ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Etherington, Irene Etherington, Nick Boegel and Kishoree Boegel,
Jordan R.D. Lester, for the Applicants
Applicants
- and -
The Township of Ignace,
Jennifer Savini, for the Respondent
Respondent
HEARD: March 17, 2016, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Application
Overview
1The question in this application is whether maintenance work by a municipality can convert a private road into a municipal roadway – a roadway for which the municipality is responsible for all repairs and maintenance. Answering this question requires a review of the common-law doctrine known as "dedication and acceptance".
The Facts
2The applicants are property owners of lakefront property on Agimak Lake in the Township of Ignace.
3The Etherington family purchased their property in 1985. This property is their year-round residence. The Boegel family, from Wisconsin, purchased their property in 1999 and use it recreationally as a "summer house".
4The properties were originally used as a lodge with water access only. The properties are surrounded by Crown land. The nearest municipal road ends approximately 700 m north of the properties at the boundary with the Crown land.
5The previous owner of the properties (Mills) constructed a road across the Crown land to the municipal road. It is not known whether the previous owner had the consent of the Crown. The Township says that this road ("Mills Road") was not constructed to "municipal standards".
6In September 1984, the Township passed a bylaw authorizing an agreement between the Township, the Mills and the Murphys, predecessor in title to the Boegels, with respect to "casual winter maintenance" on Mills Road.
7The text of the agreement is as follows (the first parties are the property owners and the second party is the Township):
“Whereas the public right of way for Muskeg Drive ends at the southerly survey line of Part 23, reference Plan KR1778 location LK84, Township of Ignace;
And Whereas a private road known as the Mills Road extends from this southerly limit of Muskeg Drive to the last two private properties in this area;
And Whereas the Mills Road does not meet the criteria of the Ministry of Transportation and Communications for rural roads and therefore is not acceptable to be taken over and maintained by the Party of the Second Part; therefore the Party of the first Part maintains this road in the summer period. The Parties of the First Part wish to keep this road private in order to limit traffic flow into their back yards. However, in winter because of requirements for school buses and for emergency and safety vehicles, this road must be maintained from time to time, therefore the Party of the First Part wishes the Party of the Second Part to do snow plowing on this road on a casual basis;
And Whereas, the Party of the Second Part wishes to assist the Parties of the First Part to maintain this road in the winter season;
NOW THEREFORE This agreement witnesses that both Parties agree to the following terms of this agreement which will ensure regular winter road maintenance:
That the Party of the Second Part agrees to provide snow removal on Mills road to municipal acceptable standard.
That this snow removal service in no way denotes acceptance of this private road as a municipal road at any time in the future. The Provincial Standard and their acceptance of said will have to be acquired firstly at the expense of the parties of the First Part.
That this agreement will be in effect until either party wishes to renegotiate said terms.
That the Parties of the First Part will seal this agreement with payment of $10.00 per year which is a consideration in lieu of charges at regular rates for maintenance work done.
That the terms of this agreement will be binding upon heirs, executors, administrators, successors or assigns of the respective parties hereto.
DEFINED:
Casual Basis: means with same regularity as Muskeg Drive snow removal when it is being done.
Assist: means that when snowfall is severe and the Municipality cannot provide other than access in or out of property that the parties of the second part will try to make do until we can return and clear away the area where the grader makes the turn around.
IN WITNESS WHEREOF The Parties hereto have executed this agreement.” [Emphasis added.]
8In December 1985, the Township, again approved by bylaw, entered into an agreement with the Etheringtons (who had purchased their property from the Mills) and the Murphys to replace the 1984 agreement. The terms of the 1984 and 1985 agreement were the same.
9In December 1998, the Township passed another bylaw authorizing an agreement between the Township, the Etheringtons and the Hughes, the next purchasers of the Boegel property, with respect to "casual winter maintenance" on Mills Road. The new agreement was identical to the previous agreements except for the description of the municipal road which had a new name. The Etheringtons did not sign this agreement. Although a former employee of the Township advised the present administrator/treasurer that the Etheringtons refused to sign the 1988 agreement, it was Mr. Etherington's evidence that he does not remember seeing this 1988 agreement.
10The Boegels have never signed a similar agreement.
Maintenance Since 1985
11John Etherington deposed that the Township did summer and winter maintenance on Mills Road from 1985 until the spring of 2014. He deposed that he never paid for any services nor did he have to call the Township to request maintenance. Few specific details are given. He deposed that in the summer of 2010, the Township brought in approximately 30 loads of gravel "making a fresh grade on the road". He also deposed that approximately 20 years ago, after a flood, the Township repaired Mills Road and replaced culverts.
12Mr. Etherington deposed that all continued as normal until the spring of 2014 when he complained that the road needed to be graded. An in camera Township Council meeting was held in May 2014 and subsequently Mr. Etherington received a letter from the Township Administrator / Treasurer which stated:
Recently you came to the office asking about the maintenance of the road from the end of West Beach Drive to your property. We have searched our files and found the two agreements (attached) between you, the other property owners abutting your property, and the Township. The one dated December 1, 1988 replaced the one dated December 30, 1985.
Both agreements indicate that the Township will do snow removal on a casual basis for $10 per year on "Mills Road" which is identified as a private road. It further states that you and the other property owners are responsible for summer maintenance.
13Mr. Etherington deposed that the town graded the municipal road but not Mills Road in May 2014.
14In January 2015, Mr. Etherington complained to the Township about the lack of snowplowing and learned that the Township would only plow Mills Road after an accumulation of at least 5 inches (12 cm).
15Mr. Boegel deposed that, between 1999 to 2013, he attended the property once or twice a year during the summer and "never had concerns" regarding the condition of Mills Road "as the road was consistently maintained and was readily passable."
16Eleanor Hughes, one of the signatories of the 1988 agreement, lived at the property between October 1988 and February 1991. She deposed that "despite the terms of the agreement, the Township maintained the entire road leading to our home. This included winter maintenance such as plowing, as well as summer maintenance including grading...."
17Wayne Hanchard has been the administrator/treasurer of the Township since November 2007.
18He deposed that the fees for winter maintenance have never been invoiced to the property owners and that the property owners have never paid any fees since he assumed his duties. He assumes that this is due to administrative oversight given that the amounts were nominal.
19Based on his review of the records, there are no records showing any approval of work or expenditure of funds for maintenance or repair of Mills Road except the agreements already referenced.
20Mr. Hanchard also deposed that, from discussions with employees, he learned that employees have occasionally graded and spot graveled Mills Road. He deposed that the Township never authorized or approved this work. Specifically, his evidence includes:
Hans Nauman, a public works employee with the Township from 1973 to 2001, informs me and I believe that Township employees graded Mills Road after the spring thaw and occasionally at other times, and would spot gravel on occasion. Council never authorized or approved this work. Mr. Nauman informs me and I believe that he is a friend of Mr. Etherington.
21With respect to the placement of gravel on Mills Road in 2010, Mr. Hanchard deposes that a significant amount of material was moved from other roads which were being "rehabilitated”. Since the Township was required to dispose of the old roadbed material at its cost, many people in the Township receive this material without cost. He deposed that the Township placed some of this material on Mills Road "based on a history of complaints lodged with the Township by Mr. Etherington about the condition of Mills Road."
22As a result of this dispute, the Ministry of Natural Resources and Forestry was consulted once it was determined that Mills Road was located on Crown land. The Ministry advised the parties that the Ministry was not obligated to conduct any maintenance on this road. The Ministry representative also advised that certain maintenance could occur on this road without authorization from the Ministry but that other work required authorization from the Ministry. A representative of the Ministry expressed an opinion that it was "preferable" for the Township to assume responsibility as it would allow the Township "to conduct all required work on the road without MNRF authorization."
Public Access
23Mills Road is a "dead-end" road which leads to the Etherington and Boegel properties.
24Mr. Etherington deposed that Mills Road is a "public road" and that the public often uses Mills Road for lake access, using snowmobiles and all-terrain vehicles, dog walking, jogging, and for a variety of other purposes. Mr. Boegel deposed that the road is "often used by the general public for such things as jogging, dog walking, and using all-terrain vehicles."
25However, on cross-examination, Mr. Etherington admitted that he had asked people using Mills Road to leave with the following explanation: "Well what is the reason for coming down I guess was my you know are they going to steal stuff from the house or properties or whatever. It, it shows right at the start that it is a dead end road."
Positions of the Parties
26The applicants argue that the actions of the municipality have converted Mills Road into a municipal highway. They rely upon the common-law doctrine of dedication and acceptance. The applicants seek declarations that Mills Road is a public highway and that the Township has a duty to repair and maintain Mills Road. Further, they seek a declaration that the Township is estopped from refusing maintenance or, alternatively, a writ of mandamus that the Township must continue summer and winter maintenance on Mills Road.
27The Township argues, in essence, that Mills Road is a private drive notwithstanding that it is actually on Crown land. It relies upon the prior agreements as proof that there was never any intention by the municipality to accept this private road as a municipal road. Further, the Township argues that any work done on Mills Road does not constitute acceptance. Finally, the Township argues that it is under no obligation to assume Mills Road and that neither estoppel nor mandamus can be used in the circumstances to compel repair (see Linderkamp v. Nickel Centre (Town), 1977 CarswellOnt 358).
The Law
28The Municipal Act, 2001 S.O. 2001. c. 25 (s. 31(2)), provides that after January 1, 2003, land could only become a highway by bylaw and "not by the activities of the municipality or any other persons in relation to the land, including the spending of public money."
29Prior to this legislation, the common law doctrine of dedication and acceptance provided that a passage over land could become a public highway.
30As stated in Sioux Lookout (Municipality) v. Canada (Attorney General), 2010 ONCA 867, at para. 26 and 27:
The requirements were set out in Skerryvore Ratepayers’ Assn. v. Shawanaga Indian Band (1993), 1993 CanLII 198 (ON CA), 16 O.R. (3d) 390 at p. 397 (C.A.), leave to appeal denied, [1994] S.C.C.A. No. 63:
At common law, to establish that a road has been dedicated to public use in perpetuity, the party advancing the claim must demonstrate:
(a) an intention on the part of the owner to dedicate; and
(b) acceptance by the public of the road as a highway.
This court in Broslaw v. North York (City) (1997), 1997 CanLII 987 (ON CA), 35 O.R. (3d) 458 at p. 463 (C.A.) adopted the statement from Tait v. McKellar (Township), 1951 CanLII 88 (ON CA), [1951] O.R. 226 at p. 239 (C.A.): “The question whether land has been dedicated by the owner thereof for use as a public highway is one of fact, and dedication must not be too readily presumed”. Unobstructed use by the public over a substantial period of time is evidence from which an intention to dedicate may be inferred: O’Neil v. Harper (1913), 1913 CanLII 538 (ON CA), 28 O.L.R. 635 at p. 644 (C.A.); Broslaw at p. 463; Reed v. Lincoln (Town) (1975), 1974 CanLII 513 (ON CA), 6 O.R. (2d) 391 at p. 396 (C.A.)
31More recently, in Skinner v. Thames Centre (Municipality), 2014 ONCA 164, the Court of Appeal stated:
The onus was on the applicant to establish that, at some point during its history, the road (in this case Section II of Storey Drive) had been dedicated by the owner for public use, had become open to the public, and that the Municipality had demonstrated the intention to accept and assume responsibility for the road. The test was articulated by this court in Scott v. City of North Bay (1977), 1977 CanLII 1221 (ON CA), 18 O.R. (2d) 365 at p. 367 as follows:
The assumption of a road or street for public use can be effected only by a corporate act of the municipal corporation. If there is no by-law, an assumption may be inferred from work done by municipal employees, or other expenditure of public money in improving or maintaining the road or street. In such a case the work or expenditure must be “clear and unequivocal, and such as clearly and unequivocally indicate[s] the intention of the corporation to assume the road”…If there has been no regular expenditures of public money, and if the repairs are trivial and infrequent, they may be ascribed to courtesy rather than to the assumption of responsibility [citations omitted].
5What constitutes a clear and unequivocal improvement or maintenance is a question of fact, and will vary with the use and nature of the particular road: Grierson v. West Wawanosh (Town), [1998] O.J. No. 3173 (S.C.J.) at para. 72. The entire history of the road in question may be relevant, as once a road has become a public highway, its status can only be changed by way of a by-law: Grierson, at para. 70, Simek v. Gravenhurst (Town) 2012 ONSC 6314 at para. 10.
Analysis and Disposition
32Dedication and acceptance requires an intention by the owner to dedicate to public use and a clear and unequivocal acceptance by the Township to accept and assume responsibility for the road.
33In this case, the owner of the land is not the applicant but the Crown and the Crown is not a party to this application.
34Even if the applicants were the owners of the land, I would not conclude, on these facts, that the roadway was dedicated to public use. Indeed, I conclude that this is, despite any naming, a private drive. This finding is based on the agreements that describe the road as a "private road" and that stipulate that the property owners "wish to keep this road private in order to limit traffic flow into their backyards." Despite the assertions by Mr. Etherington and Mr. Boegel that the road is used by the public for "dog walking" and "snowmobiling" what is more telling is that Mr. Etherington maintains control over the road by asking people to leave because of his concern over possible theft.
35Even if I concluded that the road was dedicated to public use I would not find that the work performed by the Township constituted a clear and unequivocal intention to accept and assume responsibility for the road.
36The agreement acknowledged that Mills Road "is not acceptable to be taken over and maintain" and that "snow removal service in no way denotes acceptance of this private road as a municipal road at any time in the future." The next sentence in paragraph two of the agreement reads: "The Provincial Standard and their acceptance of said will have to be acquired firstly at the expense of the parties of the First Part." The wording of the agreement is clear and unambiguous. Even if the intention of the parties was not clear from the agreement I would conclude that the conduct of Township does not constitute clear and unequivocal acceptance.
37The parties agree that any conduct of the Township after January 1, 2003, is irrelevant as a result of s. 31(2) of the Municipal Act, 2001. The assistance provided by Mr. Nauman and other Township employees without Township authorization or approval does not prove an intention by the Township to assume responsibility for this private road. It is not sufficiently clear and unequivocal evidence to transfer responsibility for the maintenance of this private road to the Township. The assertion by Mr. Etherington that the Township did work approximately 20 years ago after a flood and replaced culverts is, at best, vague, and is insufficient to meet the onus that the applicants have in proving acceptance.
38Accordingly, I dismiss this application for declaration that the roadway which was formerly referred to as Mills Road has been dedicated and accepted by the Township of Ignace to be a public highway. Similarly, I dismiss the applications for a declaration that the Township has a duty to repair and maintain this roadway and for declaration that the Township is estopped from refusing to conduct regular winter and summer maintenance. In doing so I note that the agreement provides that the agreement was to "be in effect until either party wishes to renegotiate said terms." In the circumstances, I also dismiss the application for a writ of mandamus.
Costs
39If the parties are unable to agree to costs within 30 days, then the Township may deliver its costs submissions in writing within 45 days of the release of these reasons. The applicants may deliver their costs submissions in writing within 10 days of receipt of the Township's submissions. Submissions are limited to five typewritten pages plus cost outline. If no submissions are received within 45 days, then costs will be deemed settled.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
[40]
Released: March 24, 2016
COURT FILE NO.: CV-15-0537
DATE: 2016-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Etherington, Irene Etherington, Nick Boegel and Kishoree Boegel,
Applicants
- and -
The Township of Ignace,
Respondent
REASONS ON APPLICATION
Newton J.
Released: March 24, 2016
/mls