Court File and Parties

COURT FILE NO.: CV-22-00010296-0000 DATE: 2022-06-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carmen Kunto v. James Hollmer and Wendy Hollmer

BEFORE: The Honourable Madam Justice K.E. Cullin

COUNSEL: Paul J. Frinak, for the Plaintiff Michael R. Macnamara, for the Defendant

HEARD: June 3, 2022

ENDORSEMENT

Overview

[1] This matter appeared before me in motions court. The plaintiff is seeking several interlocutory orders which would have the effect of restraining the defendants from blocking access to her driveway through a roadway which traverses the defendants’ property. The defendants argue that the court lacks jurisdiction to grant the relief sought as the Road Access Act, R.S.O. 1990, c.R.34 is not applicable to the roadway.

Factual Overview

[2] The plaintiff and the defendants have made numerous allegations against one another. For the purpose of the motion before me, most of those allegations are irrelevant. Summarized below are the facts which are significant for the purpose of this motion.

[3] The plaintiff resides in a waterfront property located at 71 Thomson Road in Skead, Ontario. The property has been owned by the plaintiff’s family since 1968 and has been used by the plaintiff as her principal residence since 2003.

[4] The defendants reside in a neighboring waterfront property located at 51 Thomson Road. That property has been owned by the defendants since August 2002; they also occupy the property as their principal residence.

[5] Thomson Road “proper” (that is, the road that is owned and maintained by the municipality) ends before the parties’ residences. There is a registered right of way that commences at Thomson Road and traverses two properties, ending at the southern edge of the plaintiff’s property. This right of way connects the plaintiff’s property to Thomson Road.

[6] Most of the right of way has been developed into a gravel roadway. There is, however, a section of the right of way between the plaintiff’s residence and the defendants’ residence which is undeveloped. It is a treed area which is currently not accessible to vehicular traffic. There is debate between the parties regarding the reason that the area remains undeveloped.

[7] Historically, the undeveloped portion of the right of way did not pose a problem to the plaintiff in accessing her residence. There is a large gravel driveway between the plaintiff’s residence and the defendants’ residence, situated on the defendants’ property. Prior to 2020, the plaintiff, with the acquiescence of the defendants, accessed her property through this gravel driveway. So established was this arrangement that the entrance to the plaintiff’s driveway was connected to the gravel driveway and not to the right of way.

[8] On April 27, 2020, the plaintiff’s husband passed away; since then, she has lived alone at 71 Thomson. In December 2020, the defendants advised the plaintiff that she was no longer permitted to use the gravel area to access her property. This notice was the culmination of several years of deteriorating relations between the neighbors that had commenced prior to the death of the plaintiff’s husband. Both parties appear to agree that the “final straw” was the plaintiff’s refusal to continue her husband’s custom of clearing snow from the gravel driveway during the winter.

[9] On December 27, 2020, the defendants placed three telephone poles across a portion of the gravel driveway, thereby restricting access to the plaintiff’s driveway. The plaintiff contacted the police, which resulted in the defendant, James Hollmer, being criminally charged. Those charges were subsequently withdrawn by the Crown.

[10] On December 17, 2021, the defendants provided a further notice to the plaintiff that she was not permitted to use the gravel driveway. On December 21, 2021, the defendants again placed telephone poles across the gravel driveway, thereby restricting access to the plaintiff’s driveway. The plaintiff contacted the police; on this occasion, they declined to become involved.

[11] Since December 21, 2021, the plaintiff has been parking her vehicle at a neighboring property (with consent) and has been walking to her residence. In the winter, this required her to walk through the snow. Service vehicles, including a heating oil truck, a water truck, and garbage removal have been unable to access the plaintiff’s residence. The plaintiff is 75 years of age.

[12] Although this was not formally in evidence, both counsel agreed during their submissions that a driveway to the plaintiff’s residence could be constructed on the undeveloped portion of the right of way prior to the end of the summer.

The Law

[13] Section 2(1) of the Road Access Act provides:

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;

(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;

(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or

(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights.

[14] In their submissions, counsel agreed that the road at issue is not a “common road”. An access road is defined in s.1 of the 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

[15] The application of the Road Access Act was considered by the Court of Appeal in 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586. In that case, a group of residents sought an injunction preventing a corporate landowner from restricting their sole existing motor vehicle access to their properties. The corporate landowner had closed the road after the residents refused to alter an existing user fee arrangement by increasing the fee from $500.00 to $2,000.00 annually. It argued that it was permitted to close the road without an order because of the existence of alternate road access to the residents’ properties.

[16] The Court of Appeal upheld the trial judge’s decision granting the residents’ application for an injunction on the condition that they continue to pay the $500.00 annual user fee (or another fee directly related to the road’s maintenance and repair costs).

[17] Laskin J.A. speaking for the court noted at para. 22 that, “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.” He referred to and adopted the following reasoning by the trial Judge:

In the end, and in the narrow situation to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook's Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it. The access user cannot grant the use of the road to others. The access

user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para. 45. And, if another access road is subsequently provided, the access user's continuing status under s. 2 ceases because alternate access would then exist.

[18] In Kilpatrick, the corporate landowner argued that presence of an unopened road allowance that would provide access to the residents’ properties constituted “alternate access” which entitled it to close the access road without seeking an order pursuant to the Act. Both the trial judge and the Court of Appeal disagreed, noting that there was no legislative support for such a proposition. In particular, they noted that not only was the road allowance undeveloped, but it could not be accessed without the approval of the municipality.

[19] The presence of an undeveloped right of way as “alternate access” was considered by Hennessy, J. in Atkins v. Carter, 2004 CanLII 8193 (ON SC). In that case, the applicant was seeking an order pursuant to the Act permitting him to close a road traversing his property. The respondents had been using the road with the consent of the applicant; they had a right of way which would have permitted them alternate access, but it was undeveloped. Hennessy J. found that the respondents had the burden of demonstrating that alternate access did not exist, and that they failed to meet that burden. She found that the Act was inapplicable and that the applicant could close the road without first obtaining an order.

Analysis

[20] The court’s jurisdiction to grant a mandatory order or an interlocutory injunction arises pursuant to s.101 of the Courts of Justice Act, R.S.O. 1990, c.C.43 and r. 40 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[21] The test to be applied in determining whether to grant interlocutory relief was summarized by the Supreme Court in RJR- MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 as follows:

Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

I. Is there a serious issue to be tried?

[22] Cornell, J. noted in White et al. v. Binczak, 2019 ONSC 4068 at para. 26:

The 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.

[23] In the present case, I find that there is a serious issue to be tried. There is, in my view, a triable issue about whether the Court of Appeal’s decision in Kilpatrick is applicable on the facts of this case where the “alternate access” at issue is a right of way which remains undeveloped by the choice of the plaintiff and not because of the existence of a precondition such as municipal approval. It is arguable that the reasoning in Atkins applies, and that the Road Access Act is not applicable to the parties.

II. Will the applicants suffer irreparable harm?

[24] In RJR-MacDonald Inc., the Supreme Court described this issue at para. 64 as follows:

“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.

[25] The plaintiff is a 75-year old woman who is currently unable to access the primary driveway to her residence as a result of the defendants’ closure of the gravel driveway. Her evidence describes that service vehicles have been unable to access her residence to provide drinking water and heating fuel. More significantly, emergency service vehicles are unable to access her residence; if she requires the assistance of the police or an ambulance, their access to her is limited to a path available through a neighboring property. In my view, these accessibility issues satisfy the test for “irreparable harm”.

III. Does the balance of convenience favour the applicants?

[26] The balance of convenience favours the applicants with respect to some, but not all, of the relief sought by the plaintiff. Presently, the plaintiff has access to her residence through a neighbouring property. While not optimal because it requires her to walk further than if she were to park in her driveway, I would note that she has continued to access her residence throughout the winter using this route.

[27] In my view, the issues to be addressed in any interlocutory order by this court are the following:

a. The plaintiff’s access to her garage using her vehicle;

b. Access to the plaintiff’s residence by service vehicles and emergency vehicles; and,

c. Access to the gravel driveway by contractors performing work to build a driveway for the plaintiff on the right of way.

[28] The plaintiff has also sought orders permitting her extended family members and guests to access the gravel driveway in order to enter her driveway. In my view, the Court of Appeal in Kilpatrick calls into question whether access can be granted to users other than the property owner, and I therefore decline to make such an order on an interlocutory basis.

Disposition

[29] For the reasons given, I make the following orders:

1. That the defendants, their agents, employees, successors and assigns shall immediately remove any obstructions across the roadway in dispute in this proceeding. This is an interim order.

2. That the defendants, their agents, employees, successors and assigns are restrained and enjoined from taking any steps to block or obstruct access to the plaintiff’s property over the roadway in dispute in this proceeding. This order shall remain in force and effect until January 15, 2023 unless otherwise extended by order of this court.

3. That the plaintiff, her agents, employees, successors and assigns shall have access to the roadway in dispute in this proceeding until January 15, 2023, unless otherwise extended by order of this court, for the following purposes only:

a. To permit the plaintiff to access the garage on her property using the most direct route to the garage possible;

b. To permit service vehicles to attend at the residence of the plaintiff, upon the plaintiff providing not less than 24 hours’ notice of their attendance to the defendants through counsel;

c. To permit emergency vehicles to attend at the residence of the plaintiff, without the requirement of first providing notice to the defendants; and,

d. To permit the construction of a roadway to the plaintiff’s residence on the right of way, with notice to be provided of such construction activities to the defendants through counsel.

4. The necessity of filing Facta pursuant to r. 40.04 is dispensed with for this motion. Should either party apply to vacate or to extend this order, they shall be required to comply with r. 40.04.

5. The undertaking required pursuant to r. 40.03 is dispensed with. Should the plaintiff apply to extend this order, she shall have the burden of demonstrating why an undertaking is not appropriate at that time.

6. Costs of this motion shall be reserved to the trial judge.

Date: June 7, 2022

K.E. Cullin, J.