COURT FILE NO.: CV-19-0072-00
DATE: 2021-07-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HENRI LACHANCE, ADRIANA LACHANCE, DANIEL BOIRE and TRACEY WILSON
Applicants
- and -
THE CORPORATION OF THE TOWNSHIP OF GILLIES
Respondent
Mr. C.R. Bodnar, for the Applicants
Mr. S.J. Wojciechowski, for the Respondent
HEARD: March 19, 2021, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons for Judgment
Overview
[1] The applicants, the Lachances and the Boire/Wilsons, are the owners of abutting property in the Township of Gillies.
[2] Gillies maintains that the boundary between the two abutting properties owned by the applicants is a municipal roadway, “Neva Road East”.
[3] The applicants bring this summary judgment motion seeking:
a. a declaration that Neva Road East is the “lawful property” of the applicants;
b. a declaration that the portions of By-Law No. 487 of the Township of Gillies purporting to grant ownership of Neva Road East to Gilles are invalid and/or of no force and effect; and
c. damages for trespass, nuisance and the cost to remove garbage.
The Facts
The Applicants
[4] The Lachances purchased their property on September 26, 2005. The Boire/Wilsons purchased their property on May 17, 2017.
[5] Both owners were aware that a “trail” crossed near the boundary of the properties prior to purchase.
[6] The trail is described as approximately 3 m wide and overgrown with vegetation. It is not plowed or maintained in any way. It has no signage indicating that it is a municipal road. According to Mr. Boire, it is “barely traversable with an ATV.”
[7] Neva Road East is not registered in Land Registry. It has no legal description either by reference plan of survey or by meets and bounds description.
[8] Prior to closing, the Lachances did not obtain a plan of survey, either new or old, but obtained title insurance. The reporting letter from their real estate lawyer was filed as an exhibit.
[9] Mr. Lachance deposed that he was told by his lawyer that Gillies would not consent to the purchase of the westerly lot only because that would leave the easterly lot landlocked implying that the trail was not a road. Therefore, the Lachances acquired both properties and entered into an agreement with the vendor to allow him continued use of the east lot for hunting and logging. The vendor used Neva Road East to remove wood from that lot.
[10] Prior to purchasing the property, Mr. Boire attended at the Township office with questions about the boundaries and the trail. He met with Ms. Lavelle and another woman he believes to be Ms. Jones. He deposed that he was never told by these representatives of the municipality that the trail was called Neva Road East or that it was a municipal road. Subsequently, he attended at the Land Titles office to review title documents for the property to ensure nothing interfered with title to the property.
[11] The reporting letter from the lawyer for this real estate transaction (the same lawyer that acted for the Lachances) was not in evidence. There is no mention in Ms. Wilson’s or Mr. Boire’s affidavit of a survey or dispensing with a survey.
[12] After purchasing the property and discovering from the Lachances that the municipality was claiming that the trail was a roadway, Mr. Boire attended the Township office again. He met with Ms. Lavalle and another male employee. He was not told that the trail was a road or directed to any bylaw with respect to the road. He was told by Ms. Lavalee that she “would need to look into it.”
[13] In June 2017, the Lachances and the Boire/Wilsons jointly wrote Gillies regarding issues with the trail including the dumping of garbage and concerns over their potential liability arising from the use of the trail by others. Their letter notes that their lawyer had discovered that the trail had been deemed a “legacy road” by by-law on December 5, 2016.
[14] Both received correspondence from the municipality dated August 16, 2017, setting out the municipality’s position that the land had been used historically as a road and that Gillies had accepted that dedication.
[15] Mr. Lachance deposed that their use of their property has been curtailed by public use of the trail by hunters and others who have dumped garbage on their property. Ms. Wilson expressed similar concerns.
The Township
[16] Gillies filed affidavits from Joe Ladoucer, Shari Lavallee, Wendy Wright, Laura Jones and Jean Dixon.
[17] Mr. Ladoucer and Ms. Dixon are employed by Greenmantle Forest Inc., a company which hold the forestry licence for this area. Land east of the Lachance and Boire/Wilson properties is Crown Land subject to this forestry licence.
[18] Mr. Ladoucer deposed that, based on his review of Greenmantle records, Neva Road East was used to access the Crown land east of the properties to carry out harvesting and silviculture activities between 1982 to 1996. He further stated that this road provides the only access to the Crown land and that, without Neva Road East, the Crown land would be landlocked and inaccessible.
[19] Jean Dixon is a silviculture manager with Greenmantle. Prior to joining Greenmantle in 1998, Ms. Dixon was employed with the Ministry of Natural Resources and Forestry. As part of her duties with the Ministry she used Neva Road East to access the block of Crown lands east of the properties.
[20] Shara Lavalle is the former clerk for the Township of Gillies. She deposed that she believed the meeting with Mr. Boire was in April 2017 and that she told Mr. Boire that Neva Road East was a township road.
[21] Laura Jones was the treasurer for Gillies. She deposed that she was working when Mr. Boire attended at the Township offices in April 2017. She said that when Mr. Boire asked about the trail, she was not certain about it, but that Ms. Lavalle told Mr. Boire that it was a township road. She also testified to using the trail/road in the mid-90s to access the Crown land to the east.
[22] Wendy Wright is the Reeve of Gillies Township. She deposed that Neva Road East is a highway which was owned by the municipality since at least the 1920s. She referenced records held by the municipality which show Neva Road East marked on maps. On a 1984 map, Neva Road East is referenced as a logging road. A fire protection map, undated, shows Neva Road East as a dotted or dashed red line. An Ontario Hydro map from 1957 shows Neva Road East marked on the map. A 2002 plow map shows that the entrance to Event Road East is to be plowed.
[23] Minutes from May 1927, Council meeting references Neva Road East as the third Concession Road leading to the Edgecombe property[^1] which is now the second most easterly lot owned by the Lachances. A township map dating to 1885 shows the Edgecombe property owned by Edgar Landon. The inference is that this property would have been landlocked but for Neva Road East. The 1885 map does not appear to depict concession roads.
[24] By-Law 487, enacted December 12, 2002, was to “inventory highways in the township and identify jurisdiction and joint jurisdiction over those highways.” The preamble sets out that the municipality may pass bylaws in respect of a highway “only if it has jurisdiction of the highway”. With respect to Neva Road East, the By-Law states:
AND THAT the Municipality of the Township of Gilles has jurisdiction over the following declared as unopened
Neva Road east of 595 for approximately 1 kilometres
[25] 595 is reference to a roadway that abuts the properties to the west and is perpendicular to Neva Road.
[26] By-Law 487 was passed due to legislative changes that provided that land may only become a highway by by-law and not by the activities of the municipality.
[27] In the letter to the Lachance’s on August 16, 2017, Gillies claimed ownership based on “common law principles” deriving from “dedication of the land by historic owners, for use for road purposes, together with the Township’s acceptance of the dictation.”
Positions of the Parties
[28] The applicants argue that summary judgment is appropriate since the facts are not disputed. As they claim that they did not have actual notice of the road, failing registration of the Township’s interest, the Township’s interest is extinguished. They also rely upon a recent Ontario Court of Appeal decision, Meaford (Municipality) v. Grist[^2] to argue that there was no dedication and acceptance by Gillies.
[29] Gillies argues that the issue of actual notice is in dispute and that the evidence clearly establishes dedication and acceptance of the roadway by the municipality.
Analysis and Disposition
[30] Summary judgment is appropriate when the court can make the necessary findings of fact[^3]. I conclude that I cannot make the necessary findings of fact on the material before me.
[31] Meaford has similarities but also differences from the case before me. In Meaford, the “bylaw in a box” case, the municipality had discovered a bylaw from 1854 in 2004. The bylaw created a Lakeshore Road. This bylaw was not registered on title. “Rather it was lost to history for about 150 years[^4].” It was also lost to Georgian Bay when it was washed out in a storm in 1986. Following the discovery of the bylaw in 2004, the municipality retained a surveyor to prepare a survey report and, in 2007, passed a bylaw which accepted the location of the road. The municipality then commenced a lawsuit against the property owners of 10 cottage properties that the road crossed.
[32] The motions judge held that while the Township was not required to register the bylaw in 1854, it was “not exempt from the regime that provided for priority of title based on registration[^5].” The motions judge found that there is no evidence of actual notice to the property owners and declared that the municipality’s interest in the property was void and unenforceable. It was also noted that the Township had approved building permits for some of the properties where the road was said to run. On appeal, the decision was upheld.
[33] In affirming the appeal, the court noted that “certainty of description of the location of the road in the bylaw is a necessity[^6]”. However, in reaching that conclusion the court relied upon cases dealing with new roads and expropriation of land.[^7] The court also noted that the Crown survey of the Township in 1837 laid out a grid of road allowances but did not include a shoreline road allowance.
[34] Unfortunately, the 1885 map of Gillies Township does not appear to set out the concession roads.
[35] While Neva Road East has no legal description and was not registered on title it was not “lost to history” or completely to nature. Neva Road East exists physically. There is evidence of an historical purpose or need – access to the former Edgecombe property. There is evidence of use as a road for a number of years and for a number of purposes: timber harvesting under license from the provincial government and silviculture by the MNR; recreational use by the public including hunting in the past and while applicants were in possession; and private logging by the vendor to the Lachances. There is evidence of acceptance by Gillies through the designation of Neva Road East on maps and bylaw 487 in 2002 before the purchase the properties by the applicants.
[36] With respect to the disputed evidence, I do not accept the hearsay evidence from Mr. Lachance as to what he says he was told by his real estate lawyer about purported discussions with the municipality. That real estate lawyer is a member of the firm representing the applicants and is available to give more direct evidence.
[37] With respect to the “title opinion” I conclude that this is admissible. It was provided to assist the municipality and the court in navigating the, at times, arcane registry system. It is also, in my opinion, a tactical rather than substantive objection. Had that title information been disputed then I would expect that the applicants would have challenged the title conclusion directly.
[38] There is no evidence before me as to whether a survey would have disclosed the existence of Neva Road East, but the Lachances elected not to have a survey but to rely on title insurance. I do not know what the Boire/Wilsons did about a survey. Both knew about the “trail”. There is conflicting information about what representations may have been made to Mr. Boire by Gillies and inadmissible information about what may have been told to the Lachances. Representations may go to actual notice. As material facts are in dispute this cannot be resolved by way of summary judgment.
[39] Accordingly, the motion for summary judgment is dismissed.
[40] Gillies is entitled to its costs of this motion and may make cost submissions limited to three pages plus costs outline within 30 days of this decision. The applicants shall deliver their response within 20 days thereafter limited to three pages plus costs outline. If no submissions are received within 30 days, then costs will be deemed settled.
[41] Further, I deem it appropriate to convene a case conference to determine how this matter should proceed. Counsel are to contact the trial coordinator to arrange a case conference before me to determine next steps.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: July 14, 2021
COURT FILE NO.: CV-19-0072-00
DATE: 2021-07-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HENRI LACHANCE, ADRIANA LACHANCE, DANIEL BOIRE and TRACEY WILSON
Applicants
- and -
THE CORPORATION OF THE TOWNSHIP OF GILLIES
Respondent
REASONS FOR JUDGMENT
Newton J.
Released: July 14, 2021
/cjj
[^1]: The applicants object to a solicitor' s title search undertaken to determine the location of the Edgecombe property in 1927 as improper expert evidence. [^2]: 2013 ONCA 124 [^3]: Hryniak v. Mauldin, 2014 SCC 7 at para. 49 [^4]: Meaford at para. 3. [^5]: Meaford at para. 24. [^6]: Meaford at para 70. [^7]: Meaford at para 73 – 74.