ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-43375
DATE: 2013-04-09

BETWEEN:

DAVID MCCLATCHIE AND VICTORIA MCCLATCHIE
Plaintiffs

– and –

THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES AND ALLEN CHURCHILL
Defendants

Robert De Toni, for the Plaintiffs

Richard E. Knott, for the Defendant Corporation of the Township of Rideau Lakes

Thomas P. Connolly, for the Defendant Allen Churchill

HEARD: November 14-15, 2012 (Ottawa)

REASONS FOR DECISION

KERSHMAN J.

INTRODUCTION

[1] An action was commenced by the Plaintiffs, David McClatchie and Victoria McClatchie (“the McClatchies”), claiming ownership from the defendant Allen Churchill (“Mr. Churchill”) of various parts on a draft reference plan (“Draft Reference Plan”) prepared by Paul Riddell, Ontario Land Surveyor (“O.L.S.”) (“Draft Reference Plan”). The McClatchies also seek a declaration against the Corporation of the Township of Rideau Lakes, formerly known as the Township of South Elmsley, (“the Township”) that a portion of a Road Allowance on Mr. Churchill’s property (the “Road Allowance”) be declared a highway in accordance with the Registry Act, R.S.O. 1990, c. R.20 and the Surveys Act, R.S.O. 1990, c. S.30, together with a declaration that the McClatchies are in sole occupation of that land.

[2] There are currently three motions before the Court:

a) A Motion for summary judgment by the Township against the McClatchies.

b) A Motion for summary judgment by Mr. Churchill against the McClatchies.

c) A cross motion by the McClatchies to amend their Statement of Claim in accordance with a draft Amended Statement of Claim.

[3] Counsel for all parties have agreed that if the motion to amend the Statement of Claim is successful, both of the motions for summary judgment are to be determined in accordance with the proposed Amended Statement of Claim. The Court will first deal with the cross motion to amend the Statement of Claim followed by the two motions for summary judgment.

Factual Background

[4] The property in question is part of Lot 20, Concession 5, Township of South Elmsley, designated as Parts 1 and 2 on Plan 28R‑3361, and lands adjacent to the west of Lot 16 on Plan 198 and north of the Road Allowance on Plan 198. Mr. Churchill has been the owner of the property (“the Churchill Property”) since March 26, 1980.

[5] The Plaintiffs acknowledge that Alma Churchill should not be a party to this matter. Accordingly, the Court orders that the style of cause be amended to delete her name and any reference seeking relief against her in the pleadings.

[6] James and Gertrude Parsons (“the Parsons”) originally purchased Lot 16, Plan 198 (“the McClatchies’ Property”) on May 15, 1980 from Wayne Collis. By deed dated June 6, 1980 the Parsons were granted a right‑of‑way over part of Lot 21, Concession 5, more particularly designated as Part 2 on Plan 28R-2363 by Douglas B. Hughes, the owner of Part 2.

[7] In 1981, the Parsons transferred the property to James Parsons alone.

[8] James Parsons subsequently transferred the property to John and Deborah Banford (“the Banfords”) on August 12, 1982. In 1994, the property was transferred from Mr. and Mrs. Banford to Mrs. Banford alone.

[9] In 1982/83, the Banfords built a house that currently stands on the property, together with a septic tank. The previous house that was located on the property had burned down while the Parsons were owners of the property. The Draft Reference Plan (Exhibit 5) prepared by Paul Riddell, on July 8, 2008, shows an encroachment by part of the house, together with the septic tank, septic lift pump, septic field and retaining walls onto part of the Churchill Property. These are all shown on Part 1 of the Draft Reference Plan.

[10] Deborah Banford, subsequently known as Deborah Faye, transferred the property to the McClatchies on September 25, 2001, by deed number 0315008 for $235,000. The property description is as follows:

Geographic Township of South Elmsley, now in the Township of Rideau Lakes, County of Leeds, Lot 16, Plan 198, together with the right‑of‑way over part of Lot 21, Concession 5, designated as Part 2 on Reference Plan 28R2363 and part of Lot 20, Concession 5, designated as Parts 3 and 4 on Plan 28R-9462 and part of Lot 20, Concession 5, designated as Part 3 on Plan 28R‑3361.

[11] The McClatchies have brought a claim against the Township seeking a declaration that Part 1 on the Draft Reference Plan be declared to be a highway in accordance with the Registry Act and the Survey Act, and as such, rendering the McClatchies the sole occupants of that land.

[12] The McClatchies have also brought a claim against Mr. Churchill seeking that if the lands in question are not declared to be a highway, that they are the owners of certain parts of the Churchill Property by adverse possession or some other remedy to a similar effect. These remedies are set out in the Statement of Claim and the Amended Statement of Claim.

Motion by the Plaintiff to Amend the Statement of Claim

Should the Statement of Claim be amended in accordance with the proposed Amended Statement of Claim?

[13] After hearing the motions, counsel sent a letter, dated November 22, 2012, wherein they all agreed that both motions for summary judgment were to be determined in accordance with the proposed Amended Statement of Claim, if the motion to amend was successful.

The McClatchies’ Position

[14] Mr. and Mrs. McClatchie seek to amend the Statement of Claim to add various relief as set out in the proposed Amended Statement of Claim. The Court notes that oral argument was made by the Plaintiffs at the hearing of the motion asserting a claim of necessity. The Court notes that the necessity claim has not been pleaded in the proposed Amended Statement of Claim and, accordingly, will not be allowed.

[15] The Plaintiffs rely on Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[16] The Plaintiffs brought the motion to amend after the matter had already been set down for trial.

[17] The Plaintiffs argue that leave is required to amend pleadings after an action has been set down for trial, but that such leave is generally granted on terms as are just, otherwise the rule permitting amendments would be meaningless. They refer to the case of Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 64295 (ON SC), 66 O.R. (3d) 74 (Sup. Ct.), wherein Master MacLeod, at para. 21-24 stated:

I agree wholeheartedly with his summary but since the decision was released, the Court of Appeal released reasons in Mota v. Hamilton Wentworth Police Services Board (see below). That decision is not specifically relevant to the case at bar. It modifies the first of the tests enunciated by Master Dash by settling the law that prejudice is presumed if a limitation period has expired. The three tests enunciated in Refco may then be restated as follows:

(a) The amendments must not result in irremediable prejudice. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case, the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice: Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 47526 (ON CA), 63 O.R. (3d) 737, 225 D.L.R (4th) 295 (C.A.), at p. 748 O.R.

(b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: Atlantic Steel Industries, Inc. v. CIGNA Insurance Co. (1997), 1997 12125 (ON SC), 33 O.R. (3d) 12 (Gen. Div.).

(c) The proposed amendments must otherwise comply with the rules of pleading. For example, the proposed amendments must contain a “concise statement of material facts” relied on “but not the evidence by which those facts are to be proved” (rule 25.06(1)), the proposed amendments are not “scandalous, frivolous or vexatious” (rule 25.11(b)), the proposed amendments are not “an abuse of the process of the court” (rule 25.11(c)), the proposed amendments contain sufficient particulars -- for example, of fraud and misrepresentation (rule 25.06(8)).

In short, rule 26.01 requires that a properly framed proposed amendment that is tenable at law will be allowed providing it does not result in prejudice that cannot be addressed in costs. This brings a logical consistency to the rules. In the absence of prejudice, it would be peculiar if the mandatory language of the rule were interpreted to prevent a pleading that could have been advanced in the first instance. It would be equally illogical to permit a pleading by way of amendment that would not have been permitted in the first place. That is why the pleading amendment analysis should incorporate the tests in rules 25.11 and 21.01(1)(b) because those rules are available before a defendant pleads. Rule 20, on the other hand, the summary judgment rule, is only available after a defence has been delivered. By analogy an evidence-based analysis of the merits is not appropriate on a pleadings motion.

The Court of Appeal has made it abundantly clear in Kings Gate Developments Inc. v. Drake (1994), 1994 416 (ON CA), 17 O.R. (3d) 841, 23 C.P.C. (3d) 137 (C.A.) that rule 26.01 means what it says. Amendments must be permitted even if sought on the eve of trial and even if it results in delay through adjournment of the trial. Conversely, the case stands as authority for the proposition that substantial indemnity for wasted costs should be the consequence of amendments late in the day.

The Court of Appeal did not address the consequence of rule 48.04 in Kings Gate, but it is obvious the plaintiff could not have obtained a trial date (under the ordinary rules) without setting the matter down for trial. Other cases have addressed this issue directly. Leave is required under rule 48.04 for a motion to amend after setting the action down for trial, but such leave is generally to be granted or rule 26.01 would be meaningless. See Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 1995 7144 (ON SC), 21 O.R. (3d) 753, 37 C.P.C. (3d) 111 (Gen. Div.), affd (1996), 1996 10247 (ON CA), 27 O.R. (3d) 578n (C.A.); Concord Concrete & Drain (1986) Inc. v. B.G. Schickedanz Investments Ltd., [1996] O.J. No. 500 (QL) (Gen. Div.).

[18] The position of the Plaintiffs is that since the matter can be compensated, either by way of an adjournment or by way of costs, the amendment should be granted.

The Defendants’ Position

[19] The Defendants take the position that since the matter has been set down for trial, no further amendments to the pleadings should be granted.

Analysis

[20] Rule 26.01 does make provision for a party to amend its pleadings after the matter has been sent down for trial.

[21] Having reviewed the case of Plante v. Industrial Alliance Life Insurance Co., the Court is satisfied that the amendments disclose tenable claims for the relief sought therein.

[22] In Refco Futures (Canada) Ltd. v. Keuroghlian, (2002), 39 C.P.C. (5th) 344 (Sup. Ct.), Master Dash, at para. 8, sets out three tests that would allow for the amendment. The tests are as follows:

(1) The amendments would not result in uncompensatable prejudice.

The Court agrees that in this case an amendment would not result in uncompensable prejudice that cannot be compensated for either by way of costs or by way of an adjournment.

(2) The amended pleadings must be legally tenable.

The Court is satisfied in this case that the additional claims being advanced are legally tenable as it discloses a cause of action. This Court accepts and adopts the observations made by the court in Refco: “Amendments are to be granted unless it is shown beyond all doubt that the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting.”

(3) The proposed amendments must otherwise comply with the rules of pleadings.

The Court is satisfied in this case that the proposed amendments do comply with the rules of pleadings.

[23] Accordingly, the motion to amend the Statement of Claim is granted. Since the motion to amend is successful, the motions for summary judgment will be determined in accordance with the Amended Statement of Claim.

Law on Summary Judgment Motions

[24] Both the Township and Mr. Churchill bring their motions for summary judgment under Rule 20.01(3) which reads:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

Test for Summary Judgment

[25] The Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 (C.A.), clarified the terms of the scope of the amended Rule 20 of the Ontario Rules of Civil Procedure, which governs motions for summary judgment. The court introduced a “full appreciation test” and provided guidance on the circumstances in which it would be appropriate for a court to resolve issues on a Motion for summary judgment.

[26] At paras. 38-39 of Combined Air, the Court of Appeal stated: “The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. … This pivotal determination must be made on a case-by-case basis.”

[27] The court then laid out three types of cases that are amenable to summary judgment:

1. where the parties agree that summary judgment should be used, although the court still has discretion to refuse summary judgment: paras. 41 and 72;

2. where claims or defenses are shown to be without merit or have no chance of success at trial. The motion judge must use the full appreciation test before deciding whether to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence: paras. 42-43 and 73; and

3. where the trial process is not required in the “interests of justice”. This power arises from the phrase “genuine issue requiring a trial” combined with the enhanced powers under sub rules 20.4(2.1) and 20.4(2.2). The motions judge is to assess whether he or she should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence, or whether these powers should be exercised only at trial: paras. 44-50 and 74.

[28] The full appreciation test is set out at para. 50 of Combined Air, as follows:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

[Emphasis added.]

[29] At paras. 51 and 52 of Combined Air, the Court of Appeal identified the types of cases that would be amenable to summary judgment and those that would not:

In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.

In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.

[30] The Court of Appeal, at para 53 of Combined Air, stated that the motions judge must assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case.

Motion for summary judgment brought by the Township

The Township’s Position

[31] The Township brings a Motion for summary judgment for an order directing that the Township is not the registered owner of the Road Allowance designated on Plan 198.

[32] The Township argues that the Township of Rideau Lakes is not the registered owner of the 40 foot Road Allowance because:

(1) there is no evidence that Mr. Churchill or any predecessor in title had transferred, deeded or in any other way given up ownership of the Road Allowance to the Township. The Township notes that portions of the Road Allowance have previously been conveyed to cottage owners who own the lands adjacent to the Road Allowance;

(2) all title documents are consistent with the private ownership of the Road Allowance and that the situation is consistent with other old cottage developments in the area. The Township states that there are a number of cottage plans, trailer parks and campgrounds served by private roads with no intention by the owners for the Township to obtain ownership of those roads; and

(3) the Township argues that the part of the Road Allowance designated as Part 2 on Plan 28R‑3361 does not show all of the 40‑foot Road Allowance from Plan 198 because certain sections of the Road Allowance have previously been transferred to the respective cottage owners near Lots 33-38.

(4) The Township argues that a legal opinion from Rusty Russell, a solicitor practicing in Ontario (“Russell Opinion”), makes the following incorrect assumptions:

a) on page 2, under the heading “Surveyor’s Certificate”, Mr. Russell comments that it is logical to presume that the surveyor would have been aware of the additional provisions of section 81(8) of the Registry Act, R.S.O. 1914, c. 124, wherein it is stated that a plan could not be registered on which a road of less than 66 feet wide is laid out, unless approved by the Council. The Township argues that the owners’ intention was to lay out a private road allowance and not a public road allowance. The Township argues that private road allowances do not need to be 66 feet wide and do not need to be approved of by Council;

b) on page 2, under the heading “Registrar’s Certificate”, section 81(14) of the Registry Act states: “the Registrar shall not register a plan which does not comply with the provisions of this Act, nor shall he register a plan on which a road or street less than 66 feet wide without the approval of the proper municipal council…” The Township argues that this further indicates that this was to be a private road allowance, not a public one, since the Road Allowance was permitted to be less than 66 feet. As such, the municipal Council would not consider or reject the private road;

c) all of the title documents are consistent with private ownership of the 40-foot Road Allowance;

d) at para. 4 of the opinion, Mr. Russell states: “across the province, many documents have been registered against lots on such registered plans. If these plans are held to be invalid, the results would be catastrophic.” The Township argues that there are many plans registered within its township alone where private roads have been identified. If the Russell Opinion is accepted, it could generate significant financial sustainability concerns if the Township took the position that it owned all of the private road allowances based on the assumptions made by Mr. Russell; and

e) furthermore, the Township argues that since the Road Allowance has been described since 1922 and has been treated by the cottage owners and the sub‑servient owners from Henry Frayne to George Bourne to Mr. Churchill as a private roadway over private lands, it would now be improper to make the assumption that it was a public road allowance.

The McClatchies’ Position

[33] The Plaintiffs argue that the Russell Opinion, with respect to the Road Allowance, is correct and that should be followed by the Court which should declare that the Township has received an unqualified title to the Road Allowance on Plan 198, with the result that the Road Allowance is a public highway.

Analysis

[34] The Court finds that the Plaintiff’s claim against the Township is without merit. Based on the evidence, there is no chance of success. The Township has shown through affidavit evidence and other evidence (i.e. the evidence given at the examination for discovery), that the McClatchies have no chance of success in their claim against the Township.

[35] Most of the McClatchies’ evidence rests on:

a) the Russell Opinion; and

b) the beliefs of John Banford as contained in the McClatchie affidavits.

(a) The Russell Opinion

[36] The Court was advised by Township’s counsel that it was not certain as to how the Russell Opinion was obtained, by whom it was sought, and to whom it was given. The Court notes that the document provided ends at page seven. No final conclusions appear to be reached. Furthermore, the document is not signed.

[37] Plaintiffs’ counsel requested that the Court treat the Russell Opinion in a manner similar to that of an expert’s opinion. Township’s counsel requested that the Court treat the Russell Opinion not as an expert report but as akin to submissions by counsel.

[38] The Court is not prepared to treat the Russell Opinion similar to an expert report. This is a motion for summary judgment. The proper foundation for an expert’s report is set out in Rule 53.03 of the Rules of Civil Procedure. In the Court’s view, these requirements have not been followed. While the Court realizes that the requirements in the Rules deal with the concept of expert opinions at trial, it is not prepared to allow this legal opinion to be considered similar to an expert’s report. To do so would be inequitable to the other parties.

[39] Michael Dwyer, a manager of Development Services for the Township, advised the Court that subsequent to the execution of his affidavit, which stated that no documents could be located for the period of 1919-1923, all of the municipal records relating to that timeframe were located. A review of those municipal records showed nothing in relation to Plan 198. In other words, there was no evidence to show that the Township looked at, or reviewed anything with respect to Plan 198.

[40] Since the municipal records from 1919-1923 have been reviewed and there is no notation in relation to Plan 198, this Court finds that the Township did not, in that timeframe, look at, review or adopt, the 40‑foot Road Allowance on Plan 198.

[41] The Russell Opinon was based on a number of assumptions including the following:

1. that the Registrar and the Deputy Registrar of the county were well experienced in the procedures and the requirements for the registration of Plans of Subdivision; and

2. since there was no requirement that the consent of Council be given or attached to the Plan, it is reasonable to assume that the Registrar accepted a Letter of Confirmation from the Clerk of the municipality or a Resolution or a By-law.

[42] The evidence before the Court is that the Township was unable to locate any documents with respect to the Plan. No Letter of Confirmation, Resolution, or By-law from Council was located. The Court finds that the two assumptions mentioned at paragraph 43 above, are incorrect. There is no evidence to show that the Registrar or the Deputy Registrar had accepted either a Letter of Confirmation from the Clerk of the Municipality or that there was a Resolution or By-law in relation to making the 40-foot Road Allowance a public road.

[43] As the Court finds that these assumptions are incorrect, the Court is not prepared to rely upon the Russell Opinion in the context of this case. For the Russell Opinion to be valid the assumptions would have to be correct in law or there would have to be a factual basis proven in evidence for these assumptions. In this case, these assumptions are invalid and consequently the Russell Opinion cannot be relied upon.

(b) Mr. Banford’s Beliefs about the Right of Way

[44] The McClatchies argue that Mr. Banford had certain beliefs about the right of way. The court notes that there is no affidavit from Mr. Banford. There is only an affidavit for the McClatchie’s setting out Mr. Banford’s beliefs. In particular, paragraph 8 of the McClatchie affidavit says that John Banford bought the McClatchie property under the impression that there was an agreement with the Churchills to use the right of way for one dollar per year. The Court finds that there is no evidence to this effect. While Mr. Banford may have believed this to be the case, there is no evidence of this. He was mistaken and that mistaken belief cannot be held against Mr. Churchill.

[45] Furthermore, in Mr. McClatchie’s affidavit evidence, he says that Mr. Banford also thought that the Township owned the road allowance. Again, Mr. Banford was mistaken in his belief. The evidence is that he signed a permission document in 1988 specifically dealing with the road allowance. If he thought that the Township owned it, why would he have signed the permission document as it relates to the road allowance? A review of the permission document of 1988 specifically says that the Road Allowance is owned by Mr. Churchill. Therefore, while Mr. Banford may have believed that the Road Allowance belonged to the Township, he was mistaken and that mistake cannot be held against Mr. Churchill.

[46] In the Court’s view, there are additional reasons why the Road Allowance cannot be considered a public highway:

1. certain parts of the Road Allowance have already been conveyed to adjacent land owners so that part of it no longer exists in the form when it was created in 1922;

2. there was a transfer of land from Henry Frayne to Robert Bourne in 1946 which included the 40-foot Road Allowance. In the Court’s view, this is further evidence that the original owner, Henry Frayne, did not intend to transfer the 40-foot Road Allowance to the Township in 1922 or at any date thereafter. When Mr. Churchill and his wife purchased the property from Mr. and Mrs. Bourne on March 26, 1980, that transfer also included a transfer of that portion of the Road Allowance that had not already been sold to adjacent owners. Part 3 on Plan 28R‑3361 describes a portion of the original 40‑foot Road Allowance, which is directly behind Lots 16-27, which was conveyed to Mr. Churchill;

3. if the Road Allowance had been dedicated to the Township or had become Township property, it would never have been transferred from Mr. Bourne to Mr. Churchill;

4. subsequent owners of the Road Allowance actually transferred parts of it to adjacent property owners. In his cross-examination, held on September 20, 2012, Mr. Dwyer at question 35 said that, in his opinion, the conveyance of the Road Allowance by owners shows their intention to retain the Road Allowance as their own land and not provide it to the Township. The Court agrees with that opinion and makes a finding to that effect;

5. road allowances in favour of the Township were to be 66-feet in width. The Road Allowance in question is 40-feet in width. In the Court’s view, this is another indication that it is a private road allowance. Furthermore, a private Road Allowance need not be 66 feet in width and need not be approved of by Township Council; and

6. a review of the municipal Council’s records was performed and no evidence could be found that the 40-foot Road Allowance had been approved of.

[47] The Courts have dealt with the issue of road allowances in several cases. The Court of Appeal dealt with the issue of the creation of a public highway in the case of Cook’s Road Maintenance Association v. Crowhill Estates (2001), 2001 24149 (ON CA), 196 D.L.R. (4th) 35 (Ont. C.A.). At para 22, Borins J.A. states:

The legal principles that apply to the creation of a public highway by dedication are of ancient origin and are comprehensively set out in Halsb., supra, at p. 46 et seq. The basic principles are found at pp. 47-48:

62. Doctrine of dedication and acceptance. A road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance, that is, user, of the right by the public. “Dedication” means that the owner of the soil has either said in so many words, or so conducted himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage. From the moment that a dedicated way has been accepted there is a right of passage by the public.

63. Intention to dedicate. Dedication necessarily presupposes an intention to dedicate. The intention may be expressed in words or in writing, but is more often a matter of inference.

64. Acceptance by the public. Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute. User by the public is a sufficient acceptance; it is not necessary that the way should be adopted as repairable or maintainable at the public expense.

[48] The issue was also dealt with in the case of Lafferty v. Colburn (Township) (1999), 1999 15085 (ON SC), 45 O.R. (3d) 614 (Sup. Ct.). At paras. 3-30 the Court reviews the four ways in which a township can be liable to maintain a road, provided that there has been dedication of the road by the owner and assumption of the road by the municipality.

[49] The Court cannot find any evidence that the Road Allowance has been dedicated by the owners nor is there any evidence that there has been acceptance thereof by the public (Township) as a public highway.

[50] The indications in this case are contrary to dedication and use because, in part, the Road Allowance has been conveyed to adjacent property owners.

[51] Section 81(14) of The Registry Act, R.S.O. 1914, c. 124, sets out the provisions with respect to plans. In particular, that section says: “The registrar shall not register a plan which does not comply with the provisions of this Act; nor shall it register a plan on which a road or street less than sixty-six feet wide is laid out unless the assent of the proper municipal council is registered therewith.”

[52] Furthermore, the evidence is that there was no approval of this Road Allowance by the Municipal Council, notwithstanding the fact that it was less than 66 feet wide.

[53] There is no evidence on title that any of the owners of the Road Allowance have ever transferred, deeded, or in any other way given up ownership of it to the Township.

[54] Section 433 of the Ontario Municipal Act, 1913, 3 Edw. VII. c. 19, reads in part: “Unless otherwise expressly provided, the soil and freehold of every highway shall be vested in the corporation or corporations of the municipality or municipalities, the council or councils of which for the time being have jurisdiction over it under the provisions of this Act.” Notwithstanding this section, one of the previous owners did expressly provide that the property was to be transferred to the next owner. There is no indication that Mr. Churchill provided that the Road Allowance was to be transferred to the Township.

[55] Therefore, based on the evidence, this Court finds that the 40-foot Road Allowance is a private Road Allowance and not a public road allowance. As such, that part of the Road Allowance registered in the name of Mr. Churchill belongs to him and not to the Township.

[56] In conclusion, the Township’s motion for summary judgment against the McClatchies succeeds. The Plaintiffs’ claims, as against the Township, are shown to be without merit and have no chance of success at trial. As no genuine issue for trial has been raised, summary judgment is granted to the Defendant Township. Applying Rule 20, the Plaintiffs’ action against the Defendant Township is therefore dismissed.

Motion for summary judgment Motion brought by Mr. Churchill

Issue :Is this a proper case for summary judgment?

Mr. Churchill’s Position

[57] Mr. Churchill argues that this is an appropriate case to bring a Motion for summary judgment dismissing all or part of the Amended Statement of Claim (Rule 20.01(3) of the Rules of Civil Procedure).

[58] Mr. Churchill argues that Rule 20 permits summary disposition of cases where there is “no chance of success.” The amended rule also permits summary disposition of matters on the merits where the trial process is not required in the “interest of justice.” This phrase operates as limiting language that guides the determination of whether a motions judge should exercise the powers to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on a motion for summary judgment, or if these powers should be exercised only at trial. (See Combined Air, at paras. 44-45.)

The McClatchies’ Position

[59] The McClathie’s counsel relies on Rule 20.04(2)(a) and argue that there are genuine issues for trial and that it is in the interests of justice for the trial judge, not the motions judge, to use the powers of weighing evidence, evaluating credibility of the deponents and drawing any reasonable inferences from the evidence at a trial (Combined Air at para 3).

Analysis

[60] The Court finds that the Churchill Motion is not one which is capable of being dealt with by way of summary judgment.

[61] As stated in the Combined Air case, a judge on a motion for a summary judgment must be able to answer the following question: “can the full appreciation of the evidence and issues that is required to make positive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?”

[62] The Combined Air case at para 40-44 states a summary judgment can only be granted where the motion judge determines:

1. that the claimor defence has no chance of success or;

2. where the motions judge is satisfied that the issues are capable of being fairly and justly resolved and where the trial process is not required in the “interests of justice”.

[63] In this case, the Court does not accept that the McClatchies have no chance of success against Mr. Churchill in this matter for the reasons set out below.

[64] The various permission documents produced by Mr. Churchill are inconsistent. A review of the permission documents reveals the following:

• The 1988 permission agreement allows the owner of lot 16 to use the right-of-way only. The permission document does not deal with the land south of the right-of-way;

• the 1998 permission document allows use of the right-of-way and the land below the right-of-way;

• the 2002 permission document is silent as to the right-of-way. It allows the owners of lot 16 to use the triangular portion below the right-of-way.

[65] The Court understands right-of-way in the context of these documents to mean the Road Allowance. In the Court’s view the inconsistencies relating to this document do not allow the motions judge to have a full appreciation of the issues and the evidence on a motion for summary judgment.

[66] There is also the issue of whether the McClatchies had a valid claim to use parts of the Churchill Property for their house, the septic system and the retaining walls, all of which are either partly or fully on the Churchill Property.

[67] There is also the issue of the 40-foot Road Allowance and where is extends to or where it should extend to in relation to the westerly boundary of lot 16. Is the sliver of land between lot 16 and the water, part of the 40-foot road allowance?

[68] In the Court’s view, these are significant triable issues. There are other triable issues set out in the factums of the parties. They add up to the conclusion that significant findings of fact will have to be made. The Court will need to have extensive exposure to the evidence, the advantage to hearing evidence viva voce and will need to get a familiarity with the case as a whole to enable the trial judge to gain a level of appreciation of the issues and to make multiple dispositive findings of fact.

[69] Based on the aforesaid analysis the Court is satisfied that a trial process is necessary to fully appreciate the evidence and the issues posed in this case. Accordingly, the Churchill motion for summary judgment fails.

Conclusion

[70] The Plaintiffs’ motion to amend the Statement of Claim is granted.

[71] The Township’s Motion for summary judgment is granted.

[72] The Churchill Motion for summary judgment is not allowed.

Costs

[73] The Court has received Costs Outlines from each party. The parties shall have 14 days within which to resolve the issue of costs. If they are unable to do so within that timeframe, the Plaintiffs shall have 14 days to provide written costs submissions, based on the Costs Outlines, and the Defendants shall have 14 days thereafter to provide written costs submissions. The Plaintiff shall have the right of reply within a further 14 days. All costs submissions shall be no longer than four pages in length and shall comply with Rule 4.01 of the Rules of Civil Procedure.

[74] The Court thanks all counsel for their assistance and their able presentations in this matter.

[75] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: April 9, 2013

COURT FILE NO.: CV-08-43375
DATE: 2013-04-09

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID MCCLATCHIE AND VICTORIA MCCLATCHIE
Plaintiffs

– and –

THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES AND ALLEN CHURCHILL
Defendants

REASONS FOR DECISION

Kershman J.

Released: April 9, 2013