ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Edward Johannson, Donna Brunet, Jack Brunet, Esko Heiskanen, Kaisa Heiskanen, Ronald Dubois, Michael Penasie, Gayle Dubois, Don Wing, Gwen Dubois-Wing, Norma Dubois and Gary Nelson
Michael Harris, for the Applicants
Applicants
- and -
Rodney Bodnar
Brendan Hardick, for the Respondent
A N D B E T W E E N:
Rodney Bodnar
Brendan Hardick, for the Applicant by Counter-Application
Applicant by Counter-Application
- and -
Edward Johannson, Donna Brunet, Jack Brunet, Esko Heiskanen, Kaisa Heiskanen, Ronald Dubois, Michael Penasie, Gayle Dubois, Don Wing, Gwen Dubois-Wing, Norma Dubois and Gary Nelson, Her Majesty the Queen in Right of Ontario, Hockenhull Land and Cattle Co. Ltd., Colleen Marie Joan Craig, Theodore Robert Prochnau and Canadian National Railway
Michael Harris, for the Respondents to the Counter-Application
Respondents to the Counter-Application
McCartney J.
Reasons on Motion
1This matter commenced as an Application in which the Applicants’ seek a declaration to have a road described herein as a “travelled road” as a public road. Today we are dealing with a motion concerning a part of the Counter-Application in which the Counter-Applicant (Bodnar) asks for the following relief:
- The Counter-Application be dismissed as against the following Respondents to the Counter-Application:
Hockenhull Land and Cattle Ltd.
Colleen Marie Joan Craig
Theodore Robert Prochnau
Canadian National Railway Company
Without costs.
An order to go joining her Majesty the Queen in Right of Ontario (Ontario) as a Respondent in the Application
An order that the Counter-Application and the Application herein be consolidated and heard together.
An order that the Consolidated Applications proceed to Trial and be treated as an Action.
2Regarding 1. above, hearing no objection, an order is to issue accordingly, which I have signed this date.
3Regarding 2. above, the parties present are in agreement that Ontario should be added as a Respondent, and Ontario having signalled that it consents on a without prejudice basis to being added it is hereby so ordered.
4Regarding 3. above, again the parties present are in agreement on the question on whether the Application and Counter-Application should be consolidated and tried together – and hearing no objection, consolidation is hereby ordered.
5Regarding 4. above, the issue of converting the Application to an Action is contested by the parties.
The Law
6Rule 38.10(1) of the Rules of Civil Procedure reads as follows:
On the hearing of an Application the presiding judge may
Grant the relief sought or dismiss or adjourn the application in whole or in part and with or without terms or
Order that the whole Application or any issue proceed to trial and give such directions as are just.
7Counsel agree on the law on this topic as set out it Sandhu-Malwa Holdings Inc. v. Auto-Pak Ltd., 2011 CarswellOnt 15566 at paras. 39-40, as follows:
In the case of Newcastle Recycling Ltd. v. Clarington (Municipality) [2005 46384 (ON CA), [2005] O.J. No. 5344 (Ont. C.A.)], our Court of Appeal held that it is beyond the proper role of an Application Judge to determine the credibility of a deponent to resolve material facts which are disputed and which may affect the result.
In articulating the above legal principle, the Court of Appeal reference Paisley, J.’s decision of this Court (on a motion) in Yoo v. Kang, [2002] O.J. No. 4041 (Ont. S.C.J.) where the motions Judge said:
I have quoted the Applicant’s and Respondent’s factums at length because I have a discretion on an Application of this nature to direct a trial of an issue. It is not open to a Judge on an Application, where Affidavits on examinations in transcript form are the only evidence before the Court to decide the credibility of the witnesses in anything other than the clearest of cases where the facts are in essence unopposed, or the facts are so clear that there is no genuine issue to be tried.
8Even though the parties agree on this statement of the law they disagree as to how it applies in this case.
9Counsel for Mr. Bodnar argues that there are complicated and disputed facts in issue here i.e. multiple property owners could be effected, a survey would be required before a description satisfactory for an order could be made, complicated legal issues over responsibilities for roads outside of an organized municipality, and credibility issues to be dealt with. Thus, he argues a Trial is necessary to fully address the issues in this case.
10Counsel for the Applicants point out the following:
- To determine whether a highway is public it must be shown
The owner’s actual intention to dedicate it as a public way
That intention was carried out i.e. “open and unobstructed use by the public for substantial period of time is, as a rule, the evidence from which a trier or fact may infer both dedication and acceptance.”
See Gibb v. Grand Bend [1996 2835 (ON CA)], [1995] O.J. 3709 – para. 108 (Ontario Court of Appeal)
- It does not matter how heavy or light the use of the road by the public was – only that the road was used by the public at large. Once a road has been dedicated it cannot be revoked by either the owner who dedicated the road – or his successor in title.
See Gibb v. Grand Bend [1996 2835 (ON CA)], [1995] O.J. 3709 – para. 110 (Ontario Court of Appeal)
11In this case the Applicants’ affidavit evidence indicates:
The original owner of the property – Harju – back in the 1960’s consented to Mayo constructing the “travelled road” through his (Harju’s) property.
At first the road was used by area property owners to access their camps.
Later a school was built and the road was used to access the school until it closed in 1979.
After it closed as a school, the building was used as a community center – accessed by the public over the road.
Harju continued to sell lots for summer camps, and the road was used by the public to access their camps.
In 1980 Mayo built a post office to service the area, and some 800 people, over 700 of which did not live on the “travelled road” accessed the post office by the road. Mayo ran the post office for 16 years. In the year 2000, the Mayos sold their property to Edward Johannson.
12I have read Mr. Bodnar’s affidavit thoroughly. He states as follows:
He was unaware when he bought the property that this was considered a public road
He believed that the road was a private road forming part of his title to the property.
He intended to develop part of the land into a trailer park (which he has done).
If the road is declared public, it will affect his business, and it would be unclear who would be responsible to maintain it.
There could be liability issues detrimental to him if the road were found to be public.
He could be liable for safety issues if the road were found to be public.
He denies attempting to block access – although he admits he did so temporarily and also indicated he was going to start charging others to use the road (which he has not done).
The Community Centre is rarely used anymore and the post office is closed.
13Clearly, little in Mr. Bodnar’s affidavit addresses the main issue here, that being whether the original owners intended to dedicate the road as public – and carried out his intention. The facts as set out in the Affidavits of the Applicants are clear, uncomplicated, and credibility does not seem to be in issue. So it would appear that there is no good reason to convert the Application to an Action, and this aspect of the motion is therefore dismissed.
14The balance of the motion is adjourned sine die – to be returned on 10 days written notice if required.
15Costs of today’s motion are reserved to the judge hearing the Consolidated Application.
The Hon. Mr. Justice J. F. McCartney
Released: April 16, 2013
COURT FILE NO.: CV-12-444
DATE: 2013-04-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Edward Johannson et al.
Applicants
- and –
Rodney Bodnar
Respondent
A N D B E T W E E N
Rodney Bodnar
Applicant by Counter-Application
- and –
Edward Johannson et al.
Respondents to the Counter-Application
REASONS ON MOTION
McCartney J.
Released: April 16, 2013
/mrm