Court Information

Court: Ontario Court of Justice

Date: 2017-03-14

Court File No.: City of Dryden 140262

Between:

Her Majesty the Queen

— AND —

Frank Weber

Before: Justice of the Peace D.J. MacKinnon

Heard on: January 26, 2017

Reasons for Judgment released on: March 14, 2017

Counsel

P. Keen — counsel for the prosecution

The defendant Frank Weber — on his own behalf

JUSTICE OF THE PEACE MacKINNON:

INTRODUCTION

[1] This case involves three parcels of land, two of which front on Highway 609. Highway 609 is a two lane secondary highway in a rural area of Northwestern Ontario and runs in an east-west configuration.

[2] On the south side of Highway 609 there is a parcel of land belonging to Judith and Ivan McEwen (Parcel 42055-0261). The west side of the McEwen property fronts on the Wabigoon River. To the east of the McEwen property is property belonging to Annette and William Bergen (Parcel 42055-0266) which is the North part of Lot 5, Concession 5. Its north boundary is Hwy 609, and its south boundary is on the north side of the defendant's (Mr. Weber's) property.

[3] The defendant's property (Parcel 42055-0267) is to the south of both the McEwen and Bergen properties. Its western boundary includes grasslands and the shore of the Wabigoon River. North is the Bergen property and east is another property.

[4] It is not disputed that the defendant purchased his lot as a landlocked property. He arranged for an easement over the McEwen property from Highway 609, and received authority from the province for an entrance from the highway. He built a road south from Highway 609 through the McEwen property but eventually turned southeast onto the Bergen property and crossed it to his lot.

[5] A dispute arose surrounding the portion of this road on the Bergen property. The result was a Notice of Trespass being served on the defendant, and a civil case for damages commenced by the Bergens. The civil matter has not yet been heard. Subsequently this charge was laid against the defendant for trespassing contrary to s.2 (1)(a)(i) of the Trespass to Property Act. The one day trial of this matter occurred on January 26, 2017.

EVIDENCE AT TRIAL

[6] William Bergen testified that he met Frank Weber in 2008 when Mr. Weber came to his door and asked if he could lease some property from him for a road. Mr. Bergen agreed to do so on the eastern side of his lot at a price of $10,000 provided that there were no other costs to him. There were other benefits he wanted to add to any agreement. The defendant did not approach him between 2008 and 2012 and the witness believed that the defendant was accessing his property by water from the McEwens.

[7] On March 29, 2012, the defendant left a letter with maps attached and two presents for the Bergens on their doorstep. Mr. Bergen testified that it was the first time that he became aware that the defendant was crossing the southwestern corner of his property, which the defendant indicates in his letter was unintentional. The defendant wanted a lease over the corner of the property similar to the lease he had with Mr. McEwen. The Bergens did not respond to the letter.

[8] In 2013, the Bergens became aware that a road was being built on their property in the southwest corner with trees being cut, soil taken off, the ground flattened and big boulders and trees being removed. They had not given permission for this road.

[9] Using GPS to confirm their property lines, the Bergens began blocking the road with rocks and logs. The defendant asked William Bergen what he was doing. He told him that he was blockading the property so that the defendant could not cross it.

[10] The complainant admitted that he saw the defendant on the driveway in August of 2014 but hid and attempted to run away. He arranged for a notice of trespass to be served on the defendant, which was done on August 19, 2014. His paralegal suggested putting up a trail cam, which caught the defendant travelling on the road using an all-terrain vehicle on October 16, 2014.

[11] The Bergens obtained a survey and a report from the surveyor which shows a portion of the road built by the defendant crossing the southwest part of the property of the Bergens. The Bergens have a lawsuit against the defendant for damages related to the road built on their property.

[12] Further attempts to negotiate a solution by the defendant went unanswered by the Bergens. However, William Bergen called the Ministry of Natural Resources and Forestry to complain that the defendant was interfering with navigable waters on the Wabigoon River, and on another occasion to complain that he believed someone was on his property with a gun in the dark. He was asked and later recalled that an OPP officer had attended at the house and warned him in regard to the provisions of the Road Access Act.

[13] Mr. Bergen denied ever making a trail in the area where the drive is. He agreed that there was a road for logging which crossed a small portion in this area in the corner of his property and he had given permission to Mr. McEwen to use it in the past to log other properties to the east of the Weber lot.

[14] The defendant testified that he purchased PIN 42055-0267, which is the South Part of Lot 5, Concession 5 in 2007 with the intention to build a home there. He understood that there was water access at that point and that he would have to consider how to put a road in.

[15] At a Dryden Forest Products meeting it was suggested to him that he put the road west of the Bergen property on the McEwen property. He approached the McEwens and negotiated an easement from them. The MTO Corridor Management Office issued an entrance permit #EN-2010-61K-55 allowing him to access his lot from Highway 609.

[16] He next contacted a surveyor to lay out the road. His evidence is that this work could not be done as the corner marker for the property was in the floodplain, far beyond the Bergen property. He reviewed two maps of the area, one of which was a survey stamped by Robert Code, Surveyor General, Department of Lands and Forests, October 25, 1966. He intended to continue his road on the McEwen property and then into the floodplain where he noted that there was a road allowance along the shore and that his road could be 66 feet from the high water mark. MNRF advised him that he did not need a permit to build on the road allowance.

[17] The floodplain, however, was unstable for building. In 2013 he testified that he approached Mr. Bergen who agreed that he could finish his drive of about 400 feet onto the Bergen property, with 66 feet of road measured from the high water mark. Mr. Bergen watched him for the first few days in the first week of November, 2013. A couple of days later, he heard a bullet impact and a deer hit the ground about 40 feet from him. Hunters were in the area with the permission of Mr. Bergen. Mr. Bergen gave evidence that he did not recall these conversations and only knew of the road building when the hunters told him.

[18] The defendant testified that John Meek, a logger, had used the road in the same location to log Crown land to the east of his lot.

[19] In June of 2014, he saw that Mr. Bergen had barricaded the road using a rope and logs. His lawyer sent letters and emails to tell the Bergens that the barricade was to be removed. In August, the Bergens were building up the barricade and he was served with the trespass notice. He admitted travelling on the road on October 16, 2014.

[20] On cross-examination, the defendant admitted that he bought the property as water access only, but intended to buy access from neighbours. He had someone come out to identify the corner survey by using GPS, and he thought his road was well within his property, 1400 feet south of Highway 609. He acknowledged that the survey by the Bergens does show the road. He was unable to say if the road allowance he believed he was building on was to be measured from the high water mark or the edge of the water.

THE TRESPASS TO PROPERTY ACT

[21] The charge against the Defendant is found in the following section of the Trespass to Property Act:

Trespass an offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act,…

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of.

Prohibition of entry

3. (1) Entry on premises may be prohibited by notice to that effect…

[22] The charge applies to individuals who, without right or authority, trespass on property after receiving a notice of trespass. There is a defence in s.2 (2) in circumstances where the person reasonably believes that he or she has title to the land or an interest in it.

DISCUSSION

[23] There was no contrary evidence and no dispute at trial in regard to the following facts:

1. Parcel 42055-0266 is owned by the Bergens.
2. Parcel 42055-0267 is owned by the defendant and is landlocked.
3. The road constructed by the defendant traverses Parcel 42055-0266 as set out in the survey by Dave Urso (Surveyor) dated April 15, 2016.
4. The defendant was served with a Notice of Trespass on August 19, 2014.
5. The defendant was photographed and was on the road on October 16, 2014 driving an all-terrain vehicle.

[24] The Crown urges that a conviction should be entered as the Crown has proven the essential elements of the offence in that the defendant trespassed on the property of the Bergens after being notified that he was not to be on the property. These facts are accepted as proven beyond a reasonable doubt, and were not disputed by the defendant.

[25] However, the Act is clear that the prohibition in s.2 (1)(a)(i) applies to individuals who do not have "a right or authority conferred by law". This case raises this issue directly; did the defendant have a right or authority conferred by law which allowed him to go on the road which crossed the Bergen property?

[26] If the defendant did not have a right or authority conferred by law, the court must still address the defence in s.2(2) which provides that it may be a defence to the charge if the defendant reasonably believed that he had title to or interest in the land.

Right or Authority Conferred by Law

[27] The title to the Bergen property filed in this court does not include an easement or any permission to the defendant to cross the property or to build a road. As with many titles there is a reservation to the Crown of 5% of the property so that the Crown can lay out roads if it wishes. There is also a reservation for roads already traversing the property.

[28] The defendant argues that he had a right to build a road on the road allowance which is shown on the surveys and follows along the shoreline of the Wabigoon River. The MTO Corridor manager wrote to the defendant on February 9, 2016 and said, "The Road Allowance that borders the Wabigoon River is considered Crown Land and is under jurisdiction of the Dryden District, Ministry of Natural Resources and Forestry." A subsequent letter from the head of operational services with the MTO dated August 13, 2016 to the defendant states, "Currently, permanent access to your property without the benefits of travelled roads, appears to be limited to the Wabigoon River and Shallow Lake and their adjacent "unopened" road allowances…There is a mechanism for a property owner to construct a road and have it considered for inclusion in the Local Roads Area system."

[29] The evidence in this case shows that the defendant may have initially believed that he was building a road on the road allowance. However, he was unable to say if the calculation of the 66 foot (20.12 m.) road allowance was from the high water mark or the edge of the waters of the Wabigoon River. The disputed road in this case was between 134 and 211 metres from the edge of the water, exceeding the purported road allowance strip. He did admit that he was wrong in regard to his calculations.

[30] The issue of the road allowance is moot. The reservation is for the Crown. There is no evidence that the Crown consented to the building of a road on the road allowance, or to the opening of the road allowance. The evidence is that the road allowance falls on the floodplain or swamp, making it difficult for road building. The disputed road does not fall on the road allowance.

[31] The greater issue of a "right or authority" must, on these facts, focus on the Road Access Act.

The Road Access Act

[32] The purpose of the Road Access Act is to avoid confrontations related to roads which traverse the property of a land owner. In Deluca v. Paul Guiho Trucking & Construction Ltd., Thorson J.A. states, "… it seems to me, the main or principal purpose of the Act is to avoid the problems, including the very real risks of violence to persons and property, which are so often encountered in disputes involving these kinds of roads…".

[33] The Act sets out strict prohibitions against landowners taking matters into their own hands and blocking or obstructing access roads, and requires an application to a Superior Court judge for an order closing the road. Landowners may only block a road when there is an alternate route for the landlocked owner to access their land. Such alternate routes must be in existence contemporaneously. A charge against a landowner who violates the Act, is a provincial offences matter with fines of up to $5,000 (s.61 POA).

[34] Does the Act confer rights on a 'trespasser' related to access roads? The courts have held that it does.

[35] In 2008795 Ontario Inc. v. Kilpatrick, Laskin J.A. describes this right as follows:

Thus, the Act confers on users of an access road only a very limited and temporary right to use the road to go to and from their properties. At para. 45 of his reasons, in a passage with which I entirely agree, the trial judge summarized the limited statutory right given to users of an access road:

In the end, and in the narrow situation to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook's Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it or disrupt it. The access user cannot grant the use of the road to others. The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road…

[36] The Ontario Court of Appeal in Deluca (supra) found that the absence of such a right would undo the very essence of the Act, which is a prohibition against the blocking of such roads and the peaceful, orderly closing of same. Thorson J.A. describes this:

It would make no sense at all in my opinion to treat s.6 as saying that notwithstanding the prohibition against obstructing an access road found in s.2(1), the very persons in whose favour the prohibition operates, that is to say, those whose road access to other parcels of land would be effectively prevented by any obstruction of an access road, are nevertheless still to be treated at law as trespassers if they act on the premise that the Act gives them the rights not to have their access obstructed except in the circumstances previously mentioned. If that could be said to be the effect of s.6, then the benefit of the Act to them would be largely, if not wholly, chimerical.

[37] Must a landowner tolerate the exercise of rights by road users indefinitely? Laskin J.A. in Kilpatrick states:

In other words, even though another person's use of the access road amounts to a trespass, the owner of the road cannot act unilaterally under s.2(1)(a)…Although the owner of an access road cannot unilaterally close it under s.2(1)(a) if doing so would landlock another property, the owner need not tolerate its use or trespass by another in perpetuity. The statute simply requires that the owner of the access road obtain a court order to close it. The obvious purpose of requiring judicial authorization for closure is to avoid self-help measures and potentially violent confrontations among neighbours.

[38] In summary, the Road Access Act confers on the users of an access road, the limited right to travel on the road and not be considered a trespasser, until an order closing the road has been made.

[39] Was the disputed road set out in the Urso survey, an access road under the Road Access Act?

[40] The definition of an access road under the Road Access Act is, "a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land;". The definition for motor vehicle is that found in the Highway Traffic Act and, "includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power…".

[41] The road in this case is not owned by a municipality or dedicated as a public highway. The defendant was driving an all-terrain vehicle propelled by fuel on the road. The road serves as an access route to the defendant's landlocked land. It is not a "common road" under the Act as there was no evidence of the expenditure of public monies on the road. I find that the road in this case was an access road under the Road Access Act.

[42] The Court of Appeal has clearly indicated that a person using an access road is to be considered to have a limited and temporary statutory right to use the road, and not, during that time or for that purpose, to be considered a trespasser.

[43] The cases arriving at this conclusion were civil cases and not regulatory or quasi-criminal cases. The court, however, is bound by the Provincial Offences Act which provides in s.80 that:

80. Common law defences – Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act.

DECISION

[44] Landowners often consider that their rights on their land are absolute. Not only do the Crown and certain other entities like utilities have rights involving a private citizen's property, but in certain circumstances, other citizens may also have rights which impact on the peace and tranquility of property ownership. This is one of those circumstances.

[45] A person travelling along an access road to their landlocked property is not a trespasser, but has rights which are temporary and limited as set out in Deluca, until such time as the road is closed by order.

[46] In this case the defendant travelled by motor vehicle on the access road to his landlocked property after the notice of trespass was served. He had a limited right to do so and was not a trespasser pursuant to the exclusion in s.2 (1)(a)(i) of the Trespass to Property Act. Until such time as a closing order is obtained, the defendant is not a trespasser on the road. Applying the reasoning of Thorson J.A. in Deluca, to determine that the defendant is a trespasser in these circumstances would render the rights granted in the Road Access Act as a nullity.

[47] This is not to say that in a civil proceeding a court may not determine that the interference with the land of the Bergens is unjustified and order substantial damages (see G.T. v. D. Saunders, 2014 ONSC 4422). However, and somewhat ironically, it is the complainant who continues to defy the provisions of a provincial statute, the Road Access Act, by blockading the road. This court can only encourage the parties to try to reach a resolution using qualified counsel.

[48] In regard to the defence in s.2 (2) of the Trespass to Property Act, as the threshold issue is decided in favour of the defendant, it is unnecessary for me to deal with the statutory defence.

[49] Based on the facts and the principles which must be applied, I find that the defendant is not guilty of trespass as alleged, and the charge is dismissed.

Released: March 14, 2017

Justice of the Peace MacKinnon