Court File and Parties

COURT FILE NO.: A-6658-17 DATE: 2019-05-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Norman McIntosh and Barbara McIntosh Applicants – and – Frank Van Embden and Laila Van Embden Respondents

COUNSEL: J. Barry Eakins, for the Applicants Unrepresented, for the Respondents

HEARD: May 2, 2019

Reasons for Judgment

R.D. Gordon J.

Overview

[1] The applicants own property on the north side of Onwatin Lake. The respondents own property on the north side of Green Lake, about 2.5 kilometers east of the applicants’ property.

[2] To access their property by motor vehicle, the respondents must travel a road that crosses the applicants’ property. Unhappy differences have arisen over that use. The applicants brought this application to determine their rights.

Background Facts

[3] The applicants purchased their property on Onwatin Lake in 1986. At the time of purchase, there was no or very limited vehicular access to their property. They, along with other land owners in the area, acquired the necessary approvals to construct a private road. That road was subsequently constructed and has come to be known as Boivin Street. However, Boivin Street is not a street that has been opened by the City and there is no evidence before me to establish that any public money has been spent on its construction or maintenance. That portion of Boivin Street that crosses the applicants’ property will be referred to as the “road” for the purposes of this decision.

[4] The respondents purchased their property on Green Lake in 2007. The listing for the property at the time of purchase indicated that there was no deeded access to the property. The respondents subsequently cleared a road to connect to what had become known as Boivin Street and approached property owners to the east, including the applicants, for permission to travel over it.

[5] After some discussions between them, the parties entered into an agreement in November of 2008 by which the respondents were given a four year license to use the road that crossed the applicants’ property, revocable by the applicants and subject to certain terms and conditions. That agreement was renewed in June of 2012 for a further four years. It was not renewed after its expiry in 2016. The parties agree there was no license or other agreement between them allowing the respondents use of the road when this application was brought.

[6] In 2016, the applicants became unhappy with the number of users of the road. They were of the view that the respondents were using their property to rent to campers or others with boats, trailers, and ATV’s resulting in a significant increase in traffic, noise and wear and tear on the road. On or about May 29, 2016 the applicants confronted the respondents with their concerns. It was not a happy discussion and did not end well. The parties have not been able to fashion a workable solution to their difficulties.

[7] The applicants sought a declaration that their license agreement with the respondents is of no force or effect. That issue was resolved during the case management meeting held before Justice Gauthier. Her endorsement reads, in part, that “The Applicants and the Respondents agree that the Revocable License Agreement dated November 2008 and renewed in 2012, is at an end, having expired June 30, 2016 and not having been renewed”.

[8] Importantly, the applicants do not now seek to prohibit the use of the road by the respondents. Rather, they seek an order that would allow them to control use of the road by placing a locked gate across it and providing those who rely on the road for access to their properties with non-reproducible keys. They also look to impose limits on the use made of the road by the Respondents by ensuring their use complies with the zoning of the property.

[9] Although the applicants initially sought a declaration that the road was not an access road as defined in the Road Access Act, R.S.O. 1990, c. R. 34 (the “Act”), they have since abandoned that position and agree that the road constitutes a motor vehicle access route to the respondent’s property. At the hearing of this application, the applicants went further and conceded that the road is the only motor vehicle access route to the respondents’ property.

[10] No one has suggested, and there is no evidentiary foundation to establish, that the road is a common road as defined in the Act.

Applicable Law

[11] Section 2 of the Act provides that no person shall construct, place or maintain a barrier or other obstacle 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, inter alia, the person had made application to a judge for an order closing the road and has given 90 days’ notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road.

[12] Subsection 2(3) requires that notice of an application to close an access road shall be served personally upon or sent by registered mail to the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from their land.

[13] Section 3 of the Act sets out the circumstances in which a judge may grant a closing order:

3. (1) The judge may grant the closing order upon being satisfied that,

(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;

(b) in the case of an access road that is not a common road, persons described in subsection 2(3) do not have a legal right to use such road; or

(c) in the case of a common road, the persons who use the road do not have a legal right to do so.

[14] Subsection 3(2) provides that the judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.

[15] In Margettie v. Snell, [2009] O.J. No. 5102, the Ontario Court of Appeal determined that the provisions of section 3(1)(a) and (b) of the Act are to be read disjunctively with the result that an applicant need only satisfy either subsection to entitle a judge to consider the closing order.

[16] Whether to then grant the closing order and under what, if any, conditions, requires a balancing of the competing interests of the parties. See Margettie, supra; and 992275 Ontario Inc. v. Krawczyk, [2006] O.J. No. 1730.

Analysis

[17] The applicants have served all parties who rely upon the road for motor vehicle access to their properties with notice of this application. The only land owners contesting the application are the respondents herein.

[18] The Revocable License Agreement between the applicants and the respondents having expired, I am satisfied that the respondents have no legal right to use the road.

[19] What the respondents have, are the limited statutory rights given to users of an access road under the Act. In 2008795 Ontario Inc. v. Kilpatrick 2007 ONCA 586, 86 O.R. (3d) 561, the Ontario Court of Appeal adopted the following description of the rights conferred by the Act:

In the end, and in the narrow situation to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access in immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook’s Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it. The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para. 45. And, if another access road is subsequently provided, the access user’s continuing status under s. 2 ceases because alternate access would then exist.

[20] It having been established that the respondents have no legal right to use the road, it is appropriate to consider the competing interests of the parties in determining whether to issue a closing order and, if so, under what conditions.

[21] The respondents’ land is comprised of some 126 acres. They have, from time to time, invited family and friends to camp on their property. They are concerned that the terms and conditions of use of the road proposed by the applicants will affect their ability to share the use and enjoyment of their property with others. They expressed two additional concerns. Firstly, that a gate will interfere with the ability of emergency responders to access their property should it be required; and secondly, there will be significant inconvenience for them having to attend to unlock the gate every time a guest or family member wishes to visit with them.

[22] The applicants’ interests are in maintaining a serene and peaceful waterfront residence, free of unwarranted traffic. Limiting vehicular traffic will have the added benefits of reducing wear and tear on the road, limiting maintenance costs and reducing exposure to liability.

[23] With respect to the concerns of the respondents, the applicants point out that the proposed gate will be at the western boundary of their property and will necessitate their use and cause them inconvenience as well. To address the emergency responder concern, they are proposing that a “knox box” be affixed to the gate, which will hold a gate key accessible to emergency responders should they need entry.

[24] In my view, although there will be some inconvenience to the respondents in having to attend at the gate to allow entry to their guests, that inconvenience will not amount to any significant impairment to the use of their property. Furthermore, the installation of the “knox box” is an adequate answer to their concerns about access by emergency responders.

[25] The applicants asked that I include in an order a term restricting the respondents’ use of their property to those uses that are in compliance with the City’s zoning bylaws. In my view there is no need to do so. The zoning bylaw says what it says. The respondents are required to comply with its terms. If the applicants are concerned with compliance, there are means by which it can work with the City to have those concerns addressed. It is not appropriate to include a provision in my order that might deprive the applicants of vehicular access to their property as a consequence of what might be a minor zoning use infraction.

[26] In my view, the other terms and conditions proposed for the closure of the road are appropriate and an order will issue on the following terms:

Order

1. The applicants may place a gate across the road at the westerly boundary of their property and require that it be kept locked at all times provided: a) The gate is equipped with a “knox box” in which a key to open the gate is kept. The key or keys required to open the “Knox box” will be provided to the Sudbury Fire Service for use by any emergency responder requiring entry through the gate. b) Two keys for the gate lock shall be provided to the owner(s) of each property for which the road provides the only means of motor vehicle access. Currently, those owners are the applicants, the respondents, Louise Cloutier, Kevin Serviss and Dina Fragomeni. c) No key for the gate lock shall be reproduced by any person without the consent in writing of the owner of PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury (currently the Applicants herein). d) The owners of properties for which the road provides the only means of motor vehicle access shall share equally in the reasonable costs of installing and maintaining the gate, lock and that part of the road which crosses the property owned by the applicants.

[27] If the parties are unable to agree on costs they may each make written submissions to me, not to exceed four pages in length, plus attachments, within forty-five days.

The Honourable Mr. Justice R.D. Gordon

Released: May 13, 2019