Whyte v. Binczak, 2019 ONSC 4068

COURT FILE NO.: CV-19-074

DATE: 2019-07-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Thomas Whyte and Christine Susan Cook

Applicants

– and –

Lorelei Binczak

Respondent

Jennifer Vrancic, for the Applicants

Marc Huneault, for the Respondent

HEARD in Sudbury: June 28, 2019

DECISION ON MOTION

CORNELL, J.

Introduction

1This is a motion whereby the applicants seek an order to require the respondent to remove a fence and trees to permit road access to their property together with an injunction to prevent the obstruction of the access road pending the outcome of an outstanding application. In accordance with the reasons that follow, the relief sought is granted.

Background

2The applicants and the respondent are neighbours. The properties in question are waterfront properties on Trout Lake.

3In 1968, some five adjoining property owners obtained permission to build a road over Crown land to gain access to various cottage properties. The cost to construct the access road and the maintenance costs that followed have been shared by the various property owners.

4The applicants purchased the property located at 1951B Peninsula Road on September 14, 2018. For some 48 years prior to that date, road access to the applicant’s property had been gained by an access road over the respondent’s property located at 1951A Peninsula Road (the “Binczak property”).

5The previous owner of the Binczak property did not take issue with the access road being routed entirely over his property due to the topography of the applicant’s property.

6In May of 2016, the respondent wrote to the then owner of the applicants’ property:

[…] originally when the road was built, it was supposed to have been built half way between both properties. This, in fact, did not happen, and my Dad agreed with Mr. Shankland that he could build his own road at a later date. Allowance to use this part of the road was given with the understanding that Mr. Shankland would eventually build his own road on his own property. Both gentlemen aged and passed and unfortunately the road was not build by Mr. Shankland. This in no way gave permission for the use, by any new owner of the property when it was purchased!

At this time, I wish to fence my property completely, and to that end, I will need to have the full road closed to any public driving. I am writing you today to provide the maximum notice possible before I close the road, in order that you may build a new road, solely on your own property. I am providing you with 2 years notice, effective June 1, 2016 to build [said] road, prior to my closure of the access.

7The then owner of the applicants’ property attempted to reach an agreement with the respondent to permit continued use of the access road to no avail. As a result, the respondent erected a fence and placed some rocks that prevented the use of the access road. The former owner of the applicants’ property immediately wrote to the respondent stating that the obstructions were illegal and had to be removed. Instead of complying with this request or bringing an application under the Road Access Act, R.S.O. 1990, c. R.34, the respondent chose to further obstruct the access by planting trees.

Issues

8In this motion, I ought to decide the following issues:

I. Is the roadway over the respondent’s property an access road within the meaning of the Road Access Act?

II. Is there alternate road access to the applicants’ property thus permitting the respondent to close the roadway without a court order?

III. If it is determined that the road in question is an access road, have the moving parties met the three-part test that must be met in order to obtain an interlocutory injunction?

Analysis

Is the roadway over the respondent’s property an access road?

9An access road is defined at s.1 of the Road Access Act as follows:

“access road” means 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;

10The disputed roadway is not on land owned by a municipality and has not been dedicated and accepted or otherwise deemed at law to be a public highway. The only issue in this case is whether the disputed road serves as a motor vehicle access route to a parcel of land.

11Based upon the documentation and the title abstracts that were put before me, it appears that both of the properties in question have always been subject to the Land Titles Act, R.S.O. 1990, c. L.5, and therefore this is not a case where it would be possible to establish prescriptive rights.

12The parties agree upon the essential facts. They agree that the road was constructed in or about 1968 and that all of the adjoining owners contributed to the work and cost associated with the creation of the new access road. The parties also agree that for some 48 years following the creation of the road system in 1968, that access to the applicants’ property was always gained over the Binczak property on an unobstructed basis. It is also acknowledged that the maintenance costs associated with the road were shared by the previous owners of the properties in question. It was not until June of 2018 that the respondent saw fit to prevent use of the access road by installing a fence. The former owner of the applicants’ property notified the respondent in writing that the road across the Binczak property was his only road access to his property and that any effort to close such road would be met with legal action.

13It is the position of the applicants that the respondent’s obstruction of the access road was improper for two reasons. First, the applicants assert that there is no other road access to their property. Second, the applicants point to the fact that the respondent never applied to the court under the Road Access Act to obtain an order permitting the road to be closed.

14The respondent takes the position that the road that crosses her property is not an access road. The respondent takes this position by indicating that the applicants also have road access to their property from adjoining owners to the east.

15Various maps and photographs were provided by way of background. These maps and photographs show a clearly defined road that is located entirely upon the respondent’s property to a point that eventually permits access to the applicants’ property.

16These maps and photographs also show that by crossing the property of two adjoining owners to the east of the applicants’ property, the applicants may gain access to their property. The respondent states that given her belief that there is an alternate road that provides access to the applicants’ property, the road located upon her property is not an “access road” within the meaning of the Road Access Act because alternate road access exists.

17The applicants respond to this by stating that they only have access to the “alternate road” on a limited basis. In fact, after the respondent blocked the road crossing her property, counsel for the applicants negotiated an interim without prejudice access agreement with the applicants’ neighbours to the east that permits access to the applicant’s property on a date and time to be agreed to in advance. The without prejudice access agreement contemplates access to the applicants’ property for maintenance, repairs and emergency vehicles only.

18I do not accept the argument advanced on behalf of the respondent that the road that crosses the Binczak property is not an access road because an alternate road access exists. The limited road access that has been negotiated by counsel for applicants is not the type of absolute and unrestricted access that was enjoyed for some 48 years over the road that is the subject matter of this motion. The road access that was enjoyed for some 48 years was unrestricted and unfettered according to the evidence that has been placed before me. Based upon this evidence, I conclude that the road in question is an access road within the meaning of the Road Access Act.

19Having made this determination, it was incumbent upon the respondent to bring an application under the Road Access Act if she wanted to close the road. No consent to closure was ever obtained. To the contrary, the previous owner of the applicant’s property made it clear that court proceedings would be brought unless the obstructions were removed. That threat has now been made good.

20It is exactly this type of unilateral behaviour by the respondent that the Road Access Act was meant to prevent. That statute provides a mechanism for all parties to come to court so that the matter can be determined in a civil manner with the application of proper legal principles after the court has had an opportunity to determine the applicable factual background. In 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, at para. 17, the Ontario Court of Appeal observed that: “[t]he obvious purpose of requiring judicial authorization for closure is to avoid self-help measures and potentially violent confrontations among neighbours.”

Is there alternate road access to the applicants’ property?

21In Kilpatrick, the court observed that an owner may close an access road without a court order as long as there is alternate road access to the other property and noted that the onus of showing that no alternate road access exists lies upon the party seeking to use the access road. I am satisfied that the applicants have met that burden and that based upon the information that was put before me, the applicants have satisfied the onus of showing that no alternate road access exists to the applicants’ property within the meaning of the Road Access Act.

22In Kilpatrick, the owner of the land over which the access road ran advised the users that the annual fee to use the access road was to be increased from $500 to $2,000 per year. The users of the access road refused to pay the amount sought and the land owner closed the access road. In determining that a court order was required to close the access road, the court observed that “neither an unopened road allowance nor access over the existing access road on payment of a user fee can constitute alternate road access under the Act.”

23In other words, the court in Kilpatrick concluded that the imposition of a condition on the use of an access road could not be said to constitute alternative road access.

24The nature of the alternate access that is suggested by the respondent is also conditional as it is extremely limited and depends upon the prior approval of the adjoining owners to the east on each and every occasion. Such a conditional use of that road cannot be said to provide alternate access to the applicants’ property within the meaning of the Road Access Act.

25Having concluded that the road in question is an access road, and that an alternate access road does not exist, I now turn to the question of whether or not an interlocutory injunction should issue.

Has the test for an interlocutory injunction been met?

1. Is there a serious issue to be tried?

26The determination of whether there is a serious issue to be tried is made by the court on the “basis of common sense and an extremely limited review of the case on the merits”: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at para. 83. The threshold is a low one. In essence, “[u]nless the case on the merits is frivolous or vexatious”, the court must consider the second and third stages of the test: RJR-MacDonald, at para. 83.

27This is certainly not a frivolous or vexatious motion. I conclude that there is a serious issue to be tried in that as things currently stand, the applicants’ property is effectively land-locked and without vehicular access.

2. Will the applicants suffer irreparable harm?

28In RJR-MacDonald Inc the Supreme Court of Canada stated at para. 64:

“Irreparable” refers to the nature of the harm suffered rather than the magnitude. It is harm which cannot be quantified in monetary terms or which cannot be cured… Examples of the former include instances where one party will be put out of business by the Court’s decision.

29In cases such as this, the applicants submit that injunctive relief is presumed to be the most appropriate mechanism to prevent or cure trespass or breaches of property rights. In support of this, they quote from Injunctions and Specific Performance (Aurora: Canada Law Book, 2001) at para. 4.10 as follows:

[T]he discretion in this area has crystalized to the point that, in practical terms, the conventional primacy of common law damages over equitable rights is reversed. Where property rights are concerned, it is almost always that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.

30That passage was cited with approval in 459103 Ontario Limited et al. v. Metropolitan Toronto Condominium Corp No. 677, [1999] O.J. No. 2572. In that decision, the court also, at para. 6, quoted a passage of Sharpe, J.A. in Injunctions and Specific Performance which reads:

Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.

31Where property rights are concerned, damages are most often presumed to be inadequate and unquantifiable: see Interlocutory Proceedings, looseleaf (Toronto: Canada Law Book, 2011) at p. 1-7.

32In this particular case, I am satisfied that the applicants have established that the actions of the respondent have now denied them vehicular road access to their property. In these circumstances, I am satisfied that the applicants have established that they have and continue to suffer irreparable harm.

3. Does the balance of convenience favour the applicants?

33The balance of convenience strongly favours the applicants.

34The road in question had been used for a period of 48 years without incident. The road provides access to both the applicants’ and the respondent’s properties. In this sense, there is no added burden imposed upon the respondent as she requires the road to gain access to her property.

35While it is true that an order that requires the obstructions to be removed will impose some burden upon the respondent, the fact of the matter is that the respondent is the author of her own misfortune in this regard as she chose to act unilaterally by placing these obstructions rather than seeking an order under the Road Access Act. She did so at her peril.

36In these circumstances, I am satisfied that the applicants have demonstrated that they will suffer the greater harm if the injunction is refused.

Conclusion

37I make the following order:

I. an interim order providing access over the specified roadway in dispute in this action over the respondent’s property to the applicants, their agents, employees, successors and assigns, until settlement or final determination of the application by the court;

II. an interim order requiring the respondent, her agents, employees, successors and assigns to immediately remove any obstructions including the fence/gate and row of trees planted across the specified roadway in dispute in this motion; and

III. an injunction restraining and enjoining the respondent, her agents, employees, successors, and assigns from taking any steps to block or obstruct access to the applicants’ property over the specified roadway in dispute in this motion until final determination of the application.

Costs

38If the parties are unable to agree upon costs, the applicants may provide written submissions on costs, such submissions are not to exceed two pages together with supporting material, such submissions are to be made within 14 days of the release of this decision. The respondent shall have 14 days to respond, such submissions are not to exceed two pages together with supporting material. No right of reply is permitted. If cost submissions are not received, it shall be conclusively deemed that the issue of costs has been resolved by the parties.

The Honourable Mr. Justice R. Dan Cornell