ONTARIO

SUPERIOR COURT OF JUSTICE

BRACEBRIDGE COURT FILE NO.: CV-10-140-00
DATE: 20121106

BETWEEN:

LINDA SIMEK and STEPHEN GIBSON Plaintiffs – and – THE CORPORATION OF THE TOWN OF GRAVENHURST, GORDON GABITOUS, JAMES EARL RATCLIFF, AMEDEO FUSCO and WILLIAM FRANCIS MacDONALD Defendants

J.R. Armstrong, for the Plaintiffs

M. Miller, for the Defendant Town of Gravenhurst
D. Wyjad, for the Defendants Gordon Gabitous, James Earl Ratcliffe, Amedeo Fusco and William Francis MacDonald

HEARD: May 23, 24, 25, 28, 29, 30, 31, June 4 and 5, 2012

McISAAC J.:

I – INTRODUCTION

[ 1 ] This matter involves two major claims: first, a declaration that a trail located on the property owned collectively by the defendants Gordon Gabitous, James Earl Ratcliff, Amedo Fusco and William Francis MacDonald and located in the former Township of Ryde (now Town of Gravenhurst) is a public highway; and, alternatively, a declaration that this trail is an access road that cannot be barricaded by these same defendants under the terms of the Road Access Act , R.S.O. 1990, c.R.34. There are also several related ancillary claims. The original application was converted into an action pursuant to the order of Wood J. dated March 26, 2012. I gave an order for Directions at the opening of trial which resulted in the parties preparing pleadings that have been incorporated into a Trial Record.

II – BACKGROUND

[ 2 ] The plaintiffs purchased two tracts of land in Concession 2 and 3 of the former Township of Ryde in March 2006 from the Estate of Morley Donald Meadows. They consist of lots 8 – 12, Concession 3 and part lots 13 and 14, Concession 2. There is a sideroad allowance between lots 10 and 11 of each concession as well as an unopened road allowance between Concessions 2 and 3. The plaintiffs suggest that their only means of access to their properties is by way of the trail that traverses their Concession 3 tract and the properties of the personal defendants terminating on Concession 4 abutting Lot 6 which is a municipality-maintained roadway. I will refer to this trail as the “subject road”.

III – HISTORICAL CONTEXT

[ 3 ] Ryde Township became part of the Town of Gravenhurst in 1971. It was originally surveyed in 1861 at which time the lots were laid out along with concessions and sideroads. The sideroads were spaced every fifth lot. These municipal roads were slow to develop and initial reliance was placed on the system of sporadic colonization roads which spread northward into the District of Muskoka. These roads accessed free land grants to potential settlers. The first of such roads was the Ryde Road which was initially constructed on the west side of the Township in a generally north-south direction.

[ 4 ] The south-eastern quadrant of the Township did not have the benefit of any such colonization roads until the Ryde Centre Road was pushed southwards to the Settlement of Lewisham in 1886. Lewisham is located on the 5/6 Sideroad just north of Concession 4. Despite the apparent lack of access until 1886, between 1874-8 there were numerous allotments to settlers in the vicinity of Lewisham: see Exhibit #6. Several of them were located on properties owned by the plaintiffs and the personal defendants. A Post Office was opened in Lewisham in 1882 and the first school was constructed in the vicinity of Lewisham in 1879: see Exhibit #2, Tab 58 and Exhibit #28. The Ryde Centre Road was not completed southward to the town line of Dalton Township until 1897 but only in a “rough manner”: see Exhibit #2, Tab 76. Dalton Township was already served by another colonization road, the Dalton and Washago Road, which travelled eastward from Washago across the northerly limits of that township and from which the Ryde Road connected close to the westerly limits of Ryde Township. These three colonization roads, the Ryde Road, the Ryde Centre Road and the Dalton and Washago Road, were not any of the 16 principal Colonization roads in the Ottawa-Huron Tract but can be best described as “shorter off-shoot” or informal, colonization roads: see Russell on Roads , 2 nd ed., at pp. 108-9.

IV – THE GULLY ROAD

[ 5 ] The plaintiffs suggest that the subject road forms an integral part of the Gully Road which is a public highway. There appears to be no issue that it begins on the boundary line between Dalton township in Victoria County and Ryde Township in Muskoka District. South of that starting point, it travels down to meet the Dalton and Washago Road. In 1941, the Township of Ryde purported to close a “certain [portion]” of the Gully Road from the Dalton/Ryde line to the easterly limit of lot 11, Concession 3: see By-law #382 at Exhibit 1, Tab 22. There are numerous references to municipal funds being expended for the upkeep of the Gully Road prior to 1928 when “Use at Own Risk” signs were directed to be posted by township officials. These tasks included grading, installation or replacement of culverts and bush clearing and suggest to me that the public was making continual use of this byway as a means of access into this part of the Township in general and to the Village of Lewisham in particular.

[ 6 ] After the plaintiffs had purchased their properties in 2006 and the issue of access thereto had emerged, they received a letter from the Town Manager of Gravenhurst dated July 24, 2007 which contained the following paragraph:

The road (known as The Gully Road) has been in existence since on or before May 26, 1890 and has been under the control of the former Township of Ryde up to the amalgamation of the Town of Gravenhurst in 1971. Maintenance of this road was undertaken until a portion of the road from the easterly limits of the property (now owned by yourself) was closed. The 4 th Concession Road was taken over by the Department of Highways in 1953, however Ryde Township left the portion of the Gully Road open from the northerly limits of Lewisham Road along to the 4 th Concession open (sic) for access to properties accordingly. This would allow for you to continue access to your land through the Gully Road presently. (my emphasis added).

[ 7 ] In addition to these numerous references to monies being expended for the upkeep of the Gully Road, there are several maps that reference it and which suggest that it continued northwesterly all the way to the village of Lewisham. These comprise nine depictions between 1932 and 1994 which include the subject road. On the other hand, a 1912 map from the Department of the Interior depicts nothing relating to any part of the Gully Road: see Ex. 9.

V. – ANALYSIS

(i) Public Highway

1. What is the provenance, extent and status of the Gully Road?

[ 8 ] The plaintiffs have failed to satisfy me that this is a colonization road. It is not referenced in the Ontario Colonization Roads Map: Exhibit #8. However, the evidence does satisfy me that it was a “trespass” road: see Russell on Roads , supra, at pp. 93-8. It came into existence as a convenient “short-cut” from the Dalton/Ryde Townline to the settlement at Lewisham that did not get formal access through the development of colonization roads until 1886. The settlers probably followed an already established Aboriginal trail ending at South Longford Lake. It became a public highway by application of the principle of implied dedication by long use and acceptance by the municipality by the payment of monies for its upkeep: see Foothills (Municipal District No. 31) v. Stockwell (1986) 1985 ABCA 229 () , 64 A.R. 335 (Alta C.A.) at paras. 4-6 . These monies, in my view, would not have been needed unless there had been continuous use on the part of the public. This was not a case of neighbourly tolerance and sporadic expenditure of municipal funds for upkeep: see Reed v. Town of Lincoln (1975) 1974 513 (ON CA) , 6 O.R. (2d) 391 (C.A.). The only way for the twice weekly stagecoach to travel from Cooper’s Falls on the Dalton and Washago Road in the mid-1880’s in a relatively straight line to Lewisham would be to follow the route along the Gully Road which must have included the subject road portion: see Ex. 28. It is evident that with the passage of time the public use of this road diminished to the point where the Township purported to close part of it in 1941.

[ 9 ] It is a mystery why the entire road was not closed. That issue has disappeared in the mists of time. However, I am satisfied that some part of the Gully Road remained open after this purported closure. I am persuaded that the remainder can only be the subject road which is the last section before one arrives at Lewisham. The letter from the Town Manager dated July 24, 2007 confirms this interpretation of events and the status of the subject road as a public highway. The author’s attempts to resile from this interpretation in a subsequent e-mail and in his trial testimony are both weak and unconvincing.

[ 10 ] I appreciate that over the years there is some evidence of both work being conducted on and use of the 4/5 Concession and the 10/11 Sideroad. However, these factors do not detract, in my opinion, from the compelling evidence that there was a diagonal portion of the Gully Road travelling northeasterly from the 10/11 Sideroad to Lewisham that remained a public highway on the principle of “once a highway, always a highway” after the purported closure in 1941.

[ 11 ] In the result, I find that the subject road is a public highway. However, I am not in agreement that it has a 66 foot breadth as proposed by the plaintiffs’ Plan 25R-22497: see Exhibit #1, Tab 1. This proposal is based upon a conveyance dated July 18, 1946 wherein the Township transferred lots 15 and 14, Concession 2 to a David McKendry but reserved a “road allowance, following the now existing road” of four rods width. There is no doubt that this is a reference to part of the Gully Road that had been purportedly closed five years earlier. Despite this confusion, the plaintiffs advance this purported reservation as proof that the Township had assumed a roadway of this breadth. In my view, this is a very slender reed upon which to construct such an extensive expropriation of private property. I agree with the Town’s expert, Mr. Bunker, that this trail was no wider than to permit the passage of a horse-drawn wagon and, later, a motor vehicle, a width of only 1.4 meters: see Exhibit 3, Tab 40, photograph #38. Accordingly, although I agree that the public highway traces the route as depicted in Plan 25R-224967, it is only 1.4 meters wide.

2. Whether the plaintiffs are entitled to a conveyance from the Town of Gravenhurst?

[ 12 ] As previously noted, the Township of Ryde purportedly closed the westerly portion of the Gully Road in 1941. This portion traversed some of the property now owned by the plaintiffs. In my view, there are two problems associated with this proposal. First, the closing by-law “does not take effect” until a certified copy thereof has been filed in the Land Registry: see s.34(1) of the Municipal Act , 2001 as amended in 2006. Assuming that I could direct that the Town so file, the second problem relates to the fact that the abutting owners of property no longer enjoy the “right of first refusal” as once existed under the terms of s.315 of the Municipal Act , R.S.O. 1990: see Russell on Roads , supra, at p. 221.

[ 13 ] In the result, I am not persuaded that I have the jurisdiction to make this order.

3. Conclusion

[ 14 ] The road as depicted in Plan 25R-22497 is declared a public highway to a width of 1.4 meters. The personal defendants are ordered to forthwith remove any barriers that preclude full and free access across this road and to not replace any such barriers in the future. Failing such removal or in the case of any future barrage, the Town of Gravenhurst shall itself remove such barriers at the cost of such offending personal defendant or defendants.

(ii) Road Access Act

1. Whether the subject road is governed by this Act?

[ 15 ] Having found the subject road to be a public highway, that automatically excludes it from being considered as an “access road” as defined in s.1 of the Act. However, if I am wrong in this conclusion, I go on to consider whether the Act would otherwise apply.

[ 16 ] The Act prohibits the construction, placement or maintenance of a barrier over an access road that prevents all road access to one or more parcels of land unless such barrage receives court approval: see. S.2(1) of the Act. There is no issue that there are two such barriers, one on Lot 6 and the other on Lot 7, Concession 4/5. The question in this case is whether they prevented “all road access” to the plaintiffs. None of the personal defendants have counterclaimed for a closing order under the Act.

[ 17 ] The Court of Appeal has developed principles in relation to the interpretation of this legislation. First, an as yet unopened road allowance does not qualify as alternate road access under the Act: see 2008795 Ontario Inc. v. Kilpatrick , 2007 ONCA 586 at para. 31 . In my view, that holding is a complete answer to the personal defendants’ suggestion that the plaintiffs have alternate road access along the 2/3 Concession from the 5/6 Sideroad on the east or the Riley Lake subdivision on the west. Second, the same result would prevail over an impassable concession or sideroad: see Russell on Roads, supra, at pp. 263-4. No form of ATV, including the eight-wheel Argo owned by Mr. Sopher, could penetrate the impediments existing along the 4/5 Concession at Lots 9 and 10. These include a large rock outcrop, a deep swamp and an impenetrable stand of tag alders. In my view, this prevents road access to the plaintiffs to their properties by way of this concession road and sideroad 10/11 and can, in no way, be described as “an existing road” under the Act.

2. Conclusion

[ 18 ] I find that the plaintiffs have established there is no alternate road access to their properties and that the barriers presently existing on lots 6 and 7 of Concession 4/5 offend the Act in the absence of a closing order. In the result, such barriers shall be forthwith removed to permit the plaintiffs free and unimpeded access along the road as previously defined in these reasons, that is, a road 1.4 metres in width.

VI – COSTS

[ 19 ] The plaintiff will have 30 days from the date of release of these reasons to file their brief written submissions as to costs of this action. The defendants will have a further 30 days to respond.

McISAAC J.

Released: November 6, 2012