Court File and Parties

COURT FILE NO.: CV-13-041 DATE: 20170223

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROGER BLANCHARD and DONNA BLANCHARD Plaintiffs / Defendants by Counterclaim – and – DONALD TRIPP, ETHEL TRIPP, STEVEN TRIPP and JOYCE LAVALLE Defendants / Plaintiffs by Counterclaim

Counsel: Daniel J. Wyjad, for the Plaintiffs / Defendants by Counterclaim. Michael M. Miller, for the Defendants / Plaintiffs by Counterclaim.

HEARD: February 13, 2017

R. D. GORDON, R.S.J.

Overview

1The Parties to this litigation are embroiled in a dispute about the Plaintiffs’ access to their property. The Defendants have brought a motion for partial summary judgment to dismiss the Plaintiffs’ claim for a declaration that their means of access is an access road or a common road as defined in the Road Access Act, R.S.O. 1990 c. R.24 (the “Act”).

2The Plaintiffs have responded by bringing their own motion for summary judgment seeking a declaration that their means of access is a Public Highway, or in the alternative that it is a common road or access road. Because the Defendants were not provided with sufficient notice of the Plaintiffs’ motion to allow them to adequately respond, the motion insofar as it seeks a declaration that access is via a Public Highway was adjourned to a date to be fixed by the trial coordinator in consultation with counsel.

3The Defendants’ motion included a request for relief arising from the alleged failure of the Plaintiffs to comply with undertakings. This aspect of the Defendants’ motion is similarly adjourned.

Background Facts

4Mr. and Mrs. Blanchard are owners of two parcels of property in the Township of Laurier in the District of Parry Sound. The first, PIN 56062-0093 (LT) is Parcel 6785 SEC NS and is comprised of part of Lot 11, Concession 14. The second, PIN 52062-0050 (LT) is Parcel 12296 SEC NS and is comprised of part of Lot 12, Concession 13. The Plaintiffs have built a cottage on the latter parcel of land and it is with respect to this piece of property that the dispute has arisen.

5The Defendants Donald, Ethel and Steven Tripp are the owners of three parcels of property in that same Township of Laurier. The first, PIN 52062-0095 (LT) is Parcel 11673 SEC NS and is comprised of part of Lot 11, Concession 14. The second, PIN 52062-0028 (LT) is Parcel 4449 SEC NS and is comprised of part of Lot 12, Concession 14. The third is comprised of Lot 13, Concession 14. I was not given the PIN or the Parcel number for this property.

6The Defendant Joyce Lavalle is the owner of PIN 52062-0051 (LT) which is Parcel 3400 SEC NS and is comprised of part of Lot 12, Concession 13 in the same township.

7The property in Lot 12 owned by Ms. Lavalle and the property in Lot 12 owned by the Blanchards are, for the most part, divided by a tract of land owned by the CNR Railway and in which there are railway tracks.

8Vehicular access to the properties owned by the Tripps and Ms. Lavalle is via a driveway or roadway commonly referred to as Trussler Road. Trussler Road runs easterly from the end of Beachey Drive across railway tracks and over the properties owned by Tripps at the south east corner of Lot 11, Concession 14 and the south west corner of Lot 12 Concession 14. It continues easterly over a bridge crossing Trout Creek and over the property owned by Ms. Lavalle. Not far from where Trussler Road enters Ms. Lavalle’s property it branches in two directions: (1) Towards the northeast providing access to the Tripps’ property; and (2) South towards the CNR Railway. It continues south and easterly over Ms. Lavalle’s property following the contour of the CNR Railways lands before veering eastward into property owned by Iris Stevens.

9The contest in this case centers not so much on Trussler Road but on a further roadway running a short distance off Trussler Road across Ms. Lavalle’s property to the CNR Railway and then across the CNR Railway to the property owned by the Blanchards. In this decision I will refer to it as the spur road. Mr. and Mrs. Blanchard are of the view that this spur road, in conjunction with Trussler Road, leads to their property and provides their means of vehicular access.

The Applicable Law

Motions for Summary Judgment

10This motion for summary judgment is brought under Rule 20.04, which allows the court to grant summary judgment if satisfied that, with respect to the Plaintiff’s claim, there is no genuine issue requiring a trial.

11In the case of Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial” and at paragraph 49, stated as follows:

[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

12The Court went on to say, at paragraph 50, that the overarching issue is whether summary judgment will provide a fair and just adjudication. The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that he or she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

13In Hryniak the Court also set the approach to be taken by the court when considering motions for summary judgment, and stated that:

1. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure.
2. If there appears to be a genuine issue requiring trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The Judge may, at his or her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

14Also of note is the decision of the Supreme Court of Canada in the case of Canada (Attorney General) v. Lameman, 2008 SCC 14, which held that a defendant who seeks summary judgment dismissal bears the evidentiary burden of showing there is no genuine issue requiring a trial. If the defendant does prove this, the plaintiff must either refute or counter the evidence or risk summary dismissal. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues requiring a trial.

The Road Access Act

15Section 1 of the Act provides the definition of “access road” and “common road”.

16A “road” is defined as land used or intended for use for the passage of motor vehicles.

17An “access road” is 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.

18A “common road” is an access road on which public money has been expended for its repair or maintenance.

19In Blais et al v. Belanger, 2007 ONCA 310, the Ontario Court of Appeal, in confirming that persons who use an access road are not entitled to use the land for their own purposes except to enter or leave their property in a motor vehicle, held that: (1) Those who use an access road on the land of another do not have the right to repair or maintain the road. (2) The Act does not place any obligation on a landowner to maintain an access road across his or her property. (3) As a natural consequence of (1) and (2), an access road may, through deterioration over time, cease to be a road.

Analysis

20In the main action, the Plaintiffs have asserted that Trussler Road and the spur road constitute a public highway. If they are successful in that assertion the Act will have no application. If they are not successful in that assertion, it is their position that Trussler Road and the spur road constitute an access road or common road governed by the Act.

21The road can only be a common road if it first meets the definition of an access road. It is the position of the Defendants that the spur road is not an access road.

22For the purposes of this motion for summary judgment, I am assuming, without deciding, that the road in question is not a public highway.

23I am satisfied that the road is located on land that is not owned by a municipality.

24Accordingly, the issues for determination are: (1) Did the road in question exist when the Defendants blocked the Plaintiffs’ use of it? (2) If it did exist, did it serve as a motor vehicle access route to the Plaintiffs’ property?

Did the Road Exist?

25The Defendants did not argue before me that Trussler Road does not exist. However, they contest the existence of the spur road said by the Plaintiffs to exist between Trussler Road and the CNR Railway land. They point to the following evidence in support of their position:

1. Before the Plaintiffs offered to buy the property, the real estate agent with whom they dealt advised them there was no road access to it.
2. When the Plaintiffs accompanied the real estate agent to view the property, they accessed the property by parking on the side of Beachey Road and walking along the CNR Railway tracks to the property.
3. The offer to purchase signed by the Plaintiffs contained the following term: “This offer is conditional upon the buyer determining and obtaining at his own expense written permission from the land owners to use the private roadway to give access to the said property within 30 days of acceptance.”
4. The Plaintiffs have not used the roadway to access the property by motor vehicle since acquiring it. They have travelled Trussler Road to the spur road where they have parked and accessed their property by crossing the CNR Railway property on foot.
5. The Plaintiffs removed bushes and shrubs from the area where the spur road was said to exist in order to accommodate their vehicle.
6. There is no evidence of a motor vehicle using the spur road and crossing the railway to access the property since 1977.

26The Plaintiffs’ evidence was that the spur road was always visible and has always existed. They say they did some minor brushing solely for the purpose of allowing them to more efficiently get into and out of their vehicle and that the spur road was suitable for motor vehicle traffic before they did any such work.

27In my view, there is a genuine issue of whether what had once been a roadway of some sort, was still a road when the Defendants blocked the use of it. However, I am of the view that the issue can be determined fairly and justly without a trial by weighing the evidence that is before me and drawing reasonable inferences from that evidence.

28The Plaintiffs have offered little objective or independent evidence pertaining to the existence of the spur road when they acquired the property or when it was blocked by the Defendants.

29They have been unable to produce any evidence of use of the spur road since 1977. The area surrounding the spur road is rural bush and woodlands and it would be fair to assume some considerable growth of underbrush on the spur road in the more than 30 years since its last use. This is corroborated by the evidence of the Plaintiffs that they had to remove brush in order to efficiently enter and exit their vehicle while on the spur road. It strikes me as improbable that in the absence of motor vehicle traffic for more than 30 years, the brush would have grown only at the sides of the spur road. In addition, the photographs of the remnants of the brushing lead me to believe that in addition to brush, there were small trees and bushes taken down that would in all likelihood have prevented a vehicle from travelling the spur road. The reasonable inference from the evidence is that brush and small trees had grown in on the spur road that had to be cleared to allow a motor vehicle to traverse it or to park on it.

30The real estate agent has provided a statement that he changed the listing information for the property from “public access” to “no road access” because he had been harassed by one of the Defendants. However, it is clear that his consideration of the issue was restricted to the status of Trussler Road as opposed to the spur road and that he either did not consider or was not aware that Trussler Road does not directly abut the CNR Railway property.

31Furthermore, had there existed road access when he showed the property to the Plaintiffs, surely they would have accessed the property via that road when viewing the property. That they did not leads me to infer that the spur road did not serve as a motor vehicle access route at that time.

32Whether or not there was in the past a roadway serving the Plaintiffs’ property, the overwhelming preponderance of evidence is that there was no such roadway serving the Plaintiffs’ property when they acquired it. Assuming there had once been a roadway of some sort, its complete lack of use and neglect of maintenance for over thirty years led to it no longer serving as a motor vehicle access route when the Plaintiffs acquired their property. Given that the Plaintiffs had no right to maintain the roadway that may once have been there, they had no right to brush or remove trees from the property so as to make it amenable to vehicular travel.

33If there was no road in existence serving as a motor vehicle access route to the property, there cannot have been either an access road or a common road such as to bring the Plaintiffs within the ambit of the Act.

Did the Road Provide Motor Vehicle Access to the Plaintiffs Property?

34Even if the spur road can be said to have existed when the Plaintiffs acquired their property, there can be little doubt that the road over the railway crossing did not. Although there are clearly earthen ramps leading up to the railway tracks on each side of the tracks themselves, there is no crossing platform or mechanism by which the tracks themselves could be crossed. This is perhaps why the Plaintiffs never accessed their property by this route even before difficulties arose with the Defendants. It would also be why the real estate agent Ted Coombs said in his statement that Trussler Road “could provide access to this lot if a railroad crossing was installed”.

35In my view, it is readily apparent that Trussler Road, even in conjunction with the spur road, cannot be said to have served as a motor vehicle access route to the Plaintiffs’ property. At best it served as access to the CNR Railway property.

Conclusion

36When I weigh the evidence and draw reasonable inferences from it, it is clear that a trial is not required to arrive at a fair and just determination of whether the spur road meets the definition of an access road or common road under the Act. It does not.

37It follows that the Plaintiffs are not entitled to the benefit of the Act and that their request for a declaration that access to their property is via an access road or common road must be dismissed summarily.

38If the parties are unable to agree on costs they may make written submissions to me, not to exceed four pages plus attachments each, within 45 days.

R. D. GORDON, R.S.J.

Released: February 23, 2017