Lehtiniemi v. Municipality of Mattawan, 2015 ONSC 8133

CITATION: Lehtiniemi v. Municipality of Mattawan, 2015 ONSC 8133

COURT FILE NO.: CV-14-6002

DATE: 2015/11/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEO LEHTINIEMI, Applicant

AND:

THE CORPORATION OF THE MUNICIPALITY OF MATTAWAN, Respondent

BEFORE: Valin J.

COUNSEL: T. Green, for the Applicant M. Miller, for the Respondent

HEARD: October 26 and 27, 2015

ENDORSEMENT

[1] In 1981, the applicant purchased the land described as Lot 34 Concession 8 (the “applicant’s land”) in the respondent municipality. He has owned the land since 1981.

[2] The respondent is a rural municipality situated north of the Mattawa River and west of the Ottawa River.

[3] The applicant seeks: (a) a declaratory judgment that the laneway he constructed from 1981 to the present lies totally within his land, and that the laneway was never dedicated as a public road; and (b) an injunction restraining the respondent, its servants or agents from interfering with his use of the laneway.

[4] For the reasons that follow, the application is dismissed.

Background

[5] In September 1889, the respondent passed By-law No. 19 which called for the opening of a road on the Blank Line between Concessions 8 and 9 from Lot 38 westerly to the Government Road.

[6] In 1892, the respondent hired R.V. Rourke, Ontario Land Surveyor, to lay out the road through lots 33, 34, and 35 for road building purposes.

[7] In June 1898, the respondent passed By-law No. 68, which provided for the purchase of a road allowance 20 feet in width from A. Dupont on the Blank Line between Concessions 8 and 9, from Lot 35 to Lot 33. The titles to those lots in both Concessions do not disclose any sale of property to the respondent.

[8] The abstract for the title to Lot 37 Concession 8 excludes “the land used as a Public Highway across said Lot”. The abstracts of title for Lots 33, 34, and 35 in Concessions 8 and 9 contain no such exclusion.

[9] The applicant’s land was originally patented to Louis Berlanguette as a free grant settler on August 20, 1910. It is reasonable to infer that a road would have been required to access the land before the patent would have been granted.

[10] Over time, a road known as Marion Road was constructed from Government Road (now known as Argo Road). It ran for an approximate distance of 3.2 kilometres, first in a northerly direction in Lot 32 near the easterly shore of a small lake, and then swung to the east across Lots 32, 33, 34, and 35.

[11] The respondent maintained Marion Road prior to and during the 1950s. It ceased maintenance of Marion Road to the east of municipal address 302 in approximately 1961 because, by that time, the owners of farms to the east of Lot 33 had abandoned their farms; no one was living there.

[12] As late as May 1964, the respondent received a request from the owner of Lot 36 Concession 8 (to the east of Lot 34) for improvements to the road. Because of the respondent’s decision not to maintain Marion Road beyond municipal address 302 in Lot 33 Concession 9 any longer, residents in the area undertook their own road maintenance from time to time.

[13] The applicant purchased Lot 34 Concession 8 in April 1981from Lois Stuart. When negotiating the sale price with the vendor, the applicant noted in correspondence to her that he was aware of a dispute concerning the cabin near the east boundary and the access road that leads to it from the township road along the north edge of the lot, and that the price he was offering reflected the possibility of that dispute being passed on to him.

[14] From June to October 1981, the applicant’s company cleared skid roads and installed culverts in preparation for a hardwood stand improvement logging operation. He posted “Private Keep Out” signs at the west boundary of his land.

[15] After completing his logging operation, the applicant gradually cleared and ditched a laneway during the next few years so that he could have personal vehicle access to the building site located near the east boundary of his property. He took care to build the laneway completely within his property line. He did all the work and paid for all expenses, including the gravel he laid down in 1989.

[16] Land owners to the east and north were using the laneway to gain access to their property. The applicant informed them from time to time that they were trespassing across private property, but they ignored him, claiming that his laneway was an extension of Marion Road, the forced road established under 1898 By-law No. 68, and that it was owned by the respondent.

[17] In 1990, the applicant placed a fence or a gate across the road at the westerly boundary of his land. He removed the barrier and, following the receipt of legal advice, reinstalled it.

[18] In 1992, the applicant commenced an action in the Ontario Court (General Division) Small Claims Court in which he sought damages arising from allegations that the respondent had trespassed on his property, namely the laneway which he claimed was a private road.

[19] Although the reasons for judgment of the Deputy Judge initially referred to Lot 34 Concession 9, counsel for the applicant agreed during submissions that was clearly a clerical error. The road which was the subject matter of that litigation was that portion of Marion Road which crossed through Lot 34 Concession 8.

[20] On November 8, 1993, the Deputy Judge dismissed the action. In so doing, she made the following findings of fact:

• the applicant purchased property over which part of a township access road crosses;
• the road is a forced road which does not follow the concession lines but instead follows the rugged irregular topography of the region and the needs of the original settlers;
• the evidence of the witness John Willis Argo clearly identified the existence of the road in its present location at least from the 1920s forward; and
• the evidence of the witness Maurice Colbourne clearly established the public nature of the road.

[21] The applicant took steps to appeal that decision, but subsequently withdrew or abandoned the appeal.

[22] On September 12, 1994, counsel for the applicant wrote to counsel then acting for the respondent suggesting that the appeal be dropped with each side bearing its own costs. He also sought agreement as to the width of the forced road across the applicant’s land.

[23] Between 2001 and 2009, the applicant made a number of requests in writing to the respondent that it maintain Marion Road from the driveway at municipal address 302 easterly to the turnaround located about 200 feet to the east of the westerly boundary of his land for safe passage by personal vehicles.

[24] In December 2002, the applicant wrote to the respondent requesting a transfer of title of that part of the road allowance between Concessions 7 and 8 that abuts his land.

[25] Between September 2011 and February 2013, the applicant and the respondent engaged in a series of correspondence. The applicant first sought agreement that he transfer to the respondent title to the portion of Marion Road that crosses his land in exchange for title to the northerly 33 feet of the unopened road allowance which abuts the southerly boundary of his land. The applicant subsequently withdrew that offer.

[26] The applicant next proposed that he convey the north 33 feet of his lot at fair market value, such transfer to be at the cost of the respondent. The respondent did not accept the applicant’s proposal. It replied that it was prepared to pay legal and survey costs only, and that it reserved the right not to maintain the road if it chose to do so.

[27] The applicant caused the notice of application in this court to be issued on October 15, 2014.

Issues:

[28] During submissions by counsel, the following issues developed;

(a) Is the applicant barred from proceeding with this application based on the defence of issue estoppel?

(b) Is Marion Road a public highway or a private roadway owned by the applicant?

(a) Is the applicant barred from proceeding with this application based on the defence of issue estoppel?

[29] In Toronto (City) v. CUPE, Local 79[^1], the Supreme Court of Canada held that:

Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same.

[30] The second and third requirements have clearly been met in this case. The live question is whether the issue in this case is the same as the issue decided in the Small Claims Court action.

[31] The issues in this case are the location of Marion Road in relation to the applicant’s land and whether the portion of Marion Road that crosses the applicant’s land is a public highway. In the Small Claims Court action, the applicant claimed damages as a result of the trespass on his land by employees of the respondent to remove a barrier the applicant had constructed across the road he claimed to have built.

[32] Counsel for the applicant argued that the cause of action was not the same in both proceedings. The Small Claims Court action involved a claim for damages for trespass. This application involves a determination of the location of Marion Road and whether the road that currently crosses the applicant’s lands is a public highway or a private roadway.

[33] The first precondition set out in Toronto (City) v. CUPE, Local 79 is that the issue (not the cause of action) must be the same as the one decided in the prior decision.

[34] In order to succeed in this application, the applicant must establish that the road that crosses his land is not a public highway. The Deputy Judge made clear findings in the Small Claims Court case that Marion Road was a forced road that crossed the applicant’s land and that, although it had not been maintained since 1961, it had not lost its status as a township road. The claim for damages for trespass was dismissed.

[35] The applicant ultimately chose not to proceed with an appeal of the decision of the Deputy Judge. Having chosen not to appeal, the applicant is bound by the findings of the Deputy Judge on the issues of location and ownership of that portion of Marion Road that crosses his property.

[36] Although the respondent appears to have satisfied the three preconditions required for the successful application of the defence of issue estoppel, the application of that defence is not automatic. In Danyluk v. Ainsworth Technologies Inc.[^2], the Supreme Court of Canada held that, even if a party successfully establishes the existence of the three preconditions to the operation of issue estoppel, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied.

[37] The applicant had full opportunity at the trial in Small Claims Court to lead evidence and raise issues related to the location of Marion Road and the ownership of the road that he built across his land. Proof of facts relating to those issues was fundamental to proof of his entitlement to damages for trespass. It should be noted as well that the prior decision in the Small Claims Court was a judicial determination.

[38] I am unable to find any reason why I should not exercise my discretion in favour of the respondent. I therefore conclude that issue estoppel provides a complete defence to this application.

[39] In the event I am in error in arriving at this conclusion, it would be prudent to consider the remaining issue raised during the hearing before me.

(b) Is Marion Road a public highway or a private roadway owned by the applicant?

[40] Before this issue can be addressed, I must first determine whether the roadway the applicant claims to have built lies to the south of or over top of Marion Road as originally constructed but later reduced to the status of a highway not maintained by the municipality.

[41] With respect to that sub issue, the following facts are not in dispute:

• The respondent passed By-Law No. 19 on September 2, 1889, indicating an intention to open a road on the Blank Line between Concessions 8 and 9 from Lot 38 in the east to the Government Road (now Argo Road) in the west.
• In 1892, the respondent hired surveyor R.V. Rourke to survey the lands from the Government Road through Lots 33, 34 and 35 for road building purposes generally.
• On June 23, 1898, the respondent passed By-law No. 68 which provided for the purchase from A. Dupont, the owner of Lots 33 to 35 Concession 9, of a road allowance 20 feet in width on the Blank Line between Concessions 8 and 9 from lots 35 and 33.
• The title to Lots 33, 34 and 35 Concession 9 does not show any transfer of that 20 foot road allowance to the respondent.
• Marion Road is the only road that runs from the Government Road through Lots 32, 33, 34, 35 and further to the east. There is, and has been, no other road in that area of the municipality.
• The title to Lot 34 Concession 8 was patented to Louis Berlanguette, a free-grant settler on August 20, 1910. The patent indicates he had been on the property since 1907. It is reasonable to infer that Marion Road existed by that time.
• The applicant is and has been the registered owner of Lot 34 Concession 8 since April 1981.
• There is no easement recorded on the title to his property for any type of road in favour of the respondent or any other person.
• The title to his land does not contain any exclusion for the purpose of a public highway.
• After completing the purchase, the applicant spent the next few years logging hardwood from his property with the use of a skidder.
• At the time the applicant purchased the property, there was a cabin located near the east boundary of his land.
• In 1989, the applicant laid down gravel on the laneway he says he constructed across his property from its west boundary to its east boundary and just south of its north boundary.
• The applicant has never dedicated the laneway as a public road. Since acquiring ownership of the property, he has continuously posted No Trespass signs and informed people who own land to the east that they are trespassing when they cross through his property.

[42] Counsel for the applicant drew the Court’s attention to the following:

• an aerial photograph dated June 1948 which shows a road travelling north along the east side of a lake, and then swinging approximately 90 degrees to the east;
• a copy of Plan NR-2238, dated November 25, 1969, by D.J. Macdonell O.L.S. which shows a travelled road along the blank line between Concessions 8 and 9 at the northwest corner of Lot 34 Concession 8;
• a Ministry of Natural Resources topographical map dated 1978 which appears to show Marion Road running in an easterly direction to the midpoint of Lot 33; from that point there is a trail that travels further to the east through Lots 33, 34, 35 and 36; the road and trail appear to be located to the north of the line between Concessions 8 and 9;
• a Mining Division Map dated October 1984 with similar characteristics and location of the road and its continuance to the east as a trail;
• unidentified, undated hand written notes which indicate access roads had to be built for large influx of settlers in the Mattawa area; the notes state “roads put on allowance where possible and if not there as close as possible to Concession lines or where feasible”; the notes indicate By-law 19 was passed and subsequent land was purchased from lot owners and from the Crown to build this road; there is a note in the margin referencing North Lot 33 Concession 8 and South Lot 34 Concession 9; the notes further indicate that maintenance through Statutory Labour was undertaken until 1950s, after which minimal maintenance because no one was living there;
• a statutory declaration dated April 16, 1981, by Lois Stuart, who had owned Lot 34 Concession 8 since 1974, to the effect that her use of the lands and cabin had not been disturbed by any claims or adverse possession and that she had not granted permission to anyone to cut wood or use the land and building;
• an Ontario Department of Mines map dated April 26, 1949, depicting an improved road running in an easterly direction through Lots 32, 33, 34, 35, and 36. The road appears on the map to lie wholly to the north of the southerly boundaries of those lots in Concession 9;
• a letter from the applicant to the vendor dated March 18, 1981, advising he was aware of a dispute about the cabin near the east boundary of the property and the access road leading to it from the township road along the north edge of the lot and whether the cabin and the road were on the vendor’s property or someone else’s property; the applicant acknowledged that he might have to obtain a survey and to build a new access road;
• receipts for gravel placed on the road in 1989;
• photographs of the road taken in 1989 before and after the gravel was applied;
• a letter from the respondent’s solicitor to the respondent dated September 27, 1990 which states: “You have also advised that the Township has never assumed this roadway for public purposes.”;
• an email from the respondent to the applicant dated October 19, 2000, which contains a council resolution “That this portion of Marion Road is an assumed road and will continue to be maintained only when necessary for Township road maintenance equipment usage at the discretion of the Township road superintendent”;
• a letter from the applicant to the respondent dated March 3, 2008, requesting that the municipality “replenish the gravel where Marion Road goes onto” his property and further requesting that road maintenance from the Steer property (302 Marion Road) to the turnaround on his property be deferred in the spring until after the ground has dried and firmed;
• a survey of the northerly portion of Lot 34 Concession 8 by R.D. Miller, Ontario Land Surveyor, dated April 10, 2012, which shows the location of the turnaround approximately 200 feet east of the westerly boundary of Lot 34 Concession 8, and which shows that the gravel road is located entirely within the boundaries of Lot 34 Concession 8, close to its northerly boundary;
• photographs of the turnaround taken in 1990;
• photograph dated November 6, 2001 facing east from driveway to 302 Marion Road depicting sign which reads “Road Not Maintained”, approximately 700 feet from the west boundary of applicant’s land;
• the map marked Schedule “A” to the respondent’s Zoning By-law No. 2003-009 which depicts Marion Road running along the Blank Line between Concessions 8 and 9 at Lot 34;
• a statement from Len Minor dated December 31, 2014, that he helped his father deliver gravel to the applicant’s property about 25 years ago and that the applicant told them to dump the gravel as far to the right as possible to make sure it was within his property;
• the affidavit of the applicant’s son, Greg Lehtiniemi, sworn on April 30, 2015, in which he records a memory that “When we first started working on the laneway, it was nothing but a mixture of grass and dirt.”;
• a letter from the Office of the Surveyor General Ministry of Natural Resources to the applicant dated October 25, 2004, which indicates that the true location of any boundary can only be determined by actual field survey; and
• the field search report of Ronald D. Magee, Consultant Forester, dated February 8, 2015, which suggests there could have been a road immediately north of the road the applicant constructed.

[43] Counsel for the applicant submitted that evidence constitutes proof on a balance of probabilities that: (i) when Marion Road was built as an access road for settlers in the early 1900s, it was located either wholly within Concession 9 or, at the very least, to the north of the road the applicant built after he purchased Lot 34 Concession 8; and (ii) the road the applicant built is located wholly within the boundaries of the land he owns, and to the south of where Marion Road was originally built.

[44] With respect, I disagree. That proposition ignores significant evidence about the location of the forced road established by the respondent several decades before the applicant purchased his property. It also ignores significant evidence of the applicant’s changing views on that subject.

[45] The position of the respondent is that Marion Road is the only road that has ever crossed through Lots 32, 33, 34, and 35 in an easterly direction in the area of Concessions 8 and 9.

[46] The respondent employed James Doucette as its road superintendent for 15 years. When he began work, Marion Road was only maintained to the turnaround on Lot 34, Concession 9. He recalled having driven on Marion Road in the 1940s and 1950s to visit farmers in the area and to picnic on the Ottawa River. He stated in his affidavit that the road was known to residents as a forced road maintained by the municipality, and that the road is in the same location now as it was in the 1940s.

[47] Len Wood and his five brothers purchased Lot 34 Concession 9 in the early 1970s. They sold the lot to Joseph Molto in 2013. According to his affidavit, when they sold the land in 2013, Marion Road was in the same location, with no changes, as it was when they purchased the land in 1971. Marion Road existed long before the applicant purchased his property.

[48] In a letter to Lois Stuart (the vendor of Lot 34 Concession 80 dated March 18, 1981, the appellant mentioned that he was aware of the existence of “the township road along the north edge of the lot”.

[49] The applicant commenced his action in the Small Claims Court in 1992 by filing a Statement of Claim. In that document, the applicant did not plead that he had built a 1000 foot road across his property. Rather, the pleading claims damages for an alleged trespass by the respondent onto the applicant’s lands. The issue raised in that pleading was the title to the land over which the road travelled.

[50] Deputy Judge Shea delivered written reasons for judgment on November 8, 1993. She made the following findings of fact:

• the applicant had purchased property over which a township road passed;
• the road had existed as a forced road since the 1900s;
• the forced road does not follow the concession line; and
• the road was maintained until 1961, when it was reduced to the status of a road not maintained by the municipality.

The applicant commenced an appeal of that judgment, but ultimately did not proceed with it.

[51] The applicant lodged a complaint to the Association of Ontario Land Surveyors concerning the work of surveyor Paul Goodridge. In a written submission to the Association dated September 28, 2000, the applicant stated:

…By about 1961, the status of the road beyond Lot 34 was reduced to a road not maintained by the township. In the past 15 years, individual landowners have reopened and gravelled the road, first across most of Lot 34, and later beyond that to Lots 36 and 37.

With respect to the reopening and gravelling of the road across Lot 34, the applicant could only have been referring to himself and his actions during that period of time.

[52] In his affidavit sworn on October 16, 2015, the applicant states in paragraph 31:

…Marion Road does deviate from the concession line in Lot 33 to the west and in lot 35 to the east to avoid physical obstacles in those locations. There are no comparable physical obstacles in Lot 34 that would have forced the road to deviate from the road allowance along the blank line in Concession 9.

[53] However, in a letter to the applicant dated September 13, 1990, surveyor P.A. Blackburn opined that he did not agree with Plan NR-2238 by surveyor D.J. Macdonell that the northwest corner of Lot 34 Concession 8 was co-incident with the center line of a travelled road. He noted that, due to local topography, at a point about 150 feet west of the line between Lots 33 and 34, the travelled road swings south missing the lot corner. The road returned to a straight line further to the east, but remained south of the line between Concessions 8 and 9. He noted that the location of a travelled road at the northwest corner of Lot 34 Concession 8 was highly improbable because, at that point, the land slopes steeply down a rocky incline making that location unsuitable for road construction.

[54] The survey by R.D. Miller O.L.S. dated April 10, 2012 shows that Marion Road jogs to the south before the lot line between Lots 33 and 34 and does not jog back to the north at the line between Lots 34 and 35. The survey is consistent with the evidence of surveyor Blackburn who noted a serious topographical impediment to the construction of a road along the blank line between Concessions 8 and 9 at the northwest corner of Lot 34 Concession 8. For those reasons, I prefer the survey evidence and the evidence of surveyor Blackburn to the applicant’s statement in paragraph 31 of his October 2015 affidavit. It is more likely that Marion Road, as originally built, took a jog south in Lot 33 before continuing east when it was originally built.

[55] In an affidavit sworn on April 30, 2015, Greg Lehtiniemi, the applicant’s son, stated that “when we first started working on the laneway, it was nothing but a mixture of grass and dirt”. He makes no mention of a skidder being used to clear the road.

[56] A skidder is a heavy vehicle used in logging operations for pulling cut trees out of the forest. It transports logs from the cutting site to a landing where they are loaded onto trucks for removal to a mill. As a lifelong resident of Northern Ontario and an avid outdoors person, I am entitled to take judicial notice of the fact that skidders are not delicate pieces of equipment. Their operation typically damages the trunks and branches of remaining trees, often bruising or tearing away protective bark and breaking branches. In addition, their wheels often make deep furrows when they pass over ground that has a sandy or soil surface.

[57] The photographs of the laneway taken in August 1989 depict the roadway before gravel was applied. The photographs show a fair tree canopy on both sides of the road. They are consistent with a road that was constructed several years previously. They do not depict a road that has the appearance of being recently carved out by a skidder.

[58] Again, the photographs of the road taken at the location of the turnaround in October 1990 depict a roadway with a relatively consistent width and a tree canopy which suggests the road had been constructed several years previously. There is no evidence of any damage to trees on either side of the road that would be consistent with the use of a skidder to construct the road.

[59] Although the respondent did not maintain Marion Road past municipal address 302 in Lot 33, its road maintenance equipment, (grader in spring, summer and fall, and snow plough in winter), regularly travelled further east along Marion Road to the turnaround located about 200 feet to the east of the west boundary of Lot 34. The October 1990 photographs appear to show the wheel marks of that maintenance equipment.

[60] In a letter to the respondent dated December 16, 2002, the applicant stated:

There is no record of the Township having repealed Bylaws 19 and 68. Court file 121/92 records that the road as built, approximately 20 feet south of the old barbed wire fence that marks the northern edge of the road allowance that was purchased from Mr. Dupont on the line between Concessions 8 and 9, lies in part on my property, Lot 34 Concession 8. Consequently, the road, although it may be a trespass or forced road, constitutes a public highway by virtue of Sec. 261 of the Municipal Act.

That statement is clearly at odds with the position adopted by the applicant in this application, namely that the road he built across his property after he purchased it lies to the south of any prior existing and abandoned municipal road.

[61] In 2003, the respondent passed a zoning by-law. The applicant appealed to the Ontario Municipal Board complaining that the location of Marion Road depicted in Schedule “A” to the by-law was a discernible distance north of the line between Concessions 8 and 9, with the result that he did not have frontage on a public road. The only way the applicant would have frontage would be for the road to be located along the Blank Line between Concessions 8 and 9, or for it to be located entirely within the boundaries of his property. The applicant called a surveyor to testify that Marion Rad was not properly located on the Schedule.

[62] The respondent amended its zoning by-law to the effect that Lot 34 Concession 8 was deemed to have frontage on a public road for the purposes of the by-law. The applicant took no issue before the Board about whether the road was a public road. Indeed, in order to be eligible for development purposes, the by-law required that his property front on a public road.

[63] The report of forester Ron Magee dated February 18, 2015 has a number of inherent limitations. First, as he acknowledged in the report, forestry related evidence of older roads/laneways is difficult to determine during winter conditions.

[64] Second, his report indicates that, other than some old fencing and an old blaze, he could find no definite forestry evidence of an old road. He suggested that, with the passage of time, any previous evidence of an old road may have disappeared. However, he failed to consider whether the existing road may have been constructed in the same location as the old road.

[65] Third, he appears to rely on the 1969 Macdonell survey which suggested that the corner post delineating lots 33 and 34 was on the centre line of the travelled road. I have earlier accepted the evidence of surveyor Blackburn which discredits that finding.

[66] Fourth, forester Magee concludes that there could have been a road immediately north of the Lehtiniemi laneway. However, the sketch he made to support that conclusion is not to scale. He used a GPS device to make the measurements shown on the sketch. His notes on the sketch indicate the accuracy of the measurements is plus or minus 3.5 metres. Since the measurements noted on the sketch range between 2 metres and 7 metres, the report offers little, if any assistance.

[67] Finally, the report mentions evidence of the discovery of old fencing in the area. There are photographs with red flagging tape depicting areas where he found such evidence. However, there are no photographs of the remnants of any fencing.

[68] For those reasons, I find that the Magee report has very little evidentiary weight and does not assist in the determination of whether Marion Road was originally constructed in a different location from where it currently crosses the applicant’s land.

[69] I find that the preponderance of evidence compels the conclusion that Marion Road, as constructed for the use of settlers in the early 1900s, crossed Lot 34 Concession 8 in the same location that the applicant claims to have built his private road.

[70] Turning then to the ultimate issue of whether Marion Road is a public highway or a private roadway owned by the applicant, it is clear that:

• in By-law No. 19 passed on September 2, 1889, the respondent indicated an intention to open a road along the Blank Line between Concessions 8 and 9 from Lot 38 west to the Government Road (now Argo Rd.);
• in 1892, the respondent hired surveyor Rourke to survey the proposed road from the Government Road easterly along what is now Marion Road; and
• pursuant to By-law No. 68 passed on June 23, 1898, the respondent agreed to purchase from Mr. A. Dupont a strip of land 20 feet in width along the Blank Line running between Lots 33 to 35 and between Concessions 8 and 9.

[71] All the maps and aerial photographs forming part of the record in this case indicate there was only one road in that area. That is the road that was, and is, known as Marion Road.

[72] It is clear from the evidence that I have accepted that Marion Road in the area of Lots 33 to 35 was not built along the Blank Line between Concessions 8 and 9, but rather was built slightly to the south of that line. The result is that the portion of Marion Road that passes through Lot 34 Concession 8 is a trespass or forced road that crosses private property and to which the respondent does not have freehold title.

[73] The evidence is also clear that public funds were expended on Marion Road in the area of Lot 34 Concession 8 from the early 1900s until 1961 when the respondent decided not to maintain Marion Road to the east beyond municipal address 302 in Lot 33 Concession 9.

[74] In order for a road to become a highway other than by statute, two things must occur: (a) the dedication of the right of passage to the public by the owner of the land, and (b) an acceptance, that is user of the right, by the public. Dedication means that the owner has conducted himself in such a way as to lead the public to infer that he was willing that the public should have the right of passage. 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. User by the public is a sufficient acceptance. It is not necessary that the road be maintained or repaired at the public expense.[^3]

[75] In O’Neil v. Harper[^4], the Ontario Court of Appeal held that land dedicated to the public for the purposes of passage becomes a highway when accepted for such purpose by the public. The Court noted that whether there has been a dedication and acceptance is a question of fact in any particular case.

[76] In Sioux Lookout (Municipality) v. Canada (Attorney General)[^5], the Ontario Court of Appeal held that the common law doctrine of dedication and acceptance is a mechanism by which a passage over private land becomes a public highway and title is transferred from the owner to a municipality.

[77] Unobstructed use of land for road purposes by the public over a substantial period of time is evidence from which dedication and acceptance may be inferred.[^6]

[78] I find that the public used Marion Road openly and without interruption from the time it was constructed in the early 1900s until after the applicant purchased Lot 34 Concession 8 in 1981. There is no evidence that any previous owner of Lot 34 Concession 8 interrupted the use of Marion Road by the public across that lot. There is no evidence of a contrary intention.

[79] It is reasonable to infer from that lack of evidence of any interruption in the use of the road by the public that the predecessors in title of the applicant dedicated the land occupied by Marion Road in Lot 34 Concession 8 as a public highway.

[80] The evidence is clear that the respondent spent public funds by way of performance of statute labour to maintain Marion Road until 1961, at which time it decided not to maintain the road east of municipal address 302 in Lot 33 Concession 9. Beyond that, the decisions of the Court of Appeal in Harper and in Sioux Lookout make it clear that many years of uninterrupted public use constitutes acceptance.

Result

[81] On the evidence viewed as a whole, I find that there was dedication and acceptance of that portion of Marion Road that crosses the applicant’s land.

[82] The fact that the applicant, since purchasing the land in 1981, has attempted to interfere with the public use of the portion of Marion Road that crosses his land is of no avail. Likewise, the fact that the respondent has chosen not to maintain Marion Road east of Lot 33 Concession 9 does not help the applicant’s claim. “Once a highway, always a highway” is an established principle. The public cannot release its rights to a highway. In addition, no prescriptive rights apply to the extinction of a highway.

[83] In Gibbs v. Grand Bend (Village)[^7], the Ontario Court of Appeal held that, once a dedication is complete, neither the owners nor their successors in title can revoke it. In other words, once a road has acquired the classification of a public highway, the owner cannot stop the public from using it.

[84] I conclude that the portion of Marion Road that passes through the applicant’s land in the Township of Mattawan is a public highway.

[85] The application is therefore dismissed.

Costs

[86] The respondent has successfully defended this application. I see no reason why it should not be entitled to costs on the partial indemnity scale.

[87] I have considered the costs outlines filed by the parties. I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1.1). In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario[^8] and Davies v. Clarington (Municipality)[^9], specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[88] I conclude that an award of costs in the amount of $20,000 would be reasonable in the circumstances. I order the applicant to pay those costs within 60 days.

The Honourable Mr. Justice G. Valin

Date Released: November 30, 2015

[^1]: 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 23 (S.C.C.). [^2]: 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 33 (S.C.C.). [^3]: Cook’s Road Maintenance Association v. Crowhill Estates and The Attorney-General of Ontario (2001), 224 OAC 370, at para. 22 (Ont. C.A.). [^4]: 1913 CanLII 538 (ON CA), 1913, 13 D.L.R. 649, at paras. 14 and 15 (Ont. C.A.). [^5]: 2010 ONCA 867, 98 R.P.R. (4th) 159, at para. 26 (Ont. C.A.). [^6]: O’Neil at para. 19. [^7]: (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644, at para. 110 (Ont. C.A.). [^8]: (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.). [^9]: 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.).