Limlaw v. Ryan et al. Ryan et al. v. Limlaw et al. [Indexed as: Limlaw v. Ryan]
99 O.R. (3d) 514
Court of Appeal for Ontario,
Rosenberg, Simmons and Cronk JJ.A.
November 26, 2009
- Supplementary reasons released December 16, 2009. See p. 534, post.
Highways -- Access -- Application judge dismissing application for injunction restraining respondents from keeping locked gate at entrance to private road on their property which provided access to applicant's property and granting cross- application closing road under Road Access Act -- Applicant's appeal dismissed -- Evidence supporting application judge's finding that applicant had alternate road access via trail on neighbouring Crown land using four-wheel- drive trucks -- Fact that road can only accommodate four- wheel-drive vehicles not preventing it from being access road -- Applicant not having standing to oppose road-closing application once application judge determined that he had alternate road access to his property -- Road Access Act, R.S.O. 1990, c. R.34.
A private road (the "disputed road") on the respondents' property provided access to two landlocked neighbours and to the applicant's property. The two neighbours had historically been permitted to use the disputed road. The applicant's predecessor in title had not used the road. The applicant brought an application for an injunction restraining the respondents from keeping a locked gate at the entrance to the disputed road, and the respondents brought a cross-application for an order under s. 3(1) of the Road Access Act closing the disputed road. The application judge dismissed the application on the basis that the applicant had alternate road access via a trail on neighbouring Crown land. Despite his opinion that the respondents could prevent the applicant from using the disputed road without a court order, the application judge granted the cross-application. The applicant appealed, and the respondents cross-appealed a condition of the road-closing order requiring them to continue to allow their landlocked neighbours to use the disputed road.
Held, the appeal and the cross-appeal should be dismissed.
There was evidence capable of supporting the application judge's finding that the applicant had alternate road access via a trail over Crown lands using all-terrain vehicles, four- wheel-drive trucks and "4x4s". It is not the case that a route cannot be an access road if it can only accommodate four- wheel-drive vehicles. While the applicant complained that access via the trail would not provide him with access for logging vehicles, the Act was not designed to ensure that landlocked property owners are able to enjoy all the potential uses of their otherwise landlocked property. Once the application judge determined that the applicant had alternate road access to his property, the applicant had no standing to oppose the road-closing application. Accordingly, it was unnecessary to decide whether the application judge erred by interpreting the conditions in s. 3(1) of the Act that trigger the court's jurisdiction to make a road-closing order disjunctively. [page515]
APPEAL AND CROSS-APPEAL from the judgment of Brennan J. of the Superior Court of Justice dated April 21, 2008 dismissing an application for an injunction and granting an application to close a private road.
Cases referred to Blais v. Belanger, [2007] O.J. No. 1512, 2007 ONCA 310, 282 D.L.R. (4th) 98, 224 O.A.C. 1, 54 R.P.R. (4th) 9, 156 A.C.W.S. (3d) 1141, consd Other cases referred to 2008795 Ontario Inc. v. Kilpatrick (2007), 86 O.R. (3d) 561, [2007] O.J. No. 3248, 2007 ONCA 586, 284 D.L.R. (4th) 392, 53 M.V.R. (5th) 169, 59 R.P.R. (4th) 1, 160 A.C.W.S. (3d) 367; Rasmussen v. Ruzic (2003), 2003 CanLII 17157 (ON SC), 66 O.R. (3d) 756, [2003] O.J. No. 5027, [2003] O.T.C. 1051, 1 M.V.R. (5th) 176, 127 A.C.W.S. (3d) 514 (S.C.J.); Whitmell v. Ritchie (1994), 1994 CanLII 858 (ON CA), 20 O.R. (3d) 424, [1994] O.J. No. 1954, 118 D.L.R. (4th) 284, 74 O.A.C. 317, 7 M.V.R. (3d) 310, 40 R.P.R. (2d) 165, 50 A.C.W.S. (3d) 93 (C.A.) Statutes referred to Road Access Act, R.S.O. 1990, c. R.34, ss. 1 [as am.], 2, (1), (3), 3 [as am.], (1) [as am.], (2) [as am.], 6, (1), 7
Joseph Y. Obagi, for appellant/respondent by way of cross- appeal. Mario C. Gravel, for respondents/appellants by way of cross- appeal.
The judgment of the court was delivered by
SIMMONS J.A.: --
I. Introduction
[1] This is yet another case raising issues about the proper interpretation of the Road Access Act, R.S.O. 1990, c. R.34.
[2] Except in limited circumstances, the Act prohibits a landowner from blocking a private road without a court order if doing so will prevent all road access to another property.
[3] However, as a balance to this restriction on a landowner's rights, s. 3(1) of the Act provides that a judge may grant an order closing a private road if satisfied that (a) a closing order is "reasonably necessary to prevent substantial damage or injury to the interests of the [landowner]"; or (b) the owners or occupants of lands served by the road "do not have a legal right to use [it]".
[4] In this case, Brennan J. dismissed Mr. Limlaw's application for an injunction restraining Mr. and Mrs. Ryan from keeping a [page516] locked gate at the entrance to a private road on their property (the "disputed road") because he found that Mr. Limlaw has alternate road access via a trail on neighbouring Crown land.
[5] Further, despite his opinion that the Ryans could prevent Mr. Limlaw from using the disputed road without a court order, the application judge granted the Ryans' cross-application for a road-closing order.
[6] In the past, the Ryans have given some of their other neighbours, whose properties are otherwise landlocked, a key to the gate in exchange for a small annual fee. After holding that the conditions in s. 3 are disjunctive, the application judge granted a road-closing order under s. 3(1)(b) based on a finding that the landlocked neighbours do not have a legal right to use the disputed road. However, he imposed a condition requiring the Ryans to continue to allow their landlocked neighbours to use it.
[7] On appeal, Mr. Limlaw submits that the application judge made the following errors: (i) finding that the hiking trail on neighbouring Crown land provides alternate road access to Mr. Limlaw's property; (ii) interpreting the conditions in s. 3(1) of the Act that trigger the court's jurisdiction to make a road-closing order disjunctively; and (iii) imposing a condition that the disputed road remain open to some neighbours but not to others.
[8] On their cross-appeal, the Ryans ask that the condition in the road-closing order be amended so that they are permitted, but not required, to allow their landlocked neighbours to continue to use the disputed road.
[9] For the reasons that follow, I would dismiss the appeal and cross-appeal.
II. Background
1. The parties, their properties and the disputed road
[10] The Ryans are the owners of about 75 acres of land in Renfrew County; Hudson and Doris Elmore own the property immediately to the west of the Ryans' land; Mr. Limlaw owns approximately 200 acres of land west of the Elmores' property; and Francis Maloney has a cottage on Crown land southwest of Mr. Limlaw's land. [page517]
[11] A public road runs across the Ryans' land. This road enters their property near the middle of its southern boundary, proceeds northeasterly to the eastern boundary and from there continues easterly across adjoining lands.
[12] The entrance to the disputed road is near the mid-point of the public road as it crosses the Ryans' land. From there, the disputed road runs westerly to the eastern boundary of the Elmores' land, continues westerly across the Elmores' land, southwesterly across Mr. Limlaw's land and eventually reaches Mr. Maloney's cottage property.
[13] The Ryan family has owned their land and other properties in the vicinity for more than 100 years. During this period, family members have used their land primarily for hunting and logging and have also permitted several neighbouring landowners to use the disputed road to access their cottage and hunt camp properties. These parties historically made a small annual payment to the Ryan family for their use of the disputed road.
[14] Since 1953, there has been a "No Trespassing" sign at the entrance to the disputed road. In 1982, the Ryans and one of the other users of the disputed road put a locked gate across the entrance to the road to exclude trespassers. Recently, only the Ryan, Elmore and Maloney families have had keys to the gate.
[15] Mr. Limlaw purchased his property from Ambrose Hass in October 2005. The agreement of purchase and sale included an acknowledgment that access to the property was "by private road under the Road Access Act":
The Purchasers acknowledge and accept that access to the property is by way of a private road under the Road Access Act and that a deeded right of way will not be provided on closing.
[16] On closing, Mr. Hass provided a declaration of possession confirming that he did not have access to the disputed road:
The access road serving my property has been gated and locked throughout the period of my ownership. I have not had access to the property during the period of my ownership.
[17] Mr. Hass's predecessor in title was his brother, Rev. Michael Hass, who acquired two lots in 1946 and 1947 before transferring both to Ambrose Hass in 1992. Although Mr. Limlaw said he believed that Rev. Hass used the disputed road on occasion, there was no admissible evidence on the application to that effect.
[18] After purchasing his property, Mr. Limlaw approached the Ryans and asked for permission to use the disputed road. The Ryans refused Mr. Limlaw's request. [page518]
2. Relevant statutory provisions
[19] As I have said, except in limited circumstances, the Act prohibits a landowner from blocking a private road without a court order if doing so will prevent all road access to other parcels of land.
[20] Sections 2(1)(a) and 3(1) are central to the issues on appeal. Section 2(1)(a) sets out the prohibition against closing a private road without a court order; s. 3(1) describes the circumstances in which a road-closing order can be made. In addition to these provisions, I will set out some definitions and ancillary provisions that are relevant for the purpose of this appeal. The full text of the Act is set out in Appendix 'A'.
[21] Section 2(1)(a) provides that "no person shall construct, place or maintain . . . a barrier . . . over an access road, not being a common road . . . that, as a result, prevents all road access to one or more parcels of land" unless the person has obtained a court order:
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 therefore, not owned by that person unless, (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 . . . [See Note 1 below] (Emphasis added)
[22] The terms "access road" and "common road" are important because they draw a distinction between a road that is purely private and a road on private land on which public moneys have been spent.
[23] Section 1 states that an "access road" is "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". A "common road" is "an access road on which public money has been expended for its repair or maintenance".
[24] "Road" is defined as meaning "land used or intended for use for the passage of motor vehicles".
[25] Motor vehicle means "a motor vehicle as defined in the Highway Traffic Act" and therefore includes, subject to certain [page519] exceptions, "any . . . vehicle propelled or driven otherwise than by muscular power".
[26] Section 3(1) describes the circumstances in which a road-closing order can be made for access roads and common roads. Subsection 3(1)(a) sets out a condition that is common to both types of road. Subsections 3(1)(b) and (c) describe an additional condition relating to access roads and common roads respectively:
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 the legal right to use the road; or (c) in the case of a common road, the persons who use the road do not have the legal right to do so. (Emphasis added)
[27] The "persons" referred to in s. 3(1)(b) are the persons upon whom a road-closing application must be served. Section 2(3) provides as follows:
2(3) Notice of an application to close an access road that is not a common road shall be served . . . upon . . . the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from the owner's land and, where the owner is not occupying the land, notice shall also be given to a tenant or occupant of the land . . .
[28] Section 3(2) provides that a judge may impose conditions on a closing order.
[29] Section 6(1) confirms that the Act does not confer rights in respect to the ownership of land, while s. 7 provides that it is an offence to contravene s. 2(1).
3. Mr. Limlaw's injunction application
[30] In October 2006, Mr. Limlaw issued an application requesting an interlocutory and permanent injunction enjoining the Ryans "from constructing, placing or maintaining a barrier or other obstacle" over the disputed road. In support of his application, he claimed that the disputed road is an "access road" within the meaning of s. 1 of the Act and that it provides the only vehicular access to his and neighbouring lands.
[31] In his material, Mr. Limlaw stated that he may, in the future, build a cottage on his property. However, his primary goal is to harvest timber. In that regard, he claims that the [page520] Ryans' conduct is preventing him from using his land for its intended purpose.
4. The Ryans' cross-application for an order closing the disputed road
[32] On February 9, 2007, the Ryans issued a cross- application requesting an order closing the disputed road or, in the alternative, an interlocutory or permanent injunction enjoining Mr. Limlaw from using the disputed road to transport logs or for any other commercial purpose.
[33] Mr. Ryan deposed in an affidavit that, as far as he was aware, Mr. Limlaw's predecessors in title had never used the disputed road to access their property. Further, he expressed the view that it is possible to access Mr. Limlaw's property via the hiking trail on neighbouring Crown lands with a 4x4 half-ton truck, a midsized 4x4 truck, a sport-utility vehicle or a 4x4 Jeep, and referred to a statement from Mr. Elmore confirming that he had used the hiking trail to access the Elmore land over the course of 20 years using a 1970 Jeepster Commando.
[34] In a subsequent affidavit, Mr. Ryan said he believes that Mr. Limlaw's proposed use of the disputed road would cause "significant rutting" and the "possible collapse" of the road. When asked on cross-examination if his interest in preventing Mr. Limlaw from accessing the disputed road was based on Mr. Limlaw's intention to log the property, he responded, "Commercial entrance, it means more than logging when you're looking for a commercial entrance." Mr. Ryan also disputed the suggestion that he would have no problem letting Mr. Elmore use the disputed road if Mr. Elmore wished to log his land.
[35] Mr. Limlaw disputed the Ryans' claims that the hiking trail on Crown land is accessible by vehicles wider and less rugged than an ATV. He also provided affidavit evidence indicating that the cost to repair any potential damage to the disputed road would not be substantial and, in any event, deposed that he understood and would satisfy his common law obligations to indemnify the Ryans for any damage he caused.
[36] When cross-examined prior to the application hearing, Mr. Ryan acknowledged "an underlying dispute" with Mr. Limlaw. According to Mr. Limlaw, this evidence reveals an ulterior motive for the Ryans' refusal to allow him to have access to the disputed road. Mr. Ryan also acknowledged that he had provided assurances to the Elmores and Mr. Maloney that, whatever the outcome of the applications, he does not intend to [page521] prevent them from gaining access to their lands via the disputed road at this time.
5. Mr. Limlaw's interim motion for an injunction
[37] In a ruling refusing Mr. Limlaw's request for an interim injunction, the application judge concluded that the disputed road is an access road within the meaning of s. 1 of the Act:
I am bound by the Court of Appeal decision in 992275 Ontario Inc. v. Krawczyk, 2006 CanLII 13955 (ON CA), [2006] O.J. No. 1730, and on that authority and the respondents' admission that the Ryan lands is used for road access to the Elmore and Maloney lands, I am compelled to find the roadway across the Ryan land is an access road as defined in the Road Access Act.
[38] The application judge later confirmed this ruling in his reasons disposing of the application and cross-application. On appeal, the Ryans concede that the disputed road is an access road.
6. The application judge's reasons on the application and cross-application
[39] The application judge dismissed Mr. Limlaw's request for an injunction restraining the Ryans from maintaining a barrier over the disputed road because he found that Mr. Limlaw has alternate motor-vehicle access to his property via a "trail" on neighbouring Crown land. In doing so, the application judge rejected Mr. Limlaw's evidence that the trail was inaccessible by anything other than an all-terrain vehicle, and accepted the Ryans' evidence that, in addition to all-terrain vehicles, the trail can be used by four-wheel-drive vehicles, such as 4x4s and four-wheel-drive pickup trucks.
[40] The application judge also referred to the fact that "in Renfrew County many residents use 'four-by-fours' and 4-wheel- drive pickup trucks as their daily transport". In addition, he observed that access via all-terrain vehicles would not meet the test of alternate motor-vehicle access as set out in this court's decision in Blais v. Belanger, 2007 ONCA 310, [2007] O.J. No. 1512, 282 D.L.R. (4th) 98 (C.A.).
[41] Accordingly, the application judge said he was basing his decision on his "finding that 4-wheel drive trucks and '4 by 4s' can use the alternative road, although with difficulty".
[42] The application judge concluded:
On balance, after reviewing the affidavits and cross- examinations, and bearing in mind that the onus lies with Mr. Limlaw on this issue, I hold that the trail over the Crown lands provides alternative motor vehicle access to the Limlaw lands.
In light of that finding the Ryans are at liberty to exclude Mr. Limlaw from using the Ryan Road, and no order closing the road is required for [page522] that purpose. However that order is requested by the Ryans and I have concluded that they are entitled to it.
[43] After finding that Mr. Limlaw has alternate motor- vehicle access to his land and that the Ryans did not require a court order to exclude him from using the disputed road, the application judge went on to address the Ryans' road- closing application.
[44] The application judge rejected Mr. Limlaw's submission that the conditions in s. 3(1) must be read conjunctively so that a person requesting a road-closing order must satisfy either the conditions set out in s. 3(1)(a) and (b) or the conditions set out in s. 3(1)(a) and (c) depending on whether the access road is a common road.
[45] Instead, he found that the conditions in s. 3(1) are to be read disjunctively. In addition, the application judge concluded that the persons with an interest in the lands served by the disputed road, namely, the Elmore and Maloney families, are using the road with permission and have no legal right to use it.
III. Analysis
1. Did the application judge err by finding that the hiking trail on neighbouring Crown land provides alternate road access to Mr. Limlaw's property?
[46] Mr. Limlaw submits that the application judge erred in taking judicial notice of the type of vehicles that residents of Renfrew County Drive. He further submits that the application judge erred in concluding that this court's decision in Blais permits a finding that access via four-wheel- drive trucks and "4 x 4s" constitutes alternate road access.
[47] I would not accept these submissions. The application judge's conclusion that Mr. Limlaw has alternate road access was premised on his factual finding that Mr. Limlaw can access his property via the trail over Crown lands using all-terrain vehicles, four-wheel-drive trucks and "4 x 4s". There was evidence capable of supporting this finding of fact and I see no basis to interfere with it. Although I agree that the application judge should not have referred to the type of vehicles that Renfrew County residents drive without evidence on the point, I do not read this reference as being central to his reasoning.
[48] Moreover, I do not read Blais as precluding the application judge's conclusion that such access constitutes alternate road access. The issue in Blais was whether an access road that was used in the past continued to exist. The respondents, who were the persons wishing to use the access road, purchased their property in 2001. Although their predecessor in [page523] title gave evidence that he drove to the property over the access road using a four-wheel-drive vehicle between 1992 and 2001, he also testified that the bush grew up unless it was kept back. After the respondents purchased their property, they took steps improperly to widen and clear the area on the appellant's land that, at least formerly, had been used as a road. This court said, at paras. 37-38:
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.
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 owners cannot by acts of trespass, bring into being an access road across the land of another.
[49] Considered in context, I do not understand Blais as meaning that a route cannot be an access road if it can only accommodate four-wheel-drive vehicles. Rather, this court remitted the matter for reconsideration in light of three legal factors: (i) those who use an access road on the land of another do not have the right to repair or maintain it; (ii) a landowner does not have any obligation to maintain an access road that runs across his or her property; and (iii) an access road may, through deterioration, cease to be a road over time.
[50] In this case, the application judge considered and rejected Mr. Limlaw's evidence that the trail could only be used on foot or using all-terrain vehicles and accepted the Ryans' evidence that the trail has long been used by four- wheel-drive vehicles. Further, although he recognized that access via the hiking trail would not provide Mr. Limlaw with the type of access he wanted for logging vehicles, and that the access provided could be difficult, the application judge concluded that "the trail over the Crown lands provides alternative motor vehicle access to the Limlaw lands".
[51] I see no basis for interfering with this conclusion. The application judge's finding that the neighbouring hiking trail is accessible using four-wheel-drive vehicles was available on the evidence and Mr. Limlaw has not demonstrated that this conclusion reflects palpable and overriding error or that it is unreasonable. Further, in my view, the application judge's conclusion is entirely in keeping with the purposes of the Act.
[52] This court has emphasized on several occasions that a primary purpose of the Act is to prevent landowners from [page524] resorting to self-help and to provide a judicially supervised dispute-resolution process: see, for example, 2008795 Ontario Inc. v. Kilpatrick (2007), 2007 ONCA 586, 86 O.R. (3d) 561, [2007] O.J. No. 3248, at para. 11, citing Blais, at para. 43.
[53] Moreover, this court has said repeatedly that the rights provided by the Act are extremely limited. The Act does not confer any rights on the owner or occupant of lands served by the road other than the limited right not to be treated as a trespasser when using the road in a motor vehicle to access their property: see, for example, Whitmell v. Ritchie (1994), 1994 CanLII 858 (ON CA), 20 O.R. (3d) 424, [1994] O.J. No. 1954 (C.A.); Kilpatrick, at paras. 20-22; Blais, at paras. 28-29.
[54] In short, in my opinion, the Act was not designed to ensure that landlocked property owners are able to enjoy all the potential uses of their otherwise landlocked property.
[55] As Mr. Limlaw has not identified a basis for interfering with the application judge's finding, I would not give effect to this ground of appeal.
2. Did the application judge err by interpreting the conditions in s. 3(1) of the Act that trigger the court's jurisdiction to make a road-closing order disjunctively?
3. Did the application judge err by imposing a condition that the disputed road remain open to some neighbours but not to others?
[56] I consider it unnecessary to address the second and third issues raised by Mr. Limlaw for three reasons.
[57] First, in my opinion, once the application judge determined that Mr. Limlaw has alternate road access to his property, Mr. Limlaw had no standing to oppose the road-closing application.
[58] As I have said, s. 2(3) describes who is entitled to notice of a road-closing application. The relevant part of that section says the notice must be served on the owner or occupant of each parcel of land served by the road "who would, if the road were closed, be deprived of motor vehicle access to and from the owner's land":
2(3) Notice of an application to close an access road that is not a common road shall be served personally upon or sent by registered mail to the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from the owner's land and, where the owner is not occupying the land, notice shall also be given to a tenant or occupant of the land . . . (Emphasis added) [page525]
[59] On a plain reading of s. 2(3), the only persons entitled to notice of a road-closing application are those who do not have alternate road access to their property.
[60] Despite the clear wording of s. 2(3), it is no doubt the common practice to serve all persons whose properties are served by a private road with notice of a road-closing application whether those neighbours have alternate road access to their properties or not. Such an approach makes good common sense. If a landowner blocks a private road without first obtaining a declaration that a neighbour has alternate road access and it is later determined that the neighbour does not have alternate access, the landowner will have violated the prohibition in s. 2 of the Act and exposed themselves to prosecution under s. 7.
[61] However, the fact that prudent practice dictates serving persons who might be entitled to notice of a road-closing application, does not give persons who are not actually entitled to notice standing to oppose the road-closing application. Rather, where the issue of alternate road access is controversial, a preliminary determination should be made concerning whether the persons in question have alternate road access. If it is determined that they have alternate road access, their interest in the proceeding is at an end.
[62] A less expedient method of proceeding illustrates this point. It would be open to a landowner to apply for a declaration concerning whether a particular neighbour is entitled to notice of a road-closing application before proceeding with the application. If a finding is made that the neighbour has alternate road access, the neighbour is not entitled to notice of the road-closing application or to standing at the hearing. The fact that a landowner chooses to proceed in a more expedient fashion should not change this result.
[63] The second reason I consider it unnecessary to address Mr. Limlaw's remaining grounds is that I agree with the application judge's conclusion that the Ryans do not require a road-closing order to prevent Mr. Limlaw from using the disputed road. If the Ryans can prevent Mr. Limlaw from using the disputed road without a court order, I fail to see why he should have a say in whether the Ryans are entitled to a road- closing order under s. 3.
[64] On a plain reading of s. 2 of the Act, so long as a landowner gives landlocked neighbours access to a private road, the landowner does not require a road-closing order to prevent [page526] a neighbour who has alternate road access from using the private road. [See Note 2 below]
[65] Although s. 3(1) sets out the conditions for obtaining a road-closing order, it is s. 2(1) that prohibits blocking a private road. The prohibition is against "construct[ing], plac[ing] or maintain[ing] a barrier or other obstacle . . . that, as a result, prevents all road access to one or more parcels of land" (emphasis added).
[66] As I see it, so long as a landowner permits their landlocked neighbours to access a private road, for example, by giving them a key to a locked gate, s. 2(1) does not prohibit the landowner from erecting a barrier that impedes a neighbour with alternate access.
[67] Laskin J.A. reached a similar conclusion in Kilpatrick, supra. At para. 24 of Kilpatrick, he said the following:
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.
[68] Accordingly, provided the Ryans permit the Elmores and Mr. Maloney to use the disputed road, they are free to erect a barrier excluding Mr. Limlaw. In these circumstances, he has no interest in the question of whether a road-closing order should be made as against neighbouring property owners whose properties would be landlocked by an order.
[69] Further, given that the Ryans can exclude him but not the landlocked neighbours [See Note 3 below] without a road-closing order, Mr. Limlaw has no grounds for challenging an order that has that effect. If the Ryans can prevent him from using the road in any event, he has no basis for complaining about an order that has that effect. [page527]
[70] That said, I should not be taken as saying that the Ryans were entitled to maintain the status quo without obtaining a road-closing order. I am also sceptical that the application judge's order, closing the disputed road but requiring the Ryans to continue to allow the Elmores and Mr. Maloney to use it, is authorized under the Act.
[71] In Kilpatrick, this court held that access over an access road on payment of a user fee does not constitute alternate road access. On the application judge's findings, apart from the disputed road, the Elmore and Maloney lands are otherwise landlocked. Accordingly, the Ryans were not entitled to maintain a locked gate across the disputed road and charge the Elmores and Mr. Maloney a fee for a key to the gate unless they obtained a road-closing order or made an agreement in writing with the Elmores and Mr. Maloney permitting them to do so: s. 2(1)(a) and (b) of the Act.
[72] Further, the Act does not define the term "closing order", which is used in s. 3. Rather, s. 3(1) sets out the conditions that must be met before a closing order can be made. However, it seems to me that the closing order referred to in s. 3 is probably an order that permits doing that which is prohibited in s. 2. Therefore, a closing order is probably an order that "permits constructing, placing or maintaining a barrier that prevents all road access to one or more parcels of land". On its face, the order made by the application judge does not satisfy this requirement. Therefore, I am sceptical that it is authorized by the Act.
[73] Nonetheless, I am not persuaded that Mr. Limlaw has any grounds for complaint. Once it was determined that he had alternate road access to his property, the Ryans were entitled to prevent him from using the disputed road without a court order so long as they allowed landlocked parties to have access. They did not lose the ability to exclude Mr. Limlaw just because they may have, for a time, been excluding or charging others improperly. Further, as I see it, the propriety of the application judge's road-closing order is a matter for the Elmores and Mr. Maloney to complain about, not Mr. Limlaw.
[74] The third reason I consider it unnecessary to address Mr. Limlaw's remaining grounds is that whether the conditions in s. 3(1)(a) and (b) of the Act are read conjunctively or disjunctively, he has no grounds for opposing the road-closing order.
[75] Section 3(1)(a) provides that to grant a road-closing order a judge must be satisfied that "the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the [landowner]". [page528]
[76] However, because a road-closing order granted under s. 3 gives a landowner permission to landlock other properties, a landowner should not be able to obtain a road-closing order based on potential damage or injury to his or her interests caused by a person with alternate road access. Such an interpretation of s. 3(1)(a) would be unfair to the neighbouring property owners who would become landlocked by the order.
[77] Taking this case as an example, it would be unfair to allow the Ryans to obtain a road-closing order because Mr. Limlaw's use would cause substantial damage to the road. It is the Elmores and Mr. Maloney who will be landlocked by a road- closing order, not Mr. Limlaw.
[78] Accordingly, even if the conditions for granting a road- closing order under s. 3(1) are conjunctive, Mr. Limlaw's proposed use of the road is irrelevant to the question of whether a road-closing order should be made. His proposed use of the disputed road does not provide the Ryans with grounds for obtaining a road-closing order, nor does it provide him with grounds for opposing such an order. If the neighbours who stand to become landlocked do not oppose a road-closing order, Mr. Limlaw simply has no say in the matter.
[79] Similarly, because Mr. Limlaw has alternate access to his property, he is no longer an interested party under s. 3(1) (b).
[80] Section 3(1)(b) provides that to grant a road-closing order a judge must be satisfied that "persons described in subsection 2(3) do not have a legal right to use the road". As I have explained already, once it is determined Mr. Limlaw has alternate access, he is no longer entitled to be served with a road-closing application under s. 2(3).
[81] In any event, on the facts of this case, Mr. Limlaw has no legal right to use the disputed road. He has no claim to such a right under the Act because he has alternate road access to his property. He does not have an easement, a right-of-way or any form of contractual right to use the disputed road. Finally, neither he nor his predecessors in title ever had the Ryans' permission to use it.
[82] In the end, whether s. 3 is interpreted conjunctively or disjunctively, Mr. Limlaw has nothing to add to the question of whether a road-closing order should be made. The Ryans can prevent him from using the disputed road without a court order; his proposed use of the disputed road is irrelevant to the question of whether a road-closing order should be granted and he has no basis for claiming a legal right to use the road.
[83] That said, Mr. Limlaw makes a strong argument that, despite the legislature's use of the word "or" in s. 3(1), the [page529] conditions in that section should be read conjunctively. Although it is unnecessary that I decide this question, because his argument may call into question this court's interpretation of s. 3(1)(b), I will describe it briefly and set out my preliminary views.
[84] Mr. Limlaw's argument goes like this.
[85] When the Act was originally passed in 1978, s. 3 read as follows:
When judge may grant order
- The judge may grant the closing order upon being satisfied that the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or is reasonably necessary for some purpose in the public interest and the judge may impose such terms and conditions as the judge considers are reasonable and just under the circumstances, including a requirement that a suitable alternate road be provided. (Emphasis added)
[86] Following a 2001 amendment that became effective on January 1, 2003, s. 3(1) reads as follows:
Conditions for closing order
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 the legal right to use the road; or (c) in the case of a common road, the persons who use the road do not have the legal right to do so. (Emphasis added)
[87] A comparison of the original provision and the amended provision reveals that the legislature chose to retain the original condition for granting a road-closing order, namely, that closure is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or is reasonably necessary for some purpose in the public interest. The legislature also added a new condition, namely, that those persons who are entitled to be served with notice of a closing application do not have a legal right to use the road.
[88] Clearly the legislature did not intend, by the 2001 amendment, to eliminate the original condition it had prescribed for obtaining a road-closing order. Nor, says Mr. Limlaw, did the legislature intend by the amendment to allow a private road owner to rescind an easement or right-of-way. However, according [page530] to Mr. Limlaw, one of those two results will be the effect if the conditions in s. 3(1) are interpreted disjunctively.
[89] Mr. Limlaw relies on two lines of authority in support of his position.
[90] First, he relies on Rasmussen v. Ruzic (2003), 2003 CanLII 17157 (ON SC), 66 O.R. (3d) 756, [2003] O.J. No. 5027 (S.C.J.), in which O'Neill J. held that that a landowner cannot obtain an order closing a private road under s. 3(1) where a neighbour has an easement, right-of-way or other legal right to use the private road.
[91] In Rasmussen, the Ruzics had a registered right-of-way allowing them to use the Rasmussens' private road. In dismissing the Rasmussens' application for a road-closing order, the application judge said the Rasmussens would not be entitled to such an order even if they could show that closing the road was reasonably necessary to prevent substantial damage or injury to their interests because they could not satisfy s. 3(1)(b).
[92] The application judge relied on s. 6(1) of the Act to support his interpretation. Section 6(1) states, "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". In the application judge's view, using the Act to extinguish the Ruzics' right-of-way and restore full fee-simple ownership to the Rasmussens would run afoul of s. 6.
[93] Although he did not say so expressly, in effect, the application judge interpreted the conditions in s. 3(1) conjunctively. Mr. Limlaw submits that he was correct in doing so. On the facts of Rasmussen, interpreting the conditions in s. 3(1) disjunctively would have allowed a landowner to use the Act to rescind a right-of-way. Nothing in the legislative history of the Act suggests that was the legislature's intent; s. 6(1) of the Act suggests the contrary.
[94] The second line of authority on which Mr. Limlaw relies is this court's decisions in Krawczyk and Kilpatrick. Those decisions say that a neighbour cannot rely on rights under the Act to establish a legal right to use a private road within the meaning of s. 3(1)(b).
[95] According to Mr. Limlaw, on a practical level it is difficult to see how s. 3(1)(a) could ever apply in light of Krawczyk and Kilpatrick. The only situation in which a private road owner will be unable to rely on s. 3(1)(b) to obtain a road-closing order will be where their neighbours have a legal right to use the road that exists independently of the Act. However, because s. 6 of the Act does not permit a landowner to rescind an easement or right-of-way or other legal right to use a private road, s. 3(1)(a) will never apply. [page531]
[96] In the result, despite the legislature's intention to preserve the original condition it had prescribed for obtaining a road-closing order when it made the 2001 amendments, on the current state of the law, interpreting s. 3(1) disjunctively would do the opposite.
[97] I see at least two flaws in Mr. Limlaw's argument. First, it ignores the presence of the word "or" between s. 3(1) (b) and (c) and the plain meaning of s. 3(1), which is that the conditions should be read disjunctively.
[98] Second, it makes s. 3(1)(b) almost redundant. On Mr. Limlaw's interpretation, s. 3(1)(b) does no more than reinforce what s. 6(1) already accomplishes; it means that a landowner cannot use the provisions of the Act to rescind an easement, right-of-way or other legal right to use a private road.
[99] An alternate suggestion might be to interpret s. 3(1)(b) as applying to trespassers, meaning people who have never had permission, whether express or implied, to use the private road under consideration. On that interpretation, rights under the Act would not be a factor in determining whether a neighbour was excluded under s. 3(1)(b) and neither s. 3(1)(a) nor s. 3(1)(b) would be redundant.
[100] Using the facts of this case as an example, the Ryans could obtain a road-closing order under s. 3(1)(b) if their neighbours fell into Mr. Limlaw's category in the sense that they had never had the owner's permission to use the private road. On the other hand, the Ryans would have to meet the criteria under s. 3(1)(a) in order to obtain a road-closing order against neighbours like the Elmores and Mr. Maloney who have had permission in the past to use the disputed road.
[101] However, this interpretation may be inconsistent with Krawczyk and Kilpatrick.
[102] In any event, for the reasons I have explained, it is unnecessary that these grounds of appeal be determined in this case. Accordingly, they remain open for determination in a proper future case.
IV. The Cross-Appeal
[103] By way of cross-appeal, the Ryans ask that the condition in the road-closing order be amended so that they are permitted, but not required, to allow their landlocked neighbours to continue to use the disputed road.
[104] I would not give effect to this ground of appeal. The Ryans did not serve the Elmores or Mr. Maloney with notice of the cross-appeal. Although the Elmores and Mr. Maloney did not oppose the road-closing order, they did not consent to it. Further, [page532] it appears that they may have relied on a representation made by the Ryans that they have no present intention of impeding their landlocked neighbours' access to the disputed road. However, the amendment the Ryans seek would allow them to do just that.
[105] In these circumstances, I would not give effect to this ground of appeal. However, nothing in these reasons should be taken as confirming that the order made by the application judge is a proper order.
V. Disposition
[106] In the result, I would dismiss the appeal and cross- appeal. I would award costs of the appeal to the Ryans on a partial indemnity scale in the amount of $10,000, inclusive of GST and disbursements, and I would make no order as to costs of the cross-appeal. I would order costs of the proceeding below to the Ryans in the amount of $15,000, inclusive of GST and disbursements.
Appeal and cross-appeal dismissed.
Appendix 'A'
Road Access Act, R.S.O. 1990, c. R.34
- In this Act,
"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; ("chemin d'accès")
"common road" means an access road on which public money has been expended for its repair or maintenance; ("chemin public")
"judge" means a judge of the Superior Court of Justice; ("juge")
"maintain" includes the leaving of a barrier or other obstacle on an access road or common road; ("maintenir")
"motor vehicle" means a motor vehicle as defined in the Highway Traffic Act; ("véhicule automobile")
"road" means land used or intended for use for the passage of motor vehicles. ("chemin")
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, (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; [page533] (b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby; (c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or (d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights.
(2) No person shall construct, place or maintain a barrier or other obstacle over a common road that as a result prevents the use of the road unless, (a) the person has made application to a judge for an order closing the road and has given ninety days notice of the application to the parties and in the manner directed by this Act and the judge has granted the application to close the road; or (b) the closure is of a temporary nature for the purposes of repair or maintenance of the road.
(3) Notice of an application to close an access road that is not a common road shall be served personally upon or sent by registered mail to the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from the owner's land and, where the owner is not occupying the land, notice shall also be given to a tenant or occupant of the land by either, (a) handing the notice to an adult person who is a tenant or occupant of the land; or (b) posting the notice on the land in a place and manner that makes the notice conspicuous to an occupant of the land.
(4) Notice of an application to close a common road shall be published at least once a week for four successive weeks in a newspaper that is circulated in the area in which the proposed road closure is located, the last publication to be not less than ninety days before the date fixed for the hearing of the application, and any person who uses the road is entitled to be a party to the proceedings on the application.
(5) Notice of an application made under subsection (1) or (2) shall be given by registered mail to the clerk of the local municipality and the clerk of the upper-tier municipality in which the road is situated or, in the case of a road located in territory without municipal organization, notice shall be similarly given to the Minister of Northern Development, Mines and Forestry.
(6) An application under subsection (1) or (2) shall be accompanied by an affidavit of the applicant in which shall be included a description of the road sought to be closed, the proposed location of the barrier or other obstacle, the reasons in support of the closure, and, in the case of an application under subsection (1), the names and addresses of the persons who would, if the road were closed, be deprived of access to their lands.
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; [page534] (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.
(2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.
4(1) Where notice as required under section 2 is not given, a judge may grant upon application made without notice an interim closing order if he or she is satisfied that the delay required to give notice would likely result in serious damage or injury to the interests of the applicant.
(2) A judge may make an interim closing order on such terms and conditions and for such duration as the judge considers proper in the circumstances.
(3) A person entitled to notice at the time an interim closing is made may apply to a judge to have the order set aside and the judge may so order where he or she considers it proper in the circumstances.
- An appeal, lies from an order of the judge under section 2 or 4 to the Divisional Court.
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.
(2) The granting of a closing order or the dismissal of an application for a closing order under this Act shall not be construed as a determination that the road is or is not a public highway.
7(1) Every person who knowingly contravenes subsection 2 (1) or (2) is guilty of an offence.
(2) Where a person is convicted of an offence under this Act, the court may order the person to remove the barrier or other obstacle.
- Nothing in this Act prevents the temporary closing of a public forest road or a private forest road within the meaning of the Public Lands Act where, in the opinion of the district manager, an emergency exists.
December 16, 2009
[1] Endorsement BY THE COURT: -- Paragraph 106 of the reasons released November 26, 2009 is amended to provide that the respondents are awarded costs of the proceeding below in the amount of $25,000, inclusive of disbursements and G.S.T.
Notes
Note 1: Sections 2(1)(b), (c) and (d) address the other limited circumstances in which a road-closing order is unnecessary.
Note 2: That said, it is inadvisable for a landowner to erect a barrier that excludes a neighbour from a private road without first obtaining a declaration that the neighbour has alternate access if that issue is controversial. Otherwise, the landowner runs the risk of violating the prohibition in s. 2 and committing an offence under s. 7.
Note 3: The application judge found that, apart from the disputed road, the Elmore and Maloney properties are landlocked. On my review of the record and the application judge's reasons, it may not be clear whether the hiking trail that provides access to the Limlaw lands also provides access to the Elmore and/or Maloney properties. However, no issue was raised on appeal concerning this finding.