Court of Appeal for Ontario

Citation: Clark v. North Kawartha (Township), 2010 ONCA 185

Date: 20100311

Docket: C50959

Before: Gillese, Juriansz and LaForme JJ.A.

Between

George Clark, Robert Berrey, Bruce Meadows, Otto Rosenmeier and Lloyd Cameron

Applicants (Appellants)

and

The Corporation of the Township of North Kawartha and The Queen in Right of Ontario

Respondents (Respondents in Appeal)

Counsel:

Julian Binavince, for the appellants

Walter Myrka and Judie Im, for Her Majesty the Queen in Right of Ontario

John Ewart and K. O’Dwyer, for the Corporation of the Township of North Kawartha

Heard: March 5, 2010

On appeal from the judgment of Justice Drew Gunsolus of the Superior Court of Justice dated July 24, 2009.

ENDORSEMENT

[1] This is an appeal from the application judge’s decision rejecting the appellants’ request for a declaration that West Eels Lake Road (the “Road”) is a public highway and that North Kawartha Township is responsible for its maintenance and repair. (North Kawartha Township and its predecessors are referred to as the “Township”.)

[2] The Road is an access road constructed in 1978 by the Ontario Ministry of Natural Resources (“MNR”) for the forest industry. The appellants use the Road to access their cottages. They recognize they must establish both the dedication of the Road as a public highway by Ontario and its assumption by the Township. In this court they conceded there was no formal act of dedication by Ontario and no bylaw or other instrument of the Township formally assuming the Road. They argued both the Road’s dedication and assumption are apparent on the evidence of the surrounding circumstances.

[3] First, the appellants submitted that the evidence establishes that Ontario had, through its actions in pursuing negotiations, indicated its intention to dedicate the Road as a public highway. Next, they submit that Ontario carried out that intention and dedicated the Road in fact by expending funds. Finally, they submit that the Township assumed responsibility for the Road by making regular and substantial expenditures on its maintenance.

[4] For the first two points, the appellants rely on the evidence of Robert Millar, a former employee of the MNR. His evidence was that in 1997-1998 Ontario had reached an agreement with the Township for the dedication and assumption of the Road. Ontario had spent over $200,000 to upgrade the Road to prepare it for assumption by the Township. After the work was completed in the fall of 1998, Mr. Millar expected that the Township would pass a bylaw to assume the obligation of maintaining and repairing the Road.

[5] For the third point, the appellants rely on the evidence that the Township has budgeted for and expended funds on the maintenance of the Road in every year since 1998 when it was upgraded by Ontario.

[6] The application judge did not accept these submissions. He found as a fact that though Mr. Millar felt an agreement had been reached with the Township, at best, there was an agreement to agree. The negotiations did not culminate in an actual agreement. Therefore, there was no dedication. The application judge also found that the Township had regularly sought work permits from Ontario for the work it undertook and had been compensated by Ontario for most of that work. Therefore the Township’s maintenance of the Road did not establish its assumption of responsibility for it.

[7] We have not been persuaded by the appellants’ earnest argument that the application judge lacked an evidentiary basis for these findings of fact. In our view, the affidavits of Shannon Hunter filed by the Township and Robert Walroth filed by Ontario provide support for the application judge’s findings there was no actual dedication of the Road by Ontario and no clear and unequivocal assumption of the Road by the Township. We do not agree that Ms. Hunter’s evidence was completely undermined on cross examination. Mr. Walroth was not cross examined.

[8] As the appellants have not demonstrated that the application judge committed any overriding and palpable errors in arriving at his conclusions, the appeal is dismissed. The costs of each respondent are fixed, as agreed by counsel, in the amount of $5,900 inclusive of disbursements and GST.

“E.E. Gillese J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”