SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11 50748

RE: RICHARD LANDRIAULT – Applicant v. ONTARIO (MINISTÈRE DES RICHESSES NATURELLES et SAGANASH COTTAGE OWNERS ASSOCIATION - Respondents

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL:
Ronald Caza, for the Applicant

Andrew J.F. Lenz, for the Respondent, the Ministry of Natural Resources

HEARD: October 11, 2012

ENDORSEMENT

[ 1 ] This was an application for an order compelling the Saganash Cottage Owners Association (the Association) to modify a trail or road that they substantially improved in the summer of 2009. The improvements to the trail were made pursuant to a work permit granted by the Ministry of Natural Resources (MNR). The applicant has put forward the position that the Association has in effect constructed an illegal road instead of what they were authorized to do, which was to improve an existing trail. The applicant asks, as a consequence, that the court exercise its inherent jurisdiction as a court of equity to right this wrong and order the wrongdoers to take the necessary steps to convert the so-called road back into a trail.

[ 2 ] The essential facts in this case can be summarized as follows:

• The applicant Richard Landriault owns and operates a fishing/hunting outpost on Lake Saganash, Lake Saganash is approximately 12 to 13 km long. It is located near Kapuskasing in Northern Ontario.

• The applicant has operated the outpost since 1994. It is located at the north end of the lake. One of the reasons the outpost enjoys a measure of success is that Lake Saganash is a semi-closed lake, meaning there is no access by motorized vehicles save and except ATVs and snowmobiles. As a consequence the fishing and hunting is better, and to be concerned that cars and trucks could ever access the lake is valid.

• The MNR is the authority responsible for granting work permits to either improve upon existing trails, build roads, or grant land-use permits in relationship to Crown land located in and around the lakes and rivers in the province of Ontario.

• The Association consists of approximately 20 cottage owners who own cottages for the most part located at the very southern extreme of the lake. Some of the cottage owners have owned their cottages since the 1950s and 1960s.

• The cottage owners access their cottages through the use of trails. The only vehicles that they have ever used to access the lake or cottages have been all-terrain vehicles and snowmobiles.

• The trail used by the cottage owners deteriorated over time and accessing the cottage properties became more difficult with the passing years.

• The Association made a series of applications to the MNR to obtain work permits to improve an existing trail to allow better access to the cottages through the use of ATVs. The MNR finally granted a work permit on September 2, 2008 to allow work to take place between September 4, 2008 to September 12, 2008. A further work permit was issued on July 7, 2009.

• It is to be noted that the applicant participated or was offered to participate to some extent in relationship to the granting of these work permits.

• The work permit specifically stipulated that it was to improve a trail, a land-use permit was also granted to the cottage owners describing what use they could make of this "trail". The use of cars or trucks is specifically unauthorized.

• The applicant through his Counsel delivered a letter on July 17, 2009 to the MNR insisting that the construction project be stopped alleging that the permit violated the MNR's policies with respect to land usage. The construction continued to completion.

• The trail in question is 7.2 km long; the photographic evidence presented at the application demonstrates that the trail has all the appearances of a dirt road that one would expect to use to access cottages by a car or truck in northern Ontario. However, the MNR throughout the process including once the construction on the trail was completed gave their approbation and indicated that the Association complied with the work permit.

• There are certain factors that allow for a finding that what was built is an elaborate trail and not a road, these include: that access is only to be granted to the cottage owners via a locked gate at the commencement of the trail, there are boulders and logs that would act as an impediment to driving a car or truck from one end of the trail to the other, there is a wooden bridge on the trail that is likely not passable by car or truck.

• There was no evidence whatsoever to indicate that anyone had ever used the trail as a road, and in fact the land-use permit issued by the MNR to each and every one of the cottage owners clearly stipulates that they are not allowed to use it as a road.

[ 3 ] Counsel representing the MNR submitted that there were a constellation of reasons why the court should dismiss the application. I agree. I would dismiss the application for the following specific reasons:

• This is a case where the application should have been for judicial review aimed either at the decision making process vis-à-vis the issuance of a work permit by the MNR or in the MNR's allowing and approving the level of construction to the trail undertaken by the Association.

• Even if this were not the case, and although an elaborate trail that could pass for a road may have been constructed by the Association, I find no wrongdoing here justifying an order to the cottage owners respecting this trail. They followed the letter of the law; the governing authority monitored and approved everything they did. The bottom line is they are not using it as a road. Where is the injustice? Where is the wrong that requires a remedy?

• The land-use permit restricts the usage of this trail/road to all-terrain vehicles and snowmobiles. The only possible reason for Mr. Landriault’s complaint is that the lake would lose its semi-closed designation because cars and trucks will use the trail as a road. This is simply not the case.

• Had the applicant presented evidence of anyone using a car or truck on this trail or road to gain access to the lake then perhaps equity would have been in his favour. In this case it simply is not.

[ 4 ] Therefore, for all of the above reasons the application is dismissed.

[ 5 ] With respect to the issue of costs if the parties cannot agree then I will accept two pages of written argument from the respondent MNR within 10 days of the release of this decision, and two pages in reply from the applicant's five days thereafter. If I do not hear from counsel within that timeframe, then I will assume that they have resolved the issue of costs.

Mr. Justice Robert L. Maranger

Date: October 16, 2012

COURT FILE NO.: 11 50748

ONTARIO SUPERIOR COURT OF JUSTICE RE: RICHARD LANDRIAULT - Applicant AND ONTARIO (MINISTÈRE DES RICHESSES NATURELLES) et SAGANASH COTTAGE OWNERS ASSOCIATION - Respondents BEFORE: Mr. Justice Robert L. Maranger COUNSEL: Ronald Caza, for the Applicant Andrew J.F. Lenz, for the Respondent, the Ministry of Natural Resourses ENDORSEMENT Maranger J.

Released: October 16, 2012