ONTARIO
SUPERIOR COURT OF JUSTICE
BARRIE COURT FILE NO.: CV-14-1001
DATE: 20151204
BETWEEN:
HENRY ARTHUR DAVID GOUETT and RITA E. GOUETT
Applicants/Respondents by Counter-Application
– and –
LISE MARIE MULLINS and GERALD TERENCE BLACK
Respondents/Applicants by Counter-Application
Michael Miller, for the Applicants/Respondents by Counter-Application
Michael W. Carlson, for the Respondents/Applicants by Counter-Application
HEARD: October 6, 2015
REASONS FOR DECISION
DiTOMASO J.
INTRODUCTION
[1] The Applicants Henry and Rita Gouett and the Respondents Lise Marie Mullins and Gerald Terence Black are neighbours residing in the Township of Tay near Matchedash Bay. A dispute has arisen between them as a result of the Gouett’s use of Tay Bay Road which runs through the property of the Respondents. Tay Bay Road is not a public highway. The Respondents maintain that Tay Bay Road is a private road located on their land. The Respondents maintain that the Applicants have used the Respondents’ private driveway to access the Gouett property. They deny their private driveway is an access road.
[2] The Gouetts assert that Tay Bay Road serves as a motor vehicle access route to their property which has been in use as such for over 60 years. The Respondents have erected a barrier which prevents all road access to the Gouett property and they have no alternate means of legal access to their property.
[3] The Respondents assert that the Gouetts do have other legal access to their property and that the Gouetts are trespassing on the Respondents’ lands.
[4] Pursuant to the Road Access Act, RSO 1990, c.R.34 (“the Act”), Ms. Mullins and Mr. Black brought an application seeking: (a) a Declaration that the private road known as Tay Bay Road which runs over Black 7 on Plan 51M-212 is not an access road as defined by the Road Access Act; (b) a Declaration that the private driveway on their property is not an access road as defined by the Road Access Act; and, (c) a permanent order closing the private driveway to the Gouetts.
[5] The Gouetts brought a counter-application seeking: (a) a Declaration that Tay Bay Road which runs across property owned by the Respondents is an access road defined in the Road Access Act; and, (b) a permanent injunction restraining the Respondents from blocking or interfering with the Gouetts’ use of the access road.
[6] On consent, the parties have agreed to an order permitting the Gouetts to use the roadway over the Respondents’ lands pending further court order.
[7] By order of Justice McCarthy dated April 7, 2015, both Applications were consolidated.
OVERVIEW
[8] The historical context regarding this matter is somewhat tortured but can be best summarized as follows.
[9] The Gouetts purchased their property as a recreational property on the shores of Matchedash Bay from Lawrence Devine on September 9, 1976. In the Agreement of Purchase and Sale, the Gouett offer was conditional upon legal road access being supplied to the purchaser before closing.[^1] Mr. Gouett did not obtain legal road access prior to closing but closed the transaction anyway.
[10] Vehicular access to the Gouett property was available on a rough road known as Manning Road since at least June 16, 1950.[^2]
[11] Manning Road also referred to as Manning Trail can also be found depicted by a red line running north to south connecting with the rectangular piece of property marked in red (the Gouett property) on a document described as Map 31.[^3] Manning Road is also identified in yellow/green on a copy of the draft Plan of Proposed Subdivision.[^4]
[12] Mr. Gouett maintains that Manning Road had provided access to the Gouett property since at least June 16, 1950.
[13] The lands which Manning Road crossed were purchased by a development company known as Tay Bay Estates Limited in 1983. Tay Bay Estates proposed subdividing the land into six five acre lots.
[14] Because the subdivider proposed closing Manning Road, the Gouetts filed an Objection to the Proposed Plan of Subdivision. Negotiations then continued between the Gouetts and the developer, at which time, in a letter dated October 5, 1983, the developer’s solicitors proposed an Agreement that provides “so long as the owner of Lot 6 agrees to permit a common roadway through his lands then all of the owners will agree to a grant over Lot 6.” This Agreement was reached “in consideration of Mr. Gouett withdrawing his objection to the Land Titles application and co-operating in the completion of the application and registration of the subdivision”.[^5]
[15] The Gouetts withdrew their Objection to the Plan of Subdivision and the parties all executed an Agreement providing for access. The developer was obliged to build a road over Block 7 which would then connect with a roadway to be built by the owners themselves over Lot 6. The owners’ individual driveways would then have connected with the road over Lot 6.
[16] The Agreement of November 11, 1983 provided that the owners of lots 2 through 6 would have rights of way over Lot 6 and Block 7.
[17] The Agreement indicated “all easements in right-of-way herein are declared to be appurtenant to and for the benefit of the owners’ lands, the purchasers’ lands, Block 7 and the Gouett lands, as the case may be.” The Gouetts believed that as a result of this Agreement they had easements and rights-of-way over Block 7 and Lot 6.
[18] Paragraph 7 of the Agreement further provided that the Gouetts could not grant further rights to any additional parties or subdivide or sever their property. There is a further provision in the Agreement which provides that severances would be obtained for the rights-of-way should they be necessary. The parties agreed to co-operate in arranging for any contracts necessary under the Planning Act and further, to register this agreement on title. None of those steps were ever taken.
[19] After the completion of the Agreement, the parties purchasing lots from Tay Bay Estates continued to use the road built by the developer over Block 7 for access and the Manning Road. The owners continued to use Manning Road, as did the Gouetts, for a three year period until a common road was constructed across Lot 6.
[20] The Township of Tay approved the Plan of Subdivision with the express condition that the Manning Road or Trail be closed within three years.
[21] The Tay Bay Estates Plan of Subdivision identified as Plan 51M-212 shows marked in red on Lot 6, the Mullins and Black lands, in orange on Block 7 and in blue at the top of the Plan, the Gouett lands.[^6]
[22] With respect to the 1983 Agreement, Mr. Gouett indicated that he executed his copy but could not locate a signed copy. The Statement of Account he received from his solicitor indicated that the Agreement was executed. Mr. Reed, who was the solicitors for Johnstons, another lot owner, confirmed in his reporting letter that the Agreement had been executed by all parties.
[23] Eleanor Johnston understood from the Agreement between the owners, Mr. Gouett and Tay Bay Estates was that Mr. Borsten, the original owner of Lot 6, would allow the Gouetts to cross over his property and the owners of lots 2, 3, 4 and 5 would allow Mr. Gouett to use the road on Block 7 if he paid his share of the costs. It should be kept in mind that Ms. Mullins and Mr. Black eventually became the owners of Lot 6 adjacent to the Gouett property.
[24] Mr. Borsten assumed responsibility for the construction of the common road across his property and collected funds from the parties for its construction.
[25] A dispute arose shortly after the construction of the common road with Mr. Borsten who took the position that, when one of the owners sold his or her property, he would decide if he would allow the new owner to use his driveway.
[26] The road constructed on Mr. Borsten’s property was intended to replace the Manning Road as the owner’s access.
[27] The roadway was used by other owners in 1986 and 1987, at which time they built their own driveways which connected directly with the road on Block 7 and ceased using the Borsten property. None of the owners required easements from the others for their driveways as the lots had been created in an “L” shaped pattern. (see Plan 51M-212)
[28] The portion of Tay Bay Road which crosses Block 7 before it reaches Lot 6 is maintained by the owners themselves. They do not hire someone to maintain it. Whatever records of road construction that existed, Mr. Borsten took those records with him in 2012.
[29] Since Mr. Borsten sold Lot 6 to Mr. Campo, no monies have been expended on Block 7 except for one occasion when the Johnstons put crushed rock on their own driveway and used what was left over for parts of Tay Bay Road in Block 7.
[30] The foregoing describes the activities of the Gouetts, Tay Bay Estates Limited and the various owners who purchased subdivision lots including Mr. Borsten. All of these activities and transactions occurred to the south of the Gouett property. The Gouetts continued to cross over Lot 6 from their property with the consent of Mr. Borsten and later, Mr. Campo.
[31] Ms. Mullins and Mr. Black purchased Lot 6 on May 1, 2014 and shortly thereafter locked a gate at one end of their driveway and erected a fence at the other end, denying the Gouetts access to their property.
[32] The historical narrative also includes lands to the north and east of the Gouett property. The Schaeper family owns these lands. They reside off Copeland’s Lane which is a private laneway which runs across their property. Because the Schaeper family had assisted in the construction of Tay Bay Road across Lot 6 and plowed it during the winter, they abandoned Copeland’s Lane which allegedly fell into disuse over a 25 year period.
[33] After the construction of Tay Bay Road across Lot 6, the Gouetts extended their driveway to intersect with it.
[34] In approximately 2010 or 2011, Peter Schaeper began to clear portions of what had been Copeland’s Lane to make it passable. He even altered the route by straightening a portion of it as part of his development of lots within his lands.[^7]
[35] With the permission of the Schaepers, the Gouetts made use of Copeland’s Lane when they were denied access by Ms. Mullins and Mr. Black.
[36] The Respondents submit that the Gouetts have an alternative motor vehicle access to the Gouett property through Copeland’s Lane which leads to a plowed municipal road called Lawson’s Line which runs to the north and east of the Gouett property.
ISSUES
[37] On this consolidated application the following issues are raised:
- Is Tay Bay Road as it crosses Lot 6 and Block 7 an access road as defined by the Road Access Act?
- Is there an alternative access road?
- Should the court exercise its residual discretion pursuant to s. 3(1) of the Road Access Act?
POSITION OF THE PARTIES
Position of the Applicants Gouett
[38] The Gouetts submit that Tay Bay Road is located on land owned by Ms. Mullins and Mr. Black. Tay Bay Road is not a public highway. Further, Tay Bay Road serves as the motor vehicle access route to the Gouett property and has been used as such for over 60 years. They further maintain that Ms. Mullins and Mr. Black have erected a barrier which prevents all road access to the Gouett property and, importantly, the Gouetts have no alternate means of legal access to their property.
[39] Accordingly, they seek declaratory relief designating a road as an access road and injunctive relief restraining the Respondents Mullins and Black from interfering with the Gouetts’ use of the access road across the Respondents’ lands.
Position of the Respondents Mullins and Black
[40] The Respondents submit that Tay Bay Road is a private road located on land owned by them and other property owners. This private road known as Tay Bay Road is not an access road as defined by the Road Access Act. Rather, the Respondents submit that the Gouetts have been using the Respondents’ private driveway to access their lands. It is submitted that the Gouetts have other legal access to their property and that the Gouetts are trespassing on the property owned by Ms. Mullins and Mr. Black.
[41] The Respondents seek a Declaration that the private road known as Tay Bay Road is not an access road as defined by the Road Access Act. They also seek a Declaration that the private driveway on their property is not an access road as defined in the Road Access Act. Further, they seek injunctive relief closing the private driveway on their land to the Gouetts.
ANALYSIS
[42] The relevant legislation has been subject to a detailed analysis by the Court of Appeal in 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586 and in Margettie v. Snell, 2009 ONCA 838.
[43] In each case, the Court of Appeal considered the legislative intent of the Act and specifically considered sections 1, 2, 3 and 6.
[44] Section 1 defines an “access road” as:
“Access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land.
[45] Section 2(1) of the Act provides:
No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefore, not owned by that person unless…
The section goes on to specify certain notice provisions.
[46] In Kilpatrick, at para. 24, the Court of Appeal held:
(24) As I said in the overview, the Act implicitly allows the owner of an access road to close it without a court order as long as doing so does not prevent “all road access” to another piece of property – in short, as long as there is alternate road access to the other property.
[47] In Kilpatrick, both sides agreed that there was no other existing road access to the cottagers’ property. At para. 43 in Kilpatrick, the Court of Appeal held:
[43] Neither an unopened road allowance nor access over the existing access road on payment of the user fee can constitute alternate road access under the Act.
[48] The facts in Kilpatrick are distinguishable from the facts in our case as the parties herein disagree as to whether an access road exists and whether there is alternative road access.
Is Tay Bay Road as it crosses Lot 6 and Block 7 an access road as defined by the Road Access Act?
[49] I find that the road over Lot 6 and Block 7, Plan 51M-212, is an access road. It meets all the requirements of the definition. The road is on land not owned by a municipality; it is not a public highway, and, it serves as a motor vehicle access route to one or more parcels of land.
Is there an alternative access road?
[50] The answer to this question is in the affirmative. I find that the Gouetts have alternative motor vehicle access to their property from Copeland’s Lane which leads to a plowed municipal road called Lawson’s Line.
[51] In Kilpatrick at para. 15, the Court of Appeal considered s.2(1)(a) of the Act. The court found that the owner of an access road requires a court order to close it if doing so would prevent “all road access” to another person’s property.
[52] Further, in Kilpatrick, the Court of Appeal confirmed that an owner can close an access road without a court order so long as there is alternate road access to the property in question. That party seeking to use an access road bears the onus that no alternate road access exists and that an owner can close an access road without a court order as long as there is alternate road access to the property in question.[^8] In light of the existence of Copeland’s Lane acting as an alternative vehicle access road, I find that Mr. Black temporarily restricted access to Mr. Gouett without a court order.
[53] The essential question on this consolidated application is whether there is an alternate access road. The onus is on the Gouetts seeking access to show no alternate road access exists. On all the evidence, the Gouetts have not satisfied their onus.[^9]
[54] I find that Mr. Gouett had two ways of entering/exiting his waterfront property. I accept the evidence of Mr. Black who found in his Supplementary Affidavit at para. 9, where he states that Mr. Gouett has long enjoyed two roads from his house that go directly to Copeland’s Lane which ultimately intersects with Lawson’s Line.[^10]
[55] Exhibit 6 attached to Mr. Black’s affidavit shows satellite imagery of the Gouett property in 2012. Exhibit 6 shows two roads from the Gouett house that go directly to Copeland’s Lane as follows: (i) the first commences immediately north of the Gouett house and travels in a northeasterly direction and merges with Copeland’s Lane; and, (ii) the second and roughly parallel road travels through his property and onto Copeland’s Lane. A further aerial photograph found at Exhibit 6 shows that Copeland’s Lane runs to Lawson’s Line, a municipal road which ultimately intersects with Kinnear Sideroad and then to Coldwater, the nearest town.
[56] Mr. Gouett contends that he only uses one driveway to enter and leave his house. His driveway goes only to Copeland’s Lane. He is required to drive over Copeland’s Lane on property owned by the Schaepers to either continue on to Lawson’s Line or to continue on to Mr. Black’s driveway, both of which ultimately lead to plowed municipal roads.
[57] In 92275 Ontario Inc. v. Krawczyk the Court of Appeal established that once a road has been declared an access road, it does not serve a particular party but provides access to one or more parcels of property.
[6] I see no error in the trial judge’s finding that the Road is an access road within the meaning of the Act. In our view, contrary to the Respondents’ submissions, the status of a road as an access road does not depend on the use of the road by the party claiming that the road is an access road. The definition of access road set out in s. 1 of the Act requires only that “a road located on land not owned by a municipality … serv[e] as a motor vehicle access route to one or more parcels of land”; there is no requirement that a specific party use a road in order for it to be an access road.[^11]
[58] Subject to the Court of Appeal’s analysis in Krawczyk, I find that Mr. Gouett’s use of Copeland’s Lane to get to his own property and to get to the Black’s private driveway is sufficient to declare all of Copeland’s Lane an access road.
Mr. Gouett’s historical and current use of Copeland’s Lane
[59] Mr. Gouett has the onus of proving that he cannot use the road from Copeland’s Lane to Lawson’s Line to access the Gouett property. The evidence supports the use of Copeland’s Lane as a year-round motor vehicle access road for Mr. Gouett and his family.
[60] The Gouett property was connected to Copeland’s Lane in and around 1984. According to Mr. Gouett, Mr. Black’s driveway was connected to Copeland’s Lane in and around the same time.
[61] Historically, Mr. Gouett first became aware of the Gouett property as it was located just south of the hunting camp that he frequented in the early 1970’s. This camp was located on Copeland’s Lane which in turn was accessed through a municipal road called Lawson’s Line. Mr. Gouett visited the Gouett property from Lawson’s Line and Copeland’s Lane before he purchased it. According to his evidence he travelled to the property by car on what he referred to at the time as a “quasi road”.
[62] Mr. Gouett marked in blue a line which he drew from Copeland’s Lane to the Gouett property. (See Exhibit and Undertaking Brief of Henry Gouett at Tab 2)
[63] Mr. Gouett also testified as to his considerable experience with Copeland’s Lane:
(a) Winterized cottage property exists on Copeland’s Lane and access it through Lawson’s Line;
(b) He knows and visits the owners of the cottage property;
(c) He has known the Schaepers who live on Copeland’s Lane for decades and routinely drives up Copeland’s Lane to visit them;
(d) He knows that Copeland’s Lane and Lawson’s Line are plowed in the winter.
[64] Mr. Gouett has extensive knowledge of the cottage properties along Copeland’s Lane. He gave testimony of his knowledge and experience including the fact that some of the cottages are winterized and that the cottagers use Copeland’s Lane and Lawson’s Line to access their properties.[^12] He testified about his use of Copeland’s Lane to visit the Schaepers.[^13]
[65] Mr. Gouett knows the route to Copeland’s Lane and Lawson’s Line.[^14]
[66] Mr. Gouett knows that Lawson’s Line is plowed in the winter.[^15]
[67] Mr. Gouett testified that his brother-in-law Don Stiller lives on Copeland’s Lane.[^16]
[68] I find that Copeland’s Lane is used as a vehicular access road.
[69] The preponderance of the evidence provided is that Mr. Gouett has an alternative access through the remainder of Copeland’s Lane and that the owners of Copeland’s Lane i.e. the Schaepers have acquiesced and consented to its use by Mr. Gouett and his family.
[70] In Kilpatrick, the Court of Appeal confirmed the reasoning of the trial judge regarding the limited use of the road and the fact that if another access road is provided the status of the access road ceases to be.
[71] At para. 22, the Court of Appeal stated:
[22] Thus, the Act confers on users of an access road only a very limited and temporary right to use the road to go to and from their properties. At para. 45 of his reasons, in a passage with which I entirely agree, the trial judge summarized the limited statutory right given to users of an access road:
In the end, and in the narrow situation to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only.
(see Deluca; Cook’s Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it. The access user cannot grant the use of the road to others. The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para. 45. And, if another access road is subsequently provided, the access user’s continuing status under s.2 ceases because alternate access would then exists. (bolding added).
No legal right to use Manning Trail or the Black’s private driveway
[72] In his Application, Mr. Gouett states in his grounds at 2(e): Tay Bay Road serves as the motor vehicle access route to the property of the Applicants and has been used as such for over 60 years.[^17]
[73] Based on this ground, Mr. Gouett appears to be pleading s.3(1)(b) and s.6(1) of the Act which read as follows:
3.(1) The judge may grant the closing order upon being satisfied that,
(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
6(1) Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exists at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person.
See Schedule “B” appended, Road Access Act R.S.O. 1990, Chapter R.34
[74] In Kilpatrick, the Court of Appeal clarified the interaction between these two sections and stated at paragraph 20:
[20] Importantly, persons using an access road, such as the cottagers in this case, cannot claim a legal right to do so under s.3(1)(b) for the sole reasons that the road is an access road. A legal right under s. 3(1)(b) must be a legal right that exists apart from the Act. Section 6(1) of the Act confirms this to be so.
2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586 at para 20.
[75] Mr. Gouett alleges continuous use of Tay Bay Road for 60 years. However, Tay Bay Road was newly created only in and around 1984. Rather, Mr. Gouett is talking about a completely separate dirt track called Manning Trail which crossed a large parcel of land owned by the Manning family and later was acquired by Tay Bay Estates for the purposes of subdivision. Tay Bay Estates subdivided the property into severed lots identified as Lots 1, 2, 3, 4, 5 and 6, Block 7 and Block 8 on Reference Plan 51M-212. Block 8 was a municipally owned turning spot and Block 7 was owned by all of the lot owners. Manning Trail was permanently closed by all of the individual lot owners in and around 1983 and 1984.
[76] A new private road was constructed 100 feet parallel to the waterline and linked to a jointly owned Block 7 which is the only part called Tay Bay Road.
[77] Sometime during 1983 the land developer subdivided the Manning parcel, offered a deal to the lot owners and Mr. Gouett whereby under certain conditions, Mr. Gouett could cross Block 7 (owned by all the lot owners) and cross Lot 6 (now owned by Ms. Mullins and Mr. Black) for a period of 21 years.
[78] The 1983 Agreement was executed by all parties. Mr. Gouett in his evidence takes the 1983 Agreement (November 11, 1983) as binding up to November 11, 2004, the end of the 21 year period.[^18]
[79] On behalf of the Gouetts, it is conceded that they have no legal or prescriptive right-of-way over either the Mullins/Black lands or the Schaeper lands.
[80] Mr. Gouett acknowledges that the 1983 Agreement provided personal rights over Mr. Black’s Lot 6 and not any registered rights in the land.[^19]
[81] Mr. Gouett testified he did not attempt to seek further legal rights following the expiration of the Agreement.[^20]
[82] I find that Mr. Gouett’s acceptance of the 1983 Agreement formally and permanently waived any alleged legal rights he may have had at common law or by statute to either the historical Manning Trail or to Black’s private driveway then along to Tay Bay Road when he accepted the 1983 Agreement and its expiration in 2004. Further, there were no registrations on title of any rights-of-way in favour of the Gouetts. The conversion of the Manning parcel into Land Titles for the purposes of subdivision by Tay Bay Estates would have also had the effect of extinguishing any right-of-way claims that Mr. Gouett might have had. Regardless, it is conceded that he has no legal or prescriptive right-of-way over the lands in question.
[83] It is clear that the Gouetts do not have a right that otherwise exists at law.
[84] For these reasons, I find that the Gouetts have no legal right to use the Black’s private driveway and the Gouetts have an alternative access through Copeland’s Lane which intersects with Lawson’s Line, a fully maintained municipal roadway.[^21]
Should the Court exercise its residual discretion pursuant to s.3(1) of the Act?
[85] Section 3(1) of the Act provides that a judge may grant a closing order upon being satisfied that in the case of an access road, not a common road, persons described in sub‑section 2(3) do not have a legal right to use the road.
[86] The Respondents submit that there is no legal right for the use of the Black’s private driveway by the Gouetts and that there is an alternative access through Copeland’s Lane to the Gouett property. I have found in favour of the Respondents on these points. As such, the Respondents submit that the Court should grant an order closing the Black’s private driveway.
[87] I am satisfied that the conditions in s.3(1)(b) have been met and I am not compelled to consider the conditions in s.3(1)(a) of the Act. See Margettie v. Snell 2009 ONCA 838 at para. 32.
[88] It is clear from the application of Ms. Mullins and Mr. Black that they are seeking a road closure order.
[89] I find sufficient evidence of the parties’ competing interests in order to balance them in exercising the court’s residual discretion to refuse to make a road closing order.
[90] I have considered Mr. Gouett’s age and the disability of Mrs. Gouett. I have considered their relative inconvenience in using Copeland’s Lane as opposed to the more convenient but shorter route using Tay Bay Road. I have also considered the historical context of the Gouett’s use of Copeland Lane and the route over Lot 6 and Block 7. In fact, I have considered the entire historical context. I have also considered the Respondents’ evidence.
[91] In relation to s.3(1)(b), I acknowledge that the proper exercise of discretion requires a court to balance the parties’ competing interests. At para. 18 in Krawczyk, the Court stated:
Assuming without deciding that a judge hearing a road closing application retains a residual discretion to refuse to close the road where one of the conditions for closing an access set out in s.3(1) is satisfied, at least in relation to s.3(1)(b), the proper exercise of that discretion would require balancing the competing interests of the parties. The Court of Appeal in Margettie is clear where s.3(1) of the Act provides that the judge “may” grant a closing order. The word “may” is permissive. A judge may grant the closing order, or conversely, refuse to grant such a closing order.
[92] In exercising my discretion I have considered Mr. Gouett’s ultimate evidence that Copeland’s Lane and Lawson’s Line are in fact plowed in the winter. It would take Mr. Gouett half an hour to get to Lawson’s Line.
[93] Further, I find there is no truth in the position taken by Mr. Gouett in his Affidavit of August 27, 2014 that emergency vehicles cannot access the Gouett property from Copeland’s Lane. Mr. Black wrote letters to the Township of Severn, Fire Services, O.P.P. and spoke with Simcoe County Ambulance Services regarding the gating of Black’s private driveway. It was confirmed to Mr. Black by the Township that emergency vehicles would use Copeland’s Lane to access the Gouett property.[^22]
[94] I further refer to the Affidavit of Mr. Black sworn October 8, 2014 at para. 10. After Mr. Black closed the gate on his property to prevent through traffic, Mr. Gouett and/or one of his friends attempted to involve the police in this matter. When the police arrived, they drove down Lawson’s Line and Copeland’s Lane and came to Mr. Gouett’s property from the other direction.
[95] At para. 11, Mr. Black deposes:
Furthermore, our driveway does not even run to Mr. Gouett’s property. My driveway terminates at property owned by the Schaepers, who are our common, adjoining neighbours. So once Mr. Gouett leaves my property he crosses onto the Schaepers land. The Copeland’s Lane access is also owned by the Schaepers. Clearly the Schaepers are not preventing Mr. Gouett from accessing his property. In fact the Schaepers own a very large property and are subdividing and selling off the waterfront properties along Matchedash Bay and those persons are also using Copeland’s Lane to access their lands.
[96] I have also considered that Mr. Gouett could have negotiated to buy permanent rights of access to his property in 1976 and chose not to. He purchased the Gouett property in 1976 through an Agreement of Purchase and Sale that was conditional on “legal road access” being supplied before the closing and he closed the sale without it. That legal road access for Mr. Gouett goes over Copeland’s Lane on the Schaeper property.[^23]
[97] Ultimately, Mr. Gouett chose to purchase the property despite the fact that there was no legal road access secured over Copeland’s Lane. Then Mr. Gouett deliberately chose not to secure legal access across Copeland’s Lane from the Schaepers.[^24] While Mr. Gouett claims to have bargained for a right-of-way over the Black’s private driveway and knew full well it was for him alone and that it had a 21 year life span, Mr. Gouett did not attempt to seek any extension after the 21 year period had come and gone.
[98] While Mr. Gouett has had an opportunity over the years and since the end of the 21 year period of time to attempt to negotiate and purchase rights in rem or in persona for access to the Gouett property, he has not done so. Rather, he has asserted his claim over the lands of Ms. Mullins and Mr. Black for free.
[99] From the beginning, Mr. Black’s intention was to build a garage at the end of his driveway to harbour his water trucks and other related equipment he uses in his business. He wishes to be given the opportunity to do so as planned.[^25]
[100] Having considered the competing interests of the parties, I decline to exercise my residual discretion to refuse to close the Respondents’ private driveway. For reasons given, the Application by Ms. Mullins and Mr. Black is granted.
CONCLUSION
[101] For the reasons given herein, the Application of Ms. Mullins and Mr. Black is granted in part and the counter-application of the Gouetts is dismissed.
[102] Accordingly, Ms. Mullins and Mr. Black are hereby granted the following:
(a) A Declaration that the private driveway on property owned by Lise Marie Mullins and Gerald Terence Black, described as PIN 58507-0251, is not an access road as defined in the Road Access Act; and,
(b) A permanent order closing the private driveway on PIN 58507-0251 to Henry Arthur David Gouett and Rita E. Gouett.
[103] The Application and the Counter-Application were consolidated as one Application. The parties have agreed that costs would be determined by way of written submissions. The parties shall exchange and deliver to my judicial assistant at Barrie within the next 15 days a concise statement as to costs no longer than two pages in length, a Costs Outline, and draft Bill of Costs together with any authorities.
DiTOMASO J.
Released: December 4, 2015
[^1]: Exhibit and Undertaking Brief Tab 7
[^2]: Reply Application Record, Affidavit of Henry Gouett sworn April 30, 2015, Tab 1, Exhibit B, Tab 1B
[^3]: Exhibit and Undertaking Brief Tab 31
[^4]: Supplementary Application Record, Supplementary Affidavit of Gerald Terence Black Tab A, para. 15, Exhibit 5
[^5]: Affidavit of Henry Gouett sworn August 27, 2014, Application Record, Tab 2, Exhibits D and E.
[^6]: This Plan can be found at Supplementary Application Record (Mullins and Black), Supplementary Affidavit of Gerald Terence Black, Tab 2, also see Tab 5 re areas marked in red (Mullins/Black lands) in orange, Block 7 and in blue, Gouett lands.
[^7]: Tab 1F area marked in pink
[^8]: See Kilpatrick supra at para. 24
[^9]: See Kilpatrick supra at para. 24
[^10]: Mullins/Black Supplementary Application Record, Supplementary Affidavit of Gerald Terence Black at para. 9 and Exhibit 6
[^11]: 92275 Ontario Inc. v. Krawczyk, 2006 13955 (ONCA) at para. 6
[^12]: Cross-examination of H. Gouett August 19, 2015 at Questions 214‑20, 511‑16, 492‑499
[^13]: Cross-examination of H. Gouett August 19, 2015 at Question 224‑228
[^14]: Cross-examination of H. Gouett August 19, 2015 at Question 237‑238
[^15]: Cross-examination of H. Gouett August 19, 2015 at Question 245‑249
[^16]: Cross-examination of H. Gouett August 19, 2015 at Question 263‑264, 273‑276
[^17]: Application Record of Henry Gouett Tab1, p. 3
[^18]: Cross-examination of H. Gouett August 19, 2015 at Questions 307 and 303
[^19]: Cross-examination of H. Gouett August 19, 2015 at Questions 331 and 332
[^20]: Cross-examination of H. Gouett August 19, 2015 Question 366‑371
[^21]: See the Act at s.6(1)
[^22]: Application Record of Mullins and Black, Tab B, Affidavit of Terry Black, April 1, 2015 at para. 29 and 30, Exhibit 13
[^23]: See cross-examination H. Gouett August 19, 2015 at Question 134
[^24]: See cross-examination H. Gouett August 19, 2015 at Question 142‑143
[^25]: Supplementary Application Record of Mullins and Black Tab B Supplementary Affidavit of Gerald Terence Black sworn April 6, 2015 at para. 2, 3 and 4, Exhibit 4