COURT FILE NO.: CV-18-219 DATE: 2022/01/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GINO CHITARONI AS THE ESTATE TRUSTEE FOR THE ESTATE OF ALBERT CHITARONI, GINO CHITARONI, NINA CHAMAILLARD, MARIO CHITARONI and PORTAGE BAY DEVELOPMENTS INC. Plaintiffs

-and-

THE CORPORATION OF THE TOWNSHIP OF COLEMAN and PAUL CHITARONI Defendants

COUNSEL: Mark Vernon, for the Plaintiffs David G. Boghosian and Matt Brown, for the Defendant, The Corporation of the Township of Coleman

HEARD: November 22, 2021

REASONS FOR DECISION

M.G. ELLIES R.S.J.

OVERVIEW

[1] The Corporation of the Township of Coleman ("the Township") moves for summary judgment dismissing this action in which the plaintiffs seek a declaration that a certain road is a public highway.

[2] For the following reasons, the motion is granted in part. The plaintiffs' claim for a declaration is dismissed as against both the Township and Paul Chitaroni. Further submissions are required on the other claims made by the plaintiffs in the action.

BACKGROUND FACTS

[3] This case revolves around a proposed subdivision located on the shores of Portage Bay, a large bay on the Montreal River. The closest town to Portage Bay is Cobalt, which is situated about 140 kilometers north of North Bay. Cobalt lies about 8 kilometers to the east of Highway 11; Portage Bay lies about 6 kilometers to the west.

Portage Bay Lodge and the Surrounding Area

[4] The history of the subdivision begins with the story of the Chitaroni brothers: Albert, Carlo, and Elio. In the 1940s, the Chitaroni brothers developed a fishing camp on the eastern shore of Portage Bay that became known as Portage Bay Lodge. To gain access to the lodge, the brothers built a road that led from the lodge to another road located to the east, known as Portage Bay Road. Portage Bay Road is now a paved, six-kilometer-long road that leads from the lodge to Highway 11. According to a letter written by Albert to the Township in 1977, he and his brothers built about one-half of Portage Bay Road in the years between 1947 and 1949. There is no dispute that Portage Bay Road is a public road which has been maintained by the Township for at least 45 years.

[5] In the early 1970s, Albert Chitaroni bought out the interests of his brothers in the lodge. As a result, he became the sole owner of over 100 acres of land in the area around the lodge. In 1974, Albert expressed an interest in buying two more parcels of land from the Township that abutted his holdings, parcels 12907 SST (PIN 61384-0120) and 12918 SST (PIN 61384-0121). Both parcels were located to the east of the lodge. Parcel 12907 lies directly south of parcel 12918. Portage Bay Road runs through the northern portion of parcel 12907. Both parcels are shown in an appendix to these reasons, to which I will refer below.

[6] Although the sale to Albert of these two parcels was initially approved by the Township's council, that approval was later revoked. Instead, the council authorized the sale of these parcels to several of Albert's relatives on the basis that, as former owners of the properties, they were entitled to redeem the tax arrears owing on the parcels. On that basis, in 1975, parcel 12918 was transferred to Carlo on behalf of the estate of Maria Chitaroni (his mother) and parcel 12907 was transferred to Carlo and Elio directly. A few years later, Carlo transferred parcel 12918 to himself. In 1995, Carlo transferred his interest in parcels 12918 and 12907 to Elio's son, Paul. When Elio died in 2018, Paul became the sole owner of both parcels.

[7] The plaintiffs in this action are Albert's children. They dispute the fact that either parcel was owned by anyone other than the Township between the early 1920s and the sale of the properties to Albert's relatives in 1975. They also allege that the properties were improperly sold. However, the fact that they were not sold to Albert did not become important until much later, as I will explain.

Portage Bay Subdivision

[8] In or around 1979, Albert sought approval of a plan of subdivision in which he sought to create 21 building lots along the shore of Portage Bay. His plan at that time was that those lots would be accessed only by water. The Township approved the plan, but the Township was not then and is not now the approval authority for plans of subdivision in municipalities such as the Township. Instead, plans of subdivision in the Township must be approved by the Ministry of Municipal Affairs and Housing (the "Ministry").

[9] The Ministry would not approve Albert's plan for a water-access only subdivision because there were already roads accessing the proposed subdivision. And so, in 1984, Albert again applied for approval, this time on the basis of road access to the subdivision. In March 1985, the plan was approved by the Ministry, but on certain conditions. One of those conditions was that "the road allowances included in the draft plan shall be dedicated as public highways". This condition required Albert to obtain a survey of the roads on the draft plan, something he refused to do for about 28 years after the conditional approval was given.

[10] In the intervening years, seven new lots have been developed within the subdivision, bringing the total to 29. Between 1985 and 2011, Albert applied for and obtained the consent of the Township to sever a number of lots individually, which he sold. He leased other lots, even though they had not yet been severed. Of the original 21 lots, 4 have been severed and sold. According to Mario Chitaroni, of the 29 lots, 9 have been severed and sold. All of the other lots have been leased. Mario deposes that a seasonal or permanent residence has been constructed on every single lot in the proposed subdivision, even though it has not been finally approved.

Road A

[11] The road at the centre of this dispute is known as "Road A" (known to locals as "Albert's Way"). Road A gets its name from the approved plan of subdivision. The plan contemplated the development of lots both to the north and to the south of the lodge. Road A is the road used to access the southern lots. It runs southwest off of Portage Bay Road at a point beginning about 300 metres from the lodge. Another road, "Road B", provides access to the northern lots. It runs northwest off of Portage Bay Road starting at about the same point. A sketch of the 1984 proposed plan of subdivision (Ex. "Y" to Mario's November 8, 2021, affidavit) is attached as Appendix "A" to these reasons.

[12] It is clear that Road A existed in some form or another for years prior to the conditional approval of the draft plan of subdivision. What was not clear until 2013 or 2014 was that the road was not on Albert's property. That became clear only when Albert finally relented and had a survey of the roads on the plan of subdivision undertaken. That survey revealed that the first 250' to 343' of Road A are actually on parcel 12907, the parcel that Paul and Elio owned at the time. Like the parties, I will call this portion of the Road A the "disputed portion". A sketch of the entire area showing the roads, the parcels, and the subdivision lots (Ex. "FF" to Mario's November 8 affidavit) is attached as Appendix "B" to these reasons.

[13] The fact that the road was not on Albert's property made it impossible for him to fulfill the condition that he dedicate the road to the Township. To rectify the situation, the plaintiffs tried to purchase the section of land on which Road A passed over Elio and Paul's property. Although the Township assisted the Chitaroni's on two occasions to mediate an agreement, the mediations failed. According to Mario, his cousin Paul wants too much money for the land.

[14] However, the plaintiffs now contend that they do not need to buy the land at all. Instead, they argue that Road A has become a public road by virtue of the common law doctrine of dedication and acceptance and by by-law, thereby fulfilling the Ministry's condition that Road A be dedicated to the Township.

ARGUMENTS

[15] The Township submits that, in order to succeed, the plaintiffs must demonstrate that the Township assumed Road A at some point prior to the enactment of legislation on January 1, 2003, or that it passed a by-law assuming the road after that date. The Township submits there is no evidence of either event occurring and that, therefore, there is no genuine issue that requires a trial.

[16] The plaintiffs submit that this is not an appropriate case for summary judgment. Alternatively, they submit that it is not necessary for them to demonstrate that the Township itself accepted Road A, but only that the public did and that there is sufficient evidence of public acceptance of the road to declare Road A to be a public road. In the further alternative, they submit that there is evidence that the Township assumed the road prior to January 1, 2003, and that it passed a by-law to that effect after January 1, 2003. Therefore, they submit that summary judgment should issue in their favour.

[17] The plaintiffs also raise two additional issues. One relates to evidence tendered by the Township of a conversation between Mario and Paul which was surreptitiously recorded by Paul. The plaintiffs object to the admission of a transcript of that conversation as being potentially inaccurate and for policy reasons. The other issue relates to whether Road A has to be conveyed to the Township at all. The plaintiffs contend that they do not have to transfer the disputed part of Road A to the Township because that condition only applies to roads within the subdivision and it turns out that the disputed portion is not in it.

ISSUES

[18] The parties' submissions give rise to the following issues:

(1) Is the conversation between Mario and Paul admissible? (2) Do the plaintiffs have to convey the disputed part of Road A to the Township? (3) Is this an appropriate case for summary judgment? (4) If so, what must the plaintiffs establish to obtain a declaration that Road A is a public road? (5) What can the plaintiffs establish? (6) Does this motion dispose of the entire action against the Township?

[19] The first two issues do not require much by way of analysis.

ANALYSIS

Is the conversation between Mario and Paul admissible?

[20] The plaintiffs submit that the conversation between Mario and Paul should not be admitted because courts should not encourage such breaches of privacy: Rudin-Brown et al. v. Brown, 2021 ONSC 3366. While I agree that there are good policy reasons for excluding surreptitiously obtained recordings in most cases, I do not need to consider them in this one. I have not found the transcript to be at all helpful in arriving at a decision in this case. It adds nothing to Paul's affidavit evidence. Therefore, I have not relied upon it.

Do the plaintiffs have to convey the disputed part of Road A to the Township?

[21] In a rather surprising argument, the plaintiffs contend that, because the survey shows that the disputed portion of Road A is not on their property, they do not have to transfer it to the Township at all. They submit that this condition of the Ministry's approval applies only to roads within the subdivision and Road A is not in the subdivision because it is on Paul's land. They rely on evidence given by Lois Perry (a long-standing member of Township council), who agreed during cross-examination that this condition of the Ministry's approval only applied to roads within the plan of subdivision, and on the evidence of Sarah Verrault (a planner working for the Township), who testified that the road was not part of the subdivision because it was not on the subdivision owner's land.

[22] There are two reasons why this argument cannot succeed.

[23] First, the evidence of Ms. Perry and Ms. Verrault is being mischaracterized by the plaintiffs. Their evidence was only that the disputed part of Road A is not part of the plan of subdivision because it is not on the developer's lands. It is a mischaracterization to suggest that the evidence of these two witnesses amounts to some sort of an admission that the disputed part of Road A need not be transferred. In any event, that would be a question of interpretation for the court, not the witnesses, to resolve. I would not resolve it in the plaintiffs' favour. The plan of subdivision and the conditional approval were both based on the premise that the roads within the subdivision were conveyable by the developers.

[24] Second, this argument was made for the first time in response to the motion for summary judgment. Nowhere in the statement of claim do the plaintiffs seek a declaration that the disputed part of Road A is not subject to the conveyance condition because it is not part of the plan of subdivision. Indeed, the entire claim is based on the notion that the disputed part of Road A is subject to that condition, which condition the plaintiffs allege is fulfilled because of the public nature of the road.

Is this an appropriate case for summary judgment?

[25] The jurisprudence relating to declarations such as the one sought in this case demonstrates that many such claims are resolved without a trial. Many proceed by way of application, not by way of action: see, for example, Clark v. North Kawartha (Township), 2009 ONSC 4599; Sioux Lookout (Municipality) v. Canada (Attorney General), 2010 ONCA 867; Skinner v. Thames Centre (Municipality), 2014 ONCA 164. Where such declarations have been sought in the context of an action, many have been resolved by way of summary judgment: see, for example, Lafferty v. Colborne (Township), 1999 CarswellOnt 4503 (Ont. S.C.); Blanchard v. Tripp, 2018 ONSC 3076.

[26] Claims such as this one are often ideal for paper-based proceedings because they involve the documented history of events beyond the life span of most witnesses or because the evidence of those witnesses is incontrovertible: Meaford (Municipality) v. Grist, 2013 ONCA 124, at para. 43. The plaintiffs concede this. However, they say that this claim is different. In general, their submissions fall into five categories.

The Stage at Which the Motion Has Been Brought

[27] First, the plaintiffs submit that they have been prejudiced by the stage at which the motion for summary judgment has been brought. They complain that neither documentary nor oral discovery has been completed. Thus, they argue, the motion has been brought too early.

[28] This complaint is entirely without merit.

[29] This motion for summary judgment is brought under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("the rules"). The purpose of r. 20 is to provide a cheaper, faster alternative to a full trial: Hryniak v. Mauldin, 2014 SCC 7; [2014] 1 S.C.R. 87, at para. 34. This purpose is reflected in the fact that the rule provides that a motion for summary judgment may be brought by a defendant immediately after delivering a statement of defence: r. 20.01(3). To require that a defendant wait until documentary and oral discovery has been completed would be contrary to the purpose of the rule.

The Speed with Which the Motion Has Been Brought

[30] Second, the plaintiffs submit that they have been prejudiced by the speed with which the summary judgment motion has proceeded.

[31] This submission is also without merit.

[32] The Township served its motion record in October 2020, more than a year before the motion was argued. On November 20, 2020, the motion was addressed at the assignment court. The parties were unable to agree on a deadline for the delivery of responding materials. After hearing submissions, I granted the plaintiffs' request and gave them until January 29, 2021, to do so. The remaining dates in the timetable were all agreed upon and a date for the hearing of the motion was set for June 7, 2021. The motion was adjourned, however, from that date to November 22, 2021. The record is not clear as to why, but the adjournment facilitated a motion by the plaintiffs to amend their statement of claim, among other things.

[33] It cannot reasonably be said that the plaintiffs were rushed when the motion was argued five months later than it was supposed to be and more than one year after the Township served its motion record.

The Failure or Refusal to Produce Documents

[34] Third, the plaintiffs submit that the motion should be dismissed because the Township refused to give undertakings to produce documents during the cross-examination of the Township's main affiant on this motion, Lois Perry, as did the non-party, Sarah Verreault. They rely on the decision in Intact Insurance Company v. Meykneckt-Lischer, 2019 ONSC 5998 in support of their submission.

[35] In my view, the decision in Meykneckt-Lischer is distinguishable from this case. In Meyknect-Lischer, the motion judge found that, because the moving party had refused to produce relevant documents, the record was insufficient to allow him to fairly and justly adjudicate the dispute as required under r. 20: para. 5. That is not true in this case. As the plaintiffs themselves submit, they have been able to amass a larger record than that of the Township, totaling nearly 400 pages.

[36] The plaintiffs contend that the refusal to produce documents has resulted in gaps in the evidence about things such as whether the Township usually assumed control over a road via by-law or resolution. However, the plaintiffs had the opportunity to obtain that evidence during the cross-examination of Lois Perry. Further, the plaintiffs have tendered an affidavit from Colleen Belanger, who served as council member from 1972 to 2010, in which she deposes that, prior to 2003, the Township always assumed roads via resolution rather than via by-law. In addition, the record contains copies of all of the Township documents upon which the plaintiffs rely in support of their argument that the Township assumed control over Road A prior to 2003. Unlike the record in Meykneckt-Lischer, the record in this case is sufficient to permit me to adjudicate the dispute fairly and justly.

[37] If, contrary to my belief, there are gaps in the record, the plaintiffs had a remedy available to them of which they failed to avail themselves. Rule 34 governs the conduct of examinations of witnesses out of court. The rule applies to cross-examinations on affidavits and to examinations of non-parties: r. 34.0l(c). Rule 34.10 permits the examining party to compel the party being examined to bring the documents listed in the notice of examination and requires the party being examined to produce other relevant documents within two days of the examination. Where there has been an improper refusal to produce a relevant document, the examining party may adjourn the examination and move for an order, including an order for costs: r. 34.14. No such motion was brought by the plaintiffs in this case.

Issues of Credibility

[38] Fourth, the plaintiffs submit that there are "significant unresolved factual disputes" and "issues of credibility" that require a trial to resolve. However, the submission stops there. The plaintiffs offer no examples to support their argument and I am unable to see any relevant factual disputes that cannot be resolved on the record before me.

Partial Summary Judgment Only

[39] Finally, the plaintiffs submit that the motion could only result in partial summary judgment, which our Court of Appeal has frowned upon: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34. The analysis of this submission requires a brief discussion of the scope of the claims made in this action.

[40] In addition to requesting a declaration that Road A is a public highway, the plaintiffs seek, in the alternative, a declaration that Road A is an access road under the Road Access Act, R.S.O. 1990, c. R. 34. The plaintiffs seek this declaration as against both the Township and Paul Chitaroni. However, as the Township points out, if Road A is declared to be a public road, that will end the request under the Road Access Act because, based on the definition of an access road under the Act, a public road cannot be declared an access road: Road Access Act, s. 1. If such a finding is made, there will be no claim left against Paul. Alternatively, if Road A is not declared to be a public road, the claim for a declaration under the Road Access Act will not involve the Township, because that claim is only against Paul as the owner of the land over which Road A passes.

[41] It is true, as the plaintiffs point out, that they have also claimed damages against the Township for malfeasance and misfeasance. I will have more to say on these aspects of the plaintiffs' claim, below. As it relates to the appropriateness of this motion for summary judgment, I would point out that, even if a judgment in the Township's favour on the public road issue leaves the damages claim intact, it will nonetheless dispose of a discrete issue in the action. As the plaintiffs themselves submit, this issue is of "immense" importance to the people living in the Portage Bay Subdivision. As such, it should be resolved as quickly as possible, in my view.

Conclusion on this Issue

[42] For these reasons, I believe that the issue of whether Road A is a public road is suitable for summary judgment.

What Must the Plaintiffs Establish?

[43] The plaintiffs rely on the common law doctrine of dedication and acceptance in support of their submission that Road A is a public road. They submit that they need only prove that the disputed portion of Road A was dedicated by the owner of the land to the public and accepted by the public as such at some time prior to January 1, 2003. The Township argues that the plaintiffs must prove more than that. It submits that the plaintiffs must prove that the Township assumed jurisdiction over the road. The different positions of the parties reflect an area of the law that is confused, and confusing.

[44] In this section of my reasons, I will explain the conflicting positions. However, as I will also explain, it is not necessary for me to resolve the conflict in order to adjudicate this issue. The plaintiffs cannot establish acceptance, either by the Township or the public.

[45] A review of the law of dedication and acceptance must begin a brief discussion about statutory changes to the common law brought into effect on January 1, 2003.

[46] At common law, roads are either private or public. A road is public when all members of the general public are entitled to a right of passage over the road: Manderscheid, Don J., Dedication of Public Highways at Common Law, 37 M.P.L.R. (3d) 215, at p. 215; Rogers, Ian MacFee, The Law of Canadian Municipal Corporations, 2d ed., v. 3, looseleaf, (Toronto: Thomson Reuters Canada Ltd., 2019), at p. 1165. All public roads are "highways" at common law: Manderscheid, p. 215, citing Styles v. Victoria (City) (1899), 8 B.C.R. 406 (C.A.), at 414.

[47] Section 26 of the Municipal Act, 2001, S.O. 2001, c. 25, provides: The following are highways unless they have been closed:

1. All highways that existed on December 31, 2002.
2. All highways established by by-law of a municipality on or after January 1, 2003.
3. All highways transferred to a municipality under the Public Transportation and Highway Improvement Act.
4. All road allowances made by the Crown surveyors that are located in municipalities.
5. All road allowances, highways, streets and lanes shown on a registered plan of subdivision.

[48] Previously, s. 261 of the Municipal Act, R.S.O. 1990, c. M.45, provided:

Except in so far as they have been stopped up according to law, all allowances for roads made by the Crown surveyors, all highways laid out or established under the authority of any statute, all roads on which public money has been spent for opening them or on which statute labour has been usually performed, all roads passing through Indian lands, all roads dedicated by the owner of the land to public use, and all alterations and deviations of and all bridges over any such allowance for road, highway or road, are common and public highways. [Emphasis added.]

[49] Thus, prior to January 1, 2003, a road in a municipality could become a public road by virtue of the doctrine of dedication and acceptance. From that date forward, a road such as Road A could only become a highway by virtue of the passage of a municipal by-law (or by final approval and registration of the plan of subdivision). In this part of my reasons, I will focus on the doctrine of dedication and acceptance. I will deal with assumption via by-law in the next part.

[50] The doctrine of dedication and acceptance is "of ancient origins": Cook's Road Maintenance Assn. v. Crowhill Estates, 2001 CarswellOnt 322 (C.A.), at para. 22. Perhaps that helps explain why the doctrine can result in the kind of difficulties seen in this motion when applied in the context of modern municipal law.

[51] The doctrine was succinctly summarized by the Court of Appeal recently in Blanchard v. Tripp, 2019 ONCA 559, at para. 14:

Whether there was dedication and acceptance is a question of fact to be decided in each case on a balance of probabilities... The claimant must prove that the owner had the actual intention to dedicate and that the intention was carried out, and was so accepted by the public. A long period of use of a road by the public can be evidence both of an intention to dedicate and of acceptance by the public. The intention to dedicate may be expressed in words or in writing, but is more often a matter of inference. [Citations omitted.]

[52] Thus, in order to succeed, the plaintiffs must establish three elements:

(1) an intention on the part of the owner to dedicate the road in question; (2) an act of dedication by the owner; and (3) acceptance.

[53] The legal issue in this case relates to the third element. The Township submits that acceptance must be by the municipality. It argues that there is a distinction between cases like Cook's Road, in which the dispute was between private landowners, and cases such as Scott v. North Bay (City), 1977 CarswellOnt 514; , 18 O.R. (2d) 365 (C.A.), in which the dispute involved a municipality. In Scott, the court held, at para. 10:

The assumption of a road or street for public use can be effected only by a corporate act of the municipal corporation. If there is no by-law, an assumption may be inferred from work done by municipal employees, or other expenditure of public money in improving or maintaining the road or street. In such a case the work or expenditure must be "clear and unequivocal, and such as clearly and unequivocally indicates the intention of the corporation to assume the road." [Citations omitted.]

[54] The Township argues that the plaintiffs cannot demonstrate any act on the part of the municipality to assume control of Road A prior to January 1, 2003. The plaintiffs counter that although they can, indeed, demonstrate assumption by the municipality, they need not do so. They submit that they need only demonstrate acceptance of the road by members of the public. They rely on authorities like The Law of Canadian Municipal Corporations, in which the author writes, at pp. 1174-1175:

No formal acceptance of a dedication by a local authority is necessary in order to render it effective since the dedication is to the public and not to the corporation; public user is sufficient. An Ontario court has asserted that it is at least necessary to show acceptance by the municipality by some corporate act such as the enactment of a by-law or repairs and improvements. This is not correct, for no action is required on the part of the corporation to complete dedication by acceptance if the public has by use accepted it... The question is not whether the local authority had accepted the dedication but whether the public had done so.

[55] There is strong support for this statement in the jurisprudence. Writing on behalf of the majority on this issue in Gibbs v. Grand Bend (Village), , 1995 CarswellOnt 1056, 26 O.R. (3d) 644 (C.A.), Brooke J.A. cited with approval the following passage from Foothills v. Stockwell, (sub nom. Foothills Municipal District No 31 v. Stockwell), 1985 ABCA 229, [1986] 1 W.W.R. 668 (Alta. C.A.), in which the trial judge had determined that a road was not a public road because the municipality had never accepted it:

With respect, this finding cannot decide this case. The question is not whether the municipal government has accepted the dedication but whether the public has done so. It would appear that the learned trial judge misdirected himself as to the law when he said, "A road can only become a public highway by dedication by the owner, and the acceptance by the municipality."

In our view, the only reasonable inference to be drawn here is that the public has accepted this dedication even if in the recent past the municipal government has denied it. Further, even if the behaviour of the municipal government here towards the respondent was equivocal, the public dedication had occurred prior to them taking title and dealing with the municipality.

[56] In the more recent case of Blanchard, the appellants argued that the summary judgment motion judge had erred by failing to recognize that a road can be a public road and yet still remain in private ownership and be maintained by the people who use the road. The Court of Appeal did not disagree with this legal proposition, but only with the submission that the motion judge had failed to recognize it in arriving at his decision: para. 19.

[57] Finally, even in Scott, the case relied upon by the Township, the Court of Appeal distinguished the right of the public to use a public road from the duty of a municipality to maintain and repair it: para. 8.

[58] Thus, there are authorities supporting both sides. Fortunately, I need not resolve these apparently conflicting lines of authority because, as I will now explain, the plaintiffs cannot prove either assumption by the municipality or acceptance by the public. Nor can they prove dedication.

Can the Plaintiffs Establish What is Required?

[59] Although they must occur in a different order to establish that a private road has become a public road through dedication and acceptance, I will deal with acceptance and dedication in that order because, as so many of the cases explain, dedication must often be inferred from acts of acceptance: Cook's Road, at para. 10; Blanchard, at para. 14; Reed v. Lincoln (Town) (1974), , 6 O.R. (2d) 391; 1974 CarswellOnt 843 (Ont. C.A.), at para. 14.

[60] For the purposes of my analysis, I will refer to acceptance by the Township as "assumption", in keeping with arguments of counsel.

Assumption by the Township

[61] The plaintiffs contend that the Township assumed control of Road A by virtue of three corporate acts: maintenance of the road for decades, a resolution passed in November 1984, and a zoning by-law passed in 2006. As I will explain, however, none of these acts rise to the level required to constitute assumption, alone or in combination.

Road Maintenance

[62] Section 261 of the Municipal Act recognized the common law principle that the expenditure of public money on the maintenance or improvement of a private road could result in the road becoming public: Scott, at para. 10. However, the work or expenditure must be "clear and unequivocal, and such as clearly and unequivocally indicates the intention of the corporation to assume the road": Hubert v. Township of Yarmouth (1889), 18 O.R. 458 (C.A.), at pa. 467. Otherwise, it may more properly be described as a courtesy: Scott, at para. 10.

[63] Mario deposes that the Township "has performed winter maintenance on Road A for decades". However, he admits that much of the winter maintenance was charged back to the residents living in the subdivision. On occasion, the Township would provide grading and grass cutting services on Road A, but always for a fee. The only thing that was not charged back at all times was sand for use in the winter. According to Paul Chitaroni, the Township would occasionally put sand down on the road as a courtesy.

[64] Even if I accept the evidence of Mario on this issue, it does not amount to clear and unequivocal evidence of an intention to assume jurisdiction over Road A. If that was the case, one would not expect the Township ever to charge for maintenance.

The 1984 Resolution

[65] On November 12, 1984, at the same time that Albert was re-applying for approval of the subdivision, the Township passed a resolution. The plaintiffs contend that, by virtue of that resolution, the Township assumed Road A. I cannot agree.

[66] The record contains no copy of the actual resolution. I have only the minutes of the meeting at which the resolution was passed, which read:

That a paragraph be inserted in the proposed draft of Chitaroni's Subdivision plan to assure that the proposed designated roads be constructed to the municipality's standard at the time they may be required - costs of construction to be borne by subdivider.

[67] The plaintiffs rely on the minutes of a Township council meeting held on February 11, 1985, as an interpretive aid to the November 1984 resolution. The minutes read:

Albert Chitaroni was in attendance to discuss his planned subdivision in Portage Bay. Reeve McLeod advised Council has passed a resolution on November 12th accepting the roads, however, any new construction on those roads will be the responsibility of Mr. Chitaroni.

[68] In my view, if these minutes are accurate, the Reeve's interpretation of the resolution was wrong. At its highest, the November 1984 resolution was an expression of the Township's willingness to assume the roads, providing they were constructed in accordance with municipal standards. The evidence shows that the roads were not brought up to those standards until many years later, in 2012. In September of that year, the Township came one step closer to assuming Road A when the Clerk-Treasurer of the Township asked the Township's lawyer to prepare an agreement by which the Township would assume the road. However, before that agreement could be entered into, the parties learned through the survey that the disputed portion of the road was not on the developer's property.

The 2006 Zoning By-law

[69] In 2006, the Township updated its Zoning By-Law map. In anticipation that Road A would eventually be assumed by the Township, Road A was shown on the map as being an "unimproved Township Road", meaning a public thoroughfare under the jurisdiction of the Township which is not maintained on a year-round basis. The plaintiffs submit that the 2006 by-law was sufficient under the Municipal Act, 2001 for the Township to assume the disputed portion of Road A and turn it into a public road.

[70] Again, this stretches things too far. Including Road A as a road under the Township's jurisdiction on a zoning by-law map is not the equivalent of passing a by-law assuming the road. Like the 1984 resolution, it was an expression of the Township's willingness to do so, a willingness which was later frustrated by the fact that the developer did not own all of the road.

Conclusion on this Issue

[71] For the reasons expressed, none of these municipal acts was sufficient to constitute assumption of the disputed part of Road A, taken alone or in combination. They show, as does the rest of the evidence, that the Township was always willing to assume the road. However, the fact is that the Township never could do so because the disputed portion of the road turned out to be on someone else's property.

Acceptance by the Public

[72] In the alternative, the plaintiffs submit that there has been open and unobstructed use of Road A by members of the public since the 1950s, before the disputed part of Road A was owned by Paul or his predecessors in title. As evidence of this acceptance, they point to the installation of hydro and telephone poles along the road in the mid-70s, the provision of garbage collection since the late 80s or early 90s to the people living in the subdivision, and the use of the road by school buses for the past 20 years or more.

[73] There are three significant difficulties with this argument.

[74] First, there was no Road A until the 1970s, when Albert and his brothers built it. Before that, it was nothing but a mining trail. After the road was built, Albert himself continuously denied that Road A was a public road. This is demonstrated by two letters from two different lawyers who wrote about the road in the 1980s and by Albert's actions thereafter.

[75] The 1985 approval of the land-accessed subdivision was not the first. In December 1980, the Ministry granted approval on terms similar to those later contained in the 1985 approval. One of those terms was that Road A be assumed by the Township. In a letter dated November 26, 1980, from Albert's lawyer, Owen Smith, to the Ministry concerning this proposed term, Mr. Smith wrote:

With the greatest of respect, this is absolutely preposterous and completely impractical.

The road was cleared through the bush years ago by my client, his brothers and his father. There is no way the Township will want to take the road over and assume responsibility for it and there is no way my client wishes to transfer it to the Township.

[76] Ultimately, Albert decided not to pursue the subdivision as approved and the approval lapsed by its own terms after three years.

[77] In 1989, after the 1985 approval, the Township sought a legal opinion from Robbie Gordon (now Justice Robbie Gordon) about the effect of the November 12, 1984, resolution, referred to earlier. Although it is not admissible as opinion evidence in the motion, I am comforted in my conclusion about the effect of the resolution by the fact that my present colleague reached the same conclusion that I have and appears to have had a copy of the actual resolution in arriving at that conclusion, which I do not. More importantly, a copy of the letter appears to have been sent to Albert and there is no evidence that Albert ever took any issue with the opinion that Road A was not a public road.

[78] In fact, the evidence shows that Albert continued to treat Road A as a private road long after 1989. For example, in the 1990s, he requested that the Township plough the road, for a fee and, in the 2000s, he finally paid for a survey of the road, which ultimately lead to this lawsuit.

[79] The second problem with the plaintiffs' argument about public acceptance is the composition of the people who have allegedly accepted it. As the Court of Appeal explained in Cook's Road, there is a distinction between the use of a road by those who have been given permission to use it and use by members of the public at large. Road A leads only to the south section of the subdivision and ends there. It is used only to access the lots in that area. Leaving aside the issue of ownership of the road and who was legally entitled to grant permission to travel over the disputed portion of Road A, the evidence in this case is that the only people using the road are the owners and lessors of the lots, their visitors, and their service providers. This is analogous to the cottagers who sought the declaration in Cook's Road. As the court held in that case, at para. 35:

The use of the road by members of the public which may be relied on to support an inference that the road had been dedicated as a public road must be independent of its use by members of the user class seeking a declaration that it had been dedicated for public use. On the evidence, the cottagers and their trades people and their guests are not members of the public for the purpose of raising an inference of dedication.

[80] The third and, in my view, most significant problem with the plaintiffs' argument about public acceptance is the fact that, even if the public had accepted the road, it was never properly dedicated, as I will now explain.

Dedication

[81] The plaintiffs have adduced uncontroverted evidence that, contrary to what was stated at the time the Township sold parcel 12907 in 1975, the Township was the owner of the disputed portion of Road A continuously from 1923 until it sold the land to Carlo and Elio. However, as explained above, Road A did not come into existence as a road until at or about the same time. For that reason, the plaintiffs cannot establish acceptance or assumption of the road prior to the sale of the parcel to Paul's predecessors in title in 1975.

[82] Nor can the plaintiffs establish dedication after 1975.

[83] As the cases make clear, there are two aspects to the element of dedication. The owner of property on which a road is situated must both intend to dedicate the road and carry out that intention: Cook's Road, at para. 24; Reed v. Lincoln (Town), 1974 CarswellOnt 568, 6 O.R. (2d) 391 (Ont. C.A.), at para. 12; Skinner v. Thames Centre (Municipality), 2014 ONCA 164, at para. 4; Blanchard, at para. 14. In my view, in order to intend to dedicate the land on which a road is located, the owner of the land must know he owns it.

[84] As I wrote earlier in these reasons, dedication can and often is inferred from evidence of a long period of open public use of a road. This is true even in cases where the identity of an owner at a particular time is unknown: Cook's Road, at para. 12. But where the identity of the owner of a road is known, a court cannot infer an intention to dedicate the road where the evidence indicates that the owner was not aware that he owned it. This is because, unless the owner of the property knew that he had the right to preclude the public from using it, no intention to dedicate the road can be inferred from the fact that the owner did nothing to prevent it.

[85] In this case, the evidence is that everyone, including the Township and the Chitaronis, all believed that Road A was entirely on Albert's property until the survey was undertaken in 2013 or 2014. It cannot be inferred, therefore, that Paul or any of his predecessors in title intended to dedicate the disputed portion of the road to the public. Indeed, the plaintiffs allege that Carlo and Elio purposely engineered the sale of parcels 12918 and 12907 to them in order to frustrate Albert's ambitions. If that is true, it is a safer inference that, had they known that Road A ran over their property, they would have done what they could to prevent the road from being used.

Conclusion on this Issue

[86] The plaintiffs cannot demonstrate that the Township ever assumed Road A, despite its willingness to do so. Nor does the use of Road A by or on behalf of people living in the subdivision constitute the type of public acceptance necessary to satisfy that element of the doctrine, even if evidence of municipal assumption is unnecessary. In any event, the plaintiffs cannot demonstrate dedication of the disputed portion of Road A because the evidence shows that, until the survey was undertaken, the true owners were unaware of their rights over the use of the road.

Does this motion dispose of the entire claim against the Township?

[87] The plaintiffs contend that a decision in favour of the Township can only result in partial summary judgment. They submit that such a decision will still leave their claim for damages intact. In their factum, they submit that their damages claim is based on the Township's failure or refusal to use the five percent Crown reservation or its expropriation powers to make Road A a public road.

[88] The Township submits that the claim for damages is entirely derivative of the claim for a declaration such that a judgment in their favour on the latter issue must necessarily result in a dismissal on the former issue.

[89] Neither one of these submissions is obvious on the materials before me.

[90] Although the plaintiffs go on at length in their factum about the Crown reservation and the power of expropriation, there is barely any reference to the former and no reference to the latter in the Amended Statement of Claim. The only reference to either alleged basis for the damages claim is an allegation that "a five percent reservation was maintained for 'roads and the right to lay out the same where the Crown or its officers may deem necessary'" (see para. 9). There is no allegation that either the Crown reservation or the power of expropriation ought to have been used to make Road A public.

[91] Instead, the plaintiffs' claim for damages is based on a loosely-pleaded set of allegations including:

(a) false accusations being made by the Township mayor (para. 38); (b) the failure to follow previous Township precedents relating to the acceptance of public roads (para. 38); (c) the employment of "incompetent outside experts" to advise the Township on the issues in dispute (para. 41); (d) unreasonableness, bias, and bad faith on the part of council in passing Resolution 18-04-56, allegedly withdrawing support for the subdivision (para. 43); (e) the failure or refusal to identify where Portage Bay Road stops relative to the lodge, making it impossible to relocate the disputed part of Road A (para. 46); and (f) the failure to maintain accurate records (para. 47),

all of which, the plaintiffs allege, has been the cause of their inability to obtain final approval from the Ministry.

[92] Based on the materials before me on this motion, I fail to see how it could be said that these allegations relate to the Township's failure to use the Crown reservation or the power of expropriation, nor can I see how they are entirely derivative of the claim for a declaration.

[93] At the conclusion of the hearing of this motion, I reserved my decision. Two days later, without invitation from the court or the permission of opposing counsel, counsel for the Township wrote to the court to make further submissions on whether a decision in its favour on the public road issue would result in the dismissal of the damages claim, as well. That is a sure sign that this aspect of the motion was not properly addressed earlier.

[94] The letter from Township counsel was a clear breach of r. 1.09 of the Rules of Civil Procedure, which provides:

When a proceeding is pending before the court, no party to the proceeding and no party's lawyer shall communicate about the proceeding with a judge or associate judge out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or (b) the court directs otherwise.

[95] Counsel for the plaintiffs strongly objected to the actions of counsel for the Township and requested that, if I considered the Township's additional submissions, he be given the same opportunity on behalf of the plaintiffs.

[96] I have not considered the Township's additional submissions. However, having now reviewed the materials again in connection with this issue, I conclude that further submissions are required with respect to it. Therefore, the parties are directed to adhere to the following timetable:

(1) the Township will deliver a further factum on the whether the damages claim requires a trial, limited to 20 type-written pages, excluding schedules, within 30 days; (2) the plaintiffs will deliver a responding factum, similarly limited in length, within 30 days of receipt of the Township's factum; (3) no further facta will be permitted; (4) once the plaintiffs' factum has been delivered, counsel for the Township will contact the trial coordinator, by email copied to counsel for the plaintiffs, to request that a date be set for a further half-day hearing before me; (5) at the hearing, the Township will be provided with 1 hour to make its submissions, the plaintiffs will have 1 hour to make theirs, and the Township will have 15 minutes for reply.

CONCLUSION

[97] There is no genuine issue requiring a trial of the claim for a declaration that Road A is a public road. The plaintiffs cannot establish that the disputed part of the road was dedicated by the owner of the land on which it is situated or that it was either assumed by the Township or accepted by members of the public prior to 2003. Nor can the plaintiffs establish that the road was assumed by any by-law after that date.

[98] For these reasons, the motion is allowed as it relates to the claim for a declaration that Road A is a public road. That claim has been made against both Paul and the Township. Although the motion was only brought by the Township, because the basis for the claim is the same as against each of the defendants, it shall be dismissed as against both of them.

[99] The issue of costs will be dealt with once the balance of the motion has been decided.

M.G. Ellies R.S.J. Released: January 7, 2022

APPENDIX "A"

APPENDIX "B"