COURT OF APPEAL FOR ONTARIO

CITATION: Meaford (Municipality) v. Grist, 2013 ONCA 124

DATE: 20130227

DOCKET: C54475

Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc)

BETWEEN

The Corporation of the Municipality of Meaford

Plaintiff (Appellant)

and

Pauline Grist, Eric Bruce Greaves, Susan Gwynneth Greaves, Penelope Joan Seaman, Jane Norah Williams, Trevor Noel Williams, Norah Ann Williams, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun, Andrew James Rathbun, Jocelyn Rathbun Gravlee, Napier Charles Rathbun, Oliver Grant Rathbun, Barbara Kirkaldy, John Kirkaldy, Lorne Kirkaldy, Jennifer Kirkaldy and John Samuel Gibson Kirkaldy, et al.

(continued on Schedule A)

Defendants (Respondents)

Timothy J. Hill, Izaak De Rijcke and Andrea Skinner, for the appellant

Bruce Engell and Raivo Uukkivi, for the respondent Pauline Grist

Victor L. Vandergust, for the respondent Fairview Trailer Park Ltd.

Stanley M. Makuch and Konstantine J. Stavrakos, for the respondents Penelope Joan Seaman, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun, Jocelyn Rathbun Gravlee, Napier Charles Rathbun and Oliver Grant Rathbun

Heard: November 19, 2012

On appeal from the judgment of Justice Peter A. Daley of the Superior Court of Justice dated September 21, 2011, with reasons reported at 2011 ONSC 5195, 87 M.P.L.R. (4th) 118.

Pepall J.A.:

A. introduction

[1] In 2004, the appellant, the Corporation of the Municipality of Meaford (“Meaford”), found a by-law in a box in its basement. The by-law was passed on August 7, 1854 by the Municipal Council of the appellant’s predecessor, the Township of St. Vincent (the “Township”). It was entitled By-law No. 11 for 1854, a by-law to establish the lake shore road from side road 21 and 22 to side road 24 and 25 (“By-law 11”). It stated:

Be it therefore enacted by the Municipal Council of the Township of St. Vincent, that the road on the lake shore from the side road between lots 21 and 22, be established a public road as far northward as the side road between lots 24 and 25. One boundary to be four rods from high water mark and the lake the other boundary. Any damages or costs accruing by establishing the said road to be paid by requisitionists.

[2] The purported road surface would cover approximately 6000 feet, spanning Lots 22, 23 and 24 of Concession 6, the east sides of which abut Georgian Bay.

[3] By-law 11 was not registered on title. Rather, it was lost to history for about 150 years. The purported road surface was largely lost to Georgian Bay when it was washed out in a storm in 1986.

[4] Following the discovery of By-law 11 in 2004, the appellant municipality did three things. First, in 2006, it retained a surveyor to prepare a survey report on the southern portion of Lot 23, which is a 600-foot stretch of the 6000-foot road allegedly created by By-law 11. Second, in June 2007, it passed By-law 80 which, among other things, accepted the location of the purported road as determined by the 2006 partial survey, and directed the appellant’s solicitor to take legal steps – including a court application if necessary – to confirm the appellant’s ownership of the road and to compel the removal of all obstructions from the surveyed portion of the road. Third, in July 2007, the appellant registered By-law 11 on title.

[5] The appellant then commenced an action against those respondents who own the ten cottage properties that occupy the aforementioned 600-foot stretch of Lot 23, and are numbered lots 21 to 30. This included the respondents Pauline Grist (the “Grist respondent”), Penelope Joan Seaman, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun, Jocelyn Rathbun Gravlee, Napier Charles Rathbun, and Oliver Grant Rathbun (the “Seaman respondents”). The appellant sought a declaration that the road is a public highway governed by the Municipal Act, 2001, S.O. 2001, c. 25, that is owned by the appellant and that the respondents are trespassing upon it.

[6] In its statement of claim, the appellant asserted that the Township acquired title to the land along the waterfront by virtue of a public highway that existed in this location prior to the enactment of By-law 11. Alternatively, By-law 11 legally and effectively established a road and gave title to the Township. In the further alternative, the appellant acquired title as a result of the application of the common law doctrine of dedication and acceptance both before and after 1854.

[7] Other property owners who had an interest in the lands covered by By-law 11 were subsequently added as defendants to the action by court order: see The Corporation of the Municipality of Meaford v. Grist, 2010 ONSC 2288.

[8] The Grist and Seaman respondents brought separate motions for summary judgment. The respondent Fairview Trailer Park Ltd. supported these motions. The respondents argued that there were no genuine issues requiring a trial and asked that the appellant’s action be dismissed. They asserted that there had been a private driveway between their cottages and the water’s edge which was washed away in a 1986 storm. Neither the respondents nor the appellant restored the private driveway. Instead, the respondents, with the appellant’s approval, purchased land at the rear of their properties to serve as a private driveway and arranged for severance and re-zoning.

[9] The motions judge granted summary judgment and dismissed the appellant’s action for a declaratory judgment.

[10] The appellant appeals this judgment.

B. Summary Judgment motions

[11] The motions judge heard the summary judgment motions over the course of five days and gave extensive reasons for judgment.

(1) Test Applied

[12] The motions judge first considered the test to be applied on a summary judgment motion. He stated that the critical issue was “whether a trial is genuinely necessary”, quoting from Healey v. Lakeridge Health Corp., 2010 ONSC 725, 72 C.C.L.T. (3d) 261, at para. 28. He noted that the record was largely historical with few, if any, witnesses with personal knowledge available to testify. He ultimately decided that there was no genuine issue requiring a trial and the matter was appropriately decided on a summary judgment motion.

(2) Existence of a Public Highway Before 1854

(a) Absence of Evidence that the Public Highway Actually Existed

[13] The motions judge then considered the appellant’s argument that it acquired title to the lands in question by virtue of a public highway that existed prior to the enactment of By-law 11. He concluded that Meaford had not produced sufficient evidence to establish that a public highway existed in fact before 1854.

[14] Among other things, the motions judge noted that:

• The original Crown survey of the Township, conducted in 1837, did not include a shoreline road allowance along the water’s edge of Georgian Bay.

• The 1840 Crown patent issued to David Seaman, for 100 acres which included the respondents’ lots, did not reserve any shoreline road allowance.

• An 1841 map of the Township, also prepared by the original Crown surveyor, showed no such road.

• A conveyance of David Seaman’s 100 acres to David Neelands in 1848 contained no reference to any road on or near the shoreline.

• In 1850, the Baldwin Act,1849, 12 Vict., c. 81,[^1] established the Township as a municipality. Pathmasters responsible for roadways were appointed by the Township. No evidence on the motions identified which roads the pathmasters were assigned to oversee.

• Also in 1850, a road petition made to the Township Council requested the establishment of a road from Lots 18 to 25. There is no evidence as to what happened to this petition.

• In 1851, pathmasters were again appointed by the Township. One was appointed for “lakeshore to 24”, but Township records do not identify the location of this road. The appellant argued before the motions judge that this appointment confirmed the existence of a road prior to the enactment of By-law 11; however, as the motions judge observed, the appellant’s surveyor conceded that the appointment of a pathmaster did not necessarily mean that a road actually existed.

• A road described as a “lakeshore road” did come into existence later but it was an ‘inland road’. The motions judge noted that the appellant’s and the Grist respondent’s expert surveyors agreed that many roads described as lakeshore roads are in fact inland roads.

• In 1852, the Township enacted By-law 5 to establish a public highway, but the location of this highway could not be determined.

• In 1854, By-law 11 was passed. The appellant argued before the motions judge that the language of the by-law was itself evidence that the road existed prior to the by-law’s enactment, as were the appellant’s steps to assume jurisdiction over the road and to expend municipal resources thereon.

[15] Based on the evidence before him, including the absence of the road on any of the maps or surveys that predated 1854, the motions judge concluded that the evidence did not establish that a public highway existed prior to the enactment of By-law 11.

(b) Inapplicability of the Doctrine of Dedication and Acceptance

[16] The motions judge acknowledged that up until December 31, 2002, a municipal road could be created by the common law doctrine of dedication and acceptance. This doctrine requires the satisfaction of the following three conditions, as outlined in Cook’s Road Maintenance Assn. v. Crowhill Estates (2001), 2001 CanLII 24149 (ON CA), 196 D.L.R. (4th) 35 (Ont. C.A.), at para.10:

(i) an owner of the land on which the road is situated had formed the intention to dedicate the land to the public as a public road, or highway;

(ii) the intention was carried out by the road being thrown open to the public; and

(iii) the road was accepted by the public.

[17] The motions judge observed that dedication may occur by usurpation and long enjoyment and may be inferred from use by the public.

[18] The motions judge concluded that there was no evidence from which he could find or infer any intention to dedicate a roadway or that any roadway was open to the public, who accepted it. The appointment of pathmasters, the granting of a road petition and 14 years of possible usage[^2] were insufficient to satisfy the conditions required to establish title based on the doctrine of dedication and acceptance.

[19] The motions judge therefore concluded that the allegation that a public highway existed prior to 1854 raised no genuine issue requiring a trial.

(3) Existence of a Public Highway in 1854

[20] The motions judge then considered whether By-law 11 established a public highway and gave the appellant title to the lands in question in 1854. He agreed with the appellant that the Township had the legislative authority to establish a roadway by means of enacting a by-law. That being said, following the passage of the by-law, no Township record referenced the By-law 11 lands, nor was there any evidence that the Township created or maintained the purported road. There were no records reflecting the payment of any compensation for expropriation. There was no survey conducted on the lands, no evidence that a pathmaster was appointed, and no evidence of the road on any map.

[21] Conveyances after 1854 also did not support the establishment of a road. While an 1877 conveyance did reference a public highway along the edge of Georgian Bay, the same instrument provided conveyance of title to an adjacent waterfront parcel all the way to the water’s edge. Indeed, almost every transfer of property after 1854 involved a deed asserting ownership to the water’s edge. While the motions judge noted a reservation of a 33-foot-wide road in an 1878 conveyance of title to ten acres on Lot 23, the applicable municipal legislation precluded the creation of a public highway less than 66 feet wide. The only evidence of a road of any kind arose from the respondents or their predecessors using their land as a private driveway.

[22] Prior to 1881, a judge struck out the last sentence of By-law 11, which provided that any damages or costs accruing by establishing the said road were to be paid by the requisitionists. No evidence was advanced on the outcome of this decision.

[23] In conclusion, the motions judge decided that a public highway was not established in 1854 pursuant to By-law 11.

(4) Actual Notice and Priority of Registration

[24] The motions judge then considered whether, even if a public highway was established by virtue of By-law 11, it was void and unenforceable as against the respondents due to their priority of registration. He held that while the Township was not required to register By-law 11 in 1854,[^3] it was not exempt from the regime that provided for priority of title based on registration.[^4] Therefore, in the absence of actual notice to the respondents of the road, the motions judge found that By-law 11 would be void and unenforceable as against the respondents. The motions judge found that there was no evidence of actual notice to the respondents of either By-law 11 or the public highway it purported to establish. Pursuant to the applicable registration legislation, the motions judge held that Meaford’s interest in the disputed lands was therefore void and unenforceable as against the respondents.

(5) Modern Era

[25] Section 26 of the Municipal Act, 2001, S.O. 2001, c. 25, addresses highways. It states:

The following are highways unless they have been closed:

1. All highways that existed on December 31, 2002.

2. All highways established by by-law of a municipality on or after January 1, 2003.

3. All highways transferred to a municipality under the Public Transportation and Highway Improvement Act.

4. All road allowances made by the Crown surveyors that are located in municipalities.

5. All road allowances, highways, streets and lanes shown on a registered plan of subdivision.

[26] The motions judge conducted an extensive review of the treatment of the purported road from 1854 to the present day to ascertain whether a public highway had been established in fact or in law pursuant to the doctrine of dedication and acceptance, as alleged by the appellant.

[27] The motions judge noted that:

• In 1925, a plan of survey was laid out for lots 21 to 30 (the “McDowall plan”). These are the lots at issue in the action. The McDowall plan did not provide an access route to these lots; rather, an easement for a private driveway over those lots was created, which was parallel to the shoreline and was to be used in common by the owners of the lots from time to time.

• In 1927, a plan of subdivision was registered in the area immediately to the south of the McDowall Plan. It laid out lots 31 to 69. These lots were separated from the water by a 66-foot-wide parcel labelled “Marine Allowance”.

• In 1929, a plan of subdivision was registered in the area immediately to the north of the McDowall Plan. This plan laid out lots 1 to 20 along the water’s edge. There was no shoreline road. Rather, the plan provided for an inland road to the rear of these lots.

• In 1945, Judge Morley ordered the removal of the reference to a lakeshore road found on an unregistered plan of the northerly end of the By-law 11 lands. No road allowance was provided along the water’s edge on that plan, and access was to be provided by a private inland road. The appellant was a party to that court proceeding.

• In 1950, Judge Morley deleted the reference to the Marine Allowance on the aforementioned plan of subdivision relating to lots 31 to 69. Again, the appellant was a party to that proceeding.

• An 1985 photograph of the By-law 11 lands depicts an area that is more consistent with the presence of a private right-of-way than a public highway.

• In 1986, the purported road in front of the cottages on the McDowall Plan was washed out in a storm. There was no evidence that the appellant viewed the washed-out area as a public road.

• To replace this mode of access, in 1987, the respondents established a private driveway to the rear of their properties. The appellant and the respondents entered into a maintenance agreement for the upkeep of this driveway.

• The Grist and Seaman respondents built their cottages based on measurements commencing at the water’s edge. The appellant was involved in granting the building permits and approvals for these cottages and never asserted that there was a public roadway along the shoreline.

[28] The motions judge concluded that there was no evidence that the purported public road was created by any of the means listed in s. 26 of the Municipal Act, 2001. Even if a public highway had been created, he found that it ceased to exist after the area was washed out in 1986. He observed that the respondents’ expert surveyor determined that any road was today under the waters of Georgian Bay.

[29] The motions judge further found that the appellant failed to meet the test set out by the authorities in order to establish dedication and acceptance of the road in the modern era. He noted that there was no evidence of actual or implied dedication or acceptance of land. Particularly, the presence of a mutual right-of-way over the lands in question did not demonstrate an intention by the landowners to dedicate the land to public use. Further, there was no evidence of acceptance of the roadway by Meaford or its predecessor.

[30] The motions judge also addressed the expert evidence given by the parties’ surveyors on the location of the boundaries of the purported road. He wrote, at paras. 151 and 153 of his reasons:

By-Law 11 established the edge of Georgian Bay as a natural boundary and both the surveying experts retained by the plaintiff [appellant] and the defendants [respondents] agreed that water level analysis was not an appropriate method to be used to establish the boundary of the road.

No evidence was offered by the plaintiff [appellant] or its expert that would establish the actual boundaries of the alleged road along the entire length of the By-Law 11 Lands.

[31] As such, neither expert could precisely identify the boundaries of any road.

[32] In conclusion, the motions judge rejected the appellant’s contention that a public highway was established either in fact or in law in the modern era.

(6) By-Law 80

[33] The motions judge next tackled the issue of By-law 80, enacted in 2007. He traced its history, including the 2005 report by Meaford municipal staff stating that access to the properties was a matter of concern between the private landowners. He also observed that By-law 80 only related to a limited number of properties, including those of the Grist and Seaman respondents, and excluded approximately 89% of the lands covered by By-law 11. The motions judge noted numerous procedural irregularities in the enactment of By-law 80, including closed municipal council meetings and a failure to provide timely material disclosure to interested parties. The motions judge therefore concluded that By-law 80 was void because it was not passed for a proper municipal purpose, and there were breaches of procedural fairness in the proceedings leading up to its enactment.

(7) Laches

[34] The last issue the motions judge addressed was delay, or laches. In light of the fact that Meaford and its predecessor slept on their rights for over 150 years, he also denied the appellant’s request for relief due to its acquiescence and exceptional delay in seeking to enforce its claim to the lands.

(8) Conclusion

[35] For all of the foregoing reasons, the motions judge was satisfied that there was no genuine issue requiring a trial. Accordingly, he granted the respondents summary judgment and dismissed the appellant’s action, as well as its request for interim injunctive relief. He ordered that submissions could be made on the respondents’ counterclaims, as the summary judgment motions did not encompass them. The counterclaims include claims for declarations of ownership, declarations that By-law 11 and By-law 80 are void, and damages.

C. GROUNDS OF APPEAL

[36] The appellant advances four grounds of appeal. It submits that the motions judge erred:

(i) in his interpretation and application of the test for granting summary judgment, specifically with respect to the issues of actual notice, the application of the doctrine of dedication and acceptance, and the status of By-law 80;

(ii) in failing to recognize that By-law 11 was all that was required to legally establish the road;

(iii) in finding that By-law 11 was void and unenforceable under the provisions of the Registry Act ; and

(iv) in his application and interpretation of the equitable doctrine of laches.

D. ADDITIONAL ISSUES RAISED BY THE RESPONDENTS

[37] The Seaman respondents submit that a high degree of certainty regarding the boundaries of a public highway is essential to the validity of a by-law establishing such a highway, and there was no such certainty here.

[38] The Grist respondent submits that the appellant should not be permitted to rely on its surveyor’s opinion on legal matters. His evidence should be used to assist the court in re-establishing the boundaries of the purported road.

[39] Fairview Trailer Park Ltd. argues that the appellant’s claim against it is barred due to the expiration of the applicable two-year limitation period.

[40] For the following reasons, I would dismiss this appeal.

E. ANALYSIS

(1) Summary Judgment

[41] The appellant submits that the motions judge failed to properly interpret and apply the correct test on a motion for summary judgment.

[42] The motions judge’s decision was rendered prior to the release of this court’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, leave to appeal to S.C.C. granted, [2012] S.C.C.A. Nos. 47-48. That decision established the applicable test for a summary judgment, at para. 50: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

[43] While obviously the motions judge did not apply that precise test, he had a full appreciation of the evidence and the issues and did not err in this regard. This was an appropriate case for summary judgment. As the motions judge noted, the record was largely historical and documentary with few, if any, witnesses with personal knowledge available to testify. The motions judge was able to canvass all relevant facts and issues. He ultimately decided that the record allowed for the determination of the issues without the need for a trial. I agree with his conclusion.

[44] The appellant specifically complains about the application of the summary judgment test by the motions judge in his treatment of the issues of actual notice, dedication and acceptance, and By-law 80. I will address each of these in turn.

(a) Actual Notice

[45] On the summary judgment motions, the respondents took the position that absent actual notice of the existence of the public highway to the respondents or their predecessors in title, the appellant’s failure to register By-law 11 until 2007 rendered it void and unenforceable as against the respondents. The motions judge accepted this argument and further concluded that there was no actual notice to the respondents.

[46] The appellant argues that this issue ought not to have been decided on a motion for summary judgment. The appellant submits that the evidence before the motions judge was voluminous, complex, contentious, involved conflicting expert evidence and called for multiple findings of fact. As such, the appellant argues, a summary judgment motion could not serve as an adequate substitute for the trial process.

[47] I disagree. The issue of actual notice depended on historical evidence, which largely consisted of title records, maps, photographs, and Township records. It was incumbent on the parties to place all relevant evidence before the motions judge. They did so and the motions judge was therefore well able to address the issue of actual notice without the need for an expensive and time-consuming trial. There was nothing that precluded the motions judge from having a full appreciation of the evidence and the issues as they related to actual notice. The interests of justice did not require a trial on that issue.

[48] The appellant makes a further, substantive argument on the issue of actual notice that is unrelated to the issue of summary judgment and which I will address below.

(b) Dedication and Acceptance

[49] The appellant makes a similar argument with respect to the issue of dedication and acceptance. The appellant submits that the motions judge erred in deciding the issue of dedication and acceptance without a trial, particularly given the competing expert evidence.

[50] Given the historical inquiry demanded by the doctrine of dedication and acceptance, a trial would serve no purpose in addressing its application prior to 1854. As for dedication and acceptance in the modern era, the doctrine was abolished by statute in 2003. As such, the inquiry would also largely be historical in nature. Significantly, the motions judge was fully able to and did appreciate the evidence and issues relating to the application of this doctrine. Furthermore, he addressed them in great detail and with care in his reasons.

[51] As to the parties’ experts’ conflicting evidence, the experts were all cross-examined beforehand and the transcripts were before the motions judge. It was open to the motions judge to reach the conclusions he did without requiring any oral cross-examination of the experts in court. As submitted by the Grist respondent, the motions judge was not required to consider the appellant expert surveyor’s legal opinion. The purport of the expert surveyors’ opinions on the boundaries of the alleged road was similar – they could not be established with precision.

[52] The appellant makes a further, substantive argument on the issue of dedication and acceptance that is unrelated to the issue of summary judgment and which I will address below.

(c) By-law 80

[53] The appellant also takes issue with the motions judge’s interpretation and application of the summary judgment test in relation to the validity of By-law 80. I fail to see why this issue could not be addressed on a summary judgment motion. Again, the motions judge had a full appreciation of the evidence and the issue and no trial was required. No error in law or in fact is evident.

(2) Legal Requirements to Establish a Road

[54] Under s. 26 of the Municipal Act, 2001, “all highways that existed on December 31, 2002” are still recognized as public highways, unless they have been closed. Historically, there were many ways a highway could come into existence. Significantly, municipalities in 1854 had the power to enact by-laws establishing new roads pursuant to s. 31(10) of the Baldwin Act and could also be made to assume a road as a public highway by operation of the common law doctrine of dedication and acceptance. By contrast, after January 1, 2003, all highways had to be established by by-law of a municipality: s. 31, Municipal Act, 2001.

(a) Dedication and Acceptance

[55] The appellant challenges the motions judge’s finding that there was no dedication and acceptance of the road and that the appellant had not offered any physical or documentary evidence that clearly established that a public highway existed prior to or after 1854.

[56] On this issue, the motions judge simply preferred the totality of the evidence proffered by the respondents to that of the appellant. I agree with his assessment. The vast preponderance of the evidence supported the motions judge’s conclusion that no road was established by dedication and acceptance either before or after 1854. Indeed, even the appellant’s expert surveyor, Ronald James Stewart, stated in his report that “[m]uch of the conveyancing and survey records reviewed above do not acknowledge the existence of the lake shore road opened by Bylaw 11 in 1854.”[^5]

[57] Apart from there being scant recognition of any road by landowners and surveyors alike, the appellant and its predecessor Township both consistently acted as if there were no road. This was a road not taken. There was simply no road to take.

(b) By-Law 11

[58] The appellant submits that the motions judge erred in failing to recognize that in 1854, By-law 11 was all that was required to legally establish the road. The Seaman respondents counter that certainty regarding the boundaries of a highway is essential to the validity of a by-law establishing a highway, and there was no such certainty here; as such, By-law 11 was in and of itself insufficient to establish the purported road.

[59] As mentioned, in 1854, municipalities in Ontario were governed by the Baldwin Act. Section 31 provided that:

[T]he Municipality of each of the Townships in Upper-Canada, shall have power and authority to make a By-law or By-laws for each, all or any of the following purposes, that is to say:

Tenthly. For the opening, constructing, making, levelling, pitching, raising, lowering, gravelling, macadamizing, planking, repairing, planting, improving, preserving and maintaining of any new or existing highway, road, street … [Emphasis added.]

[60] This provision gave Meaford the power to establish a new road, ‘opening’ being the equivalent of establishing: see Reid v. Hamilton (City) (1856), 5 U.C.Q.B. 269 (C.A.) and Ian MacF. Rogers, The Law of Canadian Municipal Corporations, 2d ed., looseleaf (Toronto: Thomson Reuters, 2009) at p. 1203, n. (h).

[61] The appellant relies on two authorities for the proposition that By-law 11 is in itself sufficient to establish a road, namely Palmatier v. McKibbon (1894), 21 O.A.R. 441 (C.A.), and Fisher v. The Municipal Council of Vaughan (1853), 10 U.C.Q.B. 492.

[62] The case of Palmatier v. McKibbon involved a road that had been identified on an 1834 survey and then confirmed by the Court of Quarter Sessions, pursuant to an 1810 statute of Upper Canada.[^6] The plaintiff landowner brought an action in trespass against the defendant, who contended that he had a right to use the road that traversed the plaintiff’s property. The plaintiff submitted that the statute required the court not merely to confirm the surveyor’s report, but to direct that the road be opened. In the absence of such a direction, the plaintiff argued, the road never became a public highway in law. MacLennan J.A. rejected this argument and wrote at pp. 451 and 453:

[W]hat is the meaning of “opening a road,” as the phrase is used in this statute? Does it mean laying it out on the ground by survey in the usual manner, and declaring that as so laid out it is a public highway; or does it mean something more, namely, clearing the ground of the forest or other obstructions, so as to make it more or less fit for actual use? I think it is plain that it is used in the first of these senses only, and that “laying out” and “opening out,” are used in an equivalent sense.

I think it is very clear, looking at the whole Act, that it was the intention of the Legislature that, when the report of the surveyor was confirmed either by the justices themselves in the absence of opposition, or by the verdict of a jury in case of opposition, the road laid out by the surveyor and described in his report, should from that time be in law a public highway. This intention is not only expressed clearly and strongly in section 12, but also in section 35, which declares that when a road is laid out under the provisions of the Act, the soil and freehold thereof should be vested in His Majesty. [Emphasis in original.]

[63] That case therefore involved a road created by a survey that had been confirmed by the court, pursuant to a particular legislative scheme. It did not involve the creation of a public highway by means of enacting a by-law. Moreover, the court’s ultimate holding rested on the doctrine of dedication and acceptance.

[64] The appellant also relies on Fisher v. The Municipal Council of Vaughan. This case is of little assistance, however, as it merely stands for the proposition that a by-law closing a road is not void simply because the municipal council has not recited all of the steps required to pass it within the body of the by-law.

[65] On the other hand, Black v. White (1859), 18 U.C.Q.B. 362, does lend some support to the appellant’s position that a by-law is sufficient to establish a road. In that decision, Robinson C.J. of the Upper Canada Court of Queen’s Bench stated, at p. 366, that:

[I]t is to be remarked that as the law now stands the municipalities seem to have a very wide discretion and ample power as to opening new roads: that is, authorising and establishing them; and I do not find that a new road authorised by a by-law must either have been laid out or reported upon by a road surveyor, (I mean, as distinct from a provincial land surveyor,) before it can be held to be established. [Emphasis in original.]

[66] In contrast, the Seaman respondents rely on Dennis v. Hughes (1851), 8 U.C.Q.B. 444, for the proposition that a road is not made when the by-law establishing it is passed. This was another decision written by Robinson C.J. He wrote in obiter, at p. 453: “I do not consider that the road is made when the by-law is passed, but only that it is authorized to be made by the proper officer acting in a reasonable manner.” The focus of the passage was on protection of landowners from immediate entrance on to their land by those charged with creating the road. At p. 453, Robinson C.J. states:

It would seem but reasonable that the owner of the land should have a certain time allowed him after notice to protect his fields, before his fences should be thrown down; and the mere passing of a by-law establishing a road, should not be considered as ipso facto the opening of a road, but merely as authority to open it in a proper manner. [Emphasis in original.]

[67] The court went on to hold that the by-law was invalid because it was not specific enough as to the location of the road.

[68] While it would appear, therefore, that a by-law in and of itself may authorize a road, this decision does not describe what more is required to establish an enforceable public highway.

[69] In discussing the issue in The Law of Canadian Municipal Corporations, Ian MacF. Rogers writes, at p. 1206:

It is not clear at what point a road declared to be a public highway by by-law of the council becomes a public highway. Section 26 of the Municipal Act declares that all highways laid out or established under the authority of any statute are common and public highways so that it would appear that all that is necessary to satisfy this provision is that a by-law should be passed for establishing the highway. This, however, is not the case; a council has no power, by declaring that land is a public highway, to make it one and so declaring is not equivalent to the establishment of a new highway. So the mere passing of a by-law for this purpose should not be considered as ipso facto the legal creation of the road but merely as authority to establish it and open it in the proper manner. Moreover, a by-law establishing a road does not justify its immediate opening through private property unless this is authorized and directed in the by-law or a later by-law. It seems then that the road is not constituted a public highway until the lands have been expropriated by the corporation. But it is not essential that the actual work on the ground has been completed before the road becomes a public highway. [Emphasis added.]

[70] Therefore while not entirely free from doubt, it would appear that the better view is that the mere passage of a by-law was inadequate to establish a road.

[71] What is clear, however, is that certainty of description of the location of the road in the by-law is a necessity.

[72] The Seaman respondents argued that By-law 11 did not possess the necessary degree of certainty regarding the boundaries of the purported public highway, and is therefore invalid.

[73] A municipality must state with precision where a new road is to be, or at least lay out the road on the ground by survey: Palmatier v. Mckibbon, at pp. 451-53; Dennis v. Hughes, at pp. 451-52.

[74] The case of Fawcett v. The Township of Euphrasia, 1949 CanLII 86 (ON SC), [1949] O.R. 610, relying on St. Vincent v. Greenfield (1887), 15 O.A.R. 567 (C.A.), aff’g (1886), 12 O.R. 297 (H. Ct. J.), addressed a road by-law that provided for a new road to be established between two identified concessions, crossing six lots and including a metes and bounds description. Nonetheless, the by-law was found to be invalid for insufficiency of the description of the new road, at p. 613:

Unless such a by-law contains a description sufficient to enable the road to be laid out, and to ascertain from whom the land is to be obtained, it is invalid: see St. Vincent v. Greenfield (1887), 15 O.A.R. 567 affirming 12 O.R. 287. At p. 569 Osler J.A. says:

According to all the cases which have been decided in our Courts on the subject, from the earliest to the present time, it is essential to the validity of a by-law by which a corporation professes to expropriate land for, and to establish and lay out a highway, that the course, boundary, and width of such highway should be capable of being ascertained either from the by-law itself or from some document or description referred to by it which may be treated as incorporated therewith. Failing this, the by-law is necessarily inoperative and void, since, merely as regards the width of the road, it cannot be seen whether it was to be of the maximum or minimum width prescribed by the Act, or of some width intermediate between the two.

[75] Although the motions judge framed the issue differently, he was alive to the imprecise boundaries of the purported road, as is evident from paras. 32, 74, 149, 151, and 153-55 of his reasons. The Crown survey of the Township that was completed in 1837 laid out a grid of road allowances but did not include a shoreline road allowance along the water’s edge of Georgian Bay. Indeed, after 1837, the By-law 11 lands were not surveyed again at all until 2007, after Meaford discovered the by-law in the basement of its municipal offices.

[76] Neither the appellant’s nor the respondents’ experts were able to identify where the boundaries of the road enacted by By-law 11 were located originally or would be located today. As stated in the report of the appellant’s expert, Ronald James Stewart, at para. E.1.1, “the lake shore road has never been surveyed and the boundaries have never been defined beyond the general description set out in Bylaw 11.” He noted, at para. E.1.2, that “the boundaries of the Bylaw 11 lands have never been precisely defined” and furthermore, at para. E.2.1, that finding the western boundary of the road – i.e. 66 feet from the high water mark of the lake – was “not a simple matter”. In addition, he noted, at para. E.3.1, that “much of the lake shore road surface in the subject location was washed out in 1986 … and all trace of the road has been removed.”

[77] As such, even if By-law 11 did establish a road, there is today a lack of precision and certainty as to its location. I agree with the motions judge’s conclusion that while the Township had the authority to enact By-law 11, an enforceable public highway has not been established.[^7]

(3) Priority of Registration and Actual Notice

[78] The appellant submits that the motions judge erred in reasoning that By-law 11 was void and unenforceable as against the respondents because the road by-law was neither registered, nor were the respondents and their predecessors in title given actual notice of the existence of the road, pursuant to the provisions of the Registry Act. The appellant argues that even if there was a requirement to provide actual notice of a by-law passed in 1854 (which they dispute), such notice was nevertheless provided.

[79] When By-law 11 was enacted in 1854, the applicable registration legislation did not require municipal road by-laws to be registered: An Act to Amend the Registry Law of Upper Canada, 1850, 13 & 14 Vict., c. 63, s. 3. In 1865, An Act respecting Registrars, Registry Offices, and the Registration of Instruments relating to Lands in Upper Canada, 1865, 29 Vict., c. 24, was enacted. Section 61 required municipal road by-laws “hereafter to be passed” to be registered in the land registry system. Prior enactments, such as By-law 11, could be registered, but it was not obligatory to do so.

[80] Sections 62 and 65 of the 1865 Registry Act set out the effect of registering or omitting to register an interest in land, such as a road by-law:

62. After any grant from the Crown of Lands in Upper Canada and Letters Patent issued therefor, every Instrument affecting the lands or any part thereof comprised in such grant shall be adjudged fraudulent and void against any subsequent purchaser or Mortgagee for valuable consideration, unless such instrument is registered in the manner herein directed before the registering of the instrument under which such subsequent purchaser or mortgagee may claim.

63. Priority of registration shall in all cases prevail unless before such prior registration there shall have been actual notice of the prior instrument by the party claiming under the prior registration.

These sections have remained part of Ontario’s land registry laws in virtually the same form since their enactment: see Registry Act, R.S.O. 1990, c. R.20, ss. 70(1), 71.

[81] Therefore, although the Township was not obliged to register By-law 11, by not doing so, it ran the risk that a subsequent purchaser of the land in question, without actual notice of the road, would gain priority over the Township by registering its interest first.

[82] I thus agree with the motions judge when he stated, at para. 92 of his reasons, that actual notice of the By-law 11 road was required for any ownership interest created by By-law 11 to prevail over a subsequent registered transfer. “Otherwise, a subsequent purchaser was entitled to rely on the registry to list all instruments affecting title to the property.”

[83] As discussed previously, the motions judge went on to find that the respondents and their predecessors in title had no actual notice of the purported road. The appellant submits that the motions judge thereby erred because there was compelling evidence before him that the lakeshore road existed and that it was used over many years. It argues that the motions judge failed to appreciate this evidence of the very existence of the road in fact, and other evidence including the enactment of By-law 11, the public nature and process of municipal government associated therewith, the municipal road by-law retention process, and the explicit reservation and excepting out of the road’s lands in prior deeds of transfer. The appellant submits that as a result, the motions judge failed to recognize that the existence of the road, its usage, and the municipal process by which By-law 11 was enacted, would have constituted actual notice.

[84] At its heart, the appellant’s real complaint is with the motions judge’s finding of fact that the respondents had no actual notice of the alleged public highway. The motions judge considered whether actual notice was a genuine issue requiring a trial and concluded that it was not. He made no error of law and his factual findings are entitled to deference. Indeed, it would be a very strange outcome were he to have found that actual notice had been given, in light of the lack of registration of the by-law, the lack of a road, the lack of any municipal record retention process and a 150-year-old by-law buried from view in the appellant’s basement.

[85] I would not give effect to this ground of appeal.

(4) Laches

[86] The appellant submits that the motions judge’s application of the equitable doctrine of laches was wrong in law. It argues that its actions were within its rights pursuant to s. 440 of the Municipal Act, 2001, which provides that if a by-law is contravened, the contravention may be restrained by application. It also relies on the decision of Polai v. City of Toronto, 1969 CanLII 339 (ON CA), [1970] 1 O.R. 483 (C.A.), aff’d 1972 CanLII 22 (SCC), [1973] S.C.R. 38.

[87] In light of my decision on the preceding grounds, there is no need to address whether the equitable doctrine of laches is applicable to a municipal corporation in the circumstances of this case.

F. DISPOSITION

[88] In light of the conclusions reached, it is also unnecessary to address the additional limitations issue raised by the respondent Fairview Trailer Park Ltd.

[89] For the foregoing reasons, the appeal is dismissed.

[90] The appellant is to pay the Grist respondent and the Seaman respondents $30,000 each in costs of the appeal, inclusive of disbursements and applicable taxes, and is to pay the respondent Fairview Trailer Park Ltd. $12,500, inclusive of disbursements and applicable taxes.

Released: February 27, 2013 “WW”

“S. E. Pepall J.A.”

“I agree W. Winkler C.J.O”

“I agree Patrick Smith J. (ad hoc)”

Schedule A

Attorney General for the Province of Ontario, Barbara Alice Cann, Larry Alexander Cann, Peter Charles McHardy, Corliss Suzanna McHardy, Bank of Montreal, Gail Starr Owen, Shari Lee Kartechner-Jolowski, Education Credit Union Limited, Gilbert Ronald Buckley, The Toronto-Dominion Bank, Frances Mason, Gordon Henry Mason, Neil Korzack, Katharina Korzack, Hugh Cleave Williams, Andrea Williams, The Bank of Nova Scotia, Patricia Ann Schmitz, Henry John Schmitz, Craig Wayne Roland Brooks, Kathleen Suzanne Brooks, 1504413 Ontario Ltd., CIBC Mortgages Inc., Union Gas Limited, Eileen Talarico, Anthony Talarico, Florence Bernice Stonehouse, Estate of Wilbur Maurice Stonehouse, National Trust Company, Victoria Ann McNaney, Michael Patrick McNaney, Royal Bank of Canada, Steven Wayne Ivanisko, Suzanne Juniper-Ivanisko, Gary Matthew Sorichetti, David Clayton Moore, Dawson Walter Clayton Moore, Shirley Bernice Moore, Katherine Louise Kreitner, Dorothy Marion Wilson, Neil Wesley Wilson, Linda Louise Verhey, Scotia Mortgage Corporation, Marjorie Ellen Stringer, John Edward Stringer, Catherine Patricia Cicero, George Neil Korzack, Jacek Sosniak, Malgorzata Sosniak, Glenford McKee Carbert, Sheri Corlenn Moore, James Clayton Moore, Anita Mitchell Carbert, Beverly Merle Carbert, Laurie Ann Carbert, Filomena Cigna, Daryl Douglas Burk, Laura Mary Alice Burk, John Edward Cook, The Hydro-Electric Power Commission of Ontario, William Arthur Taylor, Jean Dorothy Hewitt, Harold Gordon Hudson, Jean Mae Hudson, William Kenneth Hudson, Carol Ann Hudson, Dennis Mervin Risk, Mervin Cecil Risk, Nancy Dee Risk, Marguerite Aggnes Grace Risk, Fairview Trailer Park Ltd., Bell Canada, Manuel Medeiros, Valerie Medeiros, Donald Wayne Snider, Vesta June Snider, Sherry Lynn Snider, Judy Kathleen Snider, Janeen Elizabeth Harman, Nancy June Sittler, Dorothy Irene Black, Patricia Marie Daza, Teresa Maria Rybarczyk, Jacek A. Rybarczyk, Richard Paul Valade, Lisa Dawn Valade, Stephanie Simmons, Dale Wilson, John Edward Dalziel, Donald Wayne Snider, June Vesta Snider, Rhonda Ellen Beare Emerson, Ronald Beare, Melba Beare, Harold Blenkin, Jean Shirley Blenkin, Maria Nonis, Angelo Nonis, John Andrew McKillop, Amanda Jane Turnbull, Sarah Ruth Eleanor Slater, Maria Caterina Agazzi, Annlee Mazza, Tito Mazza, Francoise Alice Roy, Alice Grave Baranski, Paul Devanand Christopher, Abha Patel-Christopher, Frank Hunter, Estate of Jacqueline Hunter, Douglas Robert McCutcheon, Barbara Anne McCutcheon, Joyce Christina Mary Walker, Anita Marguerite Taylor, Stephen Goodson, Wendy Goodson, Charles William Wayne Watts, Shirley Alice Rose Hudson, Kenneth Ellwood Hudson, Mervin Orville Smith, Teresa Eleanora Smith, National Bank of Canada, Mervin Cecil Risk, Marguerite Aggnes Grace Risk, Norman Hilton Smith, Elsie Leona Smith, Deidre Orr, Brian Richard Light, Pamela Claire Light, Canadian Imperial Bank of Commerce, Douglas Frank Haslam, Mary Lynn Haslam, William L. Ryan, William James Beatty, Norah Louise Beatty, North York Credit Union Limited, Susan Fay Grant, Charles Leslie Grant, Deanna M. Peprnik, Frank Halstead Brown, Maura Ellen Trainor Brown, Susan Jane Bradbury, Patricia Laraine Gullacher, Robert Curtis Gullacher, William Henry McCartney, Mark Leslie Maxwell, Margaret Elaine Maxwell and HSBC Bank Canada

Estate of Norman Hilton Smith, Estate of Elsie Leone Smith, Joanne Olsen, William Santin, Marilyn Santin, Wolfgang Teltz, Margaret Teltz, John Kinder Essington, Nancy Lee Essington, Kevin David Essington, Timothy Edwin Essington, Donald Bruce Burt, Kathryn Mary Burt

[^1]: The full title of the act commonly known as the Baldwin Act is An Act to provide, by one general law, for the erection of Municipal Corporations, and the establishment of Regulations of Police, in and for the several Counties, Cities, Towns, Townships and Villages in Upper-Canada.

[^2]: The years between the issue of the Crown patent and the passing of By-law 11 – i.e. 1840-1854.

[^3]: An Act to Amend the Registry Law of Upper Canada, 1850,13 & 14 Vict., c. 63, s. 3.

[^4]: An Act respecting Registrars, Registry Offices, and the Registration of Instruments relating to Lands in Upper Canada, 1865, 29 Vict., c. 24, ss. 62, 65; Registry Act, R.S.O. 1990, c. R.20, ss. 70(1), 71.

[^5]: At para. D.13.1.

[^6]: An Act to provide for the laying out, amending and keeping in repair, the Public Highways and Roads in this Province, and to repeal the Laws now in force for that purpose, 1810, 50 Geo. III, c. 1.

[^7]: Although the motions judge states, at paras. 59ff. of his reasons, that By-law 11 is a “valid enactment of the Township council”, he was there referring only to the fact that the Township had the necessary legislative authority to enact a by-law establishing a road. He was not making a finding as to the sufficiency of By-law 11 to establish a road.