Court File and Parties
Court File No.: A-13063/16 Date: 2018-10-01 Ontario Superior Court of Justice
Between: MALMAC ENTERPRISES INC., Applicant – and – MELISSA ALKHOURY and NICOLA ALKHOURY, Respondents
Counsel: J. Robert Leblanc, for the Applicant. Self-represented, for the Respondents.
Heard: September 5, 2018
Before: R. D. Gordon, RSJ.
Overview
[1] Malmac Enterprises Inc. (“Malmac”) is a mortgagee in possession of property known as 600 West Bay Road, Garson, Ontario (“600”). It is in the process of selling the property by way of power of sale.
[2] Melissa and Nicola Alkhoury are the owners of the neighbouring property, 590 West Bay Road (“590”).
[3] Vehicular access to 600 has traditionally been gained over West Bay Road, a non-municipally maintained roadway that, at one point, crosses and traverses 590.
[4] Mr. and Mrs. Alkhoury have, on three occasions, placed a barrier on that portion of West Bay Road that crosses their property, thereby denying Malmac access to 600.
[5] Malmac has applied for a declaration that West Bay Road is an access road under the Road Access Act, R.S.O. 1990, c. R.34 (the “Act”) and for an injunction restraining the Respondents from blocking future access.
Background Facts
[6] On May 11, 2012 the owner of 600 granted a mortgage to Northridge Savings & Credit Union Limited for $124,000. By transfer of charge dated July 7, 2016, the mortgage was assigned to Malmac.
[7] The owner of the property defaulted in payment of the mortgage. Malmac obtained judgment for possession and issued a notice of sale. Malmac is now in possession of the property and has listed it for sale.
[8] 600 is waterfront property on Lake Wanapitei. To get to the property, one travels along a roadway commonly known as West Bay Road. This road is primarily on Crown land and is not publically maintained. West Bay Road provides access to other properties as well, including the adjacent property owned by the Respondents Mr. and Mrs. Alkhoury. Indeed, West Bay Road actually enters upon and over Mr. and Mrs. Alkhoury’s property at 590 West Bay Road before reaching 600.
[9] The Respondents, for reasons that are not entirely clear, began blocking that part of West Bay Road crossing their property, thereby preventing Malmac from accessing 600. They did so by constructing a berm of earth and stone across the roadway.
[10] Malmac responded by having the berm removed. The Respondents subsequently blocked the roadway once again with a similar berm. Malmac had this berm removed as well. When Mr. and Mrs. Alkhoury blocked the roadway a third time, this application ensued. The barrier has since been removed in accordance with temporary orders made by this court.
[11] Initially, the Respondents took the position that there was other road access to 600. Eventually, the parties entered into Minutes of Settlement in an effort to resolve this litigation. Those Minutes, dated August 11, 2017, provide that the Respondents would construct a roadway entirely on Crown land to provide access from the travelled portion of West Bay Road along the westerly limits of their property to the southwest corner of 600 and thereafter across 600 to the nearest open area on that property. This new roadway was to accord with the standards of West Bay Road and to comply with any and all guidelines of any governmental body. The Respondents were to provide to the Applicant satisfactory evidence that the new road is entirely on Crown land and that all necessary approvals were obtained for its construction. Finally, the minutes of settlement provided that the new roadway would be completed on or before September 30, 2017, and upon completion, the application would be dismissed.
[12] Malmac is of the view that the roadway was not completed on or before September 30, 2017 and that, in fact, it remains incomplete today. Accordingly, it brought the application forward for hearing on the issue of whether West Bay Road is an access road as defined in the Act and whether Mr. and Mrs. Alkhoury should be restrained from blocking it.
The Applicable Law
[13] Section 1 of the Act defines an access road as “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”.
[14] Section 2 of the Act prevents a person from placing a barrier over an access road that, as a result, prevents all road access to one or more parcels of land not owned by that person unless:
i) The person has made application to a judge for an order closing the road and has given ninety days’ notice of such application to the parties and in the manner directed by the Act and the judge has granted the application to close the road. ii) The closure is made in accordance with an agreement in writing with the owners of the land affected by its closure. iii) The closure is of a temporary nature for the purposes of repair or maintenance of the road. iv) The closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights.
[15] Having regard to these provisions of the Act, the following issues arise:
- Is West Bay Road an access road as defined by the Act?
- If so, does the placement of a barrier on the road by the Respondents prevent all road access to 600?
- Have the Respondents met the terms of the minutes of settlement such that they may close the road in accordance with its terms?
Analysis
Is West Bay Road an Access Road?
[16] There can be little doubt that West Bay Road is an access road. It is located on land not owned by a municipality. There is no evidence before me that it has ever been dedicated and accepted as a public highway. There is no evidence before me upon which it could be deemed a public highway. It serves as a motor vehicle access route to one or more parcels of land.
Would the Placement of A Barrier by the Respondents Prevent All Road Access to 600?
[17] The Respondents contend that there was, when this application started, a second means of motor vehicle access to 600 via a trail that branches from West Bay Road and leads to 600. They concede that it amounted to little more than a trail through undeveloped Crown land and that although it is not as accessible as West Bay Road, it could easily be restored to a similar condition. Indeed, they undertook some efforts to make the trail more accessible following notice of this litigation by clearing and putting down gravel.
[18] Even if I was satisfied that this alternate trail at one time amounted to road access to 600 it is clear on the evidence that it did not when this application was brought. The law is reasonably clear that the determination of the suitability of the road for vehicular access must be made when consideration is given to the status of the access road in question. That is, a route that was once suitable for vehicular access may cease to be. That would be precisely the case here. The best evidence before me reveals that the alleged alternate access was little more than a trail badly overgrown by vegetation and over which a motor vehicle could not be expected to pass.
[19] Furthermore, and in any event, West Bay Road must still cross 590 to access this trail and thereafter the trail stops on Crown land, short of 600. This is the unchallenged evidence of Adrian Bortolussi, a licensed Ontario Land Surveyor who swore an affidavit to that effect on November 13, 2017. Accordingly, even if I were to accept that the road might currently be a motor vehicle access route, it stops short of 600 and does not provide access thereto.
Have the Respondents Met the Terms of the Minutes of Settlement?
[20] It is clear that the Respondents have not met the terms of the Minutes of Settlement. The Minutes of Settlement called for completion of the road by September 30, 2017. The Respondents have not suggested that it was complete by that date or that they had obtained all necessary approvals or permits by that date.
[21] Although a road of some sort has been constructed by the Respondents, the best evidence before me is that it has not been constructed to the standards of West Bay Road and is unsafe for vehicular access.
Conclusion
[22] I find that the road in question is an access road as defined in the Act. As the placing of a barrier on this road where it crosses 590 has the effect of preventing, at this time, all road access to 600, it is ordered that the Respondents be restrained from constructing, placing, or maintaining a barrier or other obstacle of any kind over West Bay Road except in accordance with the Act. This order will not affect the ability of Mr. and Mrs. Alkhoury to seek an order of the court allowing for closure of the road in the future. Indeed, should they complete the alternate route of access as contemplated by the Minutes of Settlement that had been signed, one might imagine that their chances of success in obtaining such an order would be reasonable.
[23] The issue of damages is, at the request of the Applicant, adjourned without date.