COURT FILE NO.: CV-20-83
DATE: 2022-07-29
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HEIN WALMA
Applicant
- and -
THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BLUFFS and HER MAJESTY IN RIGHT OF ONTARIO as represented by THE MINISTRY OF TRANSPORTATION
Respondents
Matthew J. McGuckin, for the Applicant
R. H. Thomson, for the Respondent, The Corporation of the Township of Georgian Bluffs
Lisa Brost, for the Respondent, Her Majesty in Right of Ontario, as represented by The Ministry of Transportation
HEARD: March 24, 2022,
by video-conference, at Owen Sound, Ontario
Price J.
Reasons For Judgment
INDEX
NATURE OF APPLICATION
ISSUES
THE PARTIES’ POSITIONS
THE FACTS
Mr. Walma’s purchase of the property in 1976
Mr. Walma’s use of the property 1976 to 2016
Ministry’s reconstruction of Hwy 6 in 2012
Ministry’s failure to give notice to Mr. Walma
Ministry’s removal or alteration of culverts
Mr. Walma’s efforts January 2016 to October 2019 to restore access
Commencement of the proceeding
LAW AND ANALYSIS
a. Is the access road a public road, which the Township is obliged to maintain?
i. Expenditure of public funds on maintenance
ii. Dedication and acceptance
iii. Failure to close the road
b. Did the Township fail to maintain the road?
c. Did the Ministry alter culverts and cause flooding and, if so, is the Township entitled to indemnification?
d. Is the determination of constructive expropriation and injurious affection within the exclusive jurisdiction of the Ontario Land Tribunal?
e. Did the Ministry’s actions amount to constructive expropriation?
f. Did the Ministry’s actions amount to injurious affection?
g. Are Mr. Walma’s claims statute-barred?
CONCLUSION AND ORDER
NATURE OF APPLICATION
[1] Hein Walma bought a 178-acre parcel of land near Owen Sound, Ontario, in 1976 with the intention of growing wheat on part of it and harvesting timber on the other. At some point, the land flooded, rendering an access road onto the property from the nearby provincial highway impassable. When Mr. Walma discovered the flooding in January 2016, he investigated and learned that it had been caused by the Ministry of Transportation’s re-building of a section of Highway 6 that intersected the access road. In doing so, the Ministry had removed a culvert from beneath the access road and altered culverts beneath Highway 6, re-directing a creek to flow over the access road and form a drainage pool beside the highway, flooding Mr. Walma’s property and that of his neighbour, which abutted the highway.
[2] In July 2016, Mr. Walma wrote to the Township of Georgian Bluffs, where his property is situated, asking if it owned the access road and requesting that it restore his access. The Township replied by denying that it had built or ever maintained the road, or that it was obligated to do so. It referred Mr. Walma to the local conservation authority, which said that restoring the access road would require an expensive application, which would likely be unsuccessful. Mr. Walma therefore made the present Application, in which he seeks a declaration that the Township is obligated to maintain the access road and an order requiring it to do so.
[3] The Township opposed the Application and joined as a respondent the Ministry of Transportation, which it says altered the culverts and is responsible, if anyone is, for the flooding of Mr. Walma’s land. The Ministry responded by denying that it had caused the flooding or that the property had been expropriated or injuriously affected by the road reconstruction. In any event, it asserted that such claims are within the exclusive jurisdiction of the Ontario Land Tribunal and that, because Mr. Walma was aware of flooding on his property as early as 2002, his claims are now statute-barred.
[4] The Application requires the Court to consider whether the Township has an obligation to maintain the access road and, if so, what responsibility, if any, the Ministry of Transportation has for any flooding that resulted from the alterations it made to the culverts during its road reconstruction. In doing so, the Court must consider the law governing the responsibility of public authorities who, without expropriating the title of an owner’s property, effectively deprive the owner of its use, either wholly, by what is known as “constructive expropriation”, or partially, by what is known as “injurious affection”.
ISSUES
[5] Specifically, the Court must answer the following questions:
a. Is the access road a public road, which the Township has an obligation to maintain?
b. Did the Township breach its obligation by allowing the access road to fall into disrepair?
c. Did the Ministry of Transportation remove a culvert from beneath the access road and alter nearby culverts under Highway 6, causing flooding of Mr. Walma’s property, and, if so, should it be ordered to restore the culverts or compensate Mr. Walma for the damage done to his property?
d. Does this Court have jurisdiction to determine whether the actions of the Ministry in removing and/or altering the culverts constituted (i) constructive expropriation or (ii) injurious affection of Mr. Walma’s property, compensable under the Expropriations Act, R.S.O. 1990, c. E.26?
e. Did the Ministry’s actions constitute a constructive expropriation?
f. Did the Ministry’s actions constitute injurious affection?
g. If so, are Mr. Walma’s claims for compensation statute-barred?
THE PARTIES’ POSITIONS
[6] Mr. Walma submits that the access road is a public road on two grounds. First, he says that the road was dedicated for public use and accepted as such by the Township. Second, he says that the Township, or its predecessor, constructed and once maintained the road. He says that the Township allowed the road to fall into disrepair and should be ordered to restore it to its previous condition.
[7] Mr. Walma further submits that either the Township or the Ministry of Transportation removed a culvert from under the access road and enlarged another nearby culvert or culverts, beneath Highway 6. The removal of the culvert from beneath the access road dammed Davidson Creek, which flows eastward from the Long Swamp. This changed the creek’s course, causing it to flow over the access road instead of under it, and to form a drainage pool on the south side of Highway 6. He says that the drainage pool, which also receives waters through the enlarged culvert beneath Highway 6 from the north side of that highway, flooded his Lots 21 and 22 and diminished their value. He states that this amounted to a de facto expropriation or injurious affection of his property for which he should be compensated.
[8] The Township denies that the access road was ever dedicated for public use or accepted as such by the Township or its predecessor. It further denies that the Township ever provided labour or material to construct or maintain the road. It therefore submits that it was never obligated to maintain the road.
[9] The Township submits that any alteration of the access road or highway was done by the Ministry of Transportation, and that the Township neither caused Mr. Walma to lose access to his property nor diminished its value. It additionally denies having acquired any beneficial ownership of the property, which it says is required in order to find that it constructively expropriated the property.
[10] The Ministry supports the Township’s position that the access road is not a public road. It additionally submits that the use of the road is now restricted by the need to maintain traffic safety on Highway 6 and by the Conservation Authorities Act, R.S.O. 1990, c. C.27, as the road passes through a protected wetland. It asserts that the Ministry’s reconstruction of Highway 6 in 2012 to 2013 did not cause flooding or reduce the value of Mr. Walma’s property. Additionally, it denies that the flooding removed all reasonable uses of the property, or resulted in the Ministry acquiring a beneficial interest in the property such as to amount to constructive expropriation. Finally, it submits that any claim based on constructive expropriation or injurious affection of the property is within the exclusive jurisdiction of the Ontario Land Tribunal and is now statute-barred.
THE FACTS
Mr. Walma’s purchase of the property in 1976
[11] Mr. Walma is a retired person who lives in St. Catharines, Ontario. He tendered an affidavit sworn September 25, 2020, upon which he was cross-examined on June 11, 2021. In his affidavit, he states that on January 26, 1976, he bought a 178-acre parcel of land, consisting of Lots 21 and 22, Concession 3, in the Township of Georgian Bluffs (“the Walma property”). The parcel is comprised of a 70-acre elevated area to the south that was once used as pasture and a 110-acre downward slope to the north on which there is merchantable timber.
[12] When Mr. Walma bought his land, there was a gravel access road extending diagonally southwest from Highway 6, across a road allowance, and along the northern limit of Lot 23, belonging to Mr. Walma’s neighour, to the northern limit of Lot 22, belonging to Mr. Walma. The road then extended southward along the lot line between those Lots 22 and 23. Until recently, the access road gave both Mr. Walma and his neighbour, the owner of Lot 23, access to their properties from Highway 6.
[13] Mr. Walma drew the map below, which I find accurately depicts the access road.
[14] Under cross-examination, Mr. Walma said that when he bought his property, he inspected it with a realtor from Owen Sound named Mr. McIntee. He described the access road at that time as a two-lane gravel road with a ditch on each side, which proceeded southwesterly from the diagonal Highway 6, and then turned southward at a meadow or, as the realtor described it, a “lay down area”. The realtor said that anyone doing lumbering in the Long Swamp, or behind it, used the lay down area to avoid piling lumber near the highway. The ditches on each side of the access road and Highway 6 intersected near the highway, making it an impractical location for piling lumber. Further, the Township, to avoid congestion at the intersection, did not want lumber piled near the highway.
[15] Mr. McIntee explained that, because the lay down area was on Mr. Walma’s meadow, foresters had to ask Mr. Walma’s permission to use it for that purpose. They did not have to ask his permission to use the northernmost segment of the access road, because that road did not belong to Mr. Walma. That road led to the property line separating his Lot 22, to the west, from his neighbour’s Lot 23, to the east.
[16] Mr. Walma states that, around the time of purchase, he and Mr. McIntee drove from Highway 6 southwesterly along the graveled two-lane access road to the dirt road that extends southward. They then proceeded southward along the dirt road and up a hill to Mr. Walma’s pasture land. Mr. Walma states that the southward segment of the access road needed re-graveling at the time.
[17] The road that lay along the lot line between Mr. Walma’s Lot 22, on the west, and his neighbour’s Lot 23, on the east, led to the top of the hill at the south end of Mr. Walma’s property. This elevated area consisted of 70 acres of land. On the hill, there was a windmill, a loading dock, the remnants of a house and barn, and a 40-acre pasture where Timothy grass was growing. On the northern downslope of the pasture, there were 110 acres of bush that the realtor said had been clear cut for lumber.
Mr. Walma’s use of the property in the 40 years from 1976 to 2016
[18] Mr. Walma stated at q. 25 of his cross-examination that in 1980, the Ontario Ministry of Natural Resources, or “Lands and Forests” (as it then was), put out ads inviting landowners to plant trees. Mr. Walma therefore signed a contract with that Ministry whereby he agreed he would not farm or graze cattle on the 70-acre hill, and would, instead, allow a nursery near Orillia to plant trees there. He says he was told by the staff at the nursery that their maps showed that the property was great forest land, which used to be white pine. The nursery planned to plant Tamarack, which would withstand the wet spots that would form during the Spring thaw.
[19] Mr. Walma states at para. 26 of his affidavit that the Township’s tax assessor’s notes from October 4, 1973, indicate that the assessor found the access road to be passable at that time. The assessor’s notes from 1984 indicate that the road had become overgrown with willows. Mr. Walma states that, when he bought the property in 1976, the road was passable and that he continued to use the access road to gain access to his property for many years afterwards.
[20] Assessor Reports for Keppel Township from the 1970s indicate that property tax assessors travelled the access road to perform valuations of the land and buildings for property tax purposes. Notes in the “General Remarks” section of the Assessor Reports indicate that access to the Walma Property was off County Road 70 (now Highway 6). As it appears from the Report dated April 17, 1973, the Assessor could not access the property that day due to high water, which is consistent with annual Spring run-off. There are no comments that the access road was permanently impassable at that time. The Assessor checked again on October 4, 1973, found the access road to be passable. The notes from 1984 indicate that it was then grown over by willows, but not that it was impassable.
[21] Mr. Walma stated at qq. 27 and 28 of his cross-examination that in 2002, which would be twenty-six years after he bought his property, he entered into a managed forest agreement regarding the trees growing on his 110-acre downslope. People came who wanted to cut the forest in that area, so Mr. Walma contacted the local Conservation Authority and asked them to assess and manage the forest on that downslope. They sent their Environmental Planning Coordinator, Andrew Sorenson, to look and report on the forest.
[22] Mr. Walma stated that the tree-planting began but was abandoned after a week or so, after only a few hundred trees were planted. A person, who he believed was from the Township, had told the planters to stop. He was later informed by the Ministry of Natural Resources office in Peterborough, which managed the re-forestation project, that they had decided to employ natural regeneration. Instead of planting new trees, they would rely on the natural re-seeding from the existing trees on the slope. Mr. Walma did not harvest the Timothy from the pasture because it was too far from Paisley, where he lived at the time, and there was no local farmer who could harvest it for him.
[23] Mr. Walma, at para. 36 of his affidavit, states that in about January 2016, he contacted a local arborist to do logging work on his property. The arborist tried to enter the property to assess what could be logged but was unable to do so. Maintenance of the access road had been neglected to such an extent that the access road was completely submerged under water, rendering it impassable.
The History of the Access Road
[24] Upon learning from his arborist that the access road was submerged, Mr. Walma investigated the cause. He sought to discover who owned the road and was responsible for maintaining it, and why it had fallen into disrepair. At para. 32 of his affidavit, Mr. Walma states that, apart from during Spring runoff, the access road permitted vehicular access until about 2016. In that earlier period, a culvert where the access road meets Highway 6 drained the water from Davidson’s Creek, allowing the water from the creek to flow freely under access road. He states that, at some point, the culvert beneath the access road was removed and water that had previously drained underneath the access road flowed over it instead and onto his property. He provided a series of aerial photos showing the pooling of the water along the ditch that runs along the south side of Highway 6 and onto his neighbour’s Lot 23.
[25] In the course of his investigation, Mr. Walma uncovered the history of the access road and the events that led to its deterioration.
[26] Mr. Walma’s property is situated in a wetland known as the Long Swamp. According to a topographical map that the Department of Defence produced in 1944, the Long Swamp is 246 metres (807 feet) above sea level and lies within the Sauble River watershed, being land drained by the Sauble River. A tributary of the Sauble River known as Davidson’s Creek, which is also part of the Sauble River watershed, drains water from the Long Swamp east to Highway 6 and beyond. Mr. Walma’s property lies just south of Davidson’s Creek in what was once Keppel Township.
[27] Keppel amalgamated with two other townships in 1921 to form the present Township of Georgian Bluffs (“the Township”). The Township has jurisdiction over the area in which Mr. Walma’s property is situated, pursuant to the Municipal Act, 2001, S.O. 2001, c. 25.
[28] The Township’s Treasurer, Kassandra Rocca, produced the original Crown Survey of Keppel Township, reproduced below, as an exhibit to her affidavit sworn December 17, 2020. It shows the road allowance extending westward from the diagonal highway that abuts the northeast corner of Lot 23 to the lot line between Lot 23 and Mr. Walma’s Lot 22.
[29] Comparing Mr. Walma’s map with the original Crown survey, I find that the access road crossed the original road allowance diagonally from the northeast corner of the allowance, where it intersects with Highway 6, southwest to the south side of the road allowance. It led to the northernmost point of the property line that divides Mr. Walma’s Lot 22 from his neighbour’s Lot 23.
[30] The Township acknowledges that Mr. Walma and others may have used the road allowance to gain access to the Walma Property, but Ms. Rocca asserts in her affidavit that the road allowance has never been “part of the Township road system.” She states in her affidavit that the Township denies that it or its predecessor, Keppel Township, engineered, installed, or constructed a gravel road to provide access to the Walma Property. She states that, “At no time was a forced road constructed to provide access to the Walma Property.”
[31] I find that this fact is not within Ms. Rocca’s personal knowledge. She does not state the source of her information, nor affirm that she believes it to be true. Her evidence in this respect does not conform to Rule 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and is not admissible. Indeed, there is no evidence supporting Ms. Rocca’s assertion, and I find that the evidence Mr. Walma has tendered supports the contrary conclusion.
[32] Keppel Township’s By-Law No. 2, passed on March 13, 1860, “To Regulate the Duties of Road Overseers and Pathmasters”, divided Keppel Township into divisions, including Division 17 where the Walma Property is situated.
[33] The Statute Labour Act, R.S.O. 1990, c. S-20, dates back to 1890 and implemented statute labour as, in effect, a tax that required male landowners to perform road maintenance 3 to 12 days per year, depending on the value of their properties. The Act, which remained in effect until its repeal in 2022, enabled qualified landholders resident in a given township to elect road commissioners who would then appoint a secretary-treasurer. The commissioners had the power to open road allowances that had been laid down in original surveys, or roads in lieu of such road allowances, and to direct the performance of statute labour on them. The secretary-treasurer was to keep records for the Township in a statute labour book, listing those liable to perform statute labour and detailing the labour they performed: Blanchard v. Tripp, 2018 ONSC 3076, 74 M.P.L.R. (5th) 229, at paras. 76-77 and 80.
[34] All property owners in Keppel Township were subject to being required to perform statute labour. Multiple entries in the By-Laws and Council Minute Books of Keppel Township set out amounts spent on construction and/or improvement projects during the era of statute labour.
[35] Keppel Township’s By-Law 6, from 1904, taxed the property owners in the watershed, which I find included Mr. Walma’s predecessors in title and the previous owners of Lot 23, for the road work and drainage work performed to ensure that the access road was passable and that no local resident properties were damaged by flooding.
[36] Ms. Rocca acknowledged at q. 50 of her cross-examination that Keppel Township’s 1904 By-Law authorized drainage work to be done in the area of the access road. She undertook, at q. 52, to confirm whether a search was made for any relevant municipal drainage schemes, agreements with landowners, correspondence, drawings, plans, or work orders that related to the drainage work completed pursuant to the 1904 By-law. The Township, in its letter dated September 22, 2021, indicated only that they were unable to locate such records, other than a 1921 update of the drainage plan prepared by Township Engineer, R. McDowell.
[37] The Township failed to provide meaningful evidence responsive to Mr. Walma’s inquiry, or evidence that meaningful efforts were made to locate the records relating to the 1904 drainage plan. I draw the adverse inference that such records, had they been produced, would not support the Township’s position that such work was not performed.
[38] Keppel Township’s By-Law 3, passed in 1908, appointed John Cruickshank, the predecessor in title of either Mr. Walma’s or his neighbour’s property, as the Overseer for Division 17. By-Law 4, of the same year, authorized the following compensation to be paid to other predecessors in title of the Walma property and surrounding properties for their statute labour:
• $4 as a bonus paid to Samuel Johnston for wire fence for Lot 22, as appears from p. 314 of the Minutes of Council;
• $8.95 paid to Samuel Johnston for gravel and damages, as appears from p. 333 of the Minutes;
• $50 paid to William Johnston for work done on 3rd Concession, as appears from p. 337 of the Minutes;
[39] In 1910, the following compensation was authorized:
• $1.96 paid to Samuel Johnston for gravel, as appears from p. 345 of the Minutes;
• $3.80 paid to Samuel Johnston for broken plow repair for road work, as appears from p. 350 of the Minutes;
• $2.52 paid to Samuel Johnston for gravel, as appears from p. 363 of the Minutes.
[40] In 1914 the following compensation was authorized:
• $5.60 paid to Samuel Johnston for gravel, as appears from p. 471 of the Minutes;
• An unspecified fence bonus for Samuel Johnston, as appears from p. 481 of the Minutes.
[41] In 1916, 1917, and 1918, Keppel Township spent $137.50, $112.00, and $104.00, respectively, on repairing and/or maintaining the roads in this Concession, which I find included the access road.
[42] Keppel Township’s By-Law No. 6, passed in 1917, states:
And whereas it is desired to construct and improve certain roads in the Municipality of Keppel … by clearing, grading and graveling or other work of a substantial and permanent character over and above the ordinary statute labour in the said Municipality, at a total estimated costs of the sum of $2400 dollars.
[43] I find it likely that this work included the construction and improvement of the access road, as appears from paras. 13, 15-18, and 20-21, and 34 of Mr. Walma’s affidavit. While Mr. Walma did not tender the deeds of his predecessors in title, he stated, at para. 13, “Previous owners of the Walma Property and surrounding properties during the era of statute labour in Keppel Township included [those named individuals, including Samuel and William Johnston]. He also stated, at para. 34, “That drainage plan and by-law 6 of 1904 clearly identifies that landowners in the area, including my predecessors in title, we (sic) taxed for road work and drainage work.” Mr. Walma was not cross-examined on these assertions or asked to produce the deeds supporting them.
[44] Ms. Rocca acknowledged at qq. 54-58 of her cross-examination that the minutes of Keppel Township from December 1, 1982, refer to a discussion between counsel and the Road Superintendent mentioning that the practice of the Township in the past had been to maintain the little-used township roads on a minimal level.
[45] The Township undertook at q. 58 to search for records listing the little-used Township roads and referring to their maintenance. The Township’s letter dated September 22, 2021, indicates that no such records were found.
[46] Ms. Rocca stated under cross-examination that she searched the records currently held by the Township, which consist of hard copies from 2017 onwards and digital records dating back to the amalgamation in 2001. While she asked the Grey County “Roots Archivist” to search the records at the local museum, that search was limited to the records that Mr. Walma requested in his Freedom of Information request. She did not know whether the archivist searched for references to the previous owners of the Walma Property or adjoining property: Mary, Samuel, William and Robert Johnston; Simon McLung; William and John Cruickshank; James McDonald; Jeff Moore; or to Road Number 2 (as the access road was then designated). It is also not known whether searches were made for references to the road between the south diagonal road (now Highway 6) and Concessions 3 and 4 (where the Walma Property is situated), or for the materials or labour that were provided on the roads, ditches, or drainage between those concessions from 1900 to 1930.
[47] Ms. Rocca undertook, at q. 48, to clarify how the request to the clerk was made for the information Mr. Walma had requested in his Freedom of Information request. Specifically, she was to ascertain whether the Township searched for records of payments made to individuals for materials and/or labour conducted on roads or ditches from 1900 to 1930, and, in particular, on Road Number 2 or the road between the south diagonal road and Concessions 3 and 4, and whether the Township searched for any road overseer reports containing, or pertaining to, roadwork in Keppel Township from 1900 to 1930.
[48] The Township’s letter dated September 22, 2021, indicates only that such requests were generally made by telephone, and sometimes by e-mail, and that an e-mail containing Mr. Walma’s request for records was forwarded to the archivist following a telephone conversation with the archivist, who was unable to locate any documents for the period from 1900 to 1930.
[49] The Township has failed to provide any meaningful evidence responsive to Mr. Walma’s inquiry. They have also failed to provide evidence that meaningful efforts were made to locate the records relating to the statute labour performed prior to 1921, or relating to any minimal maintenance done on lesser used roads, or to the 1904 drainage plan for the area in which the access road is situated. There is no evidence that the Township searches referenced the access road, the previous owners of Mr. Walma’s and his neighbour’s property, or the labour or materials supplied for the roads, ditches, or drainage therein. According to Mr. Walma’s research, the previous owners were enlisted to perform statute labour in Concession 3, and were given gravel for that purpose.
[50] The Township was required to maintain these records and Ms. Rocca was obligated to produce them. Either those responsible for maintaining the records failed to do so or Ms. Rocca and those whom she delegated to find the records did not retrieve them. I draw the adverse inference that such records, had they been produced, would not support the Township’s position that such work was not performed, and would support Mr. Walma’s assertion that the work was performed by his predecessors in title.
[51] Keppel Township’s By-Law No. 3 of 1921, revised in 1956, was entitled, "A By-Law to Provide for the Numbering of Roads in the Township of Keppel”. The access road was named “Road No. 2”, being the “Road between Concessions 3 & 4, from Lot 1 to the intersection with the South Diagonal Road". I find the South Diagonal Road later became County Road 70 and is now part of Highway 6.
[52] When Keppel Township amalgamated with Derby and Sarawak Townships to form the Township of Georgian Bluffs in 1921, the latter inherited its predecessor’s obligation to keep the access road passable and in a good state of repair, as per ss. 4(1), 30, and 44(1) of the Municipal Act, 2001: MacPump Developments Ltd. v. Sarnia (City) (1994), 1994 CanLII 3448 (ON CA), 120 D.L.R. (4th) 662 (Ont. C.A.), at p. 674.
[53] The drainage plan that Keppel Township enacted in 1904 was supplemented in 1921 by a drainage plan entitled “Plan of Drainage Area of Davidson’s Creek, Keppel.” Keppel Township’s Engineer, R. McDowell, prepared the up-dated drainage plan for the area of Davidson’s Creek and indicated that measures were implemented to ensure no resident properties were damaged by flooding due to directing excess water to the Long Swamp.
[54] I find, based on the historical records produced, that the Township employed statute labour to establish and maintain roads, including the access road, until statute labour was abolished in the Township pursuant to By-Law No. 5 in 1925. When Keppel Township stopped using statute labour in 1925, it began employing a Municipal Roads Department. When the local Roads Board was established, the Statute Labour Act ceased to apply to the local roads area that the Board administered. The road commissioners under the Statute Labour Act were required to transfer to the local Roads Board any assets held by them in their capacity as road commissioners in the area: Blanchard, at para. 92.
[55] Mr. Walma tendered an Assumption Plan and Survey Drawings prepared by or on behalf of the Department of Highways of Ontario (the predecessor of the Ministry of Transportation), registered on April 6, 1972. The Plan and Drawings show the assumption of the diagonal highway, then County Road 70, into part of Highway 6, and shows the access road as a “bush road”. I take judicial notice of the fact that Highway 6 has, in fact, absorbed the former County Road 70, and now connects portions of the highway located south and northwest of Owen Sound.
[56] Council Minutes from the 1980s show that Keppel Township instructed its Municipal Roads Department Superintendent to continue to maintain little-used roads, such as the access road, to a minimum standard. The Township’s Council Minutes from December 1, 1982, record that Council advised the then Road Superintendent, Grant Bennington, that this level of maintenance had been a past practice of the Township.
[57] In 2002, Mr. Walma enrolled his property in a Managed Forest Tax Incentive Program. The property is now subject to a twenty-year Managed Forest Plan, which the Grey Sauble Conservation Authority (GBCA) prepared for 2002 to 2021. This plan is subject to renewal every five years. The property is also part of a provincially designated wetland where any culvert reconstruction would require an expensive application for permits that is likely to be refused.
The Ministry of Transportation’s re-construction of Highway 6 in 2012
[58] In 2012, the Ministry of Transportation reconstructed the section of Highway 6, formerly County Road 70, that intersected the access road. Mr. Walma tendered the version of the drainage plan that he discovered in March 2019. It consisted, among other things, of a plan to enlarge four culverts under Highway 6. The effect of the plan was to redirect water to an area to the southeast of the intersection of the access road and Highway 6. There, it formed a drainage pool that extended onto Lot 23 and the Walma Property.
[59] Ms. Rocca states at para. 12 of her affidavit that, in 2012, the Ministry of Transportation removed access from Highway 6 to the road allowance on which the access road is situated as part of the Highway 6 pavement rehabilitation. She further states that, as part of the reconstruction of Highway 6, the Ministry removed a culvert near Highway 6.
[60] The representative of the Ministry of Transportation, Mr. Santos, acknowledged, at q. 52-54 of his cross-examination, that the access road was the only means of access to the Walma Property. He stated that reconstruction of that section of Highway 6 in 2013 “did not restore the access road” and that the property is now effectively landlocked.
[61] The Survey Drawings depict road design and a re-furbished ingress/egress to the access road from Highway 6, which is called a "bush road" in the documents.
[62] A Regional Work Order and attached drawings describe the work required to establish the existing right of way along Highway 6. Plan P-4063-12, reproduced below, clearly describes the bed on which the access road lies as a "Road Allowance".
[63] Mr. Santos acknowledged, at q. 18 of his cross-examination, that the Ministry does not deny that a physical road exists at the location in question, which he called “an entrance” or “an access point”. He further acknowledged that the road appears on a number of maps, including the 1944 Department of Defence topographical map, reproduced above. However, he stated at para. 16 of his affidavit and at q. 27 and following of his cross-examination that it does not appear on maps he found in the Ministry’s own records.
[64] Mr. Santos stated that he and his colleagues at the Ministry searched for, but were unable to find, specific Ministry documents such as municipal by-laws, Minister’s consents for a road opening, and entrance permits, whether current or expired. He stated at q. 31 that he didn’t know exactly how far back the records go, but said it could be 50 or even 60 years, meaning as early as 1951 (his cross-examination having taken place in 2021). He acknowledged at qq. 33-34 that there was no archival storage system that he was aware of that would be older than 50 or 60 years, and that it was possible there could be an entry to the highway (Highway 6 or its predecessor, County Road 70) that pre-dated 1951.
[65] Mr. Santos stated at q. 35 that he did not know how early the Ministry of Transportation and its predecessors (e.g., Ministry of Transportation and Communications; Department of Provincial Highways) had jurisdiction over entrances to the King’s Highways. He assumed it was as far back as 100 years (that is, 1921). He agreed, at q. 36, this timeline was consistent with the fact that the Ministry of Transportation was previously the Department of Public Highways, which was founded in 1916.
[66] Mr. Santos stated, at q. 37 of his cross-examination, that even if entry to Highway 6 or its predecessor pre-dated the Ministry’s jurisdiction, the Ministry would still require the existing entrance to be under a current entry permit “to bring it up to current standards”. He added, at q. 38:
So we don’t proactively go seek out all the illegal entrances or entrances that exist without a permit obviously. There would just be too many to try to, you know, look after. We typically take the opportunity when the homeowner needs to apply for, for example, relocating the entrance or if they need to build something on the property which they need a building and land-use permit. We would then take a look at the whole property and try to, you know, bring any deviations up to standard and correct any deficiencies that may exist on the property. For example, if a property has multiple entrances and they’re, you know, currently only entitled to one, we often would seek the removal of two or three or however many those entrances as a condition of issuing other permits such as building and land use. And we’d also seek an updated entrance permit to recognize the existing permit if we deemed it acceptable.
[Emphasis added.]
The Ministry’s failure to give Mr. Walma notice
[67] Fairness requires that a landowner be given notice and an opportunity to be heard before he is deprived of any pre-existing access to his property from a main highway.
[68] I infer from Mr. Santos’ evidence that the Ministry does not eliminate all pre-existing entrances from the Highway onto a property-owner’s land, but, rather, eliminates any additional entrances beyond what the owner needs to maintain access to his land. At q. 40 of his cross-examination, Mr. Santos acknowledged that the Ministry does not pro-actively close access roads, but does so if operational or safety concerns are brought to its attention:
Q. Right. I guess my question was the inverse. If it’s not brought to your attention, then an entry that pre-existed the permitting process could continue until it is brought to your attention?
A. Yes, provided that there’s no operational or safety concerns. And, again, it’s a matter of workload issue. There’s just – we can’t proactively go out and, you know, research all these. We do have some mechanisms to do that; however, based on workload, we deal with them as they get brought to our attention.
[69] Mr. Santos added, at qq. 76-77, that there is no record of an operational or safety concern, likely because the access road was not being used for vehicular access. The Ministry therefore did not close the road.
[70] I find that, notwithstanding the absence of any operational or safety concern, the Ministry effectively ended the access to the properties previously enjoyed by Mr. Walma and his neighbour when it removed the culvert from beneath the access road and changed the drainage pattern along Highway 6 as part of “pavement rehabilitation”. The Ministry gave no notice to Mr. Walma of its intention. At qq. 44-45 of Mr. Santos’ cross-examination, the following exchange occurred:
Q. At paragraph 19 of your affidavit, you state that each lot with highway frontage is entitled to one access connection if no alternative access exists; correct?
A. So each lot of record that’s been in existence prior to the date of the designation of the highway. That’s an important detail because often municipalities will create new high – lots by severance which didn’t exist, you know, prior…. So that an important piece, that the legal lot of record has to exist prior to the designation of the highway….
Q. Okay. But if there’s lot of record preexisting the designation of a highway, that lot would be entitled to one access connection to the highway that’s designated?
A. Yes, if it has frontage on the highway and it has – and it has no other access….
[Emphasis added.]
[71] At q. 80, Mr. Santos confirmed that if a road was the only access to a public highway from a property that has frontage on the highway, the Ministry would not insist that it be removed or closed. He stated:
You mean – if it’s the only access, we wouldn’t, because we wouldn’t want to create a landlocked parcel to a lot that has frontage on the highway. So if the lot only has access to the highway with direct frontage, then we would likely not pursue the removal of that entrance.
[Emphasis added.]
[72] He added, at q. 81, that if the Ministry was going to remove access, the Ministry could do the work at the Ministry’s cost and compensate the landowner.
[73] It is not disputed that Mr. Walma’s property does not directly abut Highway 6 or its predecessor, County Road 70. It was his neighbour’s Lot 23 that abuts the highway. Mr. Walma shared his access to Highway 6 with his neighbour by means of the access road that proceeded westward from Highway 6 and then southward between his own Lot 22 and his neighbour’s Lot 23.
[74] With regard to the right of multiple owners to preserve their mutual access from a main highway, Mr. Santos gave the following evidence at q. 48 and following:
Q. Okay. And what about indirect access? How does the Ministry treat a property that is otherwise landlocked or would otherwise be landlocked without access if there’s a connection point through a neighbouring property, for example?
A. So that would be considered a mutual entrance, and that would not be something we typically – it’s undesirable. It’s created a lot of conflicts for the MTO in the past. It – they do exist, however, you know, west region, and I think there’s a provincial preference to avoid mutual entrances.
Q. And just to clarify for my own understanding, a mutual entrance is an entrance to the provincial highway that services multiple properties that could access that entrance?
A. Potentially, yes.
Q. And if there was a mutual entrance or a mutual access that serviced multiple lots of record with highway frontage that were in existence prior to the date of designation of a highway – I’m just referring back to paragraph 19 of your affidavit – that would continue or that would be allowed to continue once the highway is designated?
A. So I’m not entirely clear on that policy. I believe because of our reluctance to permit mutual entrance today, we would have to revisit that.
[Emphasis added.]
[75] The Ministry took under advisement, at q. 51, Mr. Walma’s request that it revisit that question and provide the Ministry’s position as to whether it would continue to allow access to a Highway if, as in the present case, it provided the only access to his property, notwithstanding that the property did not directly abut the highway.
[76] Mr. Santos acknowledged, at q. 52, that Mr. Walma’s property does not have alternative access to any municipal or provincial roadway.
[77] Mr. Santos acknowledged, at para. 18 of his affidavit, that in 2013, the Ministry of Transportation reconstructed the section of Highway 6 where the access road enters the highway. At his cross-examination, Mr. Santos stated, with regard to that reconstruction:
Q. And do you recall from your recollection, from your brief review, were there any records that related to this entry point to what Mr. Walma says is a forest road with Highway 6 in those records of the work that was completed?
A. There was no – there was no records that I recall of new work being done. So in other words, the entrance wasn’t reinstated. It was simply left to remain, from what I recall.
Q. And I guess just to better articulate my question, was there a specific record indicating that there was no work on that entry point?
A. Not specifically. It was – from what I recall, there was no indication that any work was done at that entrance location.
Q. Okay. I wonder – sorry, go ahead.
A. So the entrance was indicated, so the physical entrance was shown as an existing access point, but there was no indication of any additional work being done there either to improve it or remove it. It was – from what I recall, there was nothing – no action taken.
[Emphasis added.]
[78] Mr. Santos stated, at q. 63 and following, that when road work is being done, it is the Ministry’s practice to give notice of the work to affected or potentially affected landowners. He did not recall from his review of the records whether notice was given to landowners along the stretch where the reconstruction work was done in 2012 and 2013. He stated, at q. 65, “So in other words, if there was work being done that would affect their property directly, they likely would have been contacted.”
[79] Mr. Santos stated, at q. 66, that he suspected that no notice was given to Mr. Walma because he had no highway frontage: “So in theory, there should be no direct impact on his property by the highway work.” In theory, perhaps, but I find that, in fact, the highway work had a very direct impact on Mr. Walma’s property.
[80] The Ministry undertook, at q. 67, to produce any records that indicated that Mr. Walma had been directly notified. He agreed that unless the Ministry advised him otherwise, Mr. Walma could assume that he had not been directly notified of the 2013 road resurfacing.
[81] Mr. Santos was asked, at q. 73, whether the Ministry would have any concern that a property such as Mr. Walma’s was being landlocked. He replied that it would not be the Ministry’s concern.
[82] I find that the Ministry unlawfully impaired the usefulness of the access road without giving Mr. Walma notice that it was doing so or affording him an opportunity to be heard.
The Ministry’s removal of the culverts
[83] The culvert beneath the access road and those beneath Highway 6 appear on the Department of Defence topographical map from 1944, reproduced below. The culvert that Mr. Walma says once existed under the access road, and at least one of the culverts under what is now Highway 6, can readily be seen on the map. The map shows that Davidson’s Creek once flowed through the culvert underneath the access road, and then northeastward through another culvert under Highway 6.
[84] A detail of the relevant portion of the map, reproduced below, shows the access road, which I have highlighted by a circle, as two narrow lines which look like an upside-down ‘L’. The shorter segment of the L extends southwestward from the diagonal highway, now Highway 6. The longer segment of the L then extends southward. The curved blue line on either side of the access road represents Davidson’s Creek, leading eastward from The Long Swamp.
[85] The map’s legend, reproduced below, distinguishes between primary highways, identified by two parallel lines widely spaced, and secondary highways, identified by two parallel lines narrowly spaced. It also distinguishes between paved highways, identified by red and white blocks between the parallel lines, and gravel highways, identified by the absence of red and white blocks in that space.
[86] The legend also distinguishes between paved main highways, identified by continuous red between the parallel lines, and paved secondary highways, identified by broken red between the parallel lines. Gravel-covered “other roads” are identified by solid parallel lines, and wagon roads and unused roads are identified by parallel dashed lines.
[87] The legend identifies culverts by two parallel curved lines on either side of a highway or railway track, which I have circled in the legend below.
[88] I find, based on this map, that in 1944 the southwesterly segment of the access road was a gravel covered road extending southwesterly from what is now Highway 6, which was then County Road 70, a paved secondary highway. I further find that in 1944, there was a culvert beneath the access road, just to the west of what is now Highway 6. This culvert was located where Davidson’s Creek flowed east from the Long Swamp, then south through the culvert, then southeast parallel to the highway, and finally through another culvert, which can be seen faintly on the map, and continuing northeast.
[89] I find that, in the period in 2012 to 2013, the Ministry of Transportation reconstructed the section of Highway 6 that the access road had entered. During the reconstruction, it removed the culvert, identified above, that had existed beneath the access road where the road crossed Davidson’s Creek.
[90] As noted above, Ms. Rocca, at para. 12 of her affidavit, confirms that a culvert was removed as part of the highway reconstruction, and indicates that the Ministry effectively terminated access from the road allowance to Highway 6. Ms. Rocca attached a copy of part of the Grey County Mapping showing the Walma Property and the unopened road allowance in relation to Highway 6.
[91] While Ms. Rocca, at qq. 64-67 of her cross-examination, stated that the Township has documentation of the Ministry’s removal of the culvert and of the termination of access, the documentation was never provided. The Township undertook at qq. 65-66, 68, and 71 to search and produce the documentation from the Ministry of Transportation relating to the removal of the culvert, and any Township meetings relating to the work, but appears not to have done so. From this failure, I draw the adverse inference that such records would support Mr. Walma’s position that the culvert that was removed in 2012-2013 was the one shown beneath the access road in the 1944 Department of Defence topographical map, reproduced above.
[92] The drainage plan that Mr. Walma discovered in March 2019 also consisted, in part, of the enlargement of four culverts under Highway 6. The drainage system now redirects water from the north to the south side of Highway 6 and deposits those waters into the drainage pool to the southeast of the intersection of Highway 6 and the access road.
[93] Mr. Walma described, at qq. 75-76 of cross-examination, which portions of his land are now underwater. These areas include the angled portion of the access road from Highway 6 to the northeast corner of his property, where the lay down area is, and the road that extends from that corner southward, up the hill. He notes that four culverts were altered or removed, including the one underneath the access road, where the road crossed Davidson’s Creek, which was removed, and three others that were nearby, where Highway 6 also crossed the Creek. He stated that the removal of the culvert from beneath the access road dammed Davidson’s Creek, changing its course. This caused Davidson’s Creek, which flowed along the ditch on the north side of the access road, to turn southward over the access road, then southeast along the south side of Highway 6, forming a drainage pool. The drainage pool now extends from Highway 6, across Lot 23, over the road that separates Lot 23 from Mr. Walma’s Lot 22, and over the forested area on the northern slope of Mr. Walma’s Lots 22 and 21.
[94] I accept Mr. Walma’s evidence in this regard, which I find to be supported by the documents and photos he submitted, and to be consistent with the evidence of Ms. Rocca and Mr. Santos.
[95] As noted above, in January 2016, Mr. Walma learned, from the arborist he had asked to inspect the property for harvesting timber, that the access road was no longer passable.
Mr. Walma’s efforts from January 2016 to October 2019 to have the access road restored
[96] In June 2016, Mr. Walma began corresponding with the public authorities in an effort to identify the owner of the access road, who was responsible for maintaining it, and who was responsible for the flooding that had occurred and caused the deterioration of the road. In his correspondence, he also asked how the access road could be restored either by him, or by the owner of the road, or by the public authority who was responsible for the flooding.
[97] From June 2016 to November 2017, Mr. Walma made seven inquiries to Georgian Bluffs and/or the Grey Sauble Conservation Authority (“GSCA”) requesting the restoration of access to the Walma Property or following up on his request. This fact appears at paras. 37, 39, 41-44, and 46 of his affidavit. Mr. Walma specifically addressed his inquiries to:
a. Brian Anderson, then the Township’s Operations Administrative Assistant;
b. Alan Barfoot, then the Township’s Mayor;
c. Rick Winters, then the Township’s Director of Operations; and/or
d. Andrew Sorensen, a GSCA Enforcement Officer.
[98] Mr. Walma received consistent reassurance from those individuals that positive steps were being taken to resolve his access issue; however, months passed without his access to his property being restored or any plan being approved to achieve this end.
[99] Seven months elapsed between Mr. Walma’s initial meeting with Mr. Sorensen to discuss his access issue and the GSCA’s response as to whether they would approve an application for the remedial work.
[100] A further six months elapsed between Mayor Barfoot’s request that the GSCA conduct a study on the requirements to rebuild the access road and the GSCA’s response that the resulting report would be provided “within a couple of days”. The GSCA failed to provide the promised report and Mr. Walma grew increasingly frustrated with the process.
[101] As noted above, the drainage plan that Mr. Walma discovered in March 2019, entailed, inter alia, the enlargement of culverts under Highway 6 (the “Drainage Plan” or the “Culvert Enlargement Project”), contributing to water being redirected to the drainage pool on the southeast corner of the intersection of Highway 6 and the access road, which flooded Lot 23 and the Walma Property.
[102] On August 12, 2016, Mr. Walma began email correspondence with the Township’s Mayor, Alan Barfoot, who advised him that Township Staff were communicating with the Ministry and the GSCA about the issue of the access road.
[103] On August 16, 2016, Mr. Walma received email correspondence from Rick Winters, the Township’s Director of Operations, who stated that he had been working with the GSCA and the Ministry regarding Mr. Walma’s "concerns regarding access to the unopened road allowance." Mr. Winters indicated that he had searched Township records and had found no records indicating that the road allowance had ever been assumed or maintained by the Township. He therefore concluded that it was still an unopened road allowance. On September 7, 2016, following a brief exchange, Mr. Walma asked Mr. Winters to explain what he meant by "never assumed", given that the access road had clearly been built up, maintained, and used for many decades before that point.
[104] On October 4, 2016, Mr. Walma met with Mr. Winters and the GSCA Enforcement Officer, Andrew Sorensen, at the Walma Property. Mr. Winters left early and Mr. Sorenson and Mr. Walma travelled over the flooded-out road by foot. During their conversation, Mr. Sorensen acknowledged the once previously dry and usable access road was now submerged and impassable. Mr. Sorensen informed Mr. Walma that in order to do any work on the road, the GSCA would have to approve an application, but that it was doubtful the project would be approved as the road was now located in a "wetland".
[105] Mr. Winters told Mr. Walma that he was going to consider the situation and get back to him in a few weeks. Following the meeting, Mr. Walma sent a follow up email to Mr. Winters on October 5, 2016, about the conditions, and confirming that Mr. Sorenson would get back to him in a few weeks. On November 16, 2016, having not heard from Mr. Sorenson for some time despite follow ups, he emailed Mr. Winters to see if he had heard anything further. Mr. Winters replied that he had not.
[106] Mr. Walma emailed Mayor Barfoot on January 19, 2017, as he still had not heard anything further. He thought that Mayor Barfoot, as a Board Member at GSCA, might be able to assist with moving his inquiries forward. He heard nothing further until April 2017, and eventually a meeting was scheduled for May 26, 2017.
[107] On May 26, 2017, Mr. Walma met with Mayor Barfoot, Mr. Winters, and Mr. Sorenson at the Township office. He repeated his concerns about the Township’s lapse of maintenance on the access road without notice to him, which had left his property landlocked. The Mayor told him that the Township would permit the repair of the road as long as it did not cost it anything. Mr. Walma informed the Mayor and others present that he would be willing to provide the necessary materials (i.e., gravel and culverts) and hire the necessary equipment to raise the road if the Township gave him permission to do so. Mayor Barfoot asked the GSCA, through Mr. Sorensen, to conduct a study of what would be required to rebuild the road and advise Mr. Walma and the Township of these requirements.
[108] At this meeting, Mr. Sorensen suggested that fill material (stone fill) would be suitable to repair the access road and the closest source would be from an aggregate quarry located near Shouldice at Shallow Lake. Mr. Sorensen assured Mayor Barfoot that he would complete a study and present his findings at the August 2017 meeting of the GSCA’s Board of Directors. Mr. Winters agreed to contact other related parties, including the Ministry, to prevent any further delays. Mr. Walma sent Mayor Barfoot an email on May 30, 2017, summarizing the meeting. Mayor Barfoot replied that Mr. Walma had set out a good summary and noted that "unless you have all the parties in the same room at the same time, the agencies spin you in circles."
[109] Mr. Walma followed up with Mayor Barfoot on August 15, 2017, for details about when Mr. Sorenson's report would be presented to the GSCA. He sent several follow ups over the next few months until he was finally advised by Mayor Barfoot on November 13, 2017, that Mr. Sorenson confirmed he would have the report "within a couple of days". He requested a copy of the report when it was received.
[110] Finally, Mr. Sorensen provided an email report to Mr. Walma dated November 23, 2017. Mr. Sorensen advised that portions of the Walma Property, including the access road, had been designated “Provincially Significant Wetland” (“PSW”). This came as a surprise to Mr. Walma as he had never been notified of this designation of his property. He understood that the Ontario Wetlands Evaluation System ("OWES") required that periodic studies be conducted on proposed PSWs and an OWES number being assigned to land before it could be designated as a PSW. He had never been contacted by the GSCA or the Ministry of Natural Resources and Forestry (or its predecessors) to allow access to the Walma Property to conduct those studies.
[111] In November 2017, the GSCA informed Mr. Walma that in order to consider approving his request to restore and maintain a road which he did not own, it would need Mr. Walma to submit an application, the applicable "major permit fee", and supporting reports from an engineer and an environmental consultant outlining the effect of the remedial work on the surrounding land, and proof of the Township's permission to work on "the Township road allowance portion". Mr. Sorenson also advised that the GSCA policies generally would not support the proposed work.
[112] Mr. Sorensen advised Mr. Walma that the GSCA’s policies generally precluded them from supporting construction work within PSWs such as the Long Swamp. This fact was confirmed by MacLean Plewes, GSCA’s Manager of Environmental Planning, at pp. 9-10 (qq. 26-28 and 50), and p. 24 (q. 73) of his cross-examination.
[113] On November 23, 2017, Mr. Walma sent an email to Mayor Barfoot expressing his frustration with the response from Mr. Sorenson and asking whether the Township was going to take responsibility and repair the access road to restore his access to his property.
[114] Mr. Walma sent a lengthy email to Mr. Sorenson the next day also expressing his frustration with this seemingly hopeless process and the long delays that had been incurred up to that point.
[115] On June 18, 2018, Mr. Walma’s paralegal agent, Mr. Robert Pattison, delivered correspondence to the Township, the County, and the GSCA asking each entity to acknowledge ownership of the access road and responsibility for road maintenance. Mr. Pattison's letters also included a Freedom of Information Request seeking documentation related to the access road.
[116] By letter dated June 28, 2018, delivered to Mr. Walma by email, the County responded to Mr. Pattison's letter and FOI request. In its response, the County advised, "Our Land Acquisition Specialist Lacey Thompson has completed a review of the history of this property and has determined that Grey County had no ownership of this area, including any unopened road allowance, at any time."
[117] From June to September 2019, Mr. Walma’s legal counsel made four further inquiries to Georgian Bluffs, its counsel (R.H. Thompson), and/or the GSCA attempting to resolve Mr. Walma’s access issue. These inquiries requested that:
a. One or both of the entities re-establish and maintain the access road; or
b. They permit Mr. Walma to personally undertake the remedial work on the access road as Mr. Walma could not apply for a development permit for property he did not own.
[118] The Township and the GSCA both denied ownership of and/or maintenance responsibility for the access road, as appears from paras. 51-54 of Mr. Walma’s affidavit.
[119] By letter dated July 11, 2018, the GSCA responded to Mr. Pattison's letter and FOI request. In its response, the GSCA advised, "Grey Sauble Conservation Authority (GSCA) does not own land in the vicinity of your request and does not have property ownership records for property owned by others." The GSCA advised that the access road belonged to either the Township, the Ministry, or Mr. Walma. The GSCA took the position that its lack of ownership absolved it of any repair and/or maintenance responsibilities in relation to the access road, as appears from para. 57 of Mr. Walma’s affidavit.
[120] By letter dated July 17, 2018, the Township responded to Mr. Pattison's letter and FOI request. In its response, the Township advised, "Please be advised that the Township of Georgian Bluffs has no records responsive to the foregoing."
[121] The Township took the position that the access road was an “unopened road allowance”. While implicitly accepting ownership of the road, the Township stated that its unopened status negated any repair, maintenance and/or improvement responsibilities the municipality had toward the access road, as appears from paras. 40 and 50 of Mr. Walma’s affidavit, and pp. 8-13, qq. 19-21, 27, and 31-32 of Ms. Rocca’s transcript.
[122] Finally, in September/October 2019, the Township offered to enter into a Limited Services Agreement with Mr. Walma to permit him to complete upgrades on the access road provided he obtained all necessary approvals from the GSCA. The GSCA, for their part, took the position that any grading and/or placing of material on the traditional site of the access road would constitute development as defined in the Conservation Authorities Act. As such, it would require a major application for a permit, including the steps outlined above.
[123] Not having received any positive responses acknowledging ownership and maintenance responsibility for the access road, on June 19, 2019, Mr. Walma’s legal counsel, Jacob Damstra of Lerners LLP, wrote further letters to each of the Township, the County, and the GSCA. These letters asked that one or all of them clear and maintain the access road or provide confirmation that Mr. Walma could clear and maintain it.
[124] On June 21, 2019, the County responded by letter advising it did not own the access road. The County's letter advised that the Township has municipal jurisdiction over Concession 3 and directed Mr. Damstra to contact the Township Clerk.
[125] On July 25, 2019, the GSCA responded by letter advising of its position that "we have no responsibility to clear and maintain this access road on your client's property, on the Township's road allowance or on the Ministry of Transportation road allowance."
[126] Mr. Damstra replied to GSCA by letter dated August 1, 2019 asking whether the GSCA took any issue with Mr. Walma taking necessary steps to clear and maintain the road allowance for the access road, and if this would be considered a "development" requiring a permit.
[127] On August 9, 2019, counsel of the Township, R.H. Thompson of Murray & Thompson Barristers and Solicitors, wrote to Mr. Damstra in reply. Mr. Thomson advised that the Township considered the access road to be an "unopened road allowance" which the Township was not required to repair or maintain. He asserted that "The Township of Georgian Bluffs has never undertaken any maintenance of these road allowances and has not modified or in any way altered the original drainage of this or adjacent properties." He advised that the Township would "not be taking any steps to open the unopened road allowance or to improve the unopened road allowance for use".
[128] It is evident from these responses that neither the Township, County, nor GSCA was willing to acknowledge ownership of the access road. Without knowing who the owner was, Mr. Walma was unable to determine from which entity he needed permission to complete remediation work. On September 5, 2019, Mr. Damstra wrote to Mr. Thompson, advising that he was seeking instructions from his client further to Mr. Thompson's letter of August 9, 2019. In the interim, and with a view to resolving Mr. Walma’s concerns considering the Township's position, he asked whether the Township would permit Mr. Walma to take reasonable and necessary steps to repair and maintain the access road in order to access his property.
[129] Mr. Thompson responded the same day advising that the Township would be prepared to enter into a Limited Services Agreement with Mr. Walma to allow for upgrades to the access road. However, Mr. Thompson stated that Mr. Walma would be required to obtain all necessary approvals from the GSCA prior to entering into the Limited Services Agreement with the Township. Mr. Damstra promptly replied to Mr. Thompson by further letter dated September 5, 2019, advising he would seek instructions and follow up with the GSCA regarding his previous correspondence on this issue.
[130] In light of the Township's position, and in order to assess Mr. Walma’s options, Mr. Damstra wrote a follow up letter to the GSCA on September 13, 2019, further to his August 1, 2019 letter. Mr. Damstra again inquired whether the GSCA took any issue with Mr. Walma clearing and maintaining the access road, and whether this activity constituted "development".
[131] The GSCA replied to Mr. Damstra by letter dated October 2, 2019. Tim Lanthier, its Interim General Manager, set out the definition of development under the Conservation Authorities Act and advised that a permit would be required for any activity involving site grading and/or placing of material to repair and maintain the access road.
[132] Mr. Walma considered this option in light of the advice he had previously received from Mr. Sorenson, the GSCA Enforcement Officer, concerning what would be required in support an application for a development permit from the GSCA. He also recalled Mr. Sorenson's caution that the GSCA would consider the required work a "major development" and that a permit would not likely issue considering the wetland status of the area.
[133] I find that the requirements imposed by the Township and the GSCA, that Mr. Walma apply for a development permit when he had previously been advised that such an application would be difficult to make and would likely be unsuccessful, were prohibitively expensive and unfair. It is clear, from the responses of all of the authorities, that the access road is within the Township’s municipal jurisdiction. Mr. Walma, a private citizen, should not be required to incur the time and expense of trying to obtain development permits and of undertaking the repair and maintenance of the access road based on the Township’s unsupported position that it is an "unopened road allowance".
[134] Mr. Walma tried to negotiate and resolve the issue with the Township before initiating legal proceedings. I find that he exercised reasonable diligence in doing so, and that the limitation period did not begin until October 2, 2019, when he knew that the Township would not help. On this date, he knew that, without the intervention of a public authority, he would likely be unable to surmount the obstacles that the Conservation Authority outlined in their letter to his lawyer. October 2, 2019 was the earliest date when he could reasonably determine that a legal proceeding would be an appropriate means to seek to remedy his loss.
Commencement of the present proceeding
[135] Mr. Walma issued his Application less than ten months later, on July 13, 2020.
THE LAW AND ANALYSIS
a. Is the access road a public road, which the Township has an obligation to maintain?
(i) Expenditure of public funds on maintenance
Legislative Framework
[136] From The Highway Act of 1810, 50 Geo. Ill, c. 1, s. 12, up to and including the Municipal Act, R.S.O. 1990, c. M.45, s. 261 [“Municipal Act 1990”], legislation has provided that roads on which statute labour was usually performed are public highways. Section 261 of the Municipal Act 1990, provides: “[A]ll roads … on which statute labour has been usually performed … are common and public highways.”
[137] The Municipal Act 2001, provides, in s. 26, that all roads in existence as of December 31, 2002, are now deemed to be public highways.
Jurisprudence
[138] Based on the fact that all roads that existed on December 31, 2002, are now deemed to be public highways, the jurisprudence has derived the maxim, “Once a highway, always a highway.” See: Dawes v. Hawkins (1860), 141 E.R. 1399, at pp. 1403-1404. Therefore, if statute labour was once usually performed on the access road in the past, the road is deemed to be a public highway today.
Applying the legal principles to the facts
[139] The Township had a continuing obligation to maintain the access road through its historic repairs and maintenance over a 120-year-period, as appears from paras. 18 and 69-70 of Mr. Walma’s affidavit. I find it likely that after statute labour was abolished in 1925, the Township continued to maintain the access road, with associated expenditures, until at least 2012, when the Ministry of Transportation reconstructed the section of Highway 6 that intersected it. Mr. Walma did not discover the ensuing flooding and the fact that the road had become impassable to vehicular traffic until 2016, as appears from paras. 26-27 and 67 of his affidavit.
(ii) Dedication by Owner and Acceptance by Township/Public
Jurisprudence
[140] Once a municipality has assumed a highway, whether formally or through implied acceptance, it has an ongoing obligation to keep it in a good state of repair unless the road is closed: W.D. Russell, Russell on Roads, 2nd ed. (Toronto: Carswell, 2008), at pp. 85 and 88.
[141] Determining whether a given roadway is a public road is a question of fact. The test to be applied consists of the elements of the common law “forced road test”, namely:
a. Express or implied dedication by the owner; and
b. Implied or assumed acceptance by the municipality.
See: Belford v. Haynes (1850), 7 U.C.Q.B. 404, at paras. 7-8.
[142] Most determinations as to whether a roadway is a public road are made based on circumstantial evidence, as the owners who dedicated the road are often unknown or deceased: Macoomb et al. v. Welland (Town) (1907), 13 O.L.R. 335 (Ont. C.A.), at para. 29.
[143] The law governing the dedication of highways as public roads was stated in O’Neil v. Harper (1913), 1913 CanLII 482 (ON SC), 10 D.L.R. 433 (Ont. S.C.), at p. 434-435. A road dedicated for the purpose of passage becomes a public highway when accepted for that purpose by the public. There must be an intention by the owner to dedicate it, and acceptance by the public may be inferred from public use for a substantial time. No formal act of adoption is necessary: O’Neil v. Harper, at p. 435.
[144] I find that Mr. Walma, the owner of Lot 23, and others in the area of Concession 3 made use of the access road as it was their only access to their properties from what is now Highway 6. Additionally, tax assessors used the access road to make their inspections and assess the properties for purposes of municipal tax assessment. This access was for the benefit of the municipality, not the owners, and cannot be compared to tradesmen or utilities using the access road at the express invitation of the owners. Finally, I find that foresters removing timber from the Long Swamp area used the access road, to the knowledge of the Township, which had informed them of its preference that they not pile their timber at Highway 6.
[145] Based on the foregoing, I find that the access road was dedicated to public use and accepted as such by the municipality, and that the Township employed statute labour and public expenditures to maintain it.
(iii) Failure of the Township to close the access road
[146] As noted above, s. 26 of the Municipal Act, 2001, provides that all public highways that existed on December 31, 2002, continue to be public highways, unless they have been closed. This applies to "trespass" roads or "given" roads or "forced" roads such as the access road, that have been assumed by a municipality.
[147] Pursuant to the maxim "once a highway, always a highway", and ss. 33-34 of the Municipal Act, 2001, a "forced" road, such as the access road in the present case, that have been assumed by a municipality, whether expressly or impliedly, may only be closed or abandoned by passing a by-law to this effect. Section 33 of the Municipal Act, 2001, was repealed in 2006, (2006, c. 32, Sched. A, s. 16 (1)), but the status of the access road as a public highway is preserved by s. 26 of the current Act, which provides, “The following are highways unless they have been closed: 1. All highways that existed on December 31, 2002.
[148] If the Township had wanted to restrict motorized traffic on the access road, it was required to either: (a) pass a by-law that removed or restricted traffic on the road and the access that owners of the affected land had to it, (s. 35, Municipal Act, 2001); or (b) permanently close the road by passing a by-law and registering it in the appropriate land registry office (s. 34(1), Municipal Act, 2001).
[149] The Township took neither of those steps, as Ms. Rocca acknowledged at qq. 31-32 of her cross-examination. I accept Ms. Rocca’s evidence in this regard and find as a fact that neither the Township of Georgian Bluffs, nor its predecessor, Keppel Township, passed a by-law closing the access road or road allowance.
[150] I also find that neither Keppel Township nor the Township of Georgian Bluffs gave Mr. Walma notice of any intention to close the access road. As the access road was a public road as of December 31, 2002, then pursuant to the Municipal Act, 1990, s. 297(11), and the Municipal Act, 2001, ss. 26 and 34(1), and their predecessors, it continues to be a public road until the Township passes a by-law closing it and registers it in the land registry office.
b. Did the Township breach its obligation by allowing the access road to fall into disrepair?
[151] I find that the Township allowed the access road to fall into disrepair, and that the Ministry of Transportation accelerated its deterioration in 2012 to 2013 by ending the road’s access to Highway 6, removing the culvert from under the access road, and enlarging the culverts under Highway 6. In doing so, the Ministry thereby changed the flow of Davidson’s Creek in such a way as to flood the access road, create a drainage pool along the edge of Highway 6, and flood the Walma Property.
c. Did the Ministry alter culverts and cause flooding of the Walma Property and, if so, is the Township entitled to indemnification?
[152] Ms. Rocca states at para. 16 of her affidavit that the Ministry of Transportation is responsible for any culverts placed under or along Highway 6 and the diversion or redirection of water from one side of Highway 6 to the other. Further, she states the Ministry is responsible for the removal of any culvert under the access road, if that occurred. Thus, any impact on the Walma Property that resulted from this work is the responsibility of the Ministry and not of the Township. I agree with this assertion.
[153] I find that, while the Township had a continuing obligation to maintain the access road, its ability to do so was frustrated by the alterations the Ministry made to the drainage pattern in 2012 and 2013. By 2016, the combination of the altered drainage pattern and the Township’s failure, or inability, to continue maintaining the access road, rendered the access road impassable.
[154] In reaching the conclusion that the Ministry should be ordered to indemnify the Township, even though indemnification has not been explicitly pleaded or sought as a remedy, I must consider two questions: First, whether indemnity is available to the Township as a joint tortfeasor with the Ministry; and second, whether indemnity can be ordered if the Township has not explicitly pleaded it.
[155] Generally, one tortfeasor cannot claim indemnity from another. However, there is a “well-defined exception” to this rule identified by the British Columbia Court of Appeal in McFall v. Vancouver Exhibition Association, 1943 CanLII 258 (BC CA), [1943] 3 D.L.R. 39, at p. 41. The Court found that “where both parties’ negligence contributes to an accident, but one’s negligence consists in commission, the other’s merely in omission … the inactive party may claim indemnity from the other”. The Ontario Court (General Division) applied McFall in Oppedisano v. Agustino, [1997] O.J. No. 790 (Gen. Div.), at para. 26.
[156] Here, the exception applies because the Ministry committed the act of removing the culvert, and the Township omitted to repair the road. Therefore, indemnification against the Ministry is available to the Township as a joint tortfeasor.
[157] A failure to plead a defence, such as indemnification, in a civil action, can be fatal. The Ontario Court of Appeal wrote in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826, at para. 70, that “judges should generally resist the inclination to allow a defendant to raise or rely on the unpleaded defence if trial fairness and the avoidance of prejudice to the plaintiff are to be achieved.”
[158] However, this rule is not absolute. The Court of Appeal has “excused defendants from their failure to raise an affirmative defence in the pleadings where the issue was otherwise clearly raised and put in issue before trial”: Midland Resources Holding Ltd. v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481, at para. 111.
[159] In this case, the Township put indemnification at issue before trial by adding the Ministry as a respondent. The Ministry ought to have known that it was potentially liable for the relief Mr. Walma sought once this occurred. The principal risk of allowing unpleaded defences or remedies is prejudice, and the Ministry is not prejudiced as it knew, or should have known, that it was potentially liable for the relief sought.
d. Is the determination of whether the Ministry’s actions amounted to constructive expropriation or injurious affection of Mr. Walma’s property within the exclusive jurisdiction of the Ontario Land Tribunal?
[160] It is useful, here, to distinguish among three different ways in which a public authority, performing a public work, can affect a landowner’s title to, or use of, land that the work affects:
(i) Where it is essential for the authority, in performing the public work, to acquire title to the owner’s property, and it explicitly acquires title by expropriation, this is normally done by authority conferred by the statute that creates and governs the public authority, and in accordance with procedures set out in that statute.
(ii) Where the authority does not formally acquire title to the property, but acquires all beneficial interest in the property, and deprives the owner of all reasonable uses of the property, this is variously described as a “constructive expropriation”, or “de facto expropriation”.
(iii) Where the authority does not acquire either the title to, or all beneficial interest in, the property, or deprive the owner of all reasonable uses of the property, but by its public work, inevitably affects the owner’s use of the property, or diminishes the property’s value, this is described as “injurious affection”.
Expropriation of title to property
Legislative framework
[161] Where a public authority must acquire a landowner’s title to property by explicitly expropriating it, the procedure for doing so, and for providing compensation to the property owner, is normally embodied in the legislation governing the statutory authority. For example, the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, empowers the Minister to create or alter structures, including culverts, where it is necessary for the purposes of the Act. It also enables the Minister to provide the necessary compensation, if the work does not amount to an expropriation or an injurious affection that is governed by the Expropriations Act, meaning the acquisition of exclusive use of a property or diminishing its value without formally acquiring title to it. The Act provides, in this regard:
Power to enter on land, etc.
- The Minister or any person authorized by him or her may, without the consent of the owner,
(a) enter upon and use any land;
(b) alter in any manner any natural or artificial feature of any land;
(c) construct and use roads on, to or from any land; or
(d) place upon or remove from any land any substance or structure, for any purpose of this Part.
Land may be acquired or expropriated
11 (1) The Minister may, in the name of the Crown, acquire by purchase, lease or otherwise or may, without the consent of the owner, expropriate any land he or she considers necessary for the purposes of this Act or for making compensation in whole or in part to any person for land acquired under this Act.
No hearings of necessity
11.1 (1) Subsections 6 (2) to (5), section 7 and subsections 8 (1) and (2) of the Expropriations Act do not apply to an expropriation of land under section 11.
Claims for damages or compensation
12 The provisions of this Part respecting claims for damages or compensation and the amount thereof resulting from the exercise of any power under section 6 apply only where the exercise of such power does not result in expropriation or injurious affection to which the Expropriations Act applies.
Notice to be given to owner
13 (1) Where any of the powers conferred by section 6 have been exercised, the Minister shall, within sixty days thereafter, give notice to the owner[.]
[Emphasis Added.]
Applying the legal principles to the facts of this case
[162] There is no suggestion, in the present case, that the Ministry of Transportation sought to acquire Mr. Walma’s title to his property by formal expropriation, or gave him notice of its intention to do so. I therefore find that the Ministry’s actions, and Mr. Walma’s remedies, fall outside the provisions of the Public Transportation and Highway Improvement Act.
Constructive expropriation or injurious affection
Legislative framework
[163] At common law, de facto expropriations and injurious affection of property form part of the law of private nuisance. Where a person’s activities interfere with an owner or occupant’s use or enjoyment of their land, damages may be granted for physical damage to the land and for interference with its occupants’ enjoyment of the land: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 23.
[164] The common law makes an exception for public works that cause nuisances. For policy reasons, owners or occupiers of land are expected to put up with temporary disruptions and interference caused by essential public works, and the law recognizes a defence of statutory authority to claims of damages for nuisance inevitably resulting from such works: Manchester Corp. v. Farnsworth, [1930] A.C. 171 (H.L.), at p. 183; Schenk v. Ontario (1981), 1981 CanLII 2919 (ON SC), 131 D.L.R. (3d) 310 (Ont. H.C.), at para. 30, supplementary reasons (1982) 1982 CanLII 3185 (ON SC), 142 D.L.R. (3d) 261 (Ont. H.C.), aff’d (1984) 1984 CanLII 1950 (ON CA), 15 D.L.R. (4th) 320 (Ont. C.A.), aff’d 1987 CanLII 21 (SCC), [1987] 2 S.C.R. 289.
[165] Legislative regimes have been created to compensate parties injuriously affected by a public authority’s works. These regimes mitigate the impact of the defence of statutory authority on landowners who suffer loss as a result of the actions of such authorities, but without being deprived of their title to the whole of their property through formal expropriation which would entitle them to compensation.
[166] The general legislative regime protecting landowners from the impact of public works came to be embodied in the Ontario Municipal Board Act, R.S.O. 1990, c. O.28. This Act conferred jurisdiction on the Ontario Municipal Board (“OMB”) to determine compensation for expropriation.
[167] The OMB’s successor as a tribunal concerned with expropriations was the Local Planning Appeal Tribunal. Then, in June 2021, the Ontario Legislature created the Ontario Land Tribunal (“OLT”) as the tribunal concerned with expropriations. The OLT is governed by the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (“OLT Act”) and the Expropriations Act.
[168] The jurisdiction of the OLT is defined by s. 8 of the OLT Act. It provides:
Exclusive jurisdiction
8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.
(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.
Orders
9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.
[Emphasis Added.]
[169] The Expropriations Act, s. 1(1) contains the following definitions:
“expropriate” means the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers;
“expropriating authority” means the Crown or any person empowered by statute to expropriate land;
“injurious affection” means,…..
(a) where a statutory authority acquires part of the land of the owner,
(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and
(ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute,
(b) where the statutory authority does not acquire part of the land of an owner,
(i) such reduction in the market value of the land of the owner, and
(ii) such personal and business damages,
resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,
and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired;
“statutory authority” means the Crown or any person empowered by statute to expropriate land or cause injurious affection;
“Tribunal” means the Local Planning Appeal Tribunal.
[170] The final para. of the definition of injurious affection from s. 1(1) of the Expropriations Act, regarding when lands are “deemed to have been acquired”, relates to part (a) of the definition, where the statutory authority acquires part of the owner’s land, and not part (b), where it does not. Therefore, the final paragraph does not relate to constructive expropriation.
[171] Subsection 2(1) of the Expropriations Act provides that it applies despite any other Act where land is expropriated or injurious affection is caused by a statutory authority. By section 13, where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with the Act. It provides:
Compensation
13 (1) Where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with this Act.
(2) Where the land of an owner is expropriated, the compensation payable to the owner shall be based upon,
(a) the market value of the land;
(b) the damages attributable to disturbance;
(c) damages for injurious affection; and
(d) any special difficulties in relocation,
but, where the market value is based upon a use of the land other than the existing use, no compensation shall be paid under clause (b) for damages attributable to disturbance that would have been incurred by the owner in using the land for such other use.
[172] Respecting compensation for injurious affection, ss. 21 and 22 of the Expropriations Act provide that:
A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.
(1) Subject to subsection (2) [applying to minors or incapable persons], a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.
[173] The Expropriations Act, in s. 1, identifies the OLT in its definition of “tribunal” and the procedure for compensation is set out in s. 26. The Act does not discuss procedures for determining whether there has been a constructive expropriation or injurious affection. To determine whether the OLT has jurisdiction to determine those issues requires examination of the procedure set out in the Act.
[174] The Expropriations Act provides that the statutory authority is to provide notice of the expropriation to the landowner, whereupon the owner may request a hearing if he/she disputes the notice: s. 6(1) and (2). Following the requisite notice, the OLT conducts a hearing: s. 7(1). At the hearing, the OLT “shall inquire” into whether the taking of the lands is “fair, sound, and reasonably necessary”: s. 7(6). The OLT then produces a report where it shares its opinion on the proposed expropriation: s. 7(6)(3). This opinion is shared with the approving authority (i.e., the Minister, municipal council, or school board as per s. 5(1)), who then makes the decision to expropriate the land: s. 8(1) The OLT has exclusive jurisdiction to determine compensation for injurious affection. Sections 13(2) (c) and 21 of the Expropriations Act provide that the OLT shall consider injurious affection when determining compensation. Any claims for injurious affection are made to the OLT by applying under s. 26(2)(a), and the OLT shall determine compensation pursuant to s. 29.
[175] Section 2 makes it clear that the Act applies “where land is expropriated or injurious affection is caused by a statutory authority.” Section 21 of the Act provides that a “statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.”
[176] Section 26 of the Act provides that, where the statutory authority and the landowner have not agreed upon the compensation payable, the statutory authority or the owner may, subject to subsection (2), apply to the Tribunal for the determination of compensation by way of a hearing or as otherwise provided for under the Ontario Land Tribunal Act, 2021. 2021, c. 4, Sched. 6, s. 48 (6).
Exclusive jurisdiction
[177] Section 8 (1) of the Land Tribunals Act provides that the Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act. Accordingly, notwithstanding the inherent jurisdiction of the Superior Court, the Ontario Legislature has enacted legislation in the Ontario Land Tribunals Act that confers exclusive jurisdiction on the Ontario Land Tribunal to adjudicate compensation for claims of injurious affection, as defined by the Act: Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, aff’d 2012 ONCA 81; Casa Luna Furniture v. Ottawa (City), 2009 CanLII 9414 (Ont. S.C.).
Jurisprudence
[178] The Ontario Court of Appeal helpfully summarized the definition of injurious affection in Curactive Organic Skin Care Ltd. v. Ontario, (C.A.), at para. 2: “It essentially means such reduction in the market value of the land, and such personal and business damages resulting from the construction of the works by a statutory authority.”
[179] The Ontario Court of Appeal also confirmed that compensation for injurious affection is within the exclusive jurisdiction of the OLT. In Curactive (C.A.), at paras. 2-3, the court stated:
[T]he court's jurisdiction can indeed be ousted in favour of an administrative tribunal through clear, explicit and unambiguous language in a statute: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 (S.C.C.), at paras. 42-45. In Curactive's action, the combination of the Expropriations Act and Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 36, clearly confers jurisdiction over injurious affection claims on the OMB.
[Emphasis Added. See also Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, at paras. 32-33.]
[180] The foregoing provisions do not confer authority on the OLT to make determinations about what constitutes de facto expropriation or injurious affection, even when the prescribed procedure is followed. What the Act confers on the OLT is the exclusive jurisdiction to determine compensation for expropriated land. The opinion as to whether the taking of the lands is “fair, sound, and reasonably necessary” is not a determination as to whether it amounts to a de facto expropriation, which requires a finding that the taking deprives the owner of all reasonable uses of the property and that the authority has made a corresponding gain, or whether there has been an injurious affection. Since the OLT determines compensation, ss. 24, 26, and 29 of the Expropriations Act are relevant:
Agreements
- A statutory authority has the authority to make and perform an agreement with an owner in respect of any claim of the owner under this Act, including any costs of the owner despite the fact that this Act requires the claim to be determined by the Tribunal.
Application, if compensation not agreed to
- (1) If the statutory authority and the owner do not agree on the compensation payable under this Act, the statutory authority or the owner may, subject to subsection (2), apply to the Tribunal for the determination of compensation by way of a hearing or as otherwise provided for under the Ontario Land Tribunal Act, 2021.
Duties of Tribunal on application
29 The Tribunal shall determine any compensation in respect of which an application is made under section 26 and, in the absence of an agreement made under section 24, shall determine any other matter required by this or any other Act to be determined by the Tribunal.
[181] The key provision above is s. 29 – the OLT “shall determine” compensation. This provision puts compensation within the exclusive jurisdiction of the OLT.
[182] Confusion can arise from s. 29, which states that the OLT “shall determine any other matter required by this or any other Act to be determined by the Tribunal.” “Any other matter” suggests a broad discretion, but this discretion is circumscribed by the caveat that “any other matter” must be one that legislation requires the Tribunal to determine. As noted above, the OLT Act does not clearly require the OLT to determine what constitutes expropriation and, particularly, a de facto expropriation.
[183] Ghalioungui v. Mississauga (City) (2005), 42 C.L.R. (3d) 270 (Ont. S.C.), involved several complaints by a homeowner regarding construction on a neighbouring bridge. The homeowner asserted that the City constructively expropriated his property when it rezoned the property from a single dwelling home to parkland, without notifying him. Justice Campbell found, at para. 80, that “this court has no jurisdiction over the issue in this civil proceeding”.
[184] Ghalioungui occurred at a time when the OMB existed. In Ghalioungui, the municipality had exclusive jurisdiction, pursuant to s. 34 of the Planning Act, R.S.O. 1990, c. P.13, to “regulate” or “prohibit” specific land uses by means of zoning by-laws, subject to review by the OMB. Sections 36, 37, and 54(1)(i) of the Ontario Municipal Board Act, and s. 29 of the Expropriations Act gave the OMB exclusive jurisdiction over expropriation disputes. The OMB therefore had jurisdiction to determine whether the re-zoning amounted to an expropriation, which the Expropriations Act, in s. 1, defines as “the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers.” The definition of expropriation does not account for determinations of constructive expropriation.
[185] In Mississippi Valley Conservation Authority, Re, 1993 CarswellOnt 5153 (OMB), the OMB considered whether the establishment of flood lines constituted constructive expropriation. The claimant filed a Notice of Arbitration to determine the matter. The OMB concluded, at para. 11, that it did not have the jurisdiction to conduct an arbitration hearing pursuant to the Expropriations Act. It stated that if the claimant wants a “legally, binding decision” on whether events constitute expropriation, the claimant “will need to make proper application to a court of competent jurisdiction”: at para. 11. The OMB further stated, at para. 12, that “[i]f found in law, to be an expropriation, the court could presumably remit the matter to the Board to determine compensation.”
[186] Based on the foregoing, the Court has jurisdiction to determine whether there has been a constructive expropriation of Mr. Walma’s property, or an injurious affection of the property. Since the OMB is a predecessor of the OLT, it is within the exclusive jurisdiction of the OLT to determine the appropriate compensation.
e) Did the Ministry’s actions constitute a constructive expropriation?
Jurisprudence
[187] The Supreme Court of Canada restated the law on constructive expropriation in Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227. In that case, the Court considered whether the City of Vancouver had expropriated a 50 to 60 foot wide strip of railway track known as the Arbutus Corridor, belonging to the Canadian Pacific Railway (CP Rail), which wound 10 kilometres north-to-south through the west side of the City of Vancouver.
[188] CP Rail owned the corridor of land in fee simple. Because it was unprofitable for it to continue using the track for train service, CP Rail proposed to develop the land “for residential and commercial purposes” and invited Vancouver to expropriate it. Vancouver declined to do so, instead adopting The Arbutus Corridor Official Development Plan By-law, which “designated the corridor as a public thoroughfare for transportation and “greenways”, like heritage walks, nature trails and cyclist path”: CP Rail, at para. 4. The by-law explicitly protected the corridor’s prior use as a railway by listing rail as an approved use. CP Rail objected to this plan and alleged that it was a “de facto taking of its land, requiring compensation”: CP Rail, at para. 28.
[189] At para. 30 of its decision, the Court noted that the test for de facto expropriations is strict and requires that there be "(1) an acquisition of a beneficial interest in the property or flowing from it, and (2) removal of all reasonable uses of the property". The Court found, at para. 33, that the by-law did not meet the first part of the test because all Vancouver got from the by-law was "some assurance that the land will be used or developed in accordance with its vision, without even precluding the historical or current use of the land."
[190] Using the same reasoning, the Court found that CP Rail had not lost "all reasonable uses" of the corridor. At para. 34, the Court stated, "the by-law does not remove all reasonable uses of the property … [it] does not prevent CPR from using its land to operate a railway, the only use to which the land has ever been put during the history of the City."
[191] The Court allowed the City to permit other uses of the property, but declined to find that the "property affected by a by-law" had been taken, as CP Rail could continue using it for its historical purpose: at para. 36. The Court therefore found that CP Rail was not entitled to compensation. It is not clear whether the Court would have decided differently had the by-law prohibited the historical uses of the corridor, but other cases have also based their decisions of de facto expropriation, or regulatory takings, on whether the owners have been deprived of existing or historical uses, not prospective or speculative uses.
[192] As noted above, the test for establishing that there has been a de facto taking is a stringent one, requiring proof of both a loss by the property owner and a gain by the government. The proof of the owner’s loss of use is not satisfied by showing a diminution of the value of the land to the owner, but rather requires proof of a loss of all reasonable uses, such as to amount, in effect, to a loss of interest in the property.
[193] Justice Power, in Rodriguez Holding Corp. v. Vaughan (City), 2006 CanLII 28338 (Ont. S.C.), aff’d 2007 ONCA 256, quotes extensively from the decision of Cromwell J.A. (as he then was) in Mariner Real Estate Ltd. v. Nova Scotia (Attorney General), 1999 NSCA 98, 177 D.L.R. (4th) 696. In Mariner Real Estate (and at para. 42 of Rodriquez), Cromwell J.A. stated:
[71] We have been referred to no Canadian case in which the decline of economic value of land, on its own, has been held to be the loss of an interest in land. Several cases, on the contrary, recognize the distinction between the value of ownership and ownership itself. This suggests that the loss of economic value of land is not the loss of an interest in land within the meaning of the Expropriations Act. This conclusion is, in my view, strongly supported by the overall scheme of compensation established by the Act and by judicial interpretation of it.
[72] The loss of interests in land and the loss of the value of land have been treated distinctly by both the common law and the Expropriations Act. In my view, this distinct treatment supports the conclusion that decline in value of land, even when drastic, is not the loss of an interest in land. To understand this point, it is necessary to consider briefly compensation for "injurious affection", that is, injury to lands retained by the owner which results from the taking.
[82] It follows that, where the effect of land use regulation is to eliminate virtually all the normal incidents of ownership, this will be reflected in the market value of the land. It is not, however, the decline in market value that constitutes the loss of an interest in land, but the taking away of the incidents of ownership reflected in that decline.
[83] We have been referred to only three Canadian cases in which compensation has been ordered where governmental regulatory action has been held to be a de facto expropriation: Tener, Casamiro and Manitoba Fisheries (citations omitted). I have already reviewed these cases earlier in my reasons. Judging by these cases, de facto expropriations are very rare in Canada and they require proof of virtual extinction of an identifiable interest in land (or, in Manitoba Fisheries, of an interest in property).”
[Emphasis added.]
[194] None of three cases that Cromwell J.A. referred to involved fee simple ownership of land as the CP Rail case did. They all involved rights such as goodwill or the ownership of mineral rights: See Manitoba Fisheries Ltd. v. The Queen, 1978 CanLII 22 (SCC), [1979] 1 S.C.R. 101; R. v. Tener, 1985 CanLII 76 (SCC), [1985] 1 S.C.R. 533, at pp. 536-38; Casamiro Resource Corp. v. British Columbia (Attorney General) (1991), 1991 CanLII 211 (BC CA), 80 D.L.R. (4th) 1 (B.C. C.A.), at pp. 2-4. See also Jim Phillips & Jeremy Martin, "Manitoba Fisheries v the Queen: The Origins of Canada's De Facto Expropriation Doctrine", case review in Tucker, Muir, & Ziff, eds., Property on Trial: Canadian Cases in Context (Toronto: Irwin Law for the Osgoode Society for Canadian Legal History, 2012), at p. 455.
[195] The property rights that those cases considered can be described as use rights, which are more vulnerable to being rendered useless by government regulation than fee simple ownership. Using the mineral claims cases as an example, if government regulation prohibits the removal of minerals, there is no other use the ownership of such claims can be put to. Consequently, any prohibition on removal amounts to a total loss of the right, which requires compensation.
[196] In Manitoba Fisheries, the Court found that the appellant had met its onus of establishing a gain by the Government and a loss by the owner. The appellant demonstrated that the Government had acquired the company's goodwill, based on the fact that "the appellant's suppliers and customers who it had acquired and cultivated over the years [and who] constituted one of its most valuable assets ... were left with no choice but to do business with the Freshwater Fish Marketing Corporation": Manitoba Fisheries, at p. 107.
[197] Of the two cases dealing with the loss of mineral claims, in Tener, the majority found that the British Columbia Government had "at minimum acquired a negative right not to compensate the respondents for future mineral development by forestalling any such development": at para. 48. Chief Justice Dickson and Wilson J. simply referred to the earlier decision of Manitoba Fisheries to refute the Government's assertion that it had not acquired the mineral claims.
[198] In Casamiro, at pp. 9-10, the British Columbia Court of Appeal stated:
The second question arising is whether the present holder has had all its rights under the grants effectively taken from it by the order in council.
This order in council has the same practical effect as the refusal in the Tener case of a park use permit. It has reduced the Crown grants to meaningless pieces of paper. Thus, the Lieutenant Governor in Council is an "expropriating authority" within the meaning of the Expropriation Act, S.B.C. 1987, c. 23 (Index c. 117.1) which has taken land without the consent of the owner. The fact that the Lieutenant Governor in Council does not call his act an expropriation and has not followed the procedures laid down in the Expropriation Act, does not deprive the owner of the rights given to the owner by ss. 9 and following of the Expropriation Act. The answer to the second question is "Yes".
[Emphasis added.]
[199] The pre-CP Rail jurisprudence on regulatory takings makes it clear that if the owner can continue to use his/her property as they always have, there is no loss to the owner and, consequently, no gain to the government. The decision by Crowell J.A., Mariner Real Estate, quoted above, was a case that dealt with use restrictions on property owned in fee simple. The Nova Scotia Court of Appeal found that, because the owners could continue to use their property as they had in the past, they had suffered no loss.
[200] The Nova Scotia Court of Appeal noted that "ownership carries with it the possibility of stringent land use regulation": at para. 39. The Court found that the owners were not completely precluded from building on their land; they could still build, subject to securing the necessary permits and showing that their plans respected the fact that their land was on an environmentally protected beachfront. In other words, it was not clear that the owners had actually lost this potential future use; the legislation added additional conditions, but did not amount to an outright ban on building. Nonetheless, the Court focused its analysis on actual uses, rather than speculative future uses.
Applying the legal principles to the facts of this case
[201] I find that the Ministry’s removal of the culvert from beneath the access road and its enlargement of the nearby culverts under Highway 6 resulted in the flooding of Mr. Walma’s property and rendered it landlocked. Whether this was the Government’s intention, or an unintended consequence, the result for Mr. Walma was the same. He lost his access to his property, which was necessary for any reasonable use of the property by him. These reasonable uses were those that he and his predecessors had enjoyed, namely, the use of the southern plain as pasture and the northern slope for harvesting timber.
[202] At the hearing, the Ministry argued that Mr. Walma could continue to use the property to picnic, which was a reasonable use. At qq. 330 and 333 of Mr. Walma’s cross-examination, he stated that he had only gone to the property in the summers, and about three or four times per year: “When it was clear and easy to get at maybe.” I find that the road reconstruction and ensuing flooding deprived Mr. Walma of even that minimal use, as the property was no longer “clear and easy to get at.” The landlocking of the property precluded all reasonable use, including both the commercial uses for which Mr. Walma had purchased the property and the rare use he had made of it to picnic.
[203] As in Mariner Real Estate, an issue arises as to whether Mr. Walma could regain the use of his property in the future. I find that he will likely be unable to do so, both because he is not the owner of the access road and because of obstacles arising from the property being on a provincially designated wetland. These obstacles are, for him, as an individual landowner, likely insurmountable. This cannot be determined conclusively, however, until Mr. Walma or the Township, which owns the road allowance on which the access road is situated, applies for the necessary permits and approvals.
[204] I find that the Ministry’s removal of the culvert from beneath the access road and its alteration of the nearby culverts under Highway 6, which changed the drainage pattern of Davidson’s Creek and created a drainage pool that flooded Mr. Walma’s property, constituted a de facto expropriation of his property. The effect of the work was to landlock the property and deprive Mr. Walma of all reasonable uses of it. Its further effect was to gain for the Ministry a drainage pool for the waters flowing from Davidson’s Creek and those from the ditch on the north side of Highway 6.
[205] Based on the foregoing, I find that Mr. Walma has met his onus to show a loss of all reasonable uses of his property and that the Ministry has gained a corresponding use of his property as a drainage pool for Highway 6. I find that there has been a de facto expropriation, provided Mr. Walma’s use of his property cannot, in fact, be restored.
f) Did the Ministry’s actions constitute an injurious affection?
Jurisprudence
[206] The Supreme Court set out the test for what constitutes injurious affection in Antrim Truck Centre, at para. 5. The Court in that case broke down the statutory definition into three parts:
The damage must result from action taken under statutory authority;
The action would give rise to liability but for that statutory authority; and
The damage must result from the construction and not the use of the works.
[207] Justice Sutherland of this Court elaborated the Antrim test in Montana Equipment Ltd. v. Robert B. Somerville Company et al, 2017 ONSC 3092, at para. 47, by articulating five questions the Court should consider:
Was the work performed under statutory authority?
Is the alleged injury substantial enough to give rise to liability?
Was the injury claimed an inevitable consequence of the statutorily authorized action?
Is the injury claimed contemplated under the definition of injurious affection under s. 1(1)(b) of the Expropriations Act? and
Does the injury claimed arise from the construction and not the use of the works by the statutory authority?
[208] For a claim to fall within the definition of injurious affection under the Expropriations Act, each of these questions must be answered in the affirmative.
[209] To support question 5 above, Sutherland J. refers to the test from City of Windsor v. Larson et al. (1980), 1980 CanLII 1573 (ON SC), 114 D.L.R. (3d) 477, at p. 483:
The test of whether the property is actually damaged by operation or use is to consider whether the works as constructed, if left unused, would interfere with the actual enjoyment of the property; if not, no compensation is payable.
[210] Montana Equipment was a case in which buildings had been damaged due to vibrations caused by construction of a highway expansion, and ultimately, by vibrations caused by an increased volume of cars using the highway. Justice Sutherland, at para. 53, found that the damage did not constitute injurious affection because the damage was not “inevitable”, nor done without negligence. At paras. 66-67, he found that some of the claims were caused by construction, but others were caused by the later use of the project. Therefore, the claims did not constitute injurious affection and were outside the jurisdiction of the OMB (which existed at the time).
[211] If the test in Antrim or Montana Equipment is met, then the damage constitutes injurious affection and compensation falls within the exclusive jurisdiction of the OLT. If it is not met, it is within the jurisdiction of the court.
Applying the legal principles to the present case
[212] The removal of the culvert and flooding of Mr. Walma’s land constitutes injurious affection. Mr. Walma has met the Antrim test, endorsed by the Supreme Court of Canada. The initial act was done by a statutory authority, namely, the Ministry of Transportation, and would otherwise have given rise to liability. The flooding resulted from the construction itself, and not from the use of the repaired highway.
[213] The act of construction itself, at the time of building, did not cause the damage, as the flooding occurred afterward. However, the damage was not caused by traffic on the highway as part of its “use”. The removal of the culvert from beneath the access road caused water to flow over the access road and onto Mr. Walma’s property. The flooding did not result from the use of the highway or of the culvert by others.
[214] The test from City of Windsor helps answer this question, as it clarifies that “the works as constructed, if left unused, would interfere with the actual enjoyment of the property”: at p. 483. In this case, if the highway was left unused by traffic, the water would still flow over the access road and through the enlarged culverts beneath Highway 6, causing flooding on Mr. Walma’s property. Therefore, the damage was caused by the construction, not its use, and the test for injurious affection is met under the Antrim test.
[215] The Montana Equipment test, offered by this Court, is more detailed. As in the Montana case, the issue in the present case turns on step (3), namely, whether the flooding was an inevitable consequence of removing the culvert from beneath the access road and enlarging the culverts beneath Highway 6. This step seems designed to weed out negligence by the statutory authority. Unless the Province intended to change the drainage patterns around the highway by removing the culvert from the access road, it could have avoided the flooding by simply not removing the culvert.
g. Are Mr. Walma’s claims for compensation for constructive expropriation or injurious affection statute-barred?
[216] Mr. Santos acknowledged that it was unlikely that the Ministry gave Mr. Walma notice of its intention to remove the culvert from beneath the access road or to enlarge the nearby culverts under Highway 6.
[217] I find, based on Mr. Walma’s uncontradicted evidence, that he did not discover until 2016 that the access road had become permanently impassable by vehicle. Before, the road had only been impassable during Spring runoff. Mr. Walma states that until the culvert beneath the access road was removed, the culvert allowed water to flow freely under the road. He states that, when the culvert was removed, the water that had previously drained through the culvert flooded instead over the access road and onto his property.
Legislative framework
[218] The Ministry of Transportation submits that any claim for injurious affection must be commenced within one year after the damage was sustained or known. The Expropriations Act provides as follows:
Claim for compensation for injurious affection
22 (1) Subject to subsection (2), [applying to claimants who are minors or incapable] a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.
[219] The statutory limitation period for claims for constructive expropriation is governed by the Limitations Act 2002, S.O. 2002, c. 24, Sched. B. That Act provides as follows:
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
Contribution and indemnity
18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place. 2002, c. 24, Sched. B, s. 18 (1).
[220] Subsection 5(a)(iv) requires that the claimant know a proceeding would be an appropriate means to seek a remedy, in addition to knowing the damage had occurred.
[221] In Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, the claimant pursued compensation before the OMB, but had also commenced an action before the Superior Court “out of an abundance of caution”: at para. 23. As jurisdiction was at issue, the Court of Appeal interpreted, at para. 20, section 4 of the Limitations Act to mean:
[A] claim is discovered on the earlier of two dates: the day on which a plaintiff either knew or ought to have known the constitutive elements of the claim and that a proceeding in Superior Court would be an appropriate means to seek a remedy.
Applying the legal principles to the facts
[222] As Mr. Walma states, at para. 37 of his affidavit, he initiated correspondence with the Township in June 2016, expressing his concerns about the flooding and requesting that access to his property be restored. He did not learn that he would be unable to have the access road restored until October 2, 2019. He is still unable to determine that fact conclusively, insofar as the restoration of the culvert beneath the access road requires the approval of the GSCA, following an application that would be prohibitively expensive for Mr. Walma and is likely to be unsuccessful.
[223] I find that Mr. Walma made a claim for compensation for injurious affection in writing with particulars of his claim within one year after the nature of the damage he had suffered, and its cause, became known to him, within the meaning of s. 22(1) of the Expropriations Act.
[224] I further find that Mr. Walma commenced the present proceeding within ten months after it was reasonable for him to know that a proceeding would be an appropriate means to seek a remedy, within the meaning of s. 5(a)(iv) of the Limitations Act, 2002.
CONCLUSION AND ORDER
[225] For the foregoing reasons, it is ordered and adjudged that:
It is declared and adjudged that the road leading from Highway 6 near Owen Sound to the nearby parcel of land owned by the applicant, which provides his only access to his property (“the access road”), is a public road which the Township of Georgian Bluffs (“the Township”) has a legal obligation to maintain.
The Ministry of Transportation shall restore the culvert that was beneath the access road and the nearby culverts under Highway 6, immediately to the south of the access road, to the condition they were in prior to its 2012-2013 re-pavement of Highway 6.
Upon the Ministry’s restoration of the culverts, the Township shall restore the access road to the condition it was in prior to the 2012-2013 re-pavement of Highway 6, and the Ministry of Transportation shall indemnify the Township for the expenses it incurs in the restoration.
In the event that the Ministry fails to comply with para. 2 of this order within one year of the date of this judgment, reversing the diversion of Davidson’s Creek and the flooding of Mr. Walma’s property, including taking such measures as are necessary to ensure traffic safety on Highway 6 and obtaining all necessary permits under the Conservation Authorities Act, Mr. Walma’s property shall be deemed to be expropriated by the Ministry, which caused the applicant to lose all reasonable uses of his Property and has benefited from the drainage pool along Highway 6. In that event, Mr. Walma has leave to apply to the Ontario Land Tribunal for a determination of the appropriate compensation.
If the parties are unable to agree on costs, each party shall deliver written submissions, not to exceed 4 pages, and a Costs Outline, within 20 days.
Price J.
Released: July 29, 2022
COURT FILE NO.: CV-20-83
DATE: 2022-07-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HEIN WALMA
Applicant
- and –
THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BLUFFS and HER MAJESTY IN RIGHT OF ONTARIO as represented by THE MINISTRY OF TRANSPORTATION
Respondents
REASONS FOR JUDGMENT
Price J.
Released: July 29, 2022