Shergar Developments Inc. v. Windsor (City)

CITATION: Shergar Developments Inc. v. Windsor (City), 2007 ONCA 666

DATE: 20070928

DOCKET: C43235

COURT OF APPEAL FOR ONTARIO

LASKIN, JURIANSZ and ROULEAU JJ.A.

BETWEEN:

SHERGAR DEVELOPMENTS INC.

Applicant (Appellant)

and

THE CORPORATION OF THE CITY OF WINDSOR

Respondent (Respondent)

AND BETWEEN:

THE CORPORATION OF THE CITY OF WINDSOR

Plaintiff by Counterclaim

and

SHERGAR DEVELOPMENTS INC. AND CANADIAN PACIFIC RAILWAY COMPANY

Defendants to the Counterclaim

Counsel:

Ronald B. Moldaver, Q.C. for the appellant

Stephen F. Waqué and Gabrielle K. Kramer for the respondent

Heard: September 24, 2007

On appeal from the judgment of Terrence L.J. Patterson of the Superior Court of Justice dated February 18, 2005.

APPEAL BOOK ENDORSEMENT

[1] We did not call on the respondent City on the issues of bad faith and costs. The trial judge’s conclusions on those issues were supported by the evidence and reflected no error of law.

[2] On the issue of the ownership of the lands under the Riverside Drive bridge, the trial judge made three key findings. First, he found that in the 1880’s Sandwich Road (now Riverside Drive) was a busy, traveled public road. Second, he found that the CPR never intended to acquire an interest in the land under the Riverside Drive bridge and did not in fact do so. Third, he found that Sandwich Road was a municipal street owned by the City. We see no error in any of these findings, and they are dispositive of Shergar’s appeal.

[3] The first finding is amply supported by the evidence at trial. That evidence includes the 1886 map of the City of Windsor, which was authorized by an Act of Parliament, the testimony of the City’s historian, Dr. Kusilek, and the several contemporaneous documents referred to by Mr. Waqué in his oral argument.

[4] The second finding is supported both by the conduct of CPR, which sought only a right to cross the road not a right to own it, and by the absence of any evidence that CPR ever expropriated the land under the Riverside Drive bridge or otherwise purchased it.

[5] Shergar focused its oral argument on the trial judge’s third finding that the City owned Sandwich Road. Before us, Shergar contended that there was no evidence to support this finding and that the road was owned by the federal Crown. Thus, Shergar argued the declaratory relief granted in paragraph 2 of the trial judge’s judgment must be set aside. We do not accept Shergar’s argument.

[6] We note that this was not the position Shergar took in its statement of claim. In its pleading, Shergar claimed that the railway owned the land under the bridge and that it acquired title to this land from the railway. That position, Shergar now acknowledges, is not supportable.

[7] We do not think that Shergar’s alternate position – ownership lies with the federal Crown – is supportable either. Shergar rests its position largely on the decision of this court in Di Cenzo Construction v. City of Hamilton, 21 O.R. (2d) 186. But, as made clear in the later decision of this court, Household Realty Corp. Ltd. v. Hilltop Mobile Home Sales Ltd., 37 O.R. (2d) 508, Di Cenzo stands for the proposition that an unopened road allowance laid out by a Crown surveyor vests the land in the federal Crown. Sandwich Road was not a road allowance laid out by a Crown surveyor. Moreover, there is no evidence that the road, when opened, was on Crown land. Moreover, whether the road was on private or Crown land, the relevant provisions of the Municipal Act apply. Sandwich Road was a public road in the City of Windsor. The City was in possession of the road and by statue it acquired full ownership of it.

[8] Finally, even assuming that the road was on Crown land, any suggestion that CPR acquired title by adverse possession has no merit. CPR’s possession was never addressed as it had a right to cross the road by order of the Railway Commission.

[9] The appeal is therefore dismissed with costs in the agreed upon amount of $40,000 inclusive of disbursements and G.S.T.