Court of Appeal for Ontario

Citation: Skinner v. Thames Centre (Municipality), 2014 ONCA 164 Date: 2014-03-03 Docket: C56296

Before: Feldman, Epstein and van Rensburg JJ.A.

Between:

Bradley Skinner Applicant (Appellant)

and

The Corporation of the Municipality of Thames Centre Respondent (Respondent in appeal)

Counsel: Carolyn Brandow, for the appellant M. Paul Morrissey, for the respondent

Heard: November 19, 2013

On appeal from the order of Justice Alan W. Bryant of the Superior Court of Justice, dated October 24, 2012 and the costs decision dated November 19, 2012.

Endorsement

[1] Storey Drive is a forced road[^1] located between Lots 34 and 35 of the Third Concession in the respondent Municipality. The road has been described in this litigation for convenience, as comprised of three sections or parts. In May 1993, the appellant acquired property abutting Section II of Storey Drive. By application commenced in May 2012, he sought a declaration that Sections I and II of Storey Drive had been assumed by the Municipality as a public highway, and accordingly that the respondent is responsible for the maintenance of these sections of the roadway pursuant to subsection 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25. Subsection 44(1) requires a municipality that has jurisdiction over a highway or bridge to "keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge".

[2] By the time the application was argued, it was acknowledged that Section I of Storey Drive had been assumed by the Municipality through regular maintenance. It was also common ground that the Municipality had not assumed Section III. The only issue was whether the Municipality had assumed Section II as a public highway. The application judge determined that the Municipality had not assumed Section II, and he dismissed the application.

[3] On appeal the appellant challenged this decision, as well as the award of costs in favour of the respondent.

[4] The parties agree that the application judge identified the correct legal principles to govern his decision. Until December 31, 2002, with the amendment of the Municipal Act, 2001 to require a by-law to be passed by a municipality in order to assume a road (s. 31(2)), an open road in a municipality could be created by the common law doctrine of dedication and acceptance. The onus was on the applicant to establish that, at some point during its history, the road (in this case Section II of Storey Drive) had been dedicated by the owner for public use, had become open to the public, and that the Municipality had demonstrated the intention to accept and assume responsibility for the road. The test was articulated by this court in Scott v. City of North Bay (1977), 1977 CanLII 1221 (ON CA), 18 O.R. (2d) 365 at p. 367 as follows:

The assumption of a road or street for public use can be effected only by a corporate act of the municipal corporation. If there is no by-law, an assumption may be inferred from work done by municipal employees, or other expenditure of public money in improving or maintaining the road or street. In such a case the work or expenditure must be "clear and unequivocal, and such as clearly and unequivocally indicate[s] the intention of the corporation to assume the road"…If there has been no regular expenditures of public money, and if the repairs are trivial and infrequent, they may be ascribed to courtesy rather than to the assumption of responsibility [citations omitted].

[5] What constitutes a clear and unequivocal improvement or maintenance is a question of fact, and will vary with the use and nature of the particular road: Grierson v. West Wawanosh (Town), [1998] O.J. No. 3173 (S.C.J.) at para. 72. The entire history of the road in question may be relevant, as once a road has become a public highway, its status can only be changed by way of a by-law: Grierson, at para. 70, Simek v. Gravenhurst (Town) 2012 ONSC 6314 at para. 10.

[6] In this case, the fact that the road was open to the public was not in dispute. Sections I and II, according to the Land Titles registration system, are located on land owned by the Municipality. There are no records to show how the Municipality came to own these portions of Storey Drive. Although there was no record of a conveyance or deed of the land, the road had been referenced historically in property deeds (one dating back to 1911) as a "public highway". All three sections of the road had been used by various people over the years, including the Story family[^2] that had a farm at the end of Section III. The issue was whether, considering the character, use and maintenance of the road, at any time since its creation, Section II had been assumed by the Municipality's conduct.

[7] The appellant did not take issue with any material finding of fact of the application judge. Rather, the appellant argued that the application judge erred in limiting his focus to the period after 1992, and in failing to consider the entire history of the road, including evidence of the use and maintenance of Section II of the road from the time when it was created.

[8] The appellant referred to evidence that six properties had been accessed from Storey Drive over the years – two with houses, two that were regularly farmed and two that were used only for recreational and maple syrup collection purposes (one of which was later purchased by the appellant). One house had been accessed from Section I. The second house was a permanent residence at the end of a laneway, accessed from Section III. Mr. Story lived in that residence from the time he was born until 1992 when he moved into a long-term care facility. In 1976 Ian McKay, a beef cattle farmer, purchased the Story property, and between 1976 and 1981, when he obtained other access to his property from Section I, he travelled all three sections twice a day to access his cattle herd. While there was no evidence who built the road, to the best of everyone's recollection only the Municipality had maintained it. The appellant submitted that the maintenance was sufficient to keep the road open for the use of a permanent resident for more than 60 years, and that in these circumstances, the work done on the road for Mr. Story demonstrated an intention by the Municipality to assume the roadway.

[9] We disagree with the submission that the history of the road prior to 1993 was not considered by the application judge. He noted at para. 17 of his decision, that "there was evidence that infrequent, unplanned and sporadic measures were taken to assist Mr. Story (a long-time resident) as a courtesy" and that Mr. Story had farmed there until he sold the property to Mr. McKay in 1976. The application judge referred to Mr. McKay's evidence that Section II was not maintained by the Municipality and that the laneway was occasionally plowed for Mr. Story. The application judge specifically concluded, at para. 28, that "the assistance provided to Mr. Story by an employee of the Municipality does not prove an intention by the Municipality to assume responsibility for Sections II and III of Storey Drive."

[10] It is understandable that the reasons of the application judge addressed at some length the history of Storey Drive after Mr. Skinner acquired his interest. It was Mr. Skinner's evidence that, when he conducted his due diligence before purchasing the property, Section II had been graded and was generally in good condition, and that there had been a marked decline in the state of repair of Storey Drive since the early 1990s. The application judge rejected this evidence as inconsistent with and contradictory to other evidence, including that of Mr. McKay, and two long-time employees of the Municipality, Stewart Findlater and Dennis Shand, which he reviewed in some detail and accepted.

[11] The standard of review for questions of fact and questions of mixed law and fact is deference, absent a palpable and overriding error or an error in principle: Housen v. Nikolaisen, [2002] 2 S.C.J. No. 31, at paras. 8, 10 and 37.

[12] The question is not whether this court would arrive at the same decision on the evidence, but whether the application judge overlooked important evidence in his decision and accordingly made a palpable and overriding error. We are not persuaded that there was any such error in this case, and accordingly dismiss the appeal.

[13] With respect to costs, we grant leave to appeal the costs decision, but dismiss the appeal. There was no error in principle in the application judge's approach to the issue of costs. While the appellant sought a declaration that Sections I and II had been assumed, by the time the application was argued it was apparent that there was no issue with respect to Section I. We agree that, on the record that was before the application judge, the respondent was entirely successful.

[14] Costs of the appeal are fixed at $8,000 inclusive of disbursements and applicable taxes, and payable to the respondent by the appellant.

"K. Feldman J.A."

"Gloria Epstein J.A."

"K. van Rensburg J.A."

[^1]: The "forced road" was described in the Affidavit of Stewart Findlater, an employee of the respondent Municipality, as a road that had been forced without a legal survey across the subject lots, presumably to access the back of the west parts of Lots 34 and 35, and known as Road 34/35. Sections I and II of Road 34/35 were renamed Storey Drive in 1995 for the purpose of providing 911 emergency services. In these proceedings, the parties referred to all three sections of the forced road as Storey Drive.

[^2]: Although Sections I and II of the road were named "Storey Drive" by the Municipality in 1995, the name of the family that had lived at the end of the road, according to the materials filed in the application, was "Story".