COURT OF APPEAL FOR ONTARIO

CITATION: Lehtiniemi v. Mattawan (Municipality), 2016 ONCA 940

DATE: 20161215

DOCKET: C61534

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Leo Lehtiniemi

Applicant

(Appellant)

and

The Corporation of the Municipality of Mattawan

Respondent

(Respondent in Appeal)

Paul A. Webber, Q.C., for the appellant

Michael M. Miller, for the respondent

Heard: November 15, 2016

On appeal from the judgment of Justice George T. Valin of the Superior Court of Justice, dated November 30, 2015, with reasons reported at 2015 ONSC 8133.

Lauwers J.A.:

[1] The appellant owns Lot 34 in Concession 8 of the respondent municipality. He brought an application for a declaration that the laneway he built on his property is his own and not a public highway. The application judge dismissed his application. For the reasons set out below, I would dismiss the appeal.

A. Factual Context

[2] It is common ground that the appellant’s laneway begins at the north-westerly limit of Lot 34, aligned with Marion Road. The laneway immediately angles south of the north property line of Lot 34 and continues east to Lot 35 and beyond.

[3] The Municipality asserts that the appellant built the laneway on top of an existing, though unmaintained, public road known as Marion Road, to which it holds title. The appellant disputes this assertion, on the basis that the old public road, now vanished, was actually built on the blind line between Concession 9 and Concession 8, in a twenty foot corridor at the northern limit of his property. This corridor, and the old public road it is said to contain, is located north of his laneway. He argues that the laneway and the old public road are separate roads, and accordingly the laneway is not a public road, and he has title to it.

B. The Issues

[4] There is no dispute as to the applicable law. The appellant argues that the application judge made several errors of fact that together constitute palpable and overriding errors within the meaning of that expression set out in Benhaim v. St-Germain, 2016 SCC 48, at paras. 38-39. He asserts that the errors are “obvious” and go “to the very core of the outcome of the case”.

C. The Appellant’s Challenges to the Evidence

[5] The hearing before the application judge was entirely based on a paper record. Testimony was received by way of affidavit and the application judge looked at historical records, including survey notes and surveys.

[6] The appellant’s theory is that the old public road is not located beneath his laneway, but north of his property. To succeed in this application he was obliged to prove this fact on the balance of probabilities.

[7] The appellant asserts that the application judge made two significant and related errors in failing to so find. First, he failed to give proper weight to the survey prepared by O.L.S. Macdonnell registered April 7, 1972 as Plan NR-2238. Second, he unreasonably rejected the supporting evidence provided by forester Ron Magee.

(1) The Macdonnell Survey

[8] The Macdonnell survey identified 20 feet of a “travelled road” as being in Concession 9, and 20 feet as being in Concession 8, and ending at the border between Lot 33 and the appellant’s land in Lot 34. The note inscribed on the survey links back to much older surveys and states: “Corner set at split of fences on C/L of travelled road at position or survey post by Bell O.L.S. and found and used by L.V. Rorke O.L.S.”

[9] O.L.S. Macdonnell’s survey was accompanied by a “Report of Survey”, which describes what he found on the site at the time. His survey accorded with the old field notes by L.V. Rorke, O.L.S., dated June 24, 1892. The Report states:

The parties agree that the Report’s author meant to say ‘between Concessions 8 and 9’.

(2) Forester Magee’s notes

[10] Mr. Macdonell’s survey is supported by the notes of forester Ron Magee, dated February 18, 2015. Mr. Magee prepared a sketch and identified a fence line to the north of Marion Road that diverges from the laneway as it proceeds to the east. The sketch notes specifically that he measured the distances between the laneway edge and the fence line physically, not by way of GPS. However, the sketch also bears a note that “this information was recorded using a handheld GPS with accuracy of 3 metres plus or minus on December 17, 2014.”

(3) The application judge’s alleged errors

[11] Mr. Webber, counsel to the appellant, argues that O.L.S. Macdonnell undertook a full cadastral survey that was registered. It is, he submits, the “best evidence” of the existence of a road north of the appellant’s laneway that was not refuted by other evidence of similar quality. He asserts that the application judge misapprehended forester Magee’s evidence as to the forester’s use of GPS technology. In particular, the application judge failed to notice that the fence line data was measured physically, not by GPS, and this makes all the difference. The application judge said, at para. 66 of his reasons:

(4) The application judge’s reasoning

[12] The application judge did not accept the Macdonell survey for several reasons. First, he referred to the opinion of another surveyor retained by the applicant, Paul Goodridge of P.A. Blackburn Limited, explaining that the topography made Macdonell’s conclusion that the public road “continued east along the blind line” through Lot 34, without jogging south, unlikely, and to the survey by R.D. Miller O.L.S., dated April 10, 2012, which shows that Marion Road jogs to the south before the lot line between Lots 33 and 34 and does not jog back to the north at the line between Lots 34 and 35. He noted, at paras. 53, 54:

[13] The application judge noted, at para. 65, that he preferred the evidence of Goodridge (“surveyor Blackburn”), which, he said, “discredits” surveyor Macdonnell’s finding that “the corner post delineating lots 33 and 34 was on the centre line of the travelled road.”

[14] It must be acknowledged, as Mr. Webber argues, that O.L.S. Goodridge did not perform a cadastral survey, but only provided an opinion. He points out that the situation would appear differently today than it would have decades ago when O.L.S. Macdonnell did the survey, and the older evidence is better.

[15] Beyond the survey evidence, the application judge referred to the affidavit evidence of a number of elderly residents who swore that Marion Road went over the appellant’s land in the same alignment as the laneway. He obtained further support for this conclusion from the maps and aerial photographs in the record, the latter dating from 1948 until at least 1977. The application judge noted, at paras. 71, 72:

[16] After reviewing the evidence, the application judge found, at para. 69, that “the preponderance of evidence compels the conclusion that Marion Road, as constructed for the use of settlers in the early 1900s, crossed Lot 34 Concession 8 in the same location that the applicant claims to have built his private road.”

[17] The application judge added other findings, at paras. 78-79:

[18] The application judge’s ultimate conclusion, at para. 81, was, “On the evidence viewed as a whole, I find that there was dedication and acceptance of that portion of Marion Road that crosses the applicant's land.”

[19] In reaching this conclusion, the application judge applied the reasoning in O’Neil v. Harper (1913), 1913 CanLII 538 (ON CA), 28 O.L.R. 635 (C.A.), at p. 643, and Sioux Lookout (Municipality) v. Canada (Attorney General) 2010 ONCA 867, 98 R.P.R. (4th) 159, at para. 26, the latter explaining the common law doctrine of dedication and acceptance as “a mechanism by which a passage over private land becomes a public highway” in respect of which “title is transferred from the owner to a municipality”. The application judge went on to observe, at para. 83, that “once a dedication is complete, neither the owners nor their successors in title can revoke it,” citing Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), at p. 680. I would find no reviewable error in the application judge’s reasoning.

D. Disposition

[20] Despite the able advocacy of Mr. Webber, I am not persuaded that the application judge made a palpable and overriding error of fact, or that he misapprehended the evidence. To the contrary, the application judge’s findings find ample root in the record.

[21] Given this conclusion on the merits, there is no need to address the Municipality’s other argument, which was accepted by the application judge, that the appellant was bound by the decision of a Small Claims Court judge issued in 1993.

[22] I would dismiss the appeal with costs payable by the appellant to the respondent in the amount of $15,000.00, all-inclusive, as agreed.

Released: “K.F.” December 15, 2016

“P.D. Lauwers J.A.”

“I agree K. Feldman J.A.”

“I agree B.W. Miller J.A.”