Court of Appeal for Ontario

Date: 20230619 Docket: COA-22-CV-0020 & COA-22-CV-0260

Judges: Lauwers, Huscroft and Zarnett JJ.A.

Docket: COA-22-CV-0020

Between:

Hein Walma Applicant (Respondent)

And:

The Corporation of the Township of Georgian Bluffs and His Majesty the King in Right of Ontario as represented by the Ministry of Transportation Respondents (Appellant)

Docket: COA-22-CV-0260

And Between:

Hein Walma Applicant (Respondent)

And:

The Corporation of the Township of Georgian Bluffs and His Majesty the King in Right of Ontario as represented by the Ministry of Transportation Respondents (Appellant)

Counsel:

Timothy J. Hill and Laura Dean, for the appellant The Corporation of the Township of Georgian Bluffs Christopher P. Thompson and Mihaela Ion, for the appellant His Majesty the King in Right of Ontario Jacob Damstra and Matthew McGuckin, for the respondent

Heard: May 30, 2023

On appeal from the judgment of Justice David Price of the Superior Court of Justice, dated July 29, 2022, with reasons reported at 2022 ONSC 4453.

Reasons for Decision

Overview

[1] This is a dispute about a flooded road that until recently provided access to the respondent landowner’s property, and in particular about whether the Township of Georgian Bluffs (“the Township”) and the Crown have a legal responsibility to maintain that road.

[2] The application judge held that the access road is a public road that the Township has a legal obligation to maintain. He ordered the Ministry of Transportation (“the Ministry”) to restore a culvert that was beneath the access road along with the nearby culverts under Highway 6, immediately to the south of the access road, to the condition they were in prior to 2012-13, when Highway 6 was repaved. The application judge ordered, further, that once the culverts were restored, the Township was required to restore the access road to the condition it was in prior to 2012-13, and the Ministry was required to indemnify the Township for the expenses it incurs in the restoration. He also ordered that if the Ministry failed to comply with the orders within one year of the judgment, the respondent’s property would be deemed expropriated by the Ministry and the respondent would have leave to apply to the Ontario Land Tribunal for compensation.

[3] The Crown appeals the orders made against the Ministry on the basis that they were made in a procedurally unfair manner. The Crown’s appeal is not opposed by the respondent or the Township.

[4] The Township appeals on the basis the application judge erred in concluding that the access road is a public road and in ordering the Township to restore it. The Crown takes no position on the Township’s appeal, but the respondent resists it.

[5] For the reasons that follow, the Crown’s appeal is allowed and the Township’s appeal is dismissed.

Background

[6] In 1976, the respondent purchased lots 21 and 22 of Concession 3 (the “property”) in Keppel Township, which has since been amalgamated into the Township of Georgian Bluffs. The property is situated in a wetland known as the Long Swamp within the Sauble River watershed. It includes a 70-acre elevated area to the south, once used as a pasture, and a 110-acre downward slope on the north end on which there is timber.

[7] In 2016, the respondent contacted an arborist to carry out logging work on the property, but the arborist could not complete the work because the access road was submerged and rendered impassable as a result of flooding. The respondent sought to identify the owner of the access road, who was responsible for maintaining it, and who was responsible for the flooding. The Township advised him that the access road is an “unopened road allowance” the Township was not required to repair or maintain. Township counsel asserted that the Township had never undertaken any maintenance of these road allowances and had not modified or in any way altered the original drainage of the respondent’s or the adjacent properties. Counsel informed the respondent that the Township would not be taking any steps to render the road allowance usable. He did indicate, however, that the Township would be prepared to enter into a Limited Services Agreement with the respondent, which would permit him to make the necessary upgrades provided that he obtained approvals from the local conservation authority.

[8] The respondent sought a declaration that the access road is a “forced road”, that the Township has an obligation to maintain it, and that it had failed to do so, along with an order requiring the Township to restore the road to his property. In the alternative, he sought a declaration that the property has been constructively expropriated or has suffered injurious affection by the Township’s actions or omissions, entitling him to compensation.

[9] The Ministry was added as a party to the application on consent pursuant to the Township’s motion, though no relief was sought against the Ministry by either the Township or the respondent. The Township’s Notice of Motion stated that the Ministry should be added because its approval was required to connect the access road to Highway 6, and “an Order directing the Township to construct the alleged forced road would be ineffective if the [Ministry] refuses to permit the road to be connected to Highway 6”.

The Application Judge’s Decision

The access road is a public road

[10] The application judge concluded that the access road is a public road on two bases. First, he found that statute labour was used to establish and maintain the access road until the abolition of statute labour in the municipality in 1925. It was likely that the Township and its predecessor continued to maintain the access road until at least 2012, when the Ministry reconstructed the section of Highway 6 that intersected it. Second, he found that the access road was dedicated to public use and accepted as such by the municipality – the two elements of the common law “forced road” test. Public acceptance of the road could be inferred from public use for a substantial time, by the respondent and others in the area of Concession 3, tax assessors, and forestry workers.

[11] Roads assumed by a municipality may be closed only by the adoption of a by-law to this effect. Neither the Township of Georgian Bluffs nor its predecessor, Keppel Township, adopted such a by-law in relation to the access road. Consequently, the application judge found that the access road is a public road that the Township had a legal obligation to maintain. The application judge ordered the Township to restore the access road to the condition it was in prior to the 2012-13 reconstruction of Highway 6.

The Ministry caused the flooding

[12] The application judge made several findings against the Crown. He found that the Ministry caused the flood during the 2012-13 reconstruction by removing a culvert under the access road, enlarging nearby culverts under Highway 6, and ending the access road’s connection to Highway 6, and ordered the Ministry to indemnify the Township for its expenses in restoring the access road. He also ordered the Ministry to restore the culvert beneath the access road and nearby culverts to the condition they were in prior to the 2012-13 reconstruction.

[13] The application judge also found that the Ministry’s actions in altering the culverts led to flooding of the property and rendered it landlocked, thereby depriving the respondent of all reasonable uses of the property while producing a gain for the Ministry, thus constituting a de facto expropriation. In addition, the Ministry’s actions constituted injurious affection. Finally, the application judge concluded that the respondent’s claims were not time-barred under the Expropriations Act, R.S.O. 1990, c. E.26, or the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

The Crown’s Appeal

[14] The Crown brings a fresh evidence application in support of its substantive arguments, but it is unnecessary to deal with the merits of the decision insofar as it concerns the Crown and so it is unnecessary to admit the fresh evidence. We accept the Crown’s submission that the process followed in this case was procedurally unfair.

[15] No orders were sought against the Ministry in the respondent’s notice of application, which was commenced solely against the Township. The Ministry was added as a party on consent on a motion by the Township, but there was no notice of application or pleading from the Township seeking relief against the Ministry.

[16] In these circumstances, the Ministry did not know the case it had to meet. The orders made against the Ministry are outside the boundaries of the application, the relief sought, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[17] The Crown’s appeal must be allowed.

The Township’s Appeal

[18] The Township argues that the application judge misunderstood the common law test for dedication and acceptance of a private road as a public highway. The Township emphasizes that an intention to dedicate a road as a public road ought not be too readily inferred from use and that the evidence relied on by the application judge was consistent with private rather than public use. As for acceptance, the Township argues that an intention to assume the road cannot be inferred from any maintenance the Township may have performed over time, suggesting that such work could be ascribed to courtesy rather than an assumption of responsibility.

[19] We do not accept these arguments. They are, in essence, an invitation to remake findings made by the application judge and there is no basis for this court to do so.

[20] The application judge found the access road to be a public road based not only on findings of dedication and acceptance – the test at common law – but also on findings that the Township constructed the access road and once maintained it. This second set of findings was based on a line of legislation beginning with The Highway Act, S.U.C. 1810 (50 Geo. III), c. 1, s. 12, through s. 261 of the Municipal Act, R.S.O. 1990, c. M.45. In short, that legislation rendered roads on which statute labour had been usually performed public highways. Although that legislation was repealed in 2003, pursuant to s. 26 of the Municipal Act, 2001, S.O. 2001, c. 25, all roads in existence as of December 31, 2002 are public highways unless they have been closed.

[21] The Township argues that the records do not clearly and unequivocally establish that the access road was built or maintained using statute labour. It acknowledges that the records show that statute labour was used but submits that they are not specific to the road in question. But that factual determination was the application judge’s to make. He documented evidence from the time statute labour was used in Keppel Township, including by-laws authorizing work to be performed in the area of the access road and records of payments to previous owners of the property and neighbouring properties. Further, the application judge was entitled to draw an adverse inference that records not produced by the Township would not support its position and would support the respondent’s. The Township asserts that it exercised appropriate due diligence in searching for the records, emphasizing the difficulties in locating old records in all of the circumstances. Again, we decline the invitation to revisit the application judge’s findings.

[22] That is sufficient to dismiss the appeal, as the respondent needed only to establish the public nature of the road on one basis. We note, however, that there is no basis to impugn the application judge’s findings on the common law dedication and acceptance test. This was a mixed question of law and fact. The application judge applied the correct legal test and his decision is subject to review only for palpable and overriding error. The Township has failed to establish any such error.

[23] Finally, the Township argues that: (i) an adjacent property owner ought to have been party to the proceeding; (ii) it should not be required to repair or restore the flooded road as the expenditure would not be justified by the benefit that would accrue; and (iii) the court had no power to order the repair and maintenance of the road. The respondent points out that these are new arguments that were not before the application judge and the Township does not argue otherwise. In these circumstances, it would not be appropriate to address them on appeal.

[24] The respondent requests that we vary the order below to include a process for financial compensation from the Township if it does not comply with the order to restore the road. The respondent sought financial compensation in its notice of application only in the alternative to the declarations and orders it was granted. The application judge did not order the Township to pay financial compensation in the event of a default of its obligations, and the respondent did not cross-appeal. We decline to make the variation the respondent requests and do not rule on what steps the respondent could take in the face of the Township’s default of its court-ordered responsibilities.

Disposition

[25] The Crown’s appeal is allowed. The Township’s appeal is dismissed.

[26] The judgment is amended to read as follows:

1. THIS COURT DECLARES AND ADJUDGES that the Access Road is a public road which the Township has a legal obligation to maintain.
2. THIS COURT ORDERS that the Township shall restore the Access Road to the condition it was in prior to the 2012-2013 re-pavement of Highway 6.
3. THIS COURT FURTHER ORDERS that the Township is liable to pay costs to the Applicant in the amount of $47,500.00, inclusive of all fees, disbursements and taxes, as agreed, forthwith.

THIS ORDER BEARS INTEREST at the rate of 2 per cent per year commencing on July 29, 2022.

[27] The Crown is not seeking costs and none are ordered.

[28] The respondent is entitled to costs of the appeal from the Township in the agreed amount of $12,500, all inclusive.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“B. Zarnett J.A.”