COURT FILE NO.: 24060/07; 24175/07
DATE: 2012-06-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN TRUMBLE AND JOSEPH COULSON AND VANKOUGHNET AND AWERES LOCAL ROADS BOARD
Plaintiffs
– and –
GARY GORVAL AND SUZANNE MARIE GIONET
Defendants
John Paul Paciocco, for the Plaintiffs
T. Frederick Baxter, for the Defendants
HEARD: November 29, 30, December 1, 2, 6, 7, 8, 9, 13, 2011 and January 18, 19, 20, 30, February 1, 2, and 3, 2012
REASONS FOR DECISION
JUSTICE E. GAREAU:
[1] This matter proceeded to trial before me on November 29, 30, December 1, 2, 6, 7, 8, 9, 13, 2011 and January 18, 19, 20, 30, February 1, 2, and 3, 2012. Written submissions were received by counsel, including reply submissions, all of which were filed by April 27, 2012.
[2] On June 21, 2007, Gary Gorval and Suzanne Marie Gionet commenced a notice of application under court file no. 24060/07. In that application, they seek an order closing a portion of the Eagle Mine Road at the west boundary of their land being the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet, District of Algoma, hereinafter referred to as the “disputed” property. This application is brought pursuant to the Road Access Act R.S.O. 1990, C.R. 34
[3] On October 19, 2007, John Trumble and Joseph Coulson commenced an action by statement of claim under court file no. 24175/07 naming Gary Gorval and Suzanne Marie Gionet as defendants. In that action, Mr. Trumble and Mr. Coulson sought the following relief:
(a) an interim and permanent declaration that the road running through the defendants’ property is a “common road” pursuant to the provision of the Road Access Act, RSO, 1990 c. R.34;
(b) an interim and permanent injunction restraining the defendants, their servants and agents, successors and assigns, from interfering with the open and public use of the road which traverses the defendants’ property;
(c) a certificate of pending litigation against the lands owned by the defendants as hereinafter described;
(d) an interim order requiring court file no. 24060/07 and the within action to be tried together;
(e) an order for costs on a substantial indemnity basis;
(f) such further and other relief as this Honourable Court deems just and appropriate.
[4] The aforementioned statement of claim was subsequently amended to add the following additional claims for relief as paragraph 1(g) to (i) in the statement of claim:
(a) a declaration of the court that that portion of Eagle Mine Road highlighted in orange shown on that portion of Assessment Map No. 1, Township of Vankoughnet, reproduced at Schedule A to this claim (hereinafter the “Road”) traversing the property legally described as the southwest quarter section 22, Township of Vankoughnet, District of Algoma, being Parcel 897 AWS, District of Algoma, as in A2932, being PIN 31344-0026 (hereinafter the “Subject Property”) is a public road;
(b) the defendants Gary Gorval and Suzanne Marie Gionet, their servants, agents, successors and assigns shall be permanently restrained from interfering with the open and public use of the Road which traverses the subject property;
(c) the Vankoughnet & Aweres Local Roads Board and its successors or assigns, agents, workers, employees and contractors shall have the free and uninterrupted right to enter upon the Road for the purpose of maintaining, repairing, upgrading, snow removal, sanding, salting or any other such work as the Vankoughnet & Aweres Local Roads Board may decide in its own discretion. The defendants Gary Gorval and Suzanne Marie Gionet as owners of the subject property and their agents, successors and assigns shall be restrained from interfering with the efforts of the Vankoughnet & Aweres Local Roads Board in carrying out any such said activities.
[5] The two aforementioned actions were ordered to be tried together pursuant to the order granted on May 1, 2008 by the Honourable Justice W.L. Whalen.
[6] On the first day of trial prior to evidence being called, the plaintiffs Trumble and Coulson brought a motion for an order adding Vankoughnet and Aweres Local Roads Board as a plaintiff in their action. This request was granted by the court and an order made accordingly.
[7] It was decided by counsel that Mr. Gorval and Ms. Gionet would present their case first in that their notice of application predated the statement of claim commenced by Mr. Trumble and Mr. Coulson. The trial proceeded on this basis.
FACTUAL BACKGROUND:
[8] The defendants Gary Gorval and Suzanne Marie Gionet are the owners, as joint tenants, of the property located at the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet, District of Algoma, being Parcel 897, Algoma West Section. This property was purchased by them on October 14, 2005 by instrument registered as LT25905.
[9] The aforementioned property was first transferred by the crown to John Groth under Patent A2932 dated July 15, 1914. That patent identified the property as containing 160 acres “more or less” and subject to the usual reservation with respect to roads, which reads as follows:
Saving and excepting five percent of the acreage for roads and the right to lay out the same where the crown or its officers may deem necessary as reserved in the original patent from the crown. (Exhibit 7)
[10] John Groth died on January 10, 1935. As part of the administration of the Estate of John Groth, the said property was transferred to Charles John Groth as Administrator of the Estate of John Groth under Transmission Application No. 67574 dated May 23, 1969 and registered June 5, 1969.
[11] By Transfer 68229 registered September 5, 1969, the property was transferred by Charles John Groth as the Administrator of the Estate of John Groth to Gerald J. Simons.
[12] By Transfer 68230 dated July 18, 1969 and registered September 5, 1969 the aforementioned property was transferred into the names of Gerald J. Simons, Reginald C. Simons, John P. Simons and Patrick E. Simons.
[13] The property was transferred into the sole name of June Elyda Simons on October 31, 2002 pursuant to a vesting order granted on October 30, 2002 by the Honourable Mr. Justice C.B. Noble. It was June Elyda Simons who transferred Parcel 897, Algoma West Section, District of Algoma to Gary Gorval and Suzanne Marie Gionet on October 14, 2005.
[14] To the northeast of Parcel 897, Algoma West Section, is a mine site called the “Eagle Mine” which has been abandoned for some time. It is a matter of dispute in this litigation as to when the Eagle Mine operated and how the Eagle Mine was accessed by the public. The Eagle Mine location is marked by an orange grid in the assessment map entered as Exhibit 3-2P. This exhibit was referred to frequently by the witnesses at trial and is referred to frequently in this judgment. A copy of this exhibit is attached as Schedule “A” to this judgment.
[15] There is a “roadway” beginning at Bourdage’s Corner of Highway 552 which runs north along Section 28 Vankoughnet Township onto Section 21 and then easterly on Section 21 to the boundary of the Gorval/Gionet property at Section 22. The portion of this “roadway” beginning at the westerly corner of Section 22 and continuing to the end of the Gorval/Gionet property at Section 22 is the portion in dispute in this litigation. This disputed portion is marked in pink on Exhibit 3-2P. The roadway then continues beyond the Gorval/Gionet property on Section 22 and extends onto crown land to the north of the Gorval/Gionet property. The undisputed roadway referred to is marked in green on Exhibit 3-2P. It is marked on that map entered as Exhibit 3-2P as the “Eagle Mine Road” and was referred to as the Eagle Mine Road in this proceeding. It is not in dispute by any of the parties that this portion of the Eagle Mine Road marked in green on Exhibit 3-2-P is a public road to be used by the public. This being the case, Eagle Mine Road leading up to the Gorval/Gionet property is acknowledged to be a public road and the road right after the Gorval/Gionet property to the north on the crown land is acknowledged to be a public road. What is in issue is the status of the land in between those two points, which is on the Gorval/Gionet property on the westerly portion of Section 22 and marked in pink on Exhibit 3-2P. The plaintiffs take the position that this portion in dispute is a public roadway and that there has been dedication of this portion to the public and acceptance of this portion by the public. The defendants take the position that this disputed portion is not a public road - that it is an access road or common road as defined by the Road Access Act, R.S.O. 1990, C.R. 34 and that it should be closed pursuant to the provisions of that Act.
[16] In addition to what this disputed portion of the roadway is, there are issues raised in this proceeding as to whether this disputed portion of road is within the Local Roads Board System of the Local Roads Board of Vankoughnet and Aweres Township and if that Local Roads Board has the right to maintain that portion in dispute and insist on the public’s open and peaceful portion of the roadway in dispute.
[17] It is against this factual background that this matter comes before the court.
THE ISSUES:
A) How long has the “Eagle Mine Road” been in existence and was there an “alternate road” into the Eagle Mine?
[18] The proposition advanced by the plaintiffd is that the Eagle Mine has been in existence from the turn of the Century and that it was served by the Eagle Mine Road which extended along the westerly limit of Section 22 now owned by the defendants and along crown land to the north. The position of the plaintiffs is that this was the only road that serviced the Eagle Mine site and that this road is part of the property in dispute in this litigation.
The position of the defendants is that there was an “alternate road” extending along the northeasterly limit of Section 21, which is marked in orange on Exhibit 3-2P. The suggestion is that this road was used to service Eagle Mine and that the disputed section of road on the defendants’ property was not the route into and out of the Eagle Mine site. The theory of the alternate road advanced by the defendants suggests that the long-standing use of the disputed road as suggested by the plaintiff is called into question.
[19] Although he was not called among the 22 witnesses who gave viva voce evidence at this trial, there is a report filed by William E. Bolan, Ontario Land Surveyor. The report is dated February 13, 2008 and is entered as Exhibit 2, Tab 8. The report contains attachments to which further reference will be made. The report of Mr. Bolan reads as follows:
The road known as the Eagle Mine Road was built from Eagle Mine located in Section 14, southerly to where it connects to Highway 552 (at Bourdage’s Corner) where a small settlement existed.
It was originally a winter road which existed in 1905 and is referred to in a 1906 letter and report by A.G. Leurile with the Ministry of Natural Resources (Mining Division) subsequently converted to provide year round access with the name obviously derived from the fact that it went to and from Eagle Mine.
The road also provided passage to a homestead in the northwest quarter of Section 22. The remnants of this homestead are still visible.
It is noted that the original Patent and Parcel 897 AWS now PIN 31344-0026 reserves 5% of the acreage for roads and I would think this road qualifies although likely no additional documentation exists. In my experience with the Ministry of Highways the 5% reservation was often used for title on Secondary Roads surveys although not otherwise documented.
The affidavit dated June 12, 2006 from Vankoughnet and Aweres Local Roads states the road is in the Roads Board’s system as far as the northwest ¼ of Section 22, which indicates a public road. There is actually no logical reason to determine that the public road quits at the west boundary of Section 22 rather than any other arbitrary point. It is more logical to assume it quit at either the old homestead or at Eagle Mine.
The west boundary of Section 22, as far as I can determine, has never been surveyed since the original Township Survey of 1867 and the mapping showing same is compiled and likely not particularly accurate.
It seems reasonable that this road was built prior to time of being patented. It is likely that public funds were at one time or another expended on this road either to build or maintain it. This work may be undocumented.
The original patent clearly reserves 5% percent of the acreage being granted for roads and the right to lay out same as the crown or its office may deem necessary.
In my opinion, this road was always (and therefore is) a public road.
In Mr. Bolan’s opinion, the Eagle Mine Road dates as far back as 1905 and is referenced in a 1906 letter prepared by an employee of the Ministry of Natural Resources. Mr. Bolan describes the Eagle Mine Road as being built from the Eagle Mine location in Section 14 southerly to where it connects to Highway 552 at Bourdage’s Corner.
In addition to providing access to the Eagle Mine site, Mr. Bolan indicates “The road also provided passage to a homestead in the northwest quarter of Section 22”. Mr. Bolan observes that “the remnants of this homestead are still visible.”
Mr. Bolan is of the opinion that the Eagle Mine Road extended from Highway 552 right to the Eagle Mine site and “...was always (and therefore is) a public road.”
Attached to Mr. Bolan’s report is a copy of Bureau of Mines Report, Vol. 14, Pt 1-3, 1905 which reports on the activity of the “Eagle Copper Mine”. The description of the mine is indicated in this report and the description is exactly where numerous witnesses at this trial have placed the site of the Eagle Mine as marked in orange on Exhibit 3-2P. This report from the Ontario Bureau of Mines indicates mining activity at this mine as far back as 1905. There are other similar attachments to Mr. Bolan’s report for the years 1905 and 1906 which indicate mining activity and the physical structures at the Eagle Mine site, as far back as 1905.
[20] Mr. Bolan’s report was not contested in any way by the defendants during the course of the trial. The defendants did not offer a contrary opinion by expert evidence to the conclusions reached by William Bolan, as set out in his report.
[21] Glynn Rouse has lived in the Goulais River area for his entire life, 73 years. From 1939 to 1945, Mr. Rouse and his family lived on the Eagle Mine Road and then moved three miles northwest of the Eagle Mine Road where he lived from 1945 to 1964. Mr. Rouse testified that in 1943 or 1944, he visited his mother’s friend, Bea Taylor, who was one of the “homesteaders” who lived to the northeast of the now Gorval/Gionet property just before the Eagle Mine site. Mr. Rouse identified the Eagle Mine Road as the road marked in green on Exhibit 3-2P and to include the portion marked in pink, the disputed road. Mr. Rouse indicated that the Taylor residence he visited as a child in 1943 or 1944 was “almost at the end of the green line” on Exhibit 3-2P, or, in other words, almost at the end of Eagle Mine Road. Mr. Rouse indicated that he travelled along the Eagle Mine Road, including the disputed road with his mother and three siblings by foot pulling a wagon. Mr. Rouse remembers the roadway being well marked and in good shape once you passed the “clay hill” which was on the Eagle Mine Road before the now Gorval/Gionet property. Mr. Rouse indicated that he believed that the Eagle Mine Road ended around the property occupied by the Trumble family, which was close to the Taylor home and identified by a “T” on Exhibit 3-2P.
[22] As to the alternate road theory of the defence, Mr. Rouse was clear and firm in his evidence that there was no other roads, other than the Eagle Mine Road, that serviced the Taylor and Trumble homesteads and he was definite in his evidence that there were no other roads that linked up to the west of the Eagle Mine Road. When pressed in cross-examination about the possibility that he travelled to the Taylor homestead by a route other than the Eagle Mine Road, Mr. Rouse was definite that this was not possible and indicated strongly in his evidence that he was “positive” that he travelled on the Eagle Mine Road in 1943 or 1944 to get to the Taylor homestead.
[23] The travel on the Eagle Mine Road in 1943 or 1944 included travel on the road which is now in dispute which was in 1943 or 1944 owned by the Groth family. A photograph was taken of the Rouse children, including Glynn Rouse and entered as Exhibit 48. Glynn Rouse is the child on the left holding the cat in the photograph. According to Mr. Rouse, this photograph was taken at the Charlie Groth field on the Groth property, which is now the property owned by the defendants. The location where the picture was taken is identified by Mr. Rouse by an orange circle on Exhibit 3-2P. According to Mr. Rouse, he would have had to travel over the Groth property on the disputed portion marked in pink on Exhibit 3-2P to get to the Taylor homestead. Mr. Rouse indicated that no permission was sought to go over the Groth property because “no permission was needed – we thought it was a public road.”
[24] Glynn Rouse was familiar with the Eagle Mine site itself having travelled up to the site in the 1950’s to go partridge hunting.
[25] I found that Mr. Rouse gave his evidence in a clear and straightforward manner. I was cognizant of the fact that he was giving evidence as to what he recalled many years ago when he was a child, but I found his recollection of events to be clear, his memory unclouded and I have no basis on which not to accept his evidence.
[26] As to the length of time the Eagle Mine Road has existed and whether there was an alternate road into the Eagle Mine, I also had the benefit of the evidence of Lawrence Elmer Trumble. Mr. Trumble was born on January 25, 1931 and was 80 years of age when he gave his evidence to the court. I found Mr. Trumble to be an impressive witness with an impeccable and unimpeachable memory. I accept Mr. Trumble’s evidence and place a great deal of weight on it. When Mr. Rouse spoke of the Taylor and Trumble homesteads, he was referring to the family of Lawrence Elmer Trumble. Mr. Trumble moved to the Eagle Mine Road in 1939 when he was 8 years of age. From the years 1939 to 1941, Mr. Trumble lived on crown land beyond the Groth farm. Where he resided in those years is marked with a “T” on Exhibit 3-2P. From the ages of 10 to 15, he lived on the Hurtubise property to the west of the Groth property. The Hurtubise property is marked with an “H” on Exhibit 3-2P. Mr. Trumble’s evidence was from 1939 to 1941 when he lived on the crown land, he and his family travelled over to the Groth property to get to their property. That meant travel over the disputed roadway marked in pink on Exhibit 3-2P. Mr. Trumble recognized this disputed portion as a road he travelled on as far back as 1939. There were other residences besides the one he lived in on the crown land beyond the Groth property. The Taylor family lived there. Mr. Trumble indicated that there was only 200 feet between where he lived and the Taylor home. Beyond the Taylor home was the Johnson’s and beyond the Johnson’s was Eric Blacksmith. Mr. Trumble indicated that all of these homes were year-round residences.
[27] Mr. Trumble recalls going to the Eagle Mine in the years 1939 to 1941. He identified the mine as “the most important thing” in the area at the time and indicated the road leading into it got its name as the Eagle Mine Road after the name of the mine site. Permission was never sought from Charles Groth to go over his property onto the crown land and into the homesteads. As Mr. Trumble put it, “Charles Groth was a fine gentleman. Permission was not needed from him. He was the kind of guy who didn’t care who crossed his property.” Lawrence Trumble indicated that Charles Groth never tried to stop anyone from travelling over his property, “it was along the edge of his property so he didn’t give a damn who drove over it.”
[28] As to whether there was another road to the west other than the Eagle Mine Road that gave access to the homesteads and the Eagle Mine, Mr. Trumble was definite in his response that there was no other road - that the Eagle Mine Road was the only road to the homesteads. Mr. Trumble said, “I am certain and I don’t lie.”
[29] There is one inconsistency raised when examining the evidence of Glynn Rouse and Lawrence Elmer Trumble. Mr. Rouse indicated that on the 1943/44 trip to the homesteads, he visited with the Taylor family and with the Trumble family. Mr. Trumble was definite that his family moved from the crown land in 1941 making that visit an impossibility and indicated that he did not know the Rouse family when he lived on the crown land and had not met Glynn Rouse until he was an adult. In my view, this inconsistency does not cause me to be concerned with the quality of the evidence of either Mr. Rouse or Mr. Trumble. They both identified that the Taylor family lived on the crown land to the north of the Groth property and both indicated that the Groth property was travelled on as the only route in and out of the homestead properties on the crown land. If I had to deal with the slight inconsistency in the evidence of Mr. Rouse and Mr. Trumble, I would prefer the evidence of Mr. Trumble and conclude that Mr. Rouse in fact visited with the Taylor family, but was mistaken in his belief that he visited the Trumble family as well. Lawrence Trumble has a powerful memory for a person of any age and a remarkable memory for a person of his age. He remembered details such as the price his father paid for a piece of property in the 1940’s and individuals involved and how his father worked on the land and was able to provide great detail and fullness in his evidence. I accept the evidence of Lawrence Elmer Trumble in its entirety.
[30] The quality of the evidence of Lawrence Trumble is to be contrasted with the evidence given by the defendants’ witness, Lindsay Juby, who at 81 years of age is of the same vintage as Lawrence Trumble. Mr. Juby had a great deal of difficulty with his memory. He had to be prompted to recall the name of his daughter or the name of his daughter’s husband, who is a prominent lawyer in Sault Ste. Marie. He could not recall the year he came to Goulais River, indicating “I’d have to guess at it to give you the right answer.” Mr. Juby had difficulty remembering when he took his teacher’s pension. Mr. Juby had difficulty recalling names indicating “What’s the name – and I know them too.” In response to a question about what road a piece of property was on, Mr. Juby replied, “I don’t even know the road I am on.” When maps were put to Mr. Juby, he indicated that he found them confusing. Exhibit 3-9D, a 1950 aerial photograph was put to Mr. Juby suggesting to him that there was a road along the west part of the Groth farm, but he indicated that he did not recall a road in that area although “it was mentioned to him.”
[31] At times during his testimony, Mr. Juby would drop nuggets of information, none of which were helpful to the defendant’s case. For example, he indicated that everyone was using the field on the Groth Farm – that “there was quite a lot of traffic” and that “people were going through there – well, everyone was.” Mr. Juby confirmed that there was an actual road running off to the left of the Groth Farm and “you could go from there right up to the mine up there.” Mr. Juby noted that there were ruts in the field “like car tracks” and that “they travelled that for years you know.”
[32] Mr. Juby appeared to me to be a fine gentleman but given his obvious failing memory, I am not inclined to give much weight to his evidence.
[33] Several aerial photographs of the area as far back as 1937 and as recent as 1964 and 1973 were entered as exhibits at the trial. These were defendant’s exhibits designed to establish that there was an alternate road to the west of the Groth property, which it is suggested was used to gain access to the Eagle Mine and homesteads on the crown land rather than the road crossing the field on the Groth property. Patrick McDonald was called by the defendants to testify with respect to the aerial photographs. Mr. McDonald is a lands/water technical specialist with the Ministry of Transportation, where he has been employed for the past 26 years. Exhibit 3-8D is a 1937 aerial photograph which purports to show no road from the eastern portion of Eagle Mine Road to the west limit of the Groth (now Gorval/Gionet) property with a broad white line to the north, being the suggested “alternate road.” Mr. McDonald was fair and honest in response to questions put to him in cross-examination in that this could be a “contour” in the land rather than a road. Mr. McDonald also referred to Exhibit 3-6D, a 1973 aerial photograph and agreed in cross-examination that this photograph shows the existence of Eagle Mine Road going over the Gorval/Gionet property, which appears to be a well-travelled road. Mr. McDonald agreed to the suggestion put to him in cross-examination that there is no evidence of another road to the west of the road on the Gorval/Gionet property.
The 1973 aerial photograph is over-exposed and the images are hard to make out with any degree of absolute certainty. Mr. McDonald admitted that the alternate road may very well have been a contour in the land rather than a road. The fact that Exhibit 3-6D, the 1973 aerial photograph shows no other indication of a roadway to the west of the Gorval/Gionet property would lead me to conclude that this white line to the north is in fact a contour rather than an alternate roadway. This view is supported by the evidence of Lawrence Trumble, which I accept, that in 1939 there was no other alternate roadway leading to the homestead property or the Eagle Mine site other than the Eagle Mine Road which went over the westerly portion of the Groth farm property.
[34] In examining the totality of the evidence, I am not satisfied that the defendants have established on a balance of probabilities that there was an alternate road in existence that would have provided access to the crown land to the north of the Groth (now Gorval/Gionet) property and access in and out of the homesteads and the Eagle Mine site. On the evidence, I am satisfied that the Eagle Mine Road was the only access route to and from the homesteads and Eagle Mine site and that this road has been in existence since at least 1905 to provide transportation in and out of the Eagle Mine site. It is impossible, on the evidence, to come to any other conclusion than the Eagle Mine Road derived its name from the fact it was the road leading in and out of the Eagle Mine site and that the road has been in existence for a long as the Eagle Mine itself.
B) Is the disputed portion (as is marked in pink on Exhibit 3-2P) a private or a public road?
[35] In making the finding above, I conclude that the Eagle Mine Road was in existence prior to the Crown Patent A2932 dated July 15, 1914 which transferred the property, including the portion of land in dispute, from the crown to John Groth. The portion to the west of the Groth field was in all likelihood travelled by the public prior to John Groth receiving the property in 1914. Title to this roadway would have passed to John Groth with his patent and the court must examine whether the legal requirements of dedication and acceptance have been established to make the disputed portion public in nature as opposed to a private road.
[36] A landowner may dedicate part of his property to the public for the use of a roadway and provided there is acceptance by the public, a road can be created for the public’s use. As set out in the case of O’Neil v. Harper (1913), 1913 CanLII 538 (ON CA), O.J. No. 91 (C.A.), the Ontario Court of Appeal set out how the principles of dedication and acceptance are to be dealt with by the court. Whether there has been dedication and acceptance is a question of fact to be inferred by the surrounding circumstances. Open and unobstructed use by the public for a substantial time is evidence which the trier of fact can infer both dedication and acceptance. As noted in the first paragraph of the headnote of the O’Neil v. Harper case:
Land dedicated to the public for the purpose of passage becomes a highway when accepted for such purpose by the public; but whether, in any particular case, there has been a dedication am] acceptance, is a question of fact. A dedication must be made with intention to dedicate; such an intention is a matter to be inferred by the jury in light of the surrounding circumstances. Acceptance may be inferred from public user, and requires no formal act of adoption. Open and unobstructed user by the public for a substantial time is, as a rule, the evidence from which a jury are asked to infer both dedication and acceptance.
[37] In the O’Neil case, the case of Mytton v. Duck (1866), 26 U.C.R. 61 was referred to in which public use for 30 years without objection or interference was sufficient to establish dedication: As stated at paragraph 9 of the O’Neil case:
As to dedication, this case is governed by Mytton v. Duck (1866), 26 U.C.R. 61. In that case, Draper, C.J. decided that as against the grantee of the crown and those claiming under him, the public user for thirty years, without objection and interference on their part, would furnish conclusive evidence of dedication.
[38] In the O’Neil case, dedication and acceptance was established despite the fact that public money had not been expended on it. At paragraph 13 of the judgment, it is stated:
The evidence did not establish that statute labour had been continuously done upon this road, or that any public money had been expended upon it.
[39] Acceptance may be inferred from public use and requires no formal act of adoption, even where the road becomes repairable at public expense. Paragraphs 61, 62 and 63 of the O’Neil decision states:
As a rule, such intention is a matter to be inferred by the jury in the light of the surrounding circumstances: Rex v. Wright (1932), 3 B. & Ad. 681. Acceptance may be inferred from public user, and requires no formal act of adoption, even where the road becomes ipso facto repairable at the public expense: Rex v. Inhabitants of Leake (1833), 5 B. & Ad. 469; Roberts v. Hunt (1850), 15 Q.B. 17. Open and unobstructed user by the public for a substantial time is, as a rule, the evidence from which a jury are asked to infer both dedication and acceptance. Halsbury’s Laws of England, vol. 16, sec. 43, p. 34. An intention to dedicate can only be inferred against a person who is absolute owner in fee simple and sui juris: ib., sec. 44.
In Regina v. Inhabitants of East Mark (1848), 11 Q.B. 877, at p. 882, Lord Denman, C.J., said: “If a road has been used by the public between forty and fifty years without objection, am I not to use it, unless I knew who has been the owner of it? The Crown certainly may dedicate a road to the public, and be bound by long acquiescence in public user. I think the public are not bound to inquire whether this or that owner would be more likely to know his rights and to assert them; and that we have gone quite wrong in entering upon such inquiries. Enjoyment for a great length of time ought to be sufficient evidence of dedication, unless the state of the property has been such as to make dedication impossible.” [28 OLR Page 645].
In Turner v. Walsh, 6 App. Cas. 636, supra, it was held that dedication from the Crown or private owner, as the case may be, may and ought to be presumed from long-continued user of a way by the public, whether the land belongs to the Crown or to a private owner, in the absence of anything to rebut the presumption; and the same presumption should be made in the case of Crown lands in the Colony of New South Wales (and, therefore, in Ontario), although the nature of the user and the weight to be given to it may vary in each particular case.
[40] The Supreme Court of Canada in Bailey v. Victoria (City) (1920) 1920 CanLII 367 (SCC), 60 S.C.R. 38 confirmed that both dedication and acceptance are required to constitute the roadway as a public roadway. In that case, acceptance by the public is noted to be complete when there has been use on the dedicated land by the public.
[41] The aforementioned legal principles of dedication and acceptance which can be inferred from a long interrupted public use was affirmed by the Alberta Court of Appeal in the case of Foothills (Municipal District No. 31) v. Stockwell 1985 ABCA 229, [1985] A.J. No. 752. At paragraphs 4 and 5 of that judgment, the Alberta Court of Appeal sets out the criteria in order to make a finding that a roadway is public.
The learned trial judge correctly stated that the issue is whether there has been the creation of a public highway by dedication. Two criteria must be met for this to occur:
(1) there must be, on the part of the owner the actual intention to dedicate; and
(2) it must appear that the intention was carried out by the way being thrown open to the public and that the way has been accepted by the public.
An actual intention to dedicate may be inferred from the circumstances and, in particular, from long uninterrupted public use. Acceptance by the public may be inferred from the same circumstance: see Williams & Wilson v. Toronto and A.G. Ont., 1946 CanLII 62 (ON SC), [1946] 4 D.L.R. 278.
[42] In the Foothills case , it was held to be an error to conclude that the road was not public from the fact that the road was not heavily used. As stated in paragraph 10 of the Foothills decision:
With respect, this is an error in law. The characterization of a use as “public” or not involves a question of law, and the learned trial judge himself had found that those members of the public who had reason so to do had used the road as a public highway. This was so during 50 years. Thus, as a matter of law, there had been long uninterrupted public user. The fact that the road was not heavily used does not detract from the fact that its use was by the public at large. The only reasonable inference is that anybody who had a reason to go down that road went down it because he thought himself entitled to do so. There were no signs or gates or other assertions of privacy. This was not a road which was obviously a private driveway as in Reed v. Lincoln (1974), 1974 CanLII 513 (ON CA), 53 D.L.R. (3d) 14 but over which a minimal amount of public use might have been tolerated. It was a connector between two public roads. It is difficult to see how one could connect two public roads without having the idea that the connection itself would be a public road. A further fact of significance not mentioned by the learned trial judge is that, in 1950, the then owner of the lands in question fended them, and the fence line followed the contour of the road diversion. No attempt was made then to block the road. The public, over 50 years, asserted a right of public highway and the owners prior to the respondents acquiesced in that assertion. A case for the creation of a public highway thus has been made out.
[43] The legal principle of dedication and acceptance inferred from the open and unobstructed use of a roadway by the public was affirmed in 1995 by the Ontario Court of Appeal in Gibbs v. Grand Bend (Village) 1996 CanLII 2835 (ON CA), [1995] O.J. No. 3709 where the court at paragraph 110 of that decision made the following observation:
Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance. This principle seems to have been generally accepted: see O’Neil v. Harper (1913), 1913 CanLII 538 (ON CA), 28 O.L.R. 635, 13 D.L.R. 649 (C.A.); Hunsinger v. Simcoe (Town), 1946 CanLII 106 (ON CA), [1946] O.R. 203, [1946] 2 D.L.R. 632 (C.A.), affirmed 1948 CanLII 321 (SCC), [1948] 3 D.L.R. 224 (S.C.C.); Foothills Municipal District No. 31 v. Stockwell, supra, at p. 669. Once a dedication is complete, neither the owners nor their successors in title could revoke it: see Hunsinger v. Simcoe (Town), and Carpenter v. Smith, supra. Neither the dedicator nor his successors in title can resume control of or convey the land free from the public rights to its use, nor can anything be done by the present owners to take back that which had been previously given away: see Gion v. Santa Cruz, 2 Cal.3d 29, 465 P. 50 (Cal. S.C., 1970), at pp. 52-53 and 60.
[44] I have already reviewed the evidence of Lawrence Elmer Trumble and Glynn Rouse and from that evidence can conclude that the Eagle Mine Road, including the disputed portion of property, was being used by the public in the late 1930’s. Permission was not sought because permission was not required. As Mr. Trumble put it, Charles Groth, “was the kind of guy who didn’t care who crossed his property.” Charles Groth did not prevent anyone from using the now disputed portion of the roadway. Mr. Trumble indicated, “it was along the edge of his property so he didn’t give a damn who drove over it.”
[45] Even the defendants’ own witness, Lindsay Juby, describes “everyone” using the field. He said “there was quite a lot of traffic” and that they (meaning the public) travelled that for years you know.” Mr. Juby said, “well everybody did” describing who used the road which he described as an actual road, which ran off to the left of the field of the Groth farm, which is the disputed portion on the property now on the Gorval/Gionet property as marked in pink on Exhibit 3-2P.
[46] This evidence of undisturbed use of the road in question was bolstered by other witnesses who gave evidence at the trial. Gary Leveille testified that he has lived in the Goulais River area since 1957 and 60 feet from the Eagle Mine Road since 1962. He described using the Eagle Mine Road “lots of times” for hunting, fishing and other recreational activities. Mr. Leveille indicated that in the 1950’s “there was quite a bit of traffic on it”, but he could not specify how much. He indicated that there was no difficulty travelling over the road that is now part of the Gorval/Gionet property and no permission was asked because it was considered to be a public roadway.
[47] Although none of the other witnesses called by the defendants can go back as far as Lawrence Trumble or Glynn Rouse, or even back to the late 1950’s like Gary Leveille, the evidence of Darren Scott Wright, Brian Lunch, David Leveille, John Trumble, Frank Fiormante and Joseph Coulson, all indicate use of the road by the public and the belief that permission was not required.
[48] Difficulties with respect to the use of the Eagle Mine Road, and in particular, the portion of the property in dispute, did not occur until the defendants Gary Gorval and Suzanne Marie Gionet arrived on the scene. Mr. Gorval moved to the Goulais River area in 1986. In 1987, he began to become acquainted with the property being S.W. ¼ of Section 22, Vankoughnet Township, which he and Suzanne Gionet ultimately purchased in October, 2005. Mr. Gorval indicated that in 1998 he posted “no trespassing” signs along the disputed property with the authority of and on the instruction of June Simons who was the owner at the time. Mr. Gorval indicated that Ms. Simons was aware that people were travelling over the property and she was not pleased with this. Mr. Gorval indicated that the “no trespassing” signs had little effect and members of the public continued to use the property.
[49] Knowing full well that members of the public were using the roadway on the property believing that it was a public roadway, Mr. Gorval purchased the property with Ms. Gionet in October, 2005. Mr. Gorval felt that it was a public roadway right up to his property line and continued as a public roadway to the north onto crown land beyond his property line but the portion of the road on his property was private. Mr. Gorval expended money to improve a portion of the Eagle Mine Road before his property limits so he could construct a log home which is located 100 to 125 yards from the disputed roadway although Mr. Gorval had 160 acres of land on which to build.
[50] At a time before Mr. Gorval purchased the property, he believed the roadway on the property then owned by Janet Simons was public. Mr. Gorval himself did not ask permission to travel over the disputed portion and used the road to hunt, fish at Sill Lake and prospect for minerals. He indicated in his evidence that “he didn’t think he needed permission to cross the road” as he saw other people using the road, such as John Trumble and Joseph Coulson. In-chief, Mr. Gorval indicated to his counsel that he knew he was trespassing over Ms. Simons’ property by not asking permission, but in cross-examination, he indicated that he found out subsequently he was trespassing so he stopped crossing over the property. When asked on discovery on September 18, 2009 about his knowledge of the use of the roadway prior to his purchase of the property, the following responses were given to questions beginning at Question 81:
“Q. So would you agree with me that prior to you purchasing this property it was fairly clear that there were several people travelling through the property on this roadway to access property past yours?
A. Yeah.
Q. That was clearly known to you before you bought the property?
A. Well, it was getting obvious.
Q. But it was known to you before you bought the property.
A. I guess so, yeah.”
[51] As to the amount of use on the roadway, Mr. Gorval disagreed at trial with the suggestion that the use was “widespread” although on his examination for discovery at Questions 101 to 104 he indicated that he was aware that the use of the road was “widespread” before he submitted his offer to purchase the property.
[52] Clearly, Mr. Gorval knew that the roadway on the property which he purchased was used frequently by members of the public and that use was widespread and long-standing and he purchased the property with this knowledge.
[53] In cross-examination, Mr. Gorval admitted that there was evidence of old homesteads north of his property, and confirmed his evidence given at Question 489 of his examination for discovery that “Yes, there’s still the remains of a wood cook stove” at the homestead site. When put to him about the anticipated evidence of Lawrence Elmer Trumble that he lived on the homestead in the late 1930’s and that the homestead was accessed by Eagle Mine Road, Mr. Gorval indicated that if Mr. Trumble gave such evidence that he would have no evidence to the contrary and “I would have to eat a lot of crow” accepting that such evidence would be powerful. Mr. Gorval further indicated in his evidence that he had no reason to doubt the accuracy of the report of William Bolan, at Exhibit 2, Tab 8, referred to earlier.
[54] Although it is not necessary for the court to find the expenditure of public funds on the disputed roadway to find as a fact that there has been dedication and acceptance, the court received evidence which would lead to the conclusion that there was expenditure of public funds with respect to the disputed roadway over the Gorval/Gionet property.
[55] Joseph Coulson recalls that in or around 1985 or 1986, he observed a Department of Highways grader on the disputed road and north beyond the Gorval/Gionet property. Mr. Coulson places this in 1985 or 1986 because he recalls being on a 1984 Red Honda three-wheeler at the time. He recalls observing the grader being operated by Ray Pallet for the Department of Highways, the grader having the Department of Highways logo on the side. Mr. Coulson observed Mr. Pallet grade the road, including the disputed portion and disappear beyond the Gorval/Gionet property where, Mr. Coulson indicated, there was a turnaround spot on the crown land north of the Gorval/Gionet property. Mr. Coulson recalls seeing Mr. Pallet grade the disputed portion of the roadway only once. He saw the effects of the grading over that portion of the Gorval/Gionet property. He did observe the effects of grading on other portions of the Eagle Mine Road, indicating that he “recalls seeing it several times as a kid back then.”
[56] Although David Leveille did not see Ray Pallet do grading work on what is now the Gorval/Gionet property, he saw the effects of the grading. Leveille was born on August 3, 1966 and lived all of his life in Goulais River growing up at the corner of Eagle Mine Road and Groth Road. Mr. Leveille indicated that once a summer he saw evidence of grading over the Gorval/Gionet property “to shape it up”, as he put it. Mr. Leveille himself graded the Eagle Mine Road, including the disputed portion on the Gorval/Gionet property. In his evidence, Mr. Leveille indicated that he bought his first grader in the summer of 1987 – 1988. For the first two summers after the purchase, he worked for the Ministry of Transportation. Mr. Leveille indicated that one summer he graded the Eagle Mine Road beyond the Gorval/Gionet property right up to the crown land to “shape up the road”. Beyond the Gorval/Gionet property on the crown land to the north, he would use a turnaround to turn his 40-foot grader around. Mr. Leveille indicated that there was no proper turnaround for a grader before the Gorval/Gionet property, but just enough room on the crown land to the north to turn a grader around.
[57] Jim Hilderley, who lived in Goulais River from 1983 to 2006, with the exception of one year, recalls David Leveille putting gravel on the Eagle Mine Road past the Gorval/Gionet property right up to the crown land to the north of the Gorval/Gionet property.
[58] Gary Leveille has been friends with Ray Pallet since they were children. Mr. Leveille confirmed that Mr. Pallet worked for the Department of Highways, the predecessor to the Ministry of Natural Resources. Mr. Leveille recalls going fishing in the late spring of 1963 and observing Ray Pallet sitting on his Department of Highways grader on the field of the now Gorval/Gionet property having lunch. Mr. Pallet’s grader was positioned in a southwesterly direction indicating that he was coming out of the Gorval/Gionet property. On this occasion, Mr. Leveille observed evidence of grading as far back as the crown land to the turnaround. This is the only occasion that Gary Leveille saw Mr. Pallet on the Eagle Mine Road and on the Gorval/Gionet property, but his evidence was after 1963 he heard the grader and saw the effects of grading on the Eagle Mine Road. Mr. Leveille is certain as to the year he saw Mr. Pallet because it was the year he returned from Southern Ontario prior to commencing employment at Algoma Steel.
[59] On the evidence, I am entirely satisfied that there was maintenance to the Eagle Mine Road and in particular, a portion of that road on the Gorval/Gionet property. I find as a fact that Ray Pallet graded the Eagle Mine Road and the disputed portion of road in 1963 as an employee of the Department of Highways and that David Leveille did similar grading in the year 1988 or 1989.
[60] Roger Bangs, the former Senior Municipal Supervisor acknowledged in his evidence that if a grader was operated over the Eagle Mine Road up through the Gorval/Gionet property, he would consider this to be an expenditure of public funds. A similar position was taken by the Ministry of Transportation Field Services Engineer, Maurice Kukoraitis and Linda Dewar-Smith, a Ministry of Transportation employee of 39 years, who were called as witnesses for Mr. Gorval and Ms. Gionet.
[61] There are also commercial interests to consider in determining whether the disputed roadway on the Gorval/Gionet property is a public roadway. The Eagle Mine Road and in particular the portion over the Gorval/Gionet property, has been used by commercial interests for the public good. Ray Morrar has been employed with Algoma Power Inc. and its predecessor company, Great Lakes Power, since 1978. For 15 years, Mr. Morrar has been employed as a civil engineering technician and is now the Operations Superintendent of Algoma Power. Algoma Power is the distributor of electricity for rural areas from Thessalon to Dubreuville, Ontario. This includes the Goulais River area. A power line has been constructed between Highway 17 North and Searchmont supplying power to Searchmont area, including the Searchmont Ski Resort and the inhabitants of the community of Searchmont, Ontario.
[62] The power line was energized in February, 1990 being a line beginning at the Goulais River Transmission Station and terminating at Searchmont. Mr. Morrar indicated in his evidence that the Eagle Mine Road was used exclusively to construct the power line. The Eagle Mine Road was known to be “an established roadway that we knew in the area.” No permission was sought to travel over the Eagle Mine Road and Mr. Morrar indicated that there was no objections raised to use of the road in the construction phase for the transmission line.
[63] Since the power line has been in use, there is a need to utilize the Eagle Mine Road to maintain the power line. Algoma Power must be able to get their equipment through the Eagle Mine Road right up to the north of the Gorval/Gionet property to service the power line. That includes travelling over the disputed portion of road over the Gorval/Gionet property. Alternate routes present difficulties in that the terrain is very demanding resulting in doubling the response time, which is a difficulty for Algoma Power in urgent power outages. Mr. Morrar recalls that portions of the Eagle Mine Road were challenging such as the Clay Hill, before the Gorval/Gionet property, but Algoma Power has been able to navigate the Eagle Mine Road to get their equipment right up the Eagle Mine Road onto and past the Gorval/Gionet property into the crown land to the north.
[64] Jennifer Rose also expressed concerns about power service if the portion of the Eagle Mine Road over the Gorval/Gionet property was allowed to be closed. Ms. Rose indicates such a closure would mean longer response times to restore power, which would negatively impact the community. Alternate routes other than travelling over the Gorval property would be rougher, steeper and more susceptible to washouts. For example, with respect to accessing the transmission lines via Sill Lake, Ms. Rose noted that some winters the lake doesn’t freeze over and in the spring there is an issue with run-off. Ms. Rose indicated in her evidence that predictability is needed for a quick response in a power outage and the Eagle Mine Road provides this and that is why it has been the traditional access route to service the transmission road.
[65] Doug Bennett gave the court a first-hand account what it is like to travel to the transmission line from Goulais River to Searchmont by a route other than the Eagle Mine Road. Mr. Bennett was directed by management not to use the Eagle Mine Road access to check the line. This was in November, 2011 and as indicated by Jennifer Rose, was in response to a complaint made by Mr. Gorval concerning the use of the portion of the roadway on his property to access the power line. On November 14, 2011 Mr. Bennett travelled over the Sill Lake to check on a piece of the transmission line. Mr. Bennett found the Sill creek to be washed out. He crossed in a side-by-side ATV. The water was up to floorboards and water was coming in the ATV. The departure from the creek was steep and rutted. At the old mine site, the trail runs right beside a pond and the trail is rough because it is washed out over the dam in that area. Mr. Bennett indicated that he got “hung up” a couple of times as the route was too narrow and he had to use a chain saw to make a trail. Once past the pond there are washouts and boulders which Mr. Bennett described as “the size of a desk”. Mr. Bennett indicated that at this point the ATV got stuck three times and he had to wench himself out of the boulders. After that, there was the beaver dam where the water was three feet and “it’s all mud”. After the beaver dam heading south, there was a grade downhill, Mr. Bennett indicating that “it’s bad until a nice 100 yard stretch to the power line.”
[66] In these travels, Mr. Bennett was concerned for his personal safety, the safety of his passenger who was travelling with him and for the equipment that he was travelling on. As Mr. Bennett put it, “the machine took quite a beating, but I made it through.” When asked about the Clay Hill on Eagle Mine Road before the Gorval/Gionet property, Mr. Bennett responded “That hill is nothing compared to the terrain up here.”, referring to the route he just described.
[67] Thomas Croswell is a registered professional forester with 27 years experience. Since April 20, 2007, Mr. Croswell has been employed with Clergue Forest Management Inc., which is a sustainable forest licence company. The company is responsible for the forest management plan under the Crown Forest Sustainability Act. The current reforestation plan is in place from April 1, 2012 to March 31, 2020. Mr. Croswell examined previous silvicultural records, which indicates that in 1961 the area was harvested or logged with tree planting reforestation work being completed in 1962. Similar harvesting was done in 1966 with forest regeneration work being undertaken in 1968. Mr. Croswell also indicated that records reveal that in 2007 there was tree marking and tree improvement work done in the Vankoughnet and Aweres Township. Mr. Croswell indicated that for all the aforementioned work, the forest areas were accessed by the Eagle Mine Road. Clergue Forest Management Inc. considers Eagle Mine Road to be a public road to be used to complete their required operations. Their reforestation plan is predicated on the company having access to the Eagle Mine Road. Mr. Croswell noted that there is no driveable access for vehicles on any alternate route other than the Eagle Mine Road. Other routes such as via Robertson Lake are deemed to be too rough in terrain, with rocks and water to traverse. Mr. Croswell noted that it would be impossible for logging trucks to use the Robertson Lake route and to the west at Sill Lake would present problems as substantial bridges would have to be erected which would be difficult due to the bedrock foundation. In Mr. Croswell’s view, the closing of the portion of the Eagle Mine Road over the Gorval/Gionet property would have a negative effect on the operations of Clergue Forest Management Inc. In terms of cost and management of its harvesting and reforestation work.
[68] On a consideration and examination of the evidence at this trial, I can draw no other conclusion than there has been a dedication of the disputed portion of the Eagle Mine Road as a public road and an acceptance as such. The evidence overwhelmingly points to the long-standing public use of this road, as far back as at least 1939, including the disputed portion running over the now Gorval/Gionet property. Accordingly, I find as a fact that the Eagle Mine Road, as depicted in green on Exhibit 3-2P running from Bourdage’s Corner north right to the crown land to the north of the Gorval/Gionet property is a public road. This includes the disputed portion of roadway marked in pink on Exhibit 3-2P, running to the northwest on the Gorval/Gionet property, which I find to be a public roadway to be utilized in an open and undisturbed fashion by the public.
[69] There was no contrary evidence led to contradict the evidence of Gary Gorval that the disputed roadway is 33 feet more or less in width and the court accepts this to be the width of the public road as marked in pink on Exhibit 3-2P attached as “Schedule A” to these Reasons.
C) Should the disputed portion of the Eagle Mine Road on the Gorval/Gionet property be closed under the Road Access Act?
[70] The defendants, Gary Gorval and Suzanne Marie Gionet have applied for an order closing the disputed portion of the road at the west boundary of their property, being the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet, District of Algoma. This is the portion marked in pink on Exhibit 3-2P. The application for an order closing this portion of the road is brought pursuant to the Road Access Act R.S.O. 1990, C.R. 34.
[71] Section 3(1) of that Act, permits a judge to grant a closing order upon being satisfied that:
(a) the closure of the road is reasonably necessary to prevent substantial injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2(3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so.
[72] Section 3(1)(a), along with either (b) or (c), depending on what type of road is found, must be satisfied for the court to grant the closure order sought under the Road Access Act. The terms “access road” and “common road” which are referred to in paragraphs 3(1)(b) and (c) are statutorily defined in Section 1 of the Road Access Act as follows:
“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed to be a highway, that serves as a motor vehicle access route to one or more parcels of land;
“common road” means an access road on which public money has been expended for its repair and maintenance;
[73] An “access road”, as defined under the Act, does not include a road that is dedicated and accepted or, in other words, which is found to be a public road.
[74] In the case at bar, the court has found the disputed portion on the Gorval/Gionet property over the Eagle Mine Road to be a public road having been satisfied on the evidence for the reasons set out above that the essential ingredients in law of dedication and acceptance have been established.
[75] In my view, once a finding is made that the disputed roadway is a public road, the Road Access Act does not apply as that Act only applies to a “common road” or an “access road” as statutorily defined and this definition excludes a public road. This interpretation should come as no surprise to the defendants whose counsel concedes at paragraph 110 on page 32 of his written submissions dated April 27, 2012: “It is agreed that this Act (referring to the Road Access Act) will probably not apply if the plaintiffs succeed in their attempt to show public ownership by dedication and acceptance.”
Accordingly, the application by Gary Gorval and Suzanne Marie Gionet for an order closing the disputed portion of the road pursuant to the Road Access Act is dismissed.
D) Is the disputed portion on the Gorval/Gionet property at the west boundary of their property being the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet, District of Algoma within the Vankoughnet and Aweres Local Roads Board System?
[76] The property owned by the defendants Gorval and Gionet, including the property in dispute, is within the boundary of the local roads area for the Town of Vankoughnet and Aweres. The question is whether the disputed road at the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet is a local road within the Vankoughnet and Aweres Local Roads Board system.
[77] The Local Roads Board of Vankoughnet and Aweres was established in 1965. The Local Roads Board is governed by the provisions of the Local Roads Board Act, R.S.O. 1990, C.L. 27. The Local Roads Board is constituted of three elected members, who are elected at annual general meetings which are advertised to the taxpayers of the area who are invited to attend. The Local Roads Board itself meets with the public once a year and minutes of the meetings are generated by the secretary of the Board and subsequently approved at the annual meeting the following year. Throughout the year, the Local Roads Board decides on what work will be done to roads within its system and how public funds raised by property taxes will be applied to maintain the roads. An annual spring tour is conducted by the board members along with the Ontario Ministry of Transportation whereby the roads within the Local Roads Board system are examined as to their state and decisions about the public expenditure of funds for maintenance are made. There is a matching formula with the Ontario Ministry of Transportation, but the reality is there is more road maintenance required than funds that are available and consequently, some roads that should be maintained are left unmaintained due to monetary constraints.
[78] The plaintiffs, including the Vankoughnet and Aweres Local Roads Board, ask the court to declare that the disputed portion on the Gorval/Gionet property is within their system to enable them to be able to maintain it without interference. The defendants, Gorval and Gionet, take the position that the court is without the jurisdiction to make this determination due to the provisions of the Local Roads Board Act. Section 16 of that Act provides formal process to a Local Roads Board to cause alteration of its boundaries or to the roads which are included in its area. The defendants suggest that it is this mechanism that the Vankoughnet and Aweres Local Roads Board should use to determine whether the disputed portion over the Gorval/Gionet property is within their Local Roads Board system. I disagree. Section 16 of the Local Roads Board Act provides for the inclusion or deletion of areas within a Local Roads Board system – the inclusion of a new area or the deletion of an existing area. It does not provide for determining as a fact whether a piece of property is within the system if a dispute is raised about this. Such findings of fact, in my view, should not be left to a vote at an annual meeting, but rather should be determined by a court of competent jurisdiction, especially given that this was a matter raised in the litigation itself and a great deal of evidence was led by both parties on the issue.
[79] The crux of the matter is that there is a differing view on what the belief of various members of the Local Roads Board is as to the disputed property and what the maps generated by the Ontario Ministry of Transportation indicate. The court heard evidence from James Hilderley, who was a member of the Vankoughnet and Aweres Local Roads Board from 1983 to 2006, excluding one year, and its Chair from 1995 to 2006. Mr. Hilderley indicated that while he was on the Local Roads Board, the Board had a definite position on where Eagle Mine Road began and ended and whether or not it was included in their system. Mr. Hilderley indicated that it was the Board’s position that the Eagle Mine Road was the road marked fully in green on Exhibit 3-2P extending north from Bourdage’s Corner at Highway 552 to and over the Gorval/Gionet property and to the northeast onto the crown land. While Chair of the Vankoughnet and Aweres Local Roads Board, Mr. Hilderley signed a letter dated October 17, 1996 on behalf of the Board, entered as Exhibit 19, and which reads as follows:
“This is to verify that Eagle Mine Road is in the Roads Board system. This road starts at the intersection of Highway 552 and ends in the northeast ¼ of Section 22.”
[80] Mr. Hilderley explained that the letter was written because someone had called the Local Roads Board and wanted to know where the Eagle Mine Road began and where it stopped, although Mr. Hilderley could not recall who the individual was who called.
[81] The original letter written by Jim Hilderley (Exhibit 19) was retained by Darren Wright whose father, Gary Wright, was also on the Vankoughnet and Aweres Local Roads Board. On the outside of the envelope containing the Hilderley letter was a printed note which Darren Wright identified as being his father’s note which reads as follows:
“This 1986 map shows Eagle Mine Road going only to the big field. Then a dotted line to the old homestead where the public road ends. This is supported by older Roads Board members and retired MTO personnel who worked the road all the way to the old homestead.”
This envelope was entered as Exhibit 53.
[82] Other past members of the Vankoughnet and Aweres Local Roads Board in their evidence supported Mr. Hilderley’s view that the entire Eagle Mine Road extending past Section 22 into the crown land was in the Local Roads Board system. Frank Fiormante succeeded Jim Hilderley as the Vankoughnet and Aweres Local Roads Board Chairman. Mr. Fiormante indicated in his evidence that it was always his belief that the Eagle Mine Road ended at the mine and that all of the Eagle Mine Road was within the Local Roads Board system. Mr. Fiormante was told that the Local Roads Board did not maintain all of the Eagle Mine Road but the lack of maintenance did not mean that the road was not within the Local Roads Board system. Similar evidence was given by Darren Wright and Joseph Coulson, other Local Roads Board members.
[83] Entered as Exhibit 10-C were minutes of the annual meeting of the Vankoughnet and Aweres Local Roads Board held on October 18, 2006. The last paragraph of page 2 of those minutes seem to suggest that the Local Roads Board believed that the Eagle Mine Road ended at the boundary of Section 22, that is, at the boundary of the Gorval/Gionet property meaning that the disputed road on the Gorval/Gionet property would not be in the Local Roads Board system. That paragraph reads as follows:
“An informal meeting was held at the Goulais MTO patrol yard on August 23, 2006 with landowners questioning boundary issues of Eagle Mine Road. The MTO map Plan #N-918-6 showing all of the roads in the Vankoughnet and Aweres Local Roads Board system illustrates the line between Section 21 and Section 22 Vankoughnet Twp. as the end of Eagle Mine Road as far as the Board is concerned. Any access road questioned beyond this point does not pertain to the LRB. The grader has been maintaining this road as far as the sign posted on this road. Now that there are landowners building beyond the sign the Board will look into what is required for maintaining the road further during the spring tour. This road requires lots of upgrades before maintenance can continue further. The MTO has purchased a culvert to be placed at the bridge on Eagle Mine Road in 2007.”
[84] The minutes from the October 18, 2006 meeting indicate that Frank Fioramante, Henry King and Darren Wright were the elected Roads Board members at that meeting. Kim Dickinson was the Local Roads Board secretary and would have taken the notes from that meeting from which the formal minutes were generated. Frank Fioramante testified with respect to these minutes and indicated that the aforementioned paragraph was incorrect and he never said that the Eagle Mine Road ended at the boundary of Section 22. Mr. Fioramante indicated that the secretary, Kim Dickinson, must have got it wrong when the minutes were prepared and that this error was not caught when the minutes were approved in the subsequent year. Similarly, Darren Wright gave evidence on this point and indicated that neither he nor Frank Fioramante said that the Eagle Mine Road ended at Section 22 and his position was always that the Eagle Mine Road went through the Gorval/Gionet property and into the crown land.
[85] The issue of whether the disputed portion of road on the Gorval/Gionet property in Section 22 is within the Local Roads Board system is further clouded by a Ministry of Transportation map N-918-12 entered as Exhibit 9 at the trial. There is a notation on that map that reads as follows:
“This plan illustrates the boundaries of the Vankoughnet and Aweres Local Roads Board area and the Local Roads included therein. This plan amends and replaces N-918-11.”
[86] Map N-918-12, entered as Exhibit 9, shows by a red dotted line the boundary of the Local Roads Board area. This includes in it the disputed road over the Gorval/Gionet property in Section 22. The road from the highway right up to the boundary of Section 22 is highlighted as a black solid line, the index referring to that as “local roads”. At Section 22 onto the Gorval/Gionet property and onto the crown land to the northeast of Section 22 beyond the Gorval/Gionet property there is a black dotted line, which the index refers to as “other roads”. The position of the defendants is that this map, generated by the Ontario Ministry of Transportation does not identify the road over the Gorval/Gionet property as a “local road” but rather “other road” which is not within the Local Roads Board jurisdiction. The defendants take the position that the map should be preferred to what the Local Roads Board members may or may not believe as to what roads were within the Local Roads Board system.
[87] It is clear from the evidence from the witnesses who were members of the Local Roads Board that the board members had no input in the preparation of Ontario Ministry of Transportation maps and in fact may have been unaware of the existence of such maps. Frank Fioramante indicated that he recalls at the August 23, 2006 meeting at the MTO yard that there were two maps produced and that one of the maps had a solid line right through the Gorval/Gionet property in Section 22 and leading into the crown land. This was different than what Exhibit 9 depicts. This second map was not produced and Mr. Fioramante recalled seeing it once, at the August 23, 2006 meeting, but never again. Exhibit 9 was produced at the time Jim Hilderley was leaving the Local Roads Board or after he had left. Mr. Hilderley left that Board in 2006 and the date on map N-918-12, entered as Exhibit 9, was May 25, 2006. In his evidence, Mr. Hilderley indicated that he had not seen Exhibit 9 before. His interpretation of the solid line up to the boundary of Section 22 and the dotted line from Section 22 onto the crown lands is that this indicates roads being maintained and not maintained. The solid line identifies roads being maintained and the dotted line identifies roads not being maintained. Just because a road was not being maintained does not mean that it is not within the Local Roads Board system. The existence of map N-918-12 did not alter Mr. Hilderley’s belief that the road over the Gorval property in Section 22 was within the Vankoughnet and Aweres Local Roads Board system.
[88] Maurice Kukoraitis was the Supervisor of the Local Roads Board programs for the Ontario Ministry of Transportation from 2006 to his retirement on May 31, 2011. He was the person in charge when map N-918-12 (Exhibit 9) was generated. Mr. Kukoraitis described how a road could be added to a Local Roads Board system or deleted from it. The Local Roads Board would do this as part of its function with a vote to be taken at an annual meeting. Once voted upon, a revised plan would be created by the Ministry of Transportation. Once the Local Roads Board voted on an addition or deletion to a road in its system, the involvement of Ministry of Transportation would be purely administrative – it would not interfere with the right of the Local Roads Board to decide what roads were within its system by either inclusion or deletion. A new map would be generated based on the Board’s decision.
[89] There is no evidence that the Vankoughnet and Aweres Local Roads Board ever voted to delete the roadway over the Gorval/Gionet property in Section 22 from its system. The evidence is overwhelming that members of the Vankoughnet and Aweres Local Roads Board believed that the disputed portion over the Gorval/Gionet property in Section 22 was within the Local Roads Board system. The inconsistency of this view and what the map in Exhibit 9 depicts was put to Mr. Kukoraitis. Mr. Kukoraitis indicated that he had no explanation for the inconsistency in Exhibit 9 and the Hilderley letter (Exhibit 19) but did indicate in cross-examination that “it is possible that the MTO map is inaccurate”. Mr. Kukoraitis also indicated in his evidence that the “other road” definition on map N-918-12 could be a public road that is not being maintained.
[90] Linda Dewar-Smith was called to give evidence on behalf of the defendants, Gorval and Gionet. Ms. Dewar-Smith has been a Ministry of Transportation employee for the past 39 years and is currently the Senior Municipal Financial Clerk, meaning that she maintains the financial records for Local Roads Boards, including the Vankoughnet and Aweres Local Roads Board. Ms. Dewar-Smith testified that map N-918-12 (Exhibit 9) was the latest map that the Ministry of Transportation has. Unfortunately, there was a flood where the Ministry records were stored and the records from 1965 to 1996 were destroyed. In explaining Exhibit 9, Ms. Dewar-Smith indicated that her understanding is that the dark lines on the map are the local roads that are being maintained by the Local Roads Board. Ms. Dewar-Smith confirmed that her understanding as to where Eagle Mine Road begins and ends is consistent with what is indicated in the letter from Jim Hilderley (Exhibit 19). Exhibit 3-15D a Ministry of Transportation map from 1986 – map N-918-9 was referred to by Ms. Dewar-Smith in her testimony. She indicated that her understanding of that map was that the dark coloured lines on the map indicated roads that are up to standard and the dotted lines on the map were roads that were not maintained up to standard. Ms. Dewar-Smith’s understanding was that the Local Roads Board decided not to maintain the Eagle Mine Road beyond that point because there was no one living beyond there. Ms. Dewar-Smith indicated in her evidence that simply because a road is identified by a dark line on a map it does not guarantee that a Local Roads Board will do any amount of work on the road in a given year.
[91] Roger Bangs is a form Ontario Ministry of Transportation employee. Prior to him leaving the Ministry on April 30, 2011, Mr. Bangs was employed as a Senior Municipal Supervisor at MTO. He was below Maurice Kukoraitis in seniority in the chain of command at the Ministry. His job responsibilities with MTO included responsibility for 21 Local Roads Boards, including the Vankoughnet and Aweres Local Roads Board. Mr. Bangs indicated that it was the individual Local Roads Board and not the Ministry of Transportation that determined the boundaries of the Local Roads Board and what roads are in a particular Local Roads Board system. Mr. Bangs confirmed Ms. Dewar-Smith’s evidence that MTO records were destroyed in a flood but he had no particulars of what types of records were destroyed and for what years. Exhibit 9, the map N-918-12 was identified by Mr. Bangs as an MTO-generated document generated from the MTO geometrics office. Mr. Bangs acknowledged that there is an inconsistency between the map (Exhibit 9) and the letter from Mr. Hilderley (Exhibit 19). Mr. Bangs indicated that there were “many occasions” when he received calls from Vankoughnet and Aweres Local Roads Board members and former Board members indicating that the MTO maps were incorrect as it related to what roads were included in the Local Roads Board system. Mr. Bangs indicated that he had travelled on the Eagle Mine Road one to five times and to the east branch of the boundary of Section 22 two to five times. On the west boundary of Section 22 (the disputed portion on the Gorval/Gionet property), Mr. Bangs indicated that he “could see evidence of vehicles passing on the road” and could see that the road had been used.
[92] As to the inconsistency between map N-918-12 (Exhibit 9) and the letter from Jim HIilderley on behalf of the Vankoughnet and Aweres Local Roads Board (Exhibit 19), Mr. Bangs could offer no explanation for this inconsistency, but did agree that “it is entirely possible Hilderley is correct and the MTO map is incorrect.” As Roger Bangs noted in his evidence, “these maps are not infallible and are subject to error”.
[93] If I am forced to choose between the infallibility of maps, which the Local Roads Board members had no input into creating, and the consistent historical evidence of various Local Roads Board members as to their belief as to what roads were included in the road system that they were discharged to administer, my preference is to accept the latter.
[94] On the evidence before me, I am left with no doubt that the portion of the road over the Gorval/Gionet property in Section 22, the disputed road, is within the Vankoughnet and Aweres Local Roads Board system and that that Local Roads Board has the responsibility to maintain that portion of the road as it sees fit, in its discretion, given the financial and budgetary circumstances that exist.
[95] Accordingly, I answer the question stated in Section (D) in the affirmative and find that the disputed portion on the Gorval/Gionet property at the west boundary, being the west limit of the S.E. ¼ of Section 22, Township of Vankoughnet, District of Algoma, as marked in pink in Exhibit 3-2P, to be within the Vankoughnet and Aweres Local Roads Board system and rule accordingly.
E) Should the defendants, Gary Gorval and Suzanne Marie Gionet be restrained from interfering with the Vankoughnet and Aweres maintenance of the disputed portion over the Gorval/Gionet property in Section 22 and the public’s open and peaceful use of that property?
[96] There is much animosity and ill feeling toward all the parties involved in this litigation. The interaction between the parties has involved the Ontario Provincial Police. Filed as Exhibit 35 is a general occurrence report generated by the Ontario Provincial Police under the heading “neighbour dispute”. This general incident report highlights incidents that occurred between the parties concerning the use of the disputed road over the Gorval/Gionet property as far back as January 12, 2000. Under the heading of “history” on page 2 of the general occurrence report, the following notation is indicated:
“Checks revealed that on the 12th of January, 2000 there was an event involving Mr. Gorval (OMPPAC 002169949) where he had blocked the road with a barb wire fence. At the time of this occurrence Mr. Gorval had placed an offer to purchase on the property.”
Under the “disposition” section on page 2, it is noted:
“Based on information received from the Local Roads Board, the road leading to and crossing Gary Gorval’s property is public access. No further action required.”
[97] In Exhibit 35 there are other incidents noted in June, 2006, August, 2006, February, 2007, April, 2007, July, 2007, August, 2007, May, 2008, and September, 2008. The last notation, being September 18, 2008, captures the flavour of the ongoing difficulty between the parties:
“Synopsis:
On the 18th of September 2008 at 1830 hrs, Joseph Coulson attended detachment reporting ongoing road access problems with Garry Gorval. Apparently Gorval is harassing people trying to use the access road adjacent to this property at the end of Eagle Mine Road. Coulson is on the Road Committee and has received several complaints of late. Coulson also states that Gorval has placed wood debris (stumps) alongside the access road making it narrower and believes this is a hazard.
Police have received numerous complaints concerning the same issues dating back to 11th June 2006. The matter is presently before the Civil courts and is scheduled for discovery on December 9th, 2008.
Action:
The writer attended the Gorval residence at #638 Hwy #552E and spoke with Garry at length regarding the complaint. Gorval insists that the area residents antagonize him at every encounter. Gorval did confirm that recently he has spoken to several persons using the road asking them if they have property in the area. Gorval would not admit to actually stopping these people but merely indicated that he had spoken to them. Gorval was also questioned about the narrowing of the road and stated that it was merely the growth of his adjacent field overhanging. The writer warned Gorval to stop questioning people using the access road and to wait for the civil proceeding to take its course.
The writer attended the Coulson residence and apprised him of the conversation. Coulson indicated that he would be removing the wood debris to widen the access road. Coulson was advised to contact the writer if Gorval’s behaviour continues.
Sgt. Pelletier #7951”
[98] Jennifer Rose, an employee of Algoma Power, indicated that she had dealings with Gary Gorval in March, 2010 over the access on his property on Eagle Mine Road. As a result of her discussions with Mr. Gorval and after consultation with the solicitors of Algoma Power, workers for Algoma Power were notified that this was possibly a volatile situation and Algoma Power workers were instructed to stay on the well-travelled portion of Eagle Mine Road and not to veer onto Mr. Gorval’s property.
[99] John Trumble gave evidence of being stopped by Mr. Gorval in mid-July, 1999 and being given a ‘dressing down” by Mr. Gorval, who indicated that he was trespassing on his property. Mr. Trumble recalls Mr. Gorval having a rifle which he cradled around his shoulder area. Mr. Trumble recalls seeing the rifle as being “strange” because it was not hunting season and his feeling of being “intimidated” by Mr. Gorval. Mr. Trumble recalled another occasion where there was a locked gate right before the Gorval/Gionet property and the gate blocking access to Eagle Mine Road. Mr. Trumble indicated that he telephoned Mr. Gorval for the combination for the lock, which was provided by Mr. Gorval and used by Mr. Trumble on one occasion. Subsequently, the lock was changed. Mr. Trumble recalled encountering Mr. Gorval on several other occasions when Mr. Gorval would pull his truck over to try to block Mr. Trumble’s passage indicating that he was trespassing.
[100] The court also heard lengthy evidence from Joseph Coulson. Mr. Coulson indicated in great detail the difficulties that he has had with Mr. Gorval and Ms. Gionet concerning the use of the disputed portion of Eagle Mine Road running over the Gorval/Gionet property. Mr. Coulson indicated that even prior to the Gorval/Gionet purchase in October, 2005, that he encountered problems with them. He recalls fence posts and barbed wire being erected across the road in 1999. He recalls in the Fall of 1999 or 2000 encountering Ms. Gionet standing on the bridge on Eagle Mine Road hold up a firearm which Mr. Coulson indicates Ms. Gionet pointed at him after she told him he was not welcome on the property. Mr. Coulson recalls another time prior to the 2005 purchase by Gorval and Gionet, when he and Keith Ash were met by Mr. Gorval on the bridge at the creek. Mr. Coulson testified that on this occasion, Mr. Gorval raised his arm with a hammer and said “Where do you think you are going?” and grabbed the all-terrain vehicle on which Mr. Coulson was travelling on. Mr. Coulson testified that after Mr. Gorval and Ms. Gionet purchased the property that he was met at the property line of the Gorval/Gionet property at Section 22 “on many, many occasions” and was given a tongue lashing or had his photograph taken while crossing onto the disputed roadway. Mr. Coulson recalled an occasion in 2009 when he was travelling on all-terrain vehicles with a Mr. Preston when Ms. Gionet showed up on an all-terrain vehicle and then Mr. Gorval and he was shoved on the shoulder by Mr. Gorval with the blow glancing off his neck. Mr. Coulson indicated to Mr. Gorval that this was an assault to which Mr. Gorval replied “Well, I’ll see you in court.”
[101] Mr. Coulson recalls another occasion while chairing Vankoughnet and Aweres Local Roads Board public meeting where Ms. Gionet told him to “fuck off”. Ms. Gionet, in her evidence, indicated that what she in fact said to Mr. Coulson was to “bug off” but Gary Leville, who was present at that meeting, testified that he clearly heard Ms. Gionet tell Mr. Coulson to “fuck off” and not to “bug off”.
[102] There are other areas where Mr. Gorval and Ms. Gionet’s evidence conflict with that of Joseph Coulson and John Trumble, especially as it pertains to the difficulty that Mr. Coulson and other members of the public have encountered in using the disputed portion of the road over the Gorval/Gionet property. For instance, Ms. Gionet testified that she never had a firearm with her in the month of July and Mr. Gorval disputed many parts of Mr. Coulson and Mr. Trumble’s evidence as to the impediments he created to them and the public in general with respect to the disputed portion of Eagle Mine Road over his portion. The impression that Mr. Gorval tried to leave the court with is that he has been co-operative and will continue to be co-operative over the use of the road over his property in the future with the public and with commercial interests, such as Algoma Power, which may be required to seek access over the road in the future.
[103] My impression of John Trumble and Joseph Coulson were that they were both truthful and forthright witnesses. That was especially true of Joseph Coulson. I found Mr. Coulson to be an impressive witness. His evidence was delivered in a very balanced manner. When he didn’t know or was guessing in his response to a question posed to him, he indicated that he did not know or was guessing. There was nothing in Mr. Coulson’s evidence that I found to be exaggerated or embellished. In matters where Mr. Coulson’s evidence conflicts with that of Gary Gorval or Suzanne Gionet, I prefer Mr. Coulson’s evidence and his version of events. On occasions in her testimony, Ms. Gionet admitted that her evidence at trial differed from her evidence given on examination for discovery providing vague and unsatisfactory responses as to why this was so, stating at times, “it’s a long time ago”, or that “I forget I said that”, referring to the evidence that she gave on examination for discovery. When Gary Gorval was encountered with inconsistencies between his evidence at trial and his evidence given on examination for discovery, he indicated that “he was mistaken” on discovery acknowledging that he has had a serious head injury and “has a problem remembering things”. Even Suzanne Gionet in her evidence indicated that Gary Gorval’s recollection of events may be problematic due to his head injury and his difficulty to recall things.
[104] I do not take comfort in the assurances given by Gary Gorval that he will co-operate with commercial interests, such as Algoma Power or Clegue Forest Management Inc. if the disputed road was closed to the public. Mr. Gorval’s comments are stated conditionally in terms such as “Great Lakes can pass as long as it wasn’t the machinery that would dig the area up” or that he was prepared to co-operate with Clergue Forest Management and provide “reasonable use on reasonable occasions”. Mr. Gorval’s assurances of co-operation were always couched with conditions that must be acceptable to him. I am not at all satisfied that Mr. Gorval or Ms. Gionet will co-operate in allowing public use of the disputed portion of the roadway in Section 22 marked in pink on Exhibit 3-2P without direction or order of the court.
[105] Accordingly, the court orders that Gary Gorval and Suzanne Marie Gionet be restrained from interfering with the public’s use and the Vankoughnet and Aweres Local Roads Board maintenance of the property on the westerly boundary of Section 22, Vankoughnet and Aweres Township, being the disputed portion marked in pink on Exhibit 3-2P and directs that the public have open and peaceful use of this property.
SUMMARY:
[106] For the reasons set out above, there shall be a judgment as follows:
(a) the application by Gary Gorval and Suzanne Marie Gionet for an order closing the disputed portion of the roadway marked in pink on Schedule “A” attached hereto being the westerly limit of S.E. ¼ of Section 22, Township of Vankoughnet, being Parcel 897, Algoma West Section, District of Algoma pursuant to the Road Access Act, R.S.O. 1990, C.L. 27 is dismissed;
(b) the court declares that the portion of the Eagle Mine Road highlighted in pink on Schedule “A” attached hereto traversing the property being the westerly limit of S.E. ¼ of Section 22, Township of Vankoughnet, being Parcel 897, Algoma West Section, District of Algoma is a public road to be utilized in an open and undisturbed manner by the public;
(c) the court finds and declares that the disputed portion of road marked in pink on Schedule “A” attached hereto traversing the property being the westerly limit of S.E. ¼ of Section 22, Township of Vankoughnet, being Parcel 897, Algoma West Section, District of Algoma is within the Vankoughnet and Aweres Local Roads Board system;
(d) the courts orders that the Vankoughnet and Aweres Local Roads Board and its successors, assigns, agents, workers, employees and contractors shall have the free and uninterrupted right upon the aforementioned described road marked in pink on Schedule “A” attached hereto for the purpose of maintaining, repairing, upgrading, snow removal, sanding, salting or any similar work as the Vankoughnet and Aweres Local Roads Board deems is necessary. Gary Gorval and Suzanne Marie Gionet and their agents, successors and assigned are hereby restrained from interfering with the aforementioned work to be undertaken by the Vankoughnet and Aweres Local Roads Board;
(e) Gary Gorval and Suzanne Marie Gionet and their agents, successors and assigns are hereby restrained from interfering with the open and public use of the aforementioned described road marked in pink on Schedule “A” attached hereto;
(f) a copy of this judgment shall be registered on the title of the subject property.
[107] If the parties cannot agree on the issue of costs, counsel are to provide written submissions to the court no longer than five pages in length, excluding attachments, by July 31, 2012. These submissions shall have attached to it a bill of costs and any written offers to settle exchanged.
Justice E. Gareau
Released: June 28, 2012
COURT FILE NO.: 24060/07; 24175/07
DATE: 2012-06-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN TRUMBLE AND JOSEPH COULSON AND VANKOUGHNET AND AWERES LOCAL ROADS BOARD
Plaintiffs
– and –
GARY GORVAL AND SUZANNE MARIE GIONET
Defendants
REASONS FOR JUDGMENT
Justice E. Gareau
Released: June 28, 2012