COURT FILE NOS.: CV-21-10191 / CV-22-10253
DATE: 2023-01-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Geoffrey Palin and Amy Johnston
Applicants
– and –
Norman McIntosh and Barbara McIntosh
Respondents
AND BETWEEN:
Norman McIntosh and Barbara McIntosh
Applicants
– and –
Geoffrey Palin and Amy Johnston
Respondents
Adam Zasada, for the Applicants
J. Barry Eakins, for the Respondents
J. Barry Eakins, for the Applicants
Adam Zasada, for the Respondents
HEARD: August 22, 2022
DECISION ON APPLICATION
Cullin, j.
Overview of the Proceeding
[1] This proceeding involves a dispute about the availability of road access to a property owned by Geoffrey Palin and Amy Johnston (the “applicants”). The road at issue (the “Road”) is a private road which traverses a property owned by Norman and Barbara McIntosh (the “respondents”).
[2] The applicants have commenced an application seeking a declaration that they are permitted to use the Road pursuant to a Judgment of Justice Gordon dated May 13, 2019. The respondents have commenced a counterapplication seeking a declaration that the Road is not an “access road” within the meaning of the Road Access Act, R.S.O. 1990, c. R-39 (the “Act”), and an order closing the Road to the applicants.
Factual Background
[3] On May 19, 2021, the applicants purchased a residential property municipally located at 3650 Boivin Street in Hanmer, Ontario (the “Property”); they occupy the Property as their year-round primary residence. They purchased the Property from Frank and Laila Van Embden (the “Van Embdens”).
[4] The Van Embdens owned the Property from September 2007 until they sold it to the applicants on May 19, 2021.
[5] During their ownership of the Property, the Van Embdens became embroiled in a dispute with the respondents about road access to the Property. The Van Embdens were accessing the Property using a private road that traversed the respondents’ property. The use of the Road was governed by a license agreement; the dispute arose when the respondents decided not to renew the agreement and sought to close the Road. Legal proceedings were initiated, which culminated in a Judgment by Justice Gordon, dated May 13, 2019 (McIntosh v. Van Embden, 2019 ONSC 2876).
[6] The history of road access to the Property is well-documented in Justice Gordon’s decision and I will not reiterate it here. What is significant for the purpose of this application are the admissions and orders documented in Justice Gordon’s decision.
[7] At paras. 9 and 10 of his decision, Justice Gordon noted the following admissions by the respondents (there the applicants):
[9] Although the applicants initially sought a declaration that the road was not an access road as defined in the Road Access Act, R.S.O. 1990, c. R. 34 (the “Act”), they have since abandoned that position and agree that the road constitutes a motor vehicle access route to the respondent’s property. At the hearing of this application, the applicants went further and conceded that the road is the only motor vehicle access route to the respondents’ property.
[10] No one has suggested, and there is no evidentiary foundation to establish, that the road is a common road as defined in the Act.
[8] At para. 26 of his decision, Justice Gordon made the following order:
[26] In my view, the other terms and conditions proposed for the closure of the road are appropriate and an order will issue on the following terms:
- The applicants may place a gate across the road at the westerly boundary of their property and require that it be kept locked at all times provided:
a) The gate is equipped with a “knox box” in which a key to open the gate is kept. The key or keys required to open the “Knox box” will be provided to the Sudbury Fire Service for use by any emergency responder requiring entry through the gate.
b) Two keys for the gate lock shall be provided to the owner(s) of each property for which the road provides the only means of motor vehicle access. Currently, those owners are the applicants, the respondents, Louise Cloutier, Kevin Serviss and Dina Fragomeni.
c) No key for the gate lock shall be reproduced by any person without the consent in writing of the owner of PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury (currently the Applicants herein).
d) The owners of properties for which the road provides the only means of motor vehicle access shall share equally in the reasonable costs of installing and maintaining the gate, lock and that part of the road which crosses the property owned by the applicants.
[9] Subsequent to the decision of Justice Gordon, the respondents, through their counsel, issued a Judgment which was signed by the Registrar. The issued Judgment specified that the Road was closed to all persons other than the individuals listed in Schedule B to the Judgment; those individuals were the existing property owners identified at para. 26(1)(b) of Justice Gordon’s decision. The Judgment further specified that keys for the gate lock were to be provided to those listed individuals.
[10] The Van Embdens were unrepresented in the proceedings with the respondents. It is not clear on the record before me what role, if any, they had in the preparation or approval of the Judgment which was signed by the Registrar. The respondents’ counsel advised the court during submissions that an appointment was arranged with the Registrar’s office to take out the Judgment; this suggests to me that the Judgment’s form and content were not approved by the Van Embdens.
[11] Upon the sale of the Property to the applicants, the Van Embdens provided the Knox Box keys to them. The applicants used the Road without incident between May 19, 2021 and June 9, 2021. On June 10, 2021, the applicants attempted to use the Road and discovered that the gate lock had been changed. They contacted the respondents, who refused to provide a key to the new gate lock. Consequently, these proceedings followed.
[12] On June 10, 2022, Justice Boucher granted injunctive relief to the applicants. His order permits the applicants to have access to the Road until further order of the Court.
Positions of the Parties
[13] The applicants argue that they are merely seeking to enforce the existing Order of Justice Gordon. They submit that the respondents are estopped from arguing that the Road is not an access road within the meaning of the Act and ask the court to either amend, clarify, or confirm the existing Order to confirm its applicability to the applicants as owners of the Property. Alternatively, they ask the court to make a declaration that the Road is an access road within the meaning of the Act.
[14] The respondents request a declaration that the Road is not an access road within the meaning of the Act; in their application, they request this declaration generally, and in their factum, they request this declaration specifically as it pertains to the applicants. They submit that that the doctrine of estoppel is not applicable as no prior finding was made regarding the status of the Road. They argue that there has been a change in circumstances as there is new alternate access to the Property, and that the Road ought to be closed to the applicants.
Discussion
Issue One: Can the court amend the issued and entered Order?
The Law
[15] The court’s authority to amend an order is established in r. 59.06, which provides:
Amending
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[16] The applicants also rely on r. 14.05(3)(d) and 14.05(3)(h), which provide:
Application under Rules
(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial.
Analysis
[17] The applicants refer the court to the decision of Mew J. in Kozik v. Partridge, 2021 ONSC 7304 aff’d Kozik v. Partridge, 2022 ONCA 424. In that case, which also involved an issue of access between neighboring properties, the court amended the Order of Cosgrove J., “to more adequately and accurately reflect the intention manifest in his reasons for decision”: at para. 13).
[18] What is important to note about Kozik, and what distinguishes it from the proceeding before me, is the fact that it was a motion in the original proceeding and involved the parties to the original proceeding. This is a requirement of r. 59.06; it is a requirement which has not been satisfied in the proceeding before me.
[19] The proceeding before me is an application which was commenced by the new owners of the Property. Not only is it not a motion in the original proceeding, but it involves individuals who were not parties to the original proceeding and who therefore lack standing to seek the requested relief. While the applicants have also sought to rely upon r. 14.05(3)(d) and 14.05(3)(h), I find that these rules do not confer authority to amend the Judgment as requested.
[20] I agree with the applicants’ submission that the Judgment signed by the Registrar does not accurately reflect the disposition rendered by Justice Gordon in his reasons for decision. The decision of Justice Gordon granted access rights to specified properties and not to specified property owners; the Judgment as signed does the opposite. The distinction is nuanced, and I expect that it was not fully appreciated by the Registrar when the Judgment was signed.
[21] If the matter before me were a motion initiated in the original proceeding by the Van Embdens, the respondents, or any other party to the original application, I would have granted the relief sought. It is not, and in the absence of any other authority to do so, I must decline to amend the Judgment.
Issue Two: Are the respondents estopped from seeking a determination of the issues raised in their application?
The Law
[22] Issue estoppel is an equitable remedy, and its application is discretionary. The doctrine was described by Middleton J.A. in McIntosh v. Parent, 1924 401 (ON CA), [1924] 4 D.L.R. 420 (Ont. C.A.), at p. 422 as follows:
When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.
[23] The doctrine of issue estoppel is applied stringently. Dickson J. (later C.J.) described its application in Angle v. M.N.R.,, 1974 168 (SCC), [1975] 2 SCR 248 at p. 255 as follows:
…It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment…The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceedings: per Lord Shaw in Hoystead v. Commissioner of Taxation. The authors of Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181, 182, quoted by Megarry J. in Spens v. I.R.C., at p. 301, set forth in these words the nature of the enquiry which must be made:
…whether the determination on which it is sought to found the estoppel is “so fundamental” to the substantive decision that the latter cannot stand without the former. Nothing less than this will do.
[24] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at para. 25, Binnie J., quoting the court in Angle, described the application of issue estoppel in as follows:
The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[25] The definition of “privies” or “privity” was considered by Perell J. in O2 Electronics Inc. v. Sualim, 2014 ONSC 5050, at para. 92:
In other words, in the context of Mr. Massa’s contested motion for a Mareva injunction, both the privies of Mr. Massa and Mrs. Sualim have already had their day in court about the merits of granting a Mareva injunction. The idea behind privity is that a participant in a later proceeding should be bound by the determination in an earlier proceeding because of his or her relationship, called privity, with a party in that prior proceeding. Privity, which is not a precise concept, can be established by blood (heirs and successors), title or community of interest. More generally, privity is established if there is a sufficient degree of identification between persons such that it would be just to conclude that the decision in a proceeding in which one of them is a party should be binding on the other person in other proceedings in which the other is a party.
Analysis
[26] As noted, the respondents seek the following relief from the court: (1) a declaration that the Road is no longer an “access road” within the meaning of the Act; and (2) an order closing the Road to the applicants as a result of a change in circumstances.
[27] In McIntosh v. Van Embden, the issue before the court was whether a closing order ought to be granted with respect to the Road and, if so, whether any conditions ought to be imposed upon the closing order. Justice Gordon found that the closing order ought to be granted, but imposed conditions which permitted the owners of specified properties to continue to access the Road.
[28] As noted, prior to the argument of the application, the respondents abandoned their position that the Road was not an “access road” as defined in the Act and agreed that the Road served as a motor vehicle access route to the Property. At the hearing of the application, the respondents conceded that the Road was the only motor vehicle access route to the Property.
[29] In the application presently before the court, the respondents request a declaration that the portion of the Road crossing through the respondents’ property is no longer an access road as defined in the Act. The respondents’ factum narrows this request to seek a declaration that the “portion of the road crossing the property of the applicants’ is no longer an ‘access road’ for the purposes of these respondents for access to their property and should accordingly be closed to them”.
[30] The respondents’ concession that the Road was an access road was fundamental to the decision made by Justice Gordon. His authority to make a closing order and to impose conditions arose pursuant to the Act and required that the road in question be an access road. To revisit that issue in this proceeding would not only remove the foundation of Justice Gordon’s closing order, it would also potentially impact the rights of other property owners affected by the order who are not parties to this proceeding.
[31] I find that the respondents cannot now resile from their admission of fact, and that they are estopped from seeking a declaration that the Road is no longer an access road, whether with respect to the applicants (as privies of the Van Embdens) or with respect to any other party to the original application.
[32] Even if the respondents were not estopped from arguing whether the Road is an access road, I would not have granted the declaratory relief requested by the respondents. On the evidence before me, it is clear that the Road provides access to the Property, as well as to several other properties which are identified in Justice Gordon’s Order. This is sufficient to satisfy the definition of an “access road” within the meaning of the Act. As noted by the Court of Appeal in 992275 Ontario Inc. v. Krawczyk (2006), 2006 13955 (ON CA), 268 DLR (4th) 121 (Ont. C.A.), at para. 6:
We see no error in the trial judge’s finding that the Road is an access road within the meaning of the Act. In our view, contrary to the respondents’ submissions, the status of a road as an access road does not depend on the use of the road by the party claiming that the road is an access road. The definition of access road set out in s. 1 of the Act requires only that “a road located on land not owned by a municipality … serv[e] as a motor vehicle access route to one or more parcels of land”; there is no requirement that a specific party use a road in order for it to be an access road.
[33] In my view, the narrow issue to be determined in this case is whether there has been a change in circumstances such that it is appropriate to vary the conditions of the closing order granted by Justice Gordon by closing the Road to the applicants. This issue has never been adjudicated before, and I find that the respondents are not estopped from seeking this relief from the court.
Issue Three: Has there been a change in circumstances such that it is appropriate to vary the existing conditions and close the Road to the applicants?
The Law
[34] The court’s authority to grant a closing order and to impose conditions arises pursuant to ss. 2(1) and 3 of the Act, which provide:
When access road may be closed
2 (1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights.
Conditions for closing order
3 (1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so.
Conditions
(2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.
[35] The burden of proof in an application in the first instance was discussed by Howden J. in 2008795 Ontario Inc. v. Kilpatrick, 2006 2182 (Ont S.C.), at para 46, aff’d 2007 ONCA 586:
In summary, the test under the Road Access Act requires the access user to establish, on the civil standard, that (i) the road is an in-use “access road” as defined under the Act; (ii) its use originated or continued by permission or acquiescence of the landowner; and (iii) its closure prevents all motor vehicle access to a parcel or boat docking facility. If these threshold requirements are met, the road cannot be closed unless the landowner applies to the court under s.3 for a closure order. On such application the landowner must establish, to the civil standard of proof, that a ground for closure in s.3 applies and that the court’s discretion to close should be exercised in the circumstances. Each case will be decided on its own facts.
[36] There is no specific authority under to the Act to vary the conditions of a closing order. Neither, however, is there a prohibition against such relief.
[37] The jurisdiction of the court to entertain renewed applications under the Act was considered by O’Neill J. in Whitmell v. Ritchie, 2008 73618 (Ont. S.C.) at paras. 7, 12. While he did not find that subsequent applications were prohibited, in denying the relief sought by the applicants he expressed the view that prior findings ought to be considered by the court, and that the discretion to depart from those findings ought to be exercised sparingly:
[7] I conclude, for two distinct but somewhat connected reasons, that the applicants’ present application should be dismissed. Firstly, I am of the view that a judge hearing a road closing application retains a residual discretion to refuse to close a road even where one of the conditions for closing an access road set out in s. 3(1) is satisfied. The Court of Appeal decision in 992275 Ontario Inc. directs the court to exercise any residual discretion while balancing the competing interests of the parties. In this case, the Ritchies right not to be treated as trespassers has been recognized by various Ontario Courts since 1990. Accordingly, even accepting that the Ritchies do not have a legal right to use the road, within the meaning of s. 3(1)(b) of the amended Act, the fact is that they nonetheless have acquired, through 19 years of litigation and various court orders up until today’s date, a court ordered right not to be treated as trespassers.
[12] Justice Hennessy’s order is clear and direct and because it was based on Minutes of Settlement, it reflects the agreement and wishes of the parties. In my view, to now permit the Applicants under reopened proceedings to secure upon a fresh (third) application an order to close the road based on amendments that became effective two and a half years before the August 29, 2005 order, would be to sanction, if not an abuse of the court process, at least a lack of respect for the finality of a court order. In addition, in examining Justice Hennessy’s order, I believe it to be of great importance when considering the issue requiring a “balancing [of] the competing interests of the parties.” The principle respecting the finality of a court order, especially a consent court order, and especially a consent order granted two and half years after amendments were made to the Road Access Act, weighs heavily in favour of the respondents (Ritchies) in this latest application.
[38] In the absence of specific legislative direction, the court’s inherent jurisdiction is to be exercised having regard to s. 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:
146 Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.
Analysis
[39] In my view, an Order closing a road subject to conditions is capable of being varied in the event of a change in circumstances, unless the Order explicitly states otherwise. It is my view that the burden in such an application is on the party seeking to vary the condition, and the granting of relief is discretionary.
[40] In the present case, Justice Gordon granted the respondents’ request in the first instance to close the Road. He granted this relief subject to the condition that, “Two keys for the gate lock shall be provided to the owner(s) of each property for which the road provides the only means of motor vehicle access” (emphasis added).
[41] The respondents argue that there has been a change in circumstances in that the Road no longer provides the “only means” of motor vehicle access to the Property, as there is now an “alternate access route” originating from Capreol. They argue that this change in circumstances justifies the removal of the applicants’ conditional access to the Road.
[42] I find that this position is not supported by the evidence.
[43] On the record before me, it is clear that the alternate access route (the “Route”) identified by the respondents in their record existed and was known to them at the time of their initial proceedings with the Van Embdens. Notwithstanding the existence of the Route, the respondents ultimately conceded that the Road provided the only motor vehicle access to the Property. They confirm this in para. 37 of the Affidavit of Norman McIntosh and Barbara McIntosh, sworn January 7, 2022:
While we had been aware for sometime of the alternate route from, and to, Capreol, often purportedly used by Mr. Van Embden to get to Capreol and the experience of our son who had previously travelled that route, it was our understanding that it was much rougher and not suitable for access all year round in the condition it was in at that time. Thus, in our previous Application, based on our limited knowledge of it at that time, we conceded there was not suitable alternate access.
[44] The respondents’ prior knowledge about the condition of the Route was described in the Affidavit of Norman Jay Stewart McIntosh, sworn March 20, 2017 as follows:
- I am aware that prior to my parents' agreement with the Respondents, I was advised by them and understood that the Respondents first had access to their property on Greens Lake through another access route to the east of, and not across, my parents' property.
9 I have travelled that access route on a number of occasions in the past so that I have knowledge of it.
The access road to which I am referring begins from Capreol, Ontario from behind the Foodland grocery store. There is a rough road created and which travels southerly over a bridge that spans the Vermillion River and continues on that route until reaching the Crown Land on which the Respondents have created and extended our road across Crown land to get to get to their property on Greens Lake. The distance which takes you directly to the parcel of land owned by the Van Embden's on Greens Lake is approximately two (2) miles.
While the road is somewhat rough, it is still used by people on ATV's, dirt bikes, jeeps and other four wheel drive vehicles and trucks.
It is also used in the winter by individuals on snowmobiles and cross country skiers.
When the road grows in, in the absence of use, minor clearing efforts would make it comfortably passable certainly with four wheel drive vehicles. It provides direct access from the roads in Capreol, Ontario to the road leading to the Van Embden property.
[45] The respondents argue that, following the completion of the proceedings before Justice Gordon, the Route was upgraded by the Van Embdens, making it suitable as a year-round access route to the Property. In support of their argument they note, among other things:
a. Between the late Fall 2020 and into the winter of 2021, there appeared to be a reduction of the use of and the traffic going through their property using the Road; in particular, it appeared that it was not being used by the Van Embdens.
b. Commencing in 2020, the Van Embdens ceased plowing the Road from the Property to the respondent’s property during the winter months. A snow berm was created which had the effect of blocking EMS access on the Road to the Property; there is no evidence indicating who created the snow berm.
c. When the Property was listed for sale by the Van Embdens, potential purchasers were directed to the Property using the Route rather than the Road.
d. In an email dated April 19, 2021, the applicants advised the respondents of their intention to, “primarily use the other entrance via Capreol”.
[46] There can be no doubt that the use of the Road was the cause of significant animus between the Van Embdens and the respondents. While the Order of Justice Gordon permitted the Van Embdens to continue using the Road, its closure was opposed by them in the proceeding; Justice Gordon noted in his decision that the Van Embdens argued that the installation of a gate would be a “significant inconvenience for them having to attend to unlock the gate every time a guest or family member wishes to visit with them”: McIntosh v. Van Embden, at para. 21.
[47] Against this backdrop, it should come as little surprise that the Van Embdens began to use the “rough road” to the Property more often and declined to continue plowing the Road for the benefit of his neighbours in protest following the installation of the gate. As noted in the Affidavit of Norman and Barbara McIntosh, sworn January 7, 2022 at para. 17, Mr. Van Embden advised their mutual neighbour that he, “had to get around the McIntoshes some way”.
[48] Notwithstanding their efforts to avoid the McIntoshes at all costs, the record confirms that there were occasions when the Van Embdens were unable to do so, and they were required to use the Road. Paragraph 25 of the Affidavit of Norman and Barbara McIntosh, sworn January 7, 2022, discusses an altercation between Norman McIntosh and Frank Van Embden on February 25, 2021 regarding Mr. Van Embden’s use of the Road.
[49] It should also come as little surprise that the Van Embdens would have steered potential purchasers of the Property away from the respondents and their conflict with them. They were not in a position to share their key to the gate with a real estate agent pursuant to the terms of the Order, nor could potential purchasers view the Property on their own via the closed road. The Van Emdens had no alternative but to direct potential purchasers to the only other means of access to the Property, regardless of its condition.
[50] The alleged improvements to the Route following the Order of Justice Gordon are addressed in the Affidavit of Frank Van Embden, sworn November 23, 2021. In his affidavit, Mr. Van Embden acknowledges that he made some improvements to the Route, but states in para. 8 that it was in, “more or less the same state of functionality as it was when Mr. Justice Gordon issued his Reasons for Judgment”. He then goes on to make the following observations:
- Having owned the Property for nearly 14 years prior to its sale to Geoff and Amy, I can confirm that the Trail:
(a) crosses land not owned by Geoff and Amy (after it leaves the Property to the North);
(b) can't be travelled in the winter (unless plowed and sanded and even then not always) and often can't be travelled safely in the spring (March to May) at all - the soil is often wet and it is steep in sections;
(c) can't be travelled at any time of year by larger vehicles such as delivery trucks - propane and diesel delivery drivers won't travel it, for example; and
(d) can't be travelled at any time of year by emergency vehicles - fire trucks and ambulances are unwilling and unable to travel it.
[51] Mr. Van Embden’s description of the Road is, in my view, supported by the evidence, including the evidence submitted by the respondents. Among other observations, I noted the following in the respondents’ evidence:
a. The Affidavit of David Hawes, sworn January 6, 2022, which noted at paragraph 7 that the Route included, “a challenging hill which might pose a problem for winter deliveries of propane.” Mr. Hawes qualified this statement based upon a review of photographs attached to the Affidavit of Steve Bilton, sworn January 7, 2022, however, it is not clear to me that any of those photographs included the steep, rutted hill that I describe below in the Respondents’ videos.
b. The video included with the Affidavit of Norman and Barbara McIntosh, sworn January 7, 2022, which depicted the respondents travelling with a passenger on the Route in a motor vehicle described in their affidavit as a 2015 Ford Escape. The affidavit indicates that the video was recorded on August 24, 2021. The Route conditions appear to be dry. The Route is narrow, and the vehicle is observed bouncing as it attempts to navigate the terrain. They struggled to climb a steep hill; they do not travel all the way to the Property. Comments by the occupants of the vehicle during the video included the following:
i. “Look at the erosion already, just from the rain. I’m not going to go too far up this [describing the steep hill].”
ii. “This is the hill that they’ve got to negotiate. My truck might have a hard time going up this…being two-wheel drive.”
c. The video included with the Affidavit of Norman and Barbara McIntosh, sworn January 7, 2022, which depicted the respondents travelling alone on the Route in a motor vehicle described in the video as a 2015 Ford Escape. The respondents state during the video that it was recorded on August 25, 2021. The Route conditions appear to be dry. Once again, the vehicle is observed bouncing as it attempts to navigate the terrain, and it struggles to climb the steep hill. The respondents noted in the video that, “We’re going about 5 km/h.”
d. The video included with the Affidavit of Mark Savignac, sworn August 12. 2022, which depicts a police officer on an ATV travelling on the Route. Mr. Savignac’s affidavit indicates that the video was recorded on April 23, 2022. The Route appears to vary in width. The conditions were wet with some patches of snow. The video depicted one steep, narrow, bumpy climb during which the ATV appeared at times to struggle with the journey.
e. None of the videos depicted anyone driving down the steep, bumpy hill.
f. None of the videos depicted anyone navigating the hill during winter driving conditions.
g. None of the videos depicted larger service vehicles navigating any of the terrain.
[52] To be clear, there are sections of the Route that are wide and navigable. The difficulty is that there are sections that are, at best, narrow and challenging, and at worst, may be impassable particularly in winter conditions, or in wet conditions in the fall or spring. The fact that an ATV can navigate the steep, rutted hill in April is not satisfactory evidence that a propane truck, an ambulance, or a car could do the same.
[53] The applicants have also provided evidence that a section of the Route intersects with an unopened road allowance owned by the City of Sudbury. They ask the court to consider the finding of Howden J. in 2008795 Ontario Inc., at para. 64:
In conclusion, I find no support in the Road Access Act or its jurisprudence to date nor in the evidence before me to find that the mere existence and alternate configuration of unopened road allowances, which cannot be used for vehicular traffic without municipal approval in the broad public interest and without construction and maintenance to municipal standards, constitute alternate road access within the Road Access Act.
[54] The respondents acknowledge the intersection with the unopened road allowance in their affidavit evidence, but ask the court to consider the following evidence in the Affidavit of Norman and Barbara McIntosh, sworn January 7, 2022:
- More recently, Constable Tremblay related to us that with respect to the Capreol access route, there is a stretch of about 200 metres of city land that Mr. Van Embden had excavated to build their "driveway" which joins the "railbed". We were also advised by him and do believe that that he had spoken with the City and they had no intention of pursuing any action with respect to that 200 metres.
[55] I not prepared to accept this statement as evidence of the City’s acquiescence to the applicants’ unauthorized use of its unopened road allowance. Not only is it hearsay, but it is contradicted by the video that the respondents recorded on August 24, 2021. At 2:10 in the video, the respondents pass a gated roadway which they identify as “City of Sudbury land”. A sign is posted on the gate stating, “No Trespassing, Private Property”. In my view, this evidence supports the conclusion that the City is neither authorizing nor acquiescing to the use of its property.
[56] While sections of the Route may have been upgraded between 2019 and the present, on the evidence before me, I am not satisfied that the Route provides an authorized, reliable, year-round roadway to the Property that will be required by the applicants either for their own access to their principal residence or for access by essential services including fire, ambulance, and utilities.
[57] In the circumstances, I am not satisfied that the respondents have discharged their burden of demonstrating that there has been a change in circumstances that supports a variation of the conditions imposed by Justice Gordon in the closing order.
[58] I confirm that the owners of the Property shall continue to have use of the Road subject to the conditions of Justice Gordon’s closing order. For the sake of clarity, those owners include the applicants and any subsequent owners of the Property.
Disposition
[59] For the reasons given, I hereby make the following orders:
The applicants’ request to amend the Judgment of Justice Gordon, dated May 13, 2019, is dismissed.
The respondents’ request for a declaration that the road at the westerly boundary of their property is not an “access road” within the meaning of the Road Access Act, R.S.O. 1990, c. R-34, is denied.
The respondents’ request for an order varying the conditions of the closing order granted by Justice Gordon on May 13, 2019 is denied. The owners of the property municipally located at 3650 Boivin Street, Hanmer, Ontario and legally described as PIN 73507-1662 Surface Rights Only: Pt Broken Lt 11 Con 5 Capreol as in EP5276, Greater Sudbury, shall continue to have access to the private road crossing the property legally described as PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury, subject to the conditions of the Order of Justice Gordon, dated May 13, 2019, which are as follows:
The owners of the property legally described as PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury may place a gate across the road at the westerly boundary of their property and require that it be kept locked at all times provided:
a) The gate is equipped with a “knox box” in which a key to open the gate is kept. The key or keys required to open the “Knox box” will be provided to the Sudbury Fire Service for use by any emergency responder requiring entry through the gate.
b) Two keys for the gate lock shall be provided to the owner(s) of each property for which the road provides the only means of motor vehicle access.
c) No key for the gate lock shall be reproduced by any person without the consent in writing of the owner of PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury (currently the applicants herein).
d) The owners of properties for which the road provides the only means of motor vehicle access shall share equally in the reasonable costs of installing and maintaining the gate, lock and that part of the road which crosses the property legally described as PIN 73506-0093, Parcel 48350 SEC SES, Part Lot 1, Concession 5, Hanmer, SRO, Part 1 Plan 53R-11244, Greater Sudbury.
- If the parties cannot agree upon the issue of costs, they may make written submissions as follows: (1) The applicants may serve and file submissions within (30) days of the date of this Order; (2) The respondents may serve and file submissions within (45) days of the date of this Order; (3) All submissions are not to exceed (3) pages, double-spaced, exclusive of Costs Outlines.
The Honourable Madam Justice K.E. Cullin
Released: January 20, 2023
COURT FILE NOS.: CV-21-10191 / CV-22-10253
DATE: 2023-01-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Geoffrey Palin and Amy Johnston
Applicants
– and –
Norman McIntosh and Barbara McIntosh
Respondents
AND BETWEEN:
Norman McIntosh and Barbara McIntosh
Applicants
– and –
Geoffrey Palin and Amy Johnston
Respondents
DECISION ON APPLICATION
Cullin J.
Released: January 20, 2023