Blanchard v. Tripp, 2018 ONSC 3076

COURT FILE NO.: CV-13-041

DATE: 20180516

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROGER BLANCHARD and DONNA BLANCHARD

Plaintiffs

– and –

DONALD TRIPP, ETHEL TRIPP, STEVEN TRIPP and JOYCE LAVALLE

Defendants

Daniel J. Wyjad, for the Plaintiffs

Michael M. Miller, for the Defendants

HEARD: January 11, 15, 18, 19 and February 14, 2018

REASONS FOR JUDGMENT

WILCOX J.

INTRODUCTION

1The Plaintiffs’ motion for summary judgment seeks a declaration that Trussler Road in the unorganized Township of Laurier is a public road, which could therefore be used by the plaintiffs to access their rural property. This request for relief is based on the definition of “public highway” under the Municipal Act, R.S.O 1990. The defendants contend that that Act is not applicable and, in any event, oppose the declaration sought. In the result, I would dismiss the motion for summary judgment and the action.

1. The Application

2This case began by Notice of Application. It was converted to an action by an order of September 21, 2015. At times, reference was made during submissions to the application documents because better copies of some records were found there.

2. The Action

3In the action, the plaintiffs claimed:

a. A declaration that the road known Trussler Road is a public highway.

b. In the alternative to paragraph 1(a), a declaration that Trussler Road is a common road as defined under the Road Access Act, R.S.O. 1990, c. R34.

c. In the further alternative to paragraphs 1(a) and 1(b), a declaration that Trussler road is an access road as defined under the Road Access Act, R.S.O. 1990, c. R.34.

d. An interim and permanent mandatory injunction preventing the defendants Donald Tripp, Ethel Tripp, Steven Tripp and Joyce Lavalle from closing, barricading or otherwise blocking the plaintiffs’ access over Trussler Road, as the means of access to and from the plaintiffs’ properties.

e. General damages in the amount of $150,000.00.

4The defendants’ counter claimed for:

a. A declaration that Trussler Road is not an access road as defined by the Road Access Act, R.S.O. 1990, c. R.34;

b. A declaration that Trussler is not a common road as defined by the Road Access Act, R.S.O. 1990, c. R.34;

c. In the alternative, if Trussler Road is an access road or a common road as defined by the Road Access Act, R.S.O. 1990, c. R.34, an order closing such road pursuant to s. 3 of the Road Access Act, R.S.O. 1990, c. R.34 in accordance with sections 3(1)(a), (b) and (c).

5Both sides brought motions for summary judgment in this matter. Both motions for summary judgment were before RSJ Gordon on February 13, 2017.

6The defendants’ motion for summary judgment was for partial summary judgment to dismiss the plaintiffs’ claims for a declarations that Trussler Road is an access or a common road as defined by the Road Access Act, R.S.O. 1990 c. R.34.

7The plaintiffs’ motion was for declaration that Trussler Road is a public highway or, in the alternative, that it is a common road or an access road.

8RSJ Gordon dealt with the issues of whether Trussler Road was an access road or a common road. In doing so, he assumed without deciding that the road was not a public highway.

9He adjourned the plaintiffs’ motion in so far as it sought a declaration that Trussler Road is a public highway because the defendants had not received adequate notice of it to argue it then.

10RSJ Gordon dismissed the plaintiffs’ claim for declaration that Trussler Road is a common road or an access road as defined in the Road Access Act, R.S.O. 1990 c. R.34 and granted the defendants’ request for a declaration that it was neither of those.

11In a further endorsement, he clarified that “this is a declaration relating to the rights of the parties to this litigation only and is not to be considered a declaration of general application with respect to Trussler Road”.

12The plaintiffs now bring an amended Notice of Motion for summary judgment for:

1. A declaration that the road commonly known as Trussler Road, extending from Beachey Drive in Lot 11, Concession 14 through to the east limit of Lot 12 in Concession 13 in the Township of Laurier in the District of Parry Sound, is a public road.

2. In the alternative to paragraph 1, a declaration that the said Trussler Road is a common road as defined in the Road Access Act, R.S.O. 1990 c. R.24.

3. In the further alternative to paragraphs 1 and 2, a declaration that the said Trussler Road is an access road as defined under the Road Access Act, R.S.O. 1990 c. R.24

4. A permanent injunction preventing the defendants from closing, barricading, obstructing or otherwise obstructing (sic) the plaintiffs’ access over Trussler Road

5. If summary judgment is not granted as requested above, an order requiring the defendant Joyce Lavalle to produce the field notes made in preparation for plan of survey by Peter Mullally, O.L.S. dated January 9, 1997.

13The relief requested includes at number 2 and 3, respectively, declarations that Trussler Road is a common road or an access road under the Road Access Act. However, counsel agreed that those issues had been dealt with by RSJ Gordon. Plaintiffs’ counsel stated that the sole issue is whether Trussler Road is a public road. This did not include what is referred to in RSJ Gordon’s decision as the “spur road”.

14That RSJ Gordon found that it was not an access road or common road did not preclude the finding that it is a public road, counsel agreed.

ORIENTATION

15The subject lands are in Laurier Township, in the District of Parry Sound, Ontario. The Township was surveyed in or about 1878 into lots of approximately 100 acres in the typical fashion. The concessions run east and west and number from 1 at the south end to 14 at the north end of the Township. The lots on each concession number from 1 at the west edge of the Township. Road allowances running east-west were laid out between the concessions at every second concession. Side roads running north-south were laid out after every fifth lot.

16In Lot 11, Concession 14 is what I will refer to for convenience as “the junction”. Various routes come together here. Historically, it was approached from the south and west by Glen Roberts Road. Highway 11 runs north and south through it. When Highway 11 was four laned in or about the 1980’s, the approach from Glen Roberts Road was severed. Local access to the junction then changed to Beachy Drive approaching from the south. Also historically, the railroad approached it from the south on a straight line through Lot 11, Concession 13. That changed decades ago when the railroad was rerouted to an easterly path up through Lot 12, Concession 13, curving back into the top of Lot 11, Concession 13 as it approached the junction. There was also a railroad spur in the vicinity of the junction.

17Trout Creek follows a north-south course to the east of the junction close to the boundary between Lots 11 and 12. It is not to be confused with the municipality of Trout Creek, just to the north of Laurier Township.

18What is referred to as Trussler Road ran easterly from the junction into Lot 12, Concession 14 and then angled south and east across Lots 13, 14 and 15, Concession 13, and into unpatented crown lands in Concession 12.

19A spur or stub road branches south from Trussler Road into Lot 12, Concession 13. Neither it nor Trussler Road follow a surveyed road allowance at any point. Rather, they are over privately owned lands or crown lands.

20Calling these “roads” without further explanation might leave the wrong impression. Although Trussler Road was made passable by automobile traffic at times and in places by landowners along it, it was more of a wagon track. There was less information provided about the stub road, but it appears to have had less use and attention by way of maintenance than Trussler Road.

21Laurier Township was settled commencing in the late 1800’s. Thomas Trussler owned several lots to the east of the junction. His son, Charles Trussler, had additional land holdings in the area. Charles appears to have spent his entire life in the area until his death in the 1980’s and to have had some prominence among the local citizenry. He played a central role in the submissions made in this case. Roads in the area tended to be referred to by the name of the individuals whose properties they served. So, the road in question was referred to locally as Trussler Road although not officially named that.

22It is important to note that Laurier remains an unorganized township, with no municipal government.

BACKGROUND FACTS

23The background facts found by RSJ Gordon are as follows:

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.

24Counsel did not take issue with these facts set out by RSJ Gordon.

25For clarity and continuity, I will attempt to be consistent with RSJ Gordon and his terminology and references.

POSITIONS

26The plaintiff’s position was that Trussler Road is a public road. The defence took the position that it is not.

27Counsel agreed that there is no legal distinction between the terms “road” and “highway”. They were used interchangeably.

28As for the significance of a road being public, plaintiffs’ counsel submitted that it meant that:

a. The public had a right to travel it

b. No one has the right to obstruct it

c. It can provide access to the properties along it.

Defence counsel did not take issue with this.

29However, defence counsel submitted, the court is being asked by the plaintiffs to declare that the road is public. If it is public, someone would have to own and be responsible for it. That would be the Province of Ontario because there is no municipal government in Laurier Township. The court could not declare that the road is public without the Province being involved as a party in these proceedings. Therefore, the defence took the position that the action is improperly constituted. Nevertheless, the case has proceeded to this point. I will return to this below.

LAW RE: SUMMARY JUDGMENT

30Motions for summary judgment are provided for by Rule 20 of the Rules of Civil Procedure. Rule 20.04 provides for the disposition of such motions as follows:

DISPOSITION OF MOTION

General

20.04 (1) [Revoked]

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13(2).

Powers

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in the subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13(3).

Only genuine issue is amount

(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.

Only genuine issue is question of law

(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.

Only claim is for an accounting

(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts.

31Rule 20 was substantially amended effective January 1, 2010. The former test of “no genuine issue for trial” was replaced with “no genuine issue requiring a trial”. Judges hearing motions for summary judgment were given the power to weigh evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence (the “enhanced powers”) in determining whether there is a genuine issue requiring a trial.

32In the case known as Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764, 2011 O.N.C.A. 764 the Ontario Court of Appeal heard five separate appeals from summary judgment rulings. In view of controversy and uncertainty arising from the amendments, the court took the opportunity to provide guidance in the use of rule 20. Rather than commenting on the relative merits of the various approaches taken in the cases, the court explicitly stated that, “ … our decision marks a new departure and a fresh approach to the interpretation and application of the amended rule 20”. (Paragraph 35). Therefore, previous cases must be used with caution.

33The Court of Appeal promulgated a “full appreciation” test. It was to be applied in deciding if the enhanced powers should be used to identify claims having no chance of success or to resolve all or part of any action. This full appreciation test was criticized by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7, as will be seen below.

34One of the five cases dealt with by the Court of Appeal in Combined Air Mechanical v. Flesch, Hryniak v. Mauldin, was appealed to and dealt with by the Supreme Court of Canada, as noted above. The Supreme Court agreed with the Court of Appeal’s disposition of the case and dismissed the appeal, but differed on the interpretation of Rule 20.

35The Supreme Court stated that the process of adjudication must be “fair and just” and expanded on what that meant in terms of the accessibility of the justice system which is compromised by the cost and delay of dispute resolution processes, such as full trials, when these are disproportionate to the nature of the dispute and the interests involved. Summary judgment procedures, when used appropriately, were seen as enhancing access to justice.

36The court noted that motions for summary judgment “must be granted whenever there is no issue requiring a trial”, but that the Court of Appeal had not explicitly focused on when there is a genuine issue requiring a trial (paragraphs 47-49). Therefore the Supreme Court stated at para. 49:

There will be no genuine issue requiring a 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.

37Notably, the Supreme Court took issue with the Court of Appeal’s formulation of its “full appreciation test”, as follows:

56. While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focusing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.

57. On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. …

38The Supreme Court went on to outline the roadmap/approach to a motion for summary judgment, as follows:

66. On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she 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). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they 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.

39P.M. Perell J. stated in Miaskowski (Litigation Guardian of) v. Persaud, 2015 ONSC 1654 at paragraph 62:

Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 814 (ON CA), 18 O.R. (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para.11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 1990 4023 (ON SC), 75 O.R. (2d) 225 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

40Having reviewed the evidence presented by the parties, I am satisfied that there is a genuine issue requiring a trial. However, the need for a trial can be avoided by using the enhanced powers.

THE APPLICATION OF THE MUNICIPAL ACTS

1. Positions

41Plaintiffs’ counsel submitted that Trussler Road is a public road pursuant to s. 261 of the Municipal Act, R.S.O. 1990 and s. 26 of the Municipal Act, 2001, S.O. 2001. Defence counsel submitted that the provisions of the Municipal Act have no application in this case because the unorganized Township of Laurier is not a municipality as defined in the Municipal Act. This is a question of law that may be decided under Rule 20.04(4).

42The plaintiff’s counsel pointed out that s. 261 of the Municipal Act, R.S.O. 1990 and the corresponding provisions in the earlier versions of the Municipal Act all were substantially the same. Section 261 of the 1990 Act reads:

261. Except in so far as they have been stopped up according to law, all allowances for roads made by the Crown surveyors, all highways laid out or established under the authority of any statute, all roads on which public money has been spent for opening them or on which statute labour has been usually performed, all roads passing through Indian lands, all roads dedicated by the owner of the land to public use, and all alterations and deviations of and all bridges over any such allowance for road, highway or road, are common and public highways. R.S.O. 1990, c. M.45, s. 261.

43The plaintiff submitted that the basic thrust of these over time is that public highways include:

• Roads on which public money has been spent for opening them;

• Roads on which statute labour has been usually performed; and

• All roads dedicated by the owner of the land to public use.

44The Municipal Act, 2001, S.O. 2001, c. 25, was a major departure from the previous Municipal Acts. In it, s. 26 provides as follows:

26 The following are highways unless they have been closed:

1. All highways that existed on December 31, 2002.

2. All highways established by by-law of a municipality on or after January 1, 2003.

3. All highways transferred to a municipality under the Public Transportation and Highway Improvement Act.

4. All road allowances made by the Crown surveyors that are located in municipalities.

5. All road allowances, highways, streets and lanes shown on a registered plan of subdivision. 2001, c.25, s. 26.

45The plaintiffs’ position is that Trussler Road had the status of a public road under section 261 of the Municipal Act, R.S.O. 1990 as of December 31, 2002 and therefore was carried over by the 2001 Municipal Act.

46Defence counsel submitted that the provisions of the s. 261 of the Municipal Act, R.S.O. 1990 have no application in this case. This is because:

1. Laurier Township, where Trussler Road is located, is an unincorporated township,

2. The Municipal Acts, both the 1990 and 2001 versions, in s. 1(1) define municipalities as localities or geographic areas, respectively, the inhabitants of which are incorporated.

3. Rogers’ Law of Canadian Municipal Corporations, 2nd Ed., 2017, at s. 11.5, states that geographic townships whose inhabitants are not incorporated are not municipalities within the meaning of s. 1(1) of the Municipal Act. They are simply territorial units laid out for survey purposes.

47I note that the Municipal Act 2001, in s. 1, defines unorganized territory as a geographic area without municipal organization. Throughout the Act, it speaks of a municipality as distinct from an unorganized territory. It does not speak of “unorganized municipalities”. The Municipal Act 1990, which was repealed on January 1, 2003, also exhibits this distinction between municipalities and unorganized territories.

2. Plaintiffs’ Argument

48The plaintiff argued that the Municipal Acts apply, nevertheless. The argument was long and detailed:

• It started with the Municipal Act, R.S.O. 1990 definition of “municipality” meaning a locality the inhabitants of which are incorporated.

• Then, s. 7 of that Act states that the inhabitants of every county, city, town, village and township are a body corporate for the purposes of this Act. (R.S.O. 1990, c. M.45, s. 7.)

The plaintiff submitted that this provision deems the inhabitants of every township to be a body corporate.

• He then turned to the 1990 Act’s definition of a “local municipality” meaning a city, town, village and township. He could not say whether this meant those townships which are incorporated, or is broader and included both incorporated and unincorporated ones.

• Next, he referred to s. 1(2) of the 1990 Act which states:

(2) for the purposes of this Act a local municipality is an unorganized territory if it is in a territorial district mentioned in the Territorial Division Act and if it is not in the District of Muskoka and is not in the City of Greater Sudbury.

This, he submitted, meant that a local municipality such as a township does not have to be incorporated.

• The Territorial Regulation Act, s. 1(1) provides that Ontario may be divided into such geographic areas and with such names as may be prescribed by regulation. Ontario Regulation 180/03 provides that Ontario is divided into the geographic areas named and described in Schedule 1 and 2.

• Schedule 2 is of “Geographic areas (Territorial Districts)”. It includes Parry Sound, consisting of the geographic area of the Territorial District of Parry Sound which consists of, among others, “the geographic townships and the remaining territory set out in clause (d) of paragraph 48 of the Schedule to the Territorial Division Act, as that clause read on December 3, 2002, excluding (an area not relevant here).

• Paragraph 48 of that Schedule states that the Territorial District of Parry Sound consists of, among others, the geographic township of Laurier.

• So, the plaintiffs’ position is Laurier Township is within the Municipal Act, R.S.O. 1990 definition of a local municipality in an unorganized territory. Therefore, the Municipal Act applies to Laurier Township and s. 261 applies to all roads in that township.

49Summarizing the plaintiffs’ argument:

1. It starts by establishing that the Geographic Township of Laurier is part of the Territorial Division of Parry Sound which is unorganized territory;

2. The Municipal Act, R.S.O. 1990 s. 1(2) refers to “local municipalities” in unorganized territories;

3. “Local municipalities” as defined in the Municipal Act, R.S.O. 1990 s. 1(1) include townships;

4. Section 7 of the Municipal Act, R.S.O. 1990 deems the inhabitants of every township to be a body corporate;

5. Therefore, Laurier Township is a municipality to which the Municipal Act applies.

50Analysing the plaintiffs’ argument, the Municipal Act, R.S.O. 1990 defines municipality as “a locality the inhabitants of which are incorporated”. That would exclude Laurier Township. The Act does speak of local municipalities in unorganized territory (see for example s. 208(a), s. 229(1)(b), s. 307 and s. 319(1)). That situation is neither impossible nor contradictory. If the submission is that Laurier Township is a local municipality within unorganized territory, the inhabitants of which are deemed to be a body corporate because of the Municipal Act, R.S.O. 1990 s. 7, I note that, while s. 7 states that the inhabitants of every county, city, town, village and township are a body corporate for the purposes of the Act, (a) it does not include territorial districts, nor does it explicitly include geographic townships and (b) the Act defines county, city, town, village and township to mean ones the inhabitants of which are bodies corporate within the meaning and purpose of the Act.

51Therefore, whatever the purpose of s. 7 is, it cannot be understood to extend the definition of local municipalities to include Laurier Township and thereby make it a municipality as defined even though its inhabitants are unincorporated.

3. Defendant’s Argument

52The only case provided which touched on the issue of whether the Municipal Act, R.S.O. 1990 s. 261 definition of public highway applies to roads in unorganized townships was Sioux Lookout v. Canada at al. 2010 ONSC 2137, a decision of the Ontario Superior Court of Justice. The facts, briefly, are as follows. The Municipality of Sioux Lookout was restructured under the Municipal Act, R.S.O. 1990. In that restructuring, Sioux Lookout acquired control of adjacent lands in unorganized territory in which there were roads. In determining the status of the roads prior to the restructuring, the court applied section 261 of the Municipal Act, R.S.O. 1990. On appeal, the trial judge was overturned on other grounds. There is no indication that any of the parties objected to the trial judge’s application of section 261. Nor did the Court of Appeal indicate that section 261 did not apply in the circumstances.

53Other cases that have applied the Municipal Act definition of public highways to roads in unorganized territory include Ronville Lodge Ltd. v. Franklin (Township) 1975 36 (SCC), [1977] 1 S.C.R. 101, Sozansky v. Reed [1988] O.J. No. 2096 and Coutu v. Valley East (Town) [1994] O.J. No. 590.

54In view of this, I am unable to accept the defence’s contention that the Municipal Act, R.S.O. 1990 definition of public highway does not apply to the determination of whether a road in unorganized territory is a public highway.

IS TRUSSLER ROAD A PUBLIC ROAD?

55Assuming then that the Municipal Act, R.S.O. 1990 definition of public road applies, I will deal with the submissions of the plaintiffs’ counsel that were based on it.

56The plaintiffs’ position based on the Municipal Act, R.S.O. 1990 section 261 is that Trussler Road is a public road on three grounds:

a. It had been a colonization road. So, public money had been spent for opening it.

b. Statute labour had been performed on the road, and

c. The road was impliedly dedicated and accepted as a public road.

1. Colonization Road

57The plaintiffs contended that Trussler Road was part of a colonization road into Laurier Township. There was nothing in evidence clearly identifying it as such. Therefore, the argument was an indirect one based on various maps, aerial photographs and other documents.

58Exhibit 4, the 1878 map of Laurier Township, shows what appears to be a road angling up from the south west to “the junction” in Lot 11, Concession 14. It is labelled “trunk road”.

59Exhibit 1 is a copy of the 1878 map. On it, the plaintiff has highlighted in yellow a broken line angling south west from Lot 10, Concession 14. He submits that it is the colonization road which went through the area. Having looked closely at the map, it appears in fact to be the margin of swamp lands, as such broken lines appear along these in various places on the map.

60Exhibit 5, the 1933 map, has a prominent line marked “Ferguson Highway” which generally follows the same route as the above-mentioned “trunk road”, although with smoother curves. Plaintiffs’ counsel noted a double line from the junction also running south west but west of the Ferguson Highway, until it links up again with Ferguson Highway. I disagree that it is the previously noted highlighted line which, as I said above, I think in fact is a swamp margin. The double line is also further west than that. However, I agree with counsel that it appears to be what is known as Glen Robert’s Road.

61On the 1933 map, a road crosses Ferguson Highway and the railroad at the junction and continues generally eastward. According to the legend on the 1933 map, it is a “car road” west of Ferguson Highway and continuing easterly from there through the junction and across Lots 11 and 12, Concession 14. In Lot 12, Concession14, it forks. The right hand fork angles south east through Lots 12 through 15, Concession 13 and Lots 16 through 19, Concession 12. The right hand fork, the legend indicates, is a wagon road. This appears to be Trussler Road.

62A 1938 survey done by the Department of Highways of Ontario in Laurier Township (see Affidavit of Donna Blanchard sworn January 14, 2017, Tab 24) shows the area of “the junction”. In particular, it shows a road angling in from the south west, which it identifies as a “colonization road”. Plaintiffs’ counsel suggested that the “colonization road” is what is now known as Glen Roberts Road because they fall on the same place on the maps. That would appear to be so. I note that the colonization road does not continue eastward towards Trussler Road, but appears to turn northward along what the plan labels “the Kings Highway”.

63Another Ontario Department of Highways land plan from 1963 (see Affidavit of Donna Blanchard sworn January 14, 2017, Tab 25) also identifies as “colonization road” a road running from the south west to “the junction”.

64Plaintiffs’ counsel produced an aerial photograph of the area (see Affidavit of Donna Blanchard sworn January 14, 2017, Tab 10). He assumed that it was from 1960, because of the numeric code on it. The significance of it, he submitted, was that it showed Glen Roberts Road approaching the junction from the south, crossing Highway 11 and the railroad and continuing east on Trussler Road, across Trout Creek and through the lands beyond, establishing continuity between Glen Roberts Road and Trussler Road.

65Plaintiffs’ counsel referred again to the 1933 map showing a “car road” going east from the junction and becoming a wagon road which ran to the south east, suggesting an inference could be drawn from that. He submitted that the colonization road which he says is Glen Roberts Road included the car road shown in the 1933 map extending from the junction into Lot 13, Concession 14.

66Exhibit 6 is a Wikipedia print out filed by plaintiffs’ counsel to help explain the history of the roads in the area. There was some discussion of the evidentiary value of the information from this source. It was admitted, subject to a consideration of its weight, for historical background.

67Briefly, it indicates that colonization roads were built in the 1800’s, including north towards Georgian Bay. The Muskoka Road was one of these, running north from Washago, reaching Sundridge by 1887, where it connected to a road to South River. By 1916 the road between South River and Powassan was completed, connecting to one from Powassan to North Bay, and was passible by automobiles. Laurier Township is between South River and Powassan.

68It also indicates that Highway 11 was planned from the 1920’s as a trunk road from Toronto to North Bay and from there to Cochrane. It linked several existing colonization roads, including Muskoka Road which was partially reconstructed. Highway 11 was named the Ferguson Highway.

69I take judicial notice that Highway 11 was four laned, including through the Laurier Township area, starting in or about the late 1980’s, which helps to locate some of the maps and aerial photos in time. That four laning is apparent on the Ministry of Natural Resources’ 2016 map of the junction area, filed as Exhibit 7.

70This history has some consistencies with the 1878, 1933 and other maps filed, features of which have been noted previously. The 1878 map shows a road from the south running to the junction and north from there. The 1933 map shows the Ferguson Highway following generally the same route. This implies that, if these identify the route of the colonization road, that road did not go east from the junction onto Trussler Road, but continued north toward Trout Creek and places beyond.

71The plaintiffs’ counsel noted that Exhibit 3, the land grant to James Corkery in 1894 of part of Lot 11, Concession 14, reserved the colonization road allowance. He submitted that this supported the argument that the colonization road went through that lot and eastward as Trussler Road. However, I note that the metes and bounds description of James Corkery’s lands describes lands to the west of the railroad. The excepted allowance for the “Government Colonization Road” went along the easterly limit of Corkery’s lands. That is to say, the colonization road allowance was immediately to the west of the railroad. That is where the 1878 map shows the trunk road from the south west going off the north edge of the map and where the 1933 map shows the Ferguson Highway. So, the patent to James Corkery contradicts the plaintiffs’ counsel’s position as to the location of the colonization road. The patent indicates that the colonization road’s route did not follow Trussler Road.

72I note also that the land records that the plaintiffs provided for properties along the Trussler road do not refer to the presence of a colonization road. The patent of Lots 11 and 12, Concession 12 to Alonzo Brott does reserve the railroad right of way, by contrast. At most, there are the typical general reservations for any public roads or colonization roads, among other reservations to the crown.

73In summary, using the enhanced powers available to me on a motion for summary judgment, I do not find that Trussler Road was part of a colonization road.

2. Performance of Statute Labour

74As indicated, the Municipal Act, R.S.O. 1990 section 261 states that “…all roads…on which statute labour has been usually performed…are common and public highways”.

75The plaintiff’s position was that Trussler Road is a public road by virtue of having had statute labour performed on it.

76The Statute Labour Act first appeared in 1890 and has not substantially changed, according to the uncontradicted submissions of defence counsel. Its provisions include ones regarding statute labour in unincorporated townships. They provide for qualified land holders resident in the township to elect road commissioners who would then appoint a secretary-treasurer. The commissioners were required to meet and name the roads or parts thereof upon which statute labour was to be performed, and when, and to oversee the work. It was accepted by counsel that Charles Trussler was such a road commissioner from at least as early as 1948.

77The road commissioners had the power to open road allowances where they had been laid down in the original surveys, or roads in lieu, and direct the performance of statute labour thereon.

78Where there were such roads in lieu over ungranted lands of the crown (In this regard, I note that Trussler Road appears on maps to have crossed several ungranted lots to the east of the lands of the parties in the present case) the commissioners were required to cause a plan thereof, so far as they affected the crown lands, to be made by an ontario lands surveyor. The plan was to be filed with the Department of Lands and Forests.

79In cases where deviations from road allowances passed over patented lands, there were provisions for financially compensating the land owners and requiring a transfer to the Province of title to the lands taken.

80Records were to be kept by the secretary-treasurer in a prescribed form of statute labour book for the township of those liable to perform statute labour, and of the labour performed.

81The corresponding provision of the Public Transportation and Highway Improvement Act, R.S.O. 1990, is section 90 which states:

90 (1) The Minister may arrange with,

(a) the Government of Canada;

(b) the local roads board elected under the Local Roads Boards Act;

(c) the roads commissioners elected under the Statute Labour Act; or

(d) a person who is the owner of land,

for the construction or maintenance of a road in territory without municipal organization, and the Minister may direct payment out of money appropriated therefor by the Legislature of an amount equal to such proportion of the cost of the work as he or she considers requisite.

82Notably, then, there is a statutory process by which a road on private land could be put into public (i.e. provincial) ownership, and one where a road on unpatented lands would be formally identified by a survey. Neither was implemented for Trussler Road.

83If statute labour was performed on Trussler Road:

• There should be records identifying it as a road on which statute labour was to be performed. That is, that it was part of the statute labour system in the township.

• There should be surveys of the road where it crossed crown lands.

• There should be land records showing the transfer of title to the road lands from the private land owners to the province.

84No such records were entered in evidence. In Stuart Taggart’s affidavit of July 19, 2013, he deposes that:

• he was the secretary-treasurer of the Township of Laurier’s local roads board, and

• there are no written records of time, money or man hours being spent on Trussler Road as statute labour.

85Plaintiffs’ counsel frankly admitted that there is not much evidence on point, and that what there is is in fragments which he was trying to tie together.

86In support, he referred to various records. First, there were entries in Charles Trussler’s personal diary from 1932 and from 1964 to 1969. Defence counsel objected to the admission of these into evidence, suggesting that there should be better evidence available in the form of provincial government records regarding statute labour. Plaintiffs’ counsel suggested that these were admissible as historical records, and perhaps on a necessity and reliability analysis, to help with references in other records to place names, thereby locating along the road were work was done. I was not persuaded of the admissibility of the diary entries.

87Even if they were admissible, there is no indication of what road they refer to. Plaintiffs’ counsel submitted that it may be that it inferred that it is Trussler Road. However, even if the references are to Trussler Road, there is no indication that the work was statute labour. As the road crossed Trussler’s own properties, he could be expected to work on it himself, with or without the assistance of others.

88Plaintiffs’ counsel also produced some Department of Highways Ontario time book records from May 1965 to Oct 1967, suggesting that they were records of statute labour kept by Charles Trussler. I note that the form used is not the one prescribed by the Statute Labour Act. There is nothing in the printed form explicitly linking it to statute labour. It is an employee payroll form. However, some of the entries written under the forms at least suggest that some if not all of the work record was statute labour. With the possible exception reference to work at Orchard Hill, Brott Road and Sammy’s Hill, one cannot tell from reading the entries whether the work was done on Trussler Road or not. There is some evidence that the three locations noted above were related to Trussler Road, but it is vague and uncertain. That such local colloquialisms would be used instead of, for example, places located by lot and concession is surprising if these were, indeed, some sort of government records.

89The statute labour board in Laurier Township was replaced by a local roads board in 1969.

90The Local Roads Board Act first appeared in 1964. It applies only in territory without municipal organization, such as Laurier Township. It provides for the establishment by the land owners in an area of a local roads area with a board of trustees under the supervision of the Minister of Highways. The trustees would petition the Minister who may then by order establish the local roads board area and designate the local roads to be included in it. The local roads board was to inspect the roads in that area at least annually, determine the work to be performed on them and pay for such work out of taxes levied for the purpose.

91There are provisions for altering the boundaries of the local roads area and for adding roads to, removing them from, or extending them in a local roads area.

92Where local roads boards are established, the Statute Labour Act ceases to apply to the local roads area administered by that board. The Statute Labour Act road commissioners were required to transfer to the local roads board any assets in that area held by them in their capacity as road commissioners.

93Trussler Road did not become part of the local roads board system.

94Under the legislation above, there were processes in place to incorporate roads into the provincial system of public roads. There is no indication that any such process was followed for Trussler Road.

95There was conflicting affidavit evidence regarding whether or not statute labour was performed on Trussler Road. In view of the lack of evidence that Trussler Road was part of the statute labour system, that evidence is irrelevant.

96Alternatively, Martin, J.A., writing for the Ontario Court of Appeal in Reed v. Town of Lincoln (1975), 1974 513 (ON CA), 6 O.R. (2d) 391 found the lack of public records of work done for the improvement or maintenance of a road to be significant. In that case, the question was whether there had been sufficient work done on a road to prove acceptance of it after its dedication. Similarly, I think that the lack of public records in evidence is significant in deciding whether statute labour had been “usually performed”.

97Cases where statute labour performed did not rise to the level of “usually performed” and, therefore, the road in question did not become a public road just because some statute labour had been performed on it, include:

• R. v. Plumbott, [1862] O.J. No. 77

• Andrews v. Township of Pakenham, [1904] O.J. No. 273

• Reed v. Town of Lincoln (1975), 1974 513 (ON CA), 6 O.R. (2d) 391

Even if the records provided in the present case were of statute labour, I find that they do not rise to the level of “usually performed” required for the purpose of section 261 of the Municipal Act, R.S.O. 1990. It was understood that Charles Trussler was the road commissioner for the roads in the Sausage Lake area which lies to the east of Lot 19 in Concessions 11, 12 and 13. It was not established that Trussler Road was part of the Sausage Lake road division that Charles Trussler was commissioner for. Many of the entries in the records refer explicitly to the Sausage Lake area. If any of the entries were, in fact, referable to Trussler Road, the statute labour described is not extensive. This is even more so if one considers that these records cover three years out of the over twenty years that Trussler was said to be a road commissioner.

98In summary, using the enhanced powers, I find that the evidence does not establish that Trussler Road is a public road due to the performance of statute labour on it.

3. Dedication of road for public use

99I will repeat for convenience that s. 261 of the Municipal Act, 1990 states that…all roads dedicated by the owner of the land to public use…are common and public highways.

100The plaintiffs submit that Trussler Road is a public road by implied dedication by the owners of Lot 14, Concession 14, and acceptance by the public.

101The defence’s position was that the concept of dedication and acceptance has no application to an unorganized township. Instead the Province has statutory processes by which it becomes the owner of a road such as under the Statute Labour Act or the Local Roads Board Act and by expropriation, none of which were used here. Defence counsel relied on the Sioux Lookout case. In the circumstances of that case, which were quite different from the present case, the court held that it was an error of law to apply the doctrine of dedication and acceptance where there were statutory mechanisms available.

102If, as defence counsel contends, dedication and acceptance are inapplicable in this case, that would be the end of the discussion of that concept. However, there are cases that contradict defence counsel’s position.

103In Gibbs v. Grand Bend (Village)¹, Brooke JA accepted that, “public rights are separate from ownership by the crown or the Municipality …”

104In Sozansky v. Reed², the court appeared to accept that dedication and acceptance can be applied to roads on private lands in unorganized territories.

105In Nelson v. Stelter³, the court spoke of a road over private property becoming crown or municipal property once that road is dedicated to public use by a private land owner.

106Assuming without deciding that dedication and acceptance can apply in the circumstances of the present case, I will deal with the concept as it applies here.

107The law of dedication and acceptance was reviewed by Brooke J.A. in Gibbs v. Grand Bend (Village), 1996 2835 (ON CA), 26 OR (3d) 644. The headnote reads, in part:

Where dedication of a use of land to the public is claimed, the onus is on the claimant to prove: (1) that there was, on the part of the owner, the actual intention to dedicate; and (2) the intention was carried out, and that it has been so accepted by the public. Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence upon which a trier of fact may infer both dedication and acceptance. Once a dedication is complete, neither the dedicator nor its successors in title can resume control or convey the land free from the public rights to its use.

108Whether there was dedication and acceptance is a question of fact to be decided on a balance of probabilities. ⁴

109Use of a road by the public can be evidence both of an intention to dedicate and of an acceptance by the public.

110In dealing with the intention to dedicate, the Ontario Court of Appeal stated the following in Reed v. Town of Lincoln, 1974 513 (ON CA), 6 OR (2d) 391, (headnote):

Evidence of the use of the road by the public is merely evidence from which the intent to dedicate may be inferred (per Lord Kinnear in Folkestone Corp. v. Brockman, at p. 352). Such an intention ought not be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In these circumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for their convenience without having any intention of dedicating the road as a public highway. The inference of neighbourly tolerance is the more likely when dedication is sought to be established at a period when the area is in a relatively early stage of its development (references omitted).

111The intention to dedicate may be expressed in words or in writing, but is more often a matter of inference.⁵

112Public use of any part of Trussler Road that crosses unpatented lands cannot be evidence of an intention to dedicate because the public has the use of that part of the road pursuant to s. 49 of the Public Lands Act.

113Plaintiff’s counsel frankly admitted that there was little or no evidence of express dedication in this case and that it involves looking for evidence from which an intention to dedicate can be inferred.

114The one example of possible express dedication that was offered involved Charles Trussler’s sales of Lot 13, Concession 13 in 1971 and of part of Lot 12, Concession 13 in 1977. In the former, he expressly indicated that the land was served by a public road which appears on a sketch to be Trussler Road. In the latter, there is no such express indication, but what appears to be Trussler Road is shown on the sketch of the property. I do not understand, as plaintiffs’ counsel suggested, that the approval of the severance has any implication that the road is public.

115Conversely, Donald Tripp deposed in his affidavit of December 22, 2017 that he bought Lots 12 and 13, Concession 14 from Charles Trussler in 1969. The road to this property, Trussler Road, was over land owned by Charles Trussler in Lot 11, Concession 14. Donald Tripp sought an easement over Lot 11, Concession 14, but the quoted surveying cost exceeded the land’s value. So, instead of obtaining the easement, Tripps bought the land in Lot 11, Concession 14 from Charles Trussler in 1973. If Charles Trussler had thought that Trussler Road was a public road, there would have been no reason for the Tripps to need an easement, let alone to purchase the property to ensure that there was access to the lots that they owned further down the road.

116I note that, if Charles Trussler had intended to make the road a public one, he could have used the process in the Statute Labour Act, but apparently did not.

117The plaintiff produced affidavit evidence with respect to the use of the road by the public. This indicates that Trussler Road was used by local residents and their guests as well as people accessing their cottages further down the road, people involved in various recreational pursuits, and people engaged in commercial logging and minnow harvesting in the area. Photographs taken by the camera installed by the plaintiffs were produced to show a sampling of the traffic along the road.

118There is substantial affidavit evidence filed on behalf of the defendants that Trussler Road was private and was largely used by local area residents and people working for them to access their properties. Some spoke of asking the defendants’ permission for them or their workers to use it. There were few of these residents and their use of the road appears to have been limited in frequency and duration. The road is generally described as a track or cow path which was in poor condition and even impassable unless those using it worked on it.

119Of course, these affidavits generally contradict those filed by the plaintiffs. The affidavits filed on behalf of the defendants generally postdate those filed on behalf of the plaintiffs, are responsive to them, and tend to undermine them. For example, the photographs of road traffic that the plaintiffs use to support their contention that the road is used by the public are sometimes explained as the vehicles of people working for residents along the road, with the defendants’ permission. The non-party deponents were not cross-examined on their affidavits, so many of the contradictions remain unresolved.

120It is generally accepted that the road was gated to keep live stock from escaping. There is some affidavit evidence, albeit not without contradiction, that the gate was locked at times by Charles Trussler and then by his successor in title as of 1969, the defendant, Donald Tripp. The gate is not entirely consistent with the road being public⁶, and the locking is inconsistent with it.

121On balance, I do not find that the plaintiffs’ evidence supports an intention to dedicate the road to public use, or an acceptance of it by the public.

122As to dedication, the situation was, at the relevant time, one of neighbourly tolerance such as described in Reed v. Town of Lincoln, in my opinion.

123As for acceptance, there is insufficient evidence of the use of the road by the general public for there to be a finding of this.

124Although the law speaks of acceptance by the public, which may be inferred from public use of a roadway, there is a further issue that was not addressed clearly in submissions. The cases provided appear to make some distinction between the public and government in this regard.⁷ Cases provided in the municipal context, that is, where there was an incorporated municipality, indicated that where there is dedication, there still had to be assumption by the municipality. Such assumption could be effected only by a corporate act of the municipal corporation by by-law, or by work done or the expenditure of public money to improve or maintain the roads which clearly and unequivocally indicate the intention of the municipality to assume the road.⁸ The further issue, then, is whether these cases apply in the context of the present case where there is no organized municipality, such that the actions of the Province with respect to Trussler Road must be considered.

125If they do, this matter can be dealt with quickly. Firstly the evidence is that the Province has not used any legal process to assume the road. Secondly, there is no evidence of the expenditure of public funds or work done on the road, save and except for the possibility of some statute labour, as previously discussed. There is nothing that clearly and unequivocally indicates an intention by the province to assume the road.

126In summary, using the enhanced powers, I do not find that the road has been dedicated or accepted as a public road.

The Spur Road

127The plaintiffs’ counsel initially indicated that the stub or spur road running south from Trussler Road into the plaintiffs’ property (in Lot 12, Concession 13) was not included in the issue of whether Trussler Road is a public road. Nevertheless, he subsequently submitted that there was evidence of statute labour being performed on and public use being made of it. As that evidence is even weaker than the evidence regarding Trussler Road, I find that the spur road has not been proven to be a public road.

THE CONSTITUTION OF THE ACTION

128As noted above under “Positions” the defence took the position that the action could not proceed because it was wrongly constituted. The argument was that the court was being asked to declare that Trussler Road is a public highway. Therefore, there would have to be an owner, someone who would be responsible for it, its maintenance and its liabilities. There is no municipal or county government. The owner would have to be the Province. The Province could not be forced to take over a road on patented land. Therefore, the Province should be named as a party to the action.

129In response, plaintiff’s counsel submitted that it is common to have an easement in favour of the public over privately owned land. If Trussler Road is found to be a public road, it would be such. It would not become provincially owned. So, the Province did not have to be joined as a party to the action, he submitted.

130The defence counsel countered that there is no such thing as a public easement over a private road. Rather, it is a question of ownership, and governments take ownership of roads, he submitted.

131Plaintiffs’ counsel filed the case of Temiskaming Telephone Co. Ltd. v. Town of Cobalt (1918), 433 (ONSC) in which Middleton J quoted with approval from Domestic Telegraph Co. v. Newark (1887), 49 N.J. Law 344, 346 where it stated “the public easement in highways is vested in the public…”.

132However, in The Corporation of the Municipality of Meaford v. Grist, 2011 ONSC 5195 at para. 145, Daley J stated:

The determination as to whether or not a road has become a common public road or highway by dedication and acceptance is not a question of an easement by prescription in favour of any specific person or class of persons for any limited specific purpose, but rather the inquiry is whether the title of the owner of the land is divested.

133There are some very practical considerations that militate against Trussler Road being declared a public highway, as proposed by the plaintiffs, certainly if there was no public ownership. If Trussler Road was to be declared a public road, an obvious question is what the extent of it is, the answer to which affects the amount of the defendants’ respective lands that would be taken for public use. The Statutory Labour Act, for example, has a process for surveying the road and compensating the land owners. No such process had been proposed by the plaintiff.

134Next, defence counsel queried who would maintain the road if it was declared a public road in private ownership. Although not mentioned in argument, I am aware that there are at least some minimum standards that would have to be met. It would be surprising if it were otherwise in the present day. The evidence on point is that Trussler Road is quite primitive and required considerable effort to keep it open to the vehicular traffic. With respect to maintenance, plaintiffs’ counsel argued that, if Trussler Road is a public road, not owned by a public authority, but remaining in the ownership of the owners of the lands it crossed as he submitted is the situation, these land owners could choose whether or not to maintain it. The result of this, however, could be that the road would be allowed by the land owners to fall into disrepair. The road being on private lands, others such as the plaintiffs would have no right to maintain it. The impracticality of this result works against the idea that it could be a public road in private ownership.

135The liability of the private land owners is a further consideration. Liability to the public could arise from the design, construction and maintenance of the roads. That this is an important consideration, if that needed to be pointed out, is emphasised by the explicit provision in section 18 of the Local Roads Board Act:

No action shall be brought against the crown, a board or any trustee elected or appointed under this act for damage caused by any default in the maintenance of a local road in a local roads area, and neither the Crown or a board nor any such trustee is liable for any damage sustained by any person using such local road.

The legislature has seen fit to protect itself and the local roads boards and trustees from liability. There was no indication that the private land owners would enjoy any such protection. Plaintiffs’ counsel could not say that the same protection provided by the same protection provided by the Local Roads Boards Act would protect the private owner of the road, only that common law principles might.

136I note that when the defendant Joyce Lavalle was examined for discovery on July 4th, 2016, she expressed concern about legal advice she had received about her potential liability stemming from people using her property.

137Given the substantial possibility that the Province would become the owner of Trussler Road if it was found to be a public road, I find that it would have been appropriate to name the Province as a party defendant to this action. If the action was to continue beyond this motion for summary judgment, I would order that the Province be made a party.

138In this regard, I note that in Jones v. The Township of Tuckersmith, 1917 606 (SCC) where there was an issue of whether a portion of a street was a public highway vested in the municipality, Idington J stated that “it is elementary law that no real estate can vest in anyone against his will and without his assent, unless incidentally to statutory obligation”. (p. 694)

139Furthermore, on the issue of statute labour, for example, where Trussler Road could have been found to be a public road if statute labour was usually performed on it, one would expect the province to have relevant records which it would have to produce if it was a party.

CONCLUSION

140In conclusion, I find that the evidence does not support the making of a declaration that Trussler Road is a public road. Therefore, there is no basis upon which to grant the requested injunction, or damages. Consequently, I dismiss the plaintiffs’ motion for summary judgment.

RE DEFENDANTS REQUEST FOR THE DISMISSAL OF THE PLAINTIFFS ACTION

141The defendant sought the dismissal not only of the plaintiffs’ motion for summary judgment, but also of its entire claim. As previously noted, paragraphs 1(a), (d) and (e) are the only claims set out in the Statement of Claim which remain to be decided. Those claims are as follows:

1(a) a declaration that the road known as Trussler Road is a public highway;

1(d) an interim and permanent mandatory injunction preventing the defendants, Donald Tripp, Ethel Tripp, Steven Tripp and Joyce Lavalle from closing, barricading or otherwise blocking the plaintiffs’ access over Trussler Road, as the means of access to and eagerness from the plaintiffs’ properties

1(e) general damages in the amount of $150,000.00.

142The motion for summary judgment repeats the requests for a declaration and an injunction, but not for damages, and adds a request for production. There was no evidence provided to support a claim for damages, and no submissions on point.

143The fifth item of relief requested in the amended notice of motion for summary judgment, being an order for production of the filed notes of Peter Mullaly, OLS, was mentioned in passing in the plaintiffs’ factum, but was not touched upon in submissions and will not be dealt with here, other than to make one comment. That is, given the evidentiary requirements for summary judgment, that request should have been made in a motion for disclosure in advance of and in preparation for the motion for summary judgment.

144The defence did not bring its own motion for summary judgment. However, “it is permissible for a motion to judge to grant judgment in favour of the responding party, even in the absence of a cross motion for such relief”.⁹

145The plaintiffs made no submissions on point. However, paragraph 92 of their factum states:

The plaintiffs contend that the evidence available to support its motion for summary judgment addresses the issues completely and that there is no genuine issue for trial requiring viva voce evidence.

146In summary, as the plaintiffs’ motion for summary judgment is duplicative of the remaining relief sought in its statement of claim, and given the plaintiffs’ contention that the motion for summary judgment addresses the matter completely, I find that this is an appropriate case in which not only to dismiss the motion for summary judgment, but also to dismiss the plaintiffs’ Statement of Claim as well. Consequently, the plaintiffs’ claims are dismissed in their entirety.

COSTS

147If the parties are unable to reach agreement as to costs, the defendants may serve and file a bill of costs with written submissions within 30 days. The plaintiffs shall serve and file their bill of costs and written submissions within 15 days after that. Submissions shall be limited to five pages, double spaced.

Footnotes

1. 11996 2835 (ON CA), 1995 O.J. No. 3709, para. 102
2. 21988 Carswell Ont. 627 (Ont. Dist. Ct.)
3. 3Nelson v. Stelter, 2009 ABQB 732, reversed 2011 ABCA 2003 on other grounds
4. 4Reed v. Town of Lincoln, 1974 513 (ON CA), 6 OR (2d) 391; O’Neil v. Harper, 1913 (ONCA)
5. 5Cook’s Road Maintenance Association v. Crowhill Estates, 2001 24149(ONCA) para. 22.
6. 6In Reed v. Town of Lincoln (1975), 60 O.R. (2d) 391, that the road was gated to keep the cattle in, although not locked, was a factor the court considered in determining that the road in question was private.
7. 7See for example, Reed v. Town of Lincoln; Gibbs v. Grand Bend (Village) per Brooks JA
8. 8See, for example, Scott et al v. City of North Bay, (1977), 1977 1221 (ON CA), 18 O.R. (2d) 365 (ONCA); Lafferty v. Colborne (Township), (1995), 1999 15085 (ON SC), 45 O.R. (3d) 614 (Ont. S.C.J.) The Corporation of the Municipality v. Grist, 2011 ONSC 5195, paras 108 and 146
9. 9Meridian Credit Union Limited v. Big, 2016 ONCA 150, para.17. See also Gatti v. Avramaidis [2016] O.J. No. 1464, and McDonald v. Chicago Title Insurance Co. of Canada (2014) 2014 ONSC 7457, O.J. No. 6190, reversed on other grounds 2015 ONCA 842, [2015] O.J. No. 6350 (ONCA), leave to appeal refused [2016] SCCA No. 39.