.J.); Bogart v. Thompson, [2002] O.J. No. 1986, 1 R.P.R. (4th) 199 (S.C.J.); Kanhai v. Elliot Lake Textiles & Draperies Inc., [2005] O.J. No. 641, 29 R.P.R. (4th) 133 (S.C.J.); Vanalstyne v. Legg (2001), 42 R.P.R. (3d) 302 (S.C.J.), distd Other cases referred to 553173 Ontario Ltd. v. Bank of Montreal (1998), 1998 3047 (ON CA), 38 O.R. (3d) 575, [1998] O.J. No. 2031 (C.A.), affg (1995), 1995 7246 (ON SC), 26 O.R. (3d) 617, [1995] O.J. No. 3788 (Gen. Div.); 992275 Ontario Inc. v. Krawczyk, 2006 13955 (ON CA), [2006] O.J. No. 1730, 268 D.L.R. (4th) 121, 209 O.A.C. 302, 43 R.P.R. (4th) 21 (C.A.) Statutes referred to Road Access Act, R.S.O. 1990, c. R.34, ss. 1 "access road", "road" [as am.], 2, 3 [as am.], 6 [page562] Authorities referred to Ontario, Legislative Assembly, Hansard, No. 75 (1 June 1978) at 3015 (Hon. Mr. D. McKeough)
M. Philip Tunley, for appellant. Paula McMurtry, for respondents.
The judgment of the court was delivered by
LASKIN J.A.: --
A. Overview
[1] This is another in a spate of recent cases in this court under Ontario's Road Access Act, R.S.O. 1990, c. R.34. The Act was passed to resolve disputes between neighbours that occur when the property of one neighbour is landlocked, and the only motor vehicle access to it is over a road on property owned by another neighbour. The Act stipulates that the owner of the access road generally cannot close it without a court order. Implicitly, however, the Act allows the owner to close the road without a court order if there is "alternate road access" to the landlocked property. This appeal raises the question what constitutes "alternate road access" under the Act?
[2] The respondents are a group of cottagers who live year- round on a lot on the shores of Lake St. John. The sole existing motor vehicle access to their cottages is over a road located on an adjacent lot. The appellant, 2008795 Ontario Inc., now owns the adjacent lot. The previous owner of the adjacent lot charged the cottagers a $500 annual fee for use and the maintenance of the access road. 2008795, however, demanded a four-fold increase in the user fee. When the cottagers refused to pay it, 2008795 closed the road to them.
[3] 2008795 sued two of the cottagers in trespass for an injunction restraining them from using the access road. The cottagers, in turn, sought an injunction preventing 2008795 from interfering with their use of the road to go to and from their cottages. The two actions were consolidated and tried before Howden J. He dismissed 2008795's action for trespass, and granted the cottagers' request for an injunction on condition that they continue to pay a $500 annual user fee (or another fee directly related to the maintenance and repair cost of the existing road). [page563]
[4] On its appeal, 2008795 argues that it was entitled to close its access road without a court order because of the existence of alternate road access to the cottagers' properties. It contends that the cottagers have alternate road access to their properties in one of two ways: over a municipally regulated unopened road allowance, or over the existing access road on payment of the user fee sought by the appellant. I disagree. In my view, the trial judge correctly concluded that alternate road access means motor vehicle access over another existing road. I would therefore dismiss the appeal subject to 2008795's right under the Act to apply to close the road.
B. Background Facts
(a) The Lots in question
[5] The two lots in question are Lots 18 and 19 in the Township of Ramara. The cottagers live on Lot 19 which is reserve land of the Mnjikaning First Nation. The cottagers lease their properties from the Crown and pay an annual rent between $1,400 and $1,500. For many years the cottagers have driven to and from their leased properties over a gravel road that runs through Lot 18.
[6] Between 1994 and 2003, Lot 18 was owned by Joseph and Joan Carrick. The Carricks fenced and gated their lot and gave each cottager a key which allowed access to the road on Lot 18. Each cottager paid the Carricks an annual fee of $500 for the use and maintenance of the road.
(b) 2008795 acquires Lot 18
[7] 2008795 bought Lot 18 from the Carricks in 2003. 2008795 is owned by the Mnjikaning First Nation. 2008795 bought Lot 18 to increase the First Nation's landholdings and to ensure that its Reserve on Lot 18, where some of its band members also live, was not landlocked.
(c) 2008795 asked the cottagers to sign an access agreement
[8] In October 2003, 2008795 asked each cottager to sign an access agreement. Under the proposed agreement, each cottager would pay 2008795 an annual fee of $2,000 in exchange for the right to use the road on Lot 18 between May and October and the appellant's undertaking to maintain the road. The evidence on how 2008795 arrived at the figure of $2,000 is vague. The appellant claims that the fee is related to the cost of acquiring and maintaining the property. However, the trial judge found at para. 67: "The fee suggested by the plaintiff prior to closure was [page564] fixed taking into account costs far beyond maintenance of the gravel road and was arbitrarily set."
[9] All of the cottagers refused to sign the access agreement, apparently for two reasons: they claimed the fee was excessive and they required the use of the road not for only half the year but year-round.
[10] On November 1, 2003, 2008795 closed access to the road by changing the locks on the gate to Lot 18. Litigation ensued. On January 20, 2006, in a thorough and well reasoned decision, the trial judge granted judgment in favour of the cottagers.
C. The Act
[11] The Act was passed in 1978 to address confrontations that arise between those who use private roads and those who own them. As the trial judge noted at para. 31 of his reasons, in introducing the legislation, the Honourable Mr. D. McKeough stated that the government intended "to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property": Ontario, Legislative Assembly, Hansard, No. 75 (1 June 1978) at 3015. My colleague, Juriansz J.A., also referred to the Act's purpose in this court's recent decision in Blais v. Belanger, 2007 ONCA 310, [2007] O.J. No. 1512, 54 R.P.R. (4th) 9 (C.A.), at para. 43: "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."
[12] The Act is a short statute containing just eight sections. Only sections 1, 2, 3 and 6 are germane to this appeal.
[13] Section 1 defines an "access road" as:
[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.
[14] The trial judge found -- and correctly so -- that the road over Lot 18 is an access road. It meets all the requirements of the definition. The road is on land not owned by a municipality; it is not a public highway; and, it serves as a motor vehicle access route to one or more parcels of land.
[15] Section 2(1)(a), on which this appeal turns, provides that the owner of an access road requires a court order to close it if doing so would prevent "all road access" to another person's property:
2(1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless, [page565]
(a) the person has made application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road.
[16] In other words, even though another person's use of the access road amounts to a trespass, the owner of the road cannot act unilaterally under s. 2(1)(a). In this case, 2008795 did unilaterally close the access road over Lot 18. The question on this appeal is whether that closure prevented "all road access" to the cottagers' properties.
[17] Although the owner of an access road cannot unilaterally close it under s. 2(1)(a) if doing so would landlock another property, the owner need not tolerate its use or trespass by another in perpetuity. The statute simply requires that the owner of the access road obtain a court order to close it. The obvious purpose of requiring judicial authorization for closure is to avoid self-help measures and potentially violent confrontations among neighbours.
[18] Under s. 2(3), the owner of an access road must give notice of an application to close it to all persons served by the road who would be deprived of motor vehicle access to and from their land if the road were closed.
[19] Section 3(1) sets out the grounds on which a judge may order the closing of an access road. Section 3(1)(b) is the ground potentially relevant to the dispute between 2008795 and the cottagers:
3(1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(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; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so. [See Note 1 below]
[20] Importantly, persons using an access road, such as the cottagers in this case, cannot claim a legal right to do so under s. 3(1)(b) for the sole reason that the road is an access road. A legal right under s. 3(1)(b) must be a legal right that exists apart from the Act. Section 6(1) of the Act confirms this to be so: [page566]
6(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.
[21] Indeed, if the users of an access road could defend an application for closing it on the ground that the Act gives them a legal right to use the access road, then s. 3(1)(b) would be rendered meaningless. Our court made this very point in 992275 Ontario Inc. v. Krawczyk, 2006 13955 (ON CA), [2006] O.J. No. 1730, 268 D.L.R. (4th) 121 (C.A.), at para. 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.
[22] Thus, the Act confers on users of an access road only a very limited and temporary right to use the road to go to and from their properties. At para. 45 of his reasons, in a passage with which I entirely agree, the trial judge summarized the limited statutory right given to users of an access road:
In the end, and in the narrow situation to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook's Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it. The access user cannot grant the use of the road to others. The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para. 45. And, if another access road is subsequently provided, the access user's continuing status under s. 2 ceases because alternate access would then exist.
[23] Here, the record does not disclose that any of the cottagers has a "legal right" under s. 3(1)(b) to use the access road over Lot 18. Thus, the cottagers would not seem to have a defence to an application to close the road. 2008795 has not, however, applied for a court order closing its access road. Therefore, I will refrain from deciding whether if an application were brought, the presiding judge would have discretion to refuse the order even though the cottagers could not claim a legal right to use the road. I turn to the issues on the appeal. [page567]
D. Analysis
[24] As I said in the overview, the Act implicitly allows the owner of an access road to close it without a court order as long as doing so does not prevent "all road access" to another piece of property -- in short, as long as there is alternate road access to the other property. The trial judge correctly noted that those seeking to use the access road, here the cottagers, bear the onus of showing that no alternate road access exists.
[25] This appeal, however, does not turn on onus. Instead, it turns on what constitutes alternate road access under the Act. Both sides agree that there is no other existing road access to Lot 19. 2008795, nonetheless, contends that the cottagers have alternate road access to their properties in one of two ways: over an as yet unopened road allowance controlled by the Township of Ramara, or over the existing access road on payment of the $2,000 annual user fee sought by the appellant. Whether either or these ways amounts to alternate road access raises a question of statutory interpretation.
1. Does a municipally regulated unopened road allowance constitute alternate road access?
[26] An unopened road allowance is a strip of Crown land reserved for the purpose of making a road when it may be required. The evidence at trial showed that there were unopened road allowances around Lot 18 that if opened would provide alternate access to Lot 19. Experts from both sides agree that a viable road to Lot 19 could be built.
[27] The Township of Ramara controls and regulates the development of these unopened road allowances. Opening them would require the Township's permission and the passing of a by-law. The cottagers have not sought the Township's permission.
[28] If the cottagers did obtain the Township's approval for opening one of these road allowances, they would be responsible for all of the costs of constructing the road. The expert evidence suggested that the cost of construction would exceed $450,000.
[29] 2008795 makes two submissions on these unopened road allowances. First, it says that an unopened road allowance can amount to alternate road access. The trial judge, it contends, erred by holding that alternate road access must be on an existing road.
[30] Second, 2008795 says that for an unopened road allowance not to constitute alternate access, the cottagers must show that it is impossible to open the allowance and construct the road; mere cost, even substantial cost, or mere inconvenience is not enough. 2008795 contends that the Act is not intended to sanction what is [page568] otherwise a trespass because Lot 18 provides a more convenient route to the properties on Lot 19. Here, the experts agree that a viable road could be built, albeit at a significant cost, and thus the cottagers cannot demonstrate that the closing of the access road on Lot 18 would prevent "all road access" to their properties.
[31] I do not reach the appellant's second submission on whether the appropriate test should be impossibility or substantial cost. I do not do so because I agree with the trial judge that under the Act, alternate road access must be access over an existing road; an as yet unopened road allowance does not qualify. The trial judge put his conclusion this way at para. 64 of his reasons:
In conclusion, I find no support in the Road Access Act or its jurisprudence to date nor in the evidence before me to find that the mere existence and alternate configuration of unopened road allowances, which cannot be used for vehicular traffic without municipal approval in the broad public interest and without construction and maintenance to municipal standards, constitute alternate road access within the Road Access Act.
[32] I agree. Two strong indicators of legislative intent, both referred to by the trial judge, support this conclusion. The first indicator is the use of the present tense of the verb "to serve" in the definition of access road in s. 1 of the Act: "'Access road' means a road located on land not owned by a municipality . . . that serves as a motor vehicle access route to one or more parcels of land" (emphasis added). A road that might be built in the future but does not now exist, does not "serve" as a motor vehicle access route.
[33] The second indicator of the legislature's intent is the complete absence of any reference in the Act to the possibility that an unopened road allowance might constitute an access road. Unopened road allowances are quite common in this province. Indeed, they are common enough that, had the legislature intended for road allowances to qualify as alternate access roads, the scope of the legislation would have been restricted considerably. Thus, if the legislature had intended that a potential future road might now qualify as an access road, I would have expected some statutory reference to this possibility, and to the consideration, such as feasibility and cost, under which it might so qualify.
[34] The one indicator of legislative intent that might lend some support to the appellant's position is the definition of road in s. 1 of the Act: "'[R]oad' means land used or intended for use for the passage of motor vehicles" (emphasis added). However, in the context of the other provisions of the Act, especially the definition of access road, I do not think that the phrase "intended for use" refers to an unopened road allowance. Instead, it likely refers to an existing road that has not or is not currently being used, but is intended for [page569] use in the future. If the legislature had intended the more expansive meaning presumably it would have said so expressly.
[35] Moreover, that an unopened road allowance might amount to alternate road access seems contrary to the overall purpose of the Act. The Act attempts to prevent confrontations between neighbours that may result from the arbitrary closing of an access road, and thus requires a court ordered closing. Permitting the owner of an access road to close it without a court order because there is some unopened road allowance nearby would undermine the Act's purpose. This is a brief statute, which aims for a simple solution to the problem of the unilateral closing of access roads.
[36] 2008795 argues that if alternate road access refers only to existing roads, the Act potentially forces a private land owner to endure an ongoing trespass even though a viable alternative is possible, albeit at some expense and inconvenience. The answer to this argument lies in s. 3 of the Act. The private land owner need not endure a trespass; the owner may apply to the court to close the road.
[37] 2008795 also pointed to several trial decisions, which it claimed supported the proposition that an unopened road allowance can constitute alternate road access. See, for example, Kanhai v. Elliot Lake Textiles & Draperies Inc., [2005] O.J. No. 641, 29 R.P.R. (4th) 133 (S.C.J.); Atkins v. Carter, [2004] O.J. No. 2203, 23 R.P.R. (4th) 311 (S.C.J.); Bogart v. Thompson, [2002] O.J. No. 1986, 1 R.P.R. (4th) 199 (S.C.J.); Vanalstyne v. Legg (2001), 42 R.P.R. (3d) 302 (S.C.J.). The trial judge analyzed these decisions in detail and I do not propose to redo his analysis. I agree with him that each case differs factually from this case. Also, unlike the trial judgment in this case, none of the judgments in these cases considered the key question of the legislative intent of the Act.
[38] Perhaps more significantly, this court has not adopted the appellant's proposition. On the contrary, although this court has not considered the issue directly, our previous jurisprudence does offer some limited support for my opinion. In Blais v. Belanger, supra, at para. 36, Juriansz J.A. interpreted the phrase "used or intended to be used" in the definition of a "road" under the Act to require that the road "exists contemporarily". Although Juriansz J.A. was specifically referring to an access road, presumably the definition of an access road should inform the definition of alternate road access. It too should require contemporaneous existence: see also 553173 Ontario Ltd. v. Bank of Montréal (1995), 1995 7246 (ON SC), 26 O.R. (3d) 617, [1995] O.J. No. 3788 (Gen. Div.), affd (1998), 1998 3047 (ON CA), 38 O.R. (3d) 575, [1998] O.J. No. 2031 (C.A.). [page570]
[39] In my view, on basic principles of statutory interpretation, an alternate access road must be an existing road. It cannot be an as yet unopened road allowance. The remaining question is whether it may be the same road, but on payment of a user fee.
2. Does access over the existing access road on payment of a user fee constitute alternate road access?
[40] In oral argument in this court, 2008795 submitted that use of the existing access road on Lot 18 on payment of the requested $2,000 annual fee can constitute alternate road access under the Act. Thus, 2008795 argues that when the cottagers refused to pay the fee, it was entitled to close the access road without a court order. I disagree with this submission.
[41] In my view, alternate road access must be access over an existing and different road. If access on the same access road but on payment of a fee could be considered alternate road access, then the owner of an access road could simply demand an excessive fee on threat of closing the road without a court order. That appears to be one of the very situations the Act was passed to prevent.
[42] Of course, parties can avoid the application of the Act by entering into an agreement for use of an access road, for example along the lines of the proposed access agreement tendered by 2008795 to each of the cottagers. Indeed, the cottagers may be well advised to try to reach an access agreement with the appellant, because, as I said earlier, it does not appear that they have any defence to an application to close the road. However, I do not regard use of the existing access road on payment of a fee to constitute alternate road access.
E. Conclusion
[43] Neither an unopened road allowance nor access over the existing access road on payment of a user fee can constitute alternate road access under the Act. The trial judge was therefore correct in enjoining 2008795 from closing its access road over Lot 18 without a court order.
[44] I would dismiss the appeal subject to 2008795's right to apply under the Act for an order closing its access road. The respondents are entitled to their costs of the appeal, which I would fix in the amount of $8,000 inclusive of disbursements and GST.
Appeal dismissed.
[page571]
Notes
Note 1: A common road is defined as an access road in s. 1 of the Act on which public money had been expended for its repair and maintenance. The access road over Lot 18 is not a common road.