Court File and Parties
Court File No.: CV-15-0433-000 Date: 2019-05-29
Ontario Superior Court of Justice
Between: DIANA ADEY, Applicant Counsel: R. Bodnar, for the Applicant
And: ERICA CACCAMO, Respondent Counsel: L. Ruberto, for the Respondent
Heard: May 16, 2019, at Thunder Bay, Ontario Before: Mr. Justice F. B. Fitzpatrick
Partial Judgment on Application
[1] This is an application for a declaration under the Road Access Act, R.S.O. 1990 c. R.34 (the “Act”) and for other relief. The applicant and the respondent own abutting parcels of waterfront land near Schreiber, Ontario. Camp buildings, in Northwest Ontario parlance, (a.k.a. a cottage) sits on each parcel of land. There is a road that runs through the respondent’s property, which provides easy access to the applicant’s dock. The dispute between the parties arose because the respondent blocked this road.
[2] The applicant argues that the disputed road is an access road within the meaning of the Act because she cannot access her dock by car without using this road. The respondent argues that the disputed road is not an access road because the applicant can access her property by way of another road.
[3] The parties agreed that the court would deal with issues in the application arising under the Act first before making a determination on the other issues. On May 16, 2019, I gave an oral decision where I found that the disputed road was not an “access road” as defined in s. 1 of the Act. These are my reasons for that decision.
The Facts
[4] The parties agreed on many of the facts relied upon for this portion of the hearing of the application. The parties disagreed on certain facts as set out in their factums, but ultimately, these disputed facts had no bearing on my finding that the disputed road was not an access road. This is because these disputed facts went to the issue of how the road was used, which I see as having no bearing on whether or not the road in question meets the definition set out in the Act.
[5] There was no survey of the abutting properties at issue. However, in this case, a picture is worth a thousand words. The parties submitted an aerial photo jointly. On it, the parties drew their approximate property boundary lines and marked various disputed roads in different colours. The aerial photo exhibit is attached as Schedule A to this judgment. [1]
[6] In my view, the key, undisputed fact in this matter is that the applicant has vehicular access to her parcel of land from Winston Lake Road, a dedicated municipal road. Winston Lake Road is shown in orange on Schedule A. [2]
[7] The road that the applicant asserts is an access road is shown in pink on Schedule A. [3] I will refer to it hereafter as the “Pink Road.” The Pink Road is contained wholly within the boundaries of the respondent’s land. The applicant argued that the Pink Road actually starts on her land and then crosses over onto the respondent’s land. I reject that argument, at least for the purposes of designating the Pink Road as an access road, for reasons I will explain below.
[8] The applicant has three main buildings located on the upper portion of her parcel of land. [4] A fourth camp building, a well, and a dock are located on the lower portion of the applicant’s parcel. [5] I say “lower portion” because the applicant’s land features a significant downward slope, partially covered by trees, that begins at about the mid-way portion of her parcel and then drops off dramatically down to her lakefront. The applicant can physically reach the lower portion of her parcel, her well, and her dock on the lake via a path, which is shown in yellow on Schedule A. [6] The applicant can get to the yellow path with a vehicle via a road, which the parties have labeled the “shallow loop road.” The shallow loop road is shown in blue on Schedule A. [7]
[9] The respondent has not blocked the shallow loop road. On this portion of the hearing of the application, I was not asked to make any findings concerning the shallow loop road. It is my understanding that the respondent is not seeking to block the applicant or her guests from using the shallow loop road.
[10] The respondent asserted that the yellow path is really a road as defined in s. 1 of the Act. However, from the photographs filed as exhibits on this application and from the aerial photo in Schedule A, I find that it is not a road pursuant to s. 1 in so far as it is not capable of being traversed by a motor vehicle.
[11] The respondent blocked the Pink Road in May 2015. Prior to that, the applicant and her guests accessed the lower portion of her property by vehicle over the Pink Road.
The Law
[12] The relevant sections of the Act engaged in this portion of the application are as follows:
1 In this Act, “access road” means a road that is 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; “road” means land used or intended for use for the passage of motor vehicles.
When access road may be closed 2(1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless, (a) 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 this Act and the judge has granted the application to close the road;
[13] In 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, 86 O.R. (3d) 561, Laskin J.A. made a number of important and useful observations about the scope of this relatively short statute. He stated, at paras. 1, 11, 17, and 22:
[1] The Act stipulates that the owner of the access road generally cannot close it without a court order. Implicitly, however, the Act allows the owner to close the road without a court order if there is “alternate road access” to the landlocked property. This appeal raises the question what constitutes “alternate road access” under the Act?
[11] The Act was passed in 1978 to address confrontations that arise between those who use private roads and those who own them. As the trial judge noted at para. 31 of his reasons, in introducing the legislation, the Honourable Mr. D. McKeough stated that the government intended “to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property”: Ontario, Legislative Assembly, Hansard, No. 75 (1 June 1978) at 3015. My colleague, Juriansz J.A., also referred to the Act's purpose in this court's recent decision in Blais v. Belanger, 2007 ONCA 310, [2007] O.J. No. 1512, 54 R.P.R. (4th) 9 (C.A.), at para. 43: “a primary purpose of the Act is to prevent landowners from resorting to self-help measures by providing a judicially supervised process for resolving disputes.”
[17] Although the owner of an access road cannot unilaterally close it under s. 2(1)(a) if doing so would landlock another property, the owner need not tolerate its use or trespass by another in perpetuity. The statute simply requires that the owner of the access road obtain a court order to close it. The obvious purpose of requiring judicial authorization for closure is to avoid self-help measures and potentially violent confrontations among neighbours.
[22] Thus, the Act confers on users of an access road only a very limited and temporary right to use the road to go to and from their properties.
Positions of the Parties
[14] The applicant candidly admitted that, if there was no dock at the lower portion of her property, she would have no claim that the Pink Road is an access road under the Act. The applicant points to the express wording in s. 2(1) to argue that the respondent has impeded vehicular access to her docking facilities by blocking the Pink Road. The applicant argues that the statute expressly states that the respondent cannot do this without a court order.
[15] The respondent argues that the applicant has vehicular access to her lands by way of a municipal road (Winston Lake Road) and that the applicant does not require the Pink Road to access her land. The fact that she no longer has preferred vehicular access to her dock is a circumstance that is not provided for in the Act.
Decision
[16] I find that Winston Lake Road is the road by which the applicant has vehicular access to her camp property. Winston Lake Road is not an access road within the meaning of the Act because it is a municipal road. As the applicant has motor vehicle access to her lands, I find that the disputed facts about what uses she has made of the Pink Road are irrelevant to this portion of the application. The Act is designed to facilitate road access to a parcel of land. No more than that.
[17] The legislature’s intention in creating the Act, as explained by Laskin J.A. in Kilpatrick, is critical to my findings in this matter. I agree with Laskin J.A. that the Act was designed to prevent unilateral blocking of all road access over private lands where the road at issue was the only way another landowner could access their land by motor vehicle.
[18] Laskin J.A. notes that the statute’s goal is to prevent self-help measures that serve to completely stop all access to the parcel of land at issue: Kilpatrick, at para. 11. Laskin J.A.’s use of the term “landlock” in Kilpatrick is instructive. He confirms that a landowner cannot take unilateral steps that would landlock another property owner’s parcel of land.
[19] In this case, the applicant’s parcel of land is not landlocked. It does not become landlocked because access to the lower portion of the parcel via the Pink Road is cut off. The applicant has vehicular access to her parcel of land via Winston Lake Road. She does not need access over the Pink Road to get to her land. I find therefore that the Pink Road is not an access road within the meaning of the Act.
[20] Prior to the respondent blocking the Pink Road, the applicant had preferred vehicular access to the lower portion of her land. The parties described alternative, disputed versions of certain facts such as the nature of this access or how the applicant could, or could not, attain alternative access via the yellow path. It is clear that, by blocking the Pink Road, the respondent took away the applicant’s ability to drive a car right down to the immediate environs of her dock. This fact, as well as the others I have characterized as disputed above, are irrelevant to any consideration of the Pink Road in the context of the Act because the applicant can still get to her dock on foot once she has already driven on to her land via Winston Lake Road. Therefore, the respondent’s actions with respect to the Pink Road did not have the effect of blocking all road access to the applicant’s parcel of land or to her boat docking facilities.
[21] I find that the applicant has vehicular access to her docking facilities because she can drive her car to her parcel of land, which is an undivided parcel, and her dock is attached to that parcel of land. I find that the Act was designed to ensure that people could get onto their land with a motor vehicle where the only way to do so was over a road on someone else’s private property. The Act was not designed to create preferred access rights when an owner otherwise has unimpeded vehicular access to their property by way of a municipal road. The Act does not give property owners a right to have additional road access to a particular portion of their property when the additional access goes through another person’s private property.
[22] I note that the definition of “access road” in s. 1 of the Act makes no reference to “docking facilities.” This is important. The Act focuses on roads, not docks. In my view, the language “boat docking facilities therefor” in s. 2(1) was included to cover the scenario where a particular parcel of land is only accessible by water, and it is necessary to drive over another person’s private land to get to a shoreline “docking facility.” In that scenario, the first land owner can only access his or her property by boat, and the road, which is on another person’s private land, is the only way to access a separate parcel of land with docking facilities. The words “docking facilities” are absent from the definition of access road in s. 1, which, in my view, reinforces this interpretation of the Act. On a plain reading of the statute, docking facilities are subordinate in importance to access roads because docking facilities are only described in the context of blocking a road that provides access to docking facilities when that road is the only means of accessing the land with the docking facilities by car.
[23] In my view, the only time obligations or rights arise under the Act in regard to docking facilities are on occasions when the docking facility is the only means of accessing another property. What I mean by this is that the obligation and the right of access only arise where an owner has to drive through a road on another owner’s private land to get access to a dock, and the only way to access the parcel of land with the dock is by means of the road on the second person’s private land. Preferred access to a portion of a parcel that happens to contain a dock, when one already has direct access to a parcel by road, is no basis for a finding that an access road exists within the meaning of the Act.
[24] It is clear to me that, on the facts of this application, the applicant has road access to her parcel of land completely independent of the Pink Road. That is the end of this portion of the matter. The Act is not the “Preferred Road Access Act.” In the face of a finding that the Pink Road is not an access road within the meaning of the Act, how the road was closed, what use was made of the Pink Road previously, or how the applicant can or cannot get down to her dock after having already driven to her camp is irrelevant to any consideration under this portion of the application.
Conclusion
[25] This portion of the application is dismissed with costs fixed in the amount of $4,000, inclusive of HST and disbursements, payable by the applicant to the respondent. These costs will only be payable 30 days after the release of my decision on the trial portion of this matter scheduled for August 2019.
[26] The appeal period for this particular judgment is extended to coincide with any appeal period running for the reasons for decision arising from the subsequent hearing of the trial portion of this matter currently scheduled for August 2019.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: May 29, 2019