Court File and Parties

Court File No.: CV-23-31805-0000 (Windsor)
Date: 2025-05-23
Court: Superior Court of Justice - Ontario

Between:
Jodi Lynn Lecuyer, Applicant
and
The Corporation of the Town of Essex and 11662724 Canada Ltd., Respondents

Before: Barbara A. MacFarlane

Counsel:

• Michael Sirdevan, Counsel for the Applicant
• Peter Hrastovec, Counsel for the Respondent, 11662724 Canada Ltd.
• Jeffrey Hewitt, Counsel for the Respondent, The Corporation of the Town of Essex

Heard: 2025-02-24

Endorsement

Overview

[1] The Applicant owns two properties separated by a piece of land she contends was clearly established as a roadway on a Plan of Subdivision and should have automatically vested in the Respondent Town (The Corporation of the Town of Essex). When she attempted to purchase the land, known as PIN 75187-0020 (the “0020 property”), from the Town of Essex, it was determined that the Respondent 11662724 Canada Ltd., which operates as Oxley Beach Golf Course (the “Golf Course”), currently holds title to the 0020 property. The Applicant argues the title issue is an irregularity that the court should rectify.

[2] The Respondent Golf Course opposes the Application, asserting that it is the de facto and de jure owner of the 0020 property and uses the land as an integral part of its business infrastructure. Specifically, the golf course uses the 0020 property for its irrigation system and to access the Lake. It contends that the Town of Essex never accepted the land as a road, and it has never been open to public use.

[3] The Respondent Town does not support the Applicant's requested declaration and maintains that it neither owns nor wishes to own the 0020 property, which it considers a privately owned right of way. Furthermore, the Town asserts that no public need exists to justify its acquisition of the land.

Decision

[4] For the reasons set out below, the 0020 property is owned by the Respondent 11662724 Canada Ltd., operating as Oxley Beach Golf Course, and it is not a highway within the meaning of the Municipal Act, 2001, SO 2001, c 25 (“the Act”). The 0020 property was not dedicated nor accepted as a public road by the Town of Essex, despite the Plan of Subdivision.

[5] The title will not be amended, and the Applicant’s motion is dismissed.

Background Facts

[6] The Applicant owns two properties: 601 Poplar Bluff Drive, Town of Essex (being Part Lot 9, Plan 178); and 301 Poplar Bluff Drive, Essex (being Lot 1, Plan 1598). These properties are divided by a small plot of land, which is the land in question, detailed more below.

[7] The Respondent 11662724 Canada Ltd. has operated Oxley Beach Golf Course since approximately May 2022. However, a golf course has operated on the lands since 1968. The municipal address is 597 Essex County Road 50, which consists of a parcel of land legally described as (per a Plan of Survey dated February 23, 2023):

• PIN 75187-0230 Lots 2-9 & 13-15, Plan 1598 & Part Lot, Plan 178 Colchester South
• PIN 75187-0001 Poplar Bluff Drive, Plan 1598, Colchester South
• PIN 75187-0010 Lakeview Drive, Plan 1598, Colchester South, North of Poplar Bluff Dr.
• PIN 75187-0187 Block A, Plan 1598 (1 foot reserve) Colchester
• PIN 75187-0020 Lakeview Drive, Plan 1598, Colchester South, South of Poplar Bluff Dr.

[8] In or around 1959, the then owner of the Golf Course lands, Clara Corcoran, registered Plan of Subdivision 1598 with the Town of Essex (“Plan 1598”), separating her large parcel of land. Plan 1598 created a road allowance called Poplar Bluff Drive, running south from Kings Highway 18A towards Lake Erie past a large tract of land, being Part of Lot 9, Registered Plan 178, which became the Golf Course in or about 1968.

[9] Poplar Bluff Drive then turns east, north of waterfront lots, along Lake Erie to access those properties. The waterfront lots south of Poplar Bluff Drive (as it proceeds east), which includes the Applicant’s residence at 601 Poplar Bluff Drive, are not contained on Plan 1598. Poplar Bluff Drive is owned by the Respondent Golf Course but is maintained by an Association of the waterfront property owners who require access to their properties. Property taxes are paid by the Respondent Golf Course.

[10] Plan 1598 created 14 residential building lots (Lots 2-9 & 13-15, Plan 1598) north of Poplar Bluff Drive as it proceeds east. Also north of Poplar Bluff Drive is a strip of land running parallel to and between lots 7 and 8 that is labelled Lakeview Drive. Property taxes relating to this land are paid by the Golf Course.

[11] The Plan of Subdivision also created three small strips of land south of Poplar Bluff Drive running to Lake Erie. These strips are narrow (approximately 50-57 feet wide) in comparison to the size of the building lots north of Poplar Bluff Drive (approximately 75-84 feet wide).

[12] One strip of land is Lot 1, Plan 1598 (301 Poplar Bluff Drive), which is vacant land and is identified as PIN 75187-0019. This lot is owned by the Applicant. It is subject to a right-of-way for the purposes of irrigation equipment to draw water from the lake to the Golf Course (or otherwise) in accordance with Instrument 282066.

[13] The second strip of land is the 0020 property in question and is the land bearing PIN 75187-0020, but it is not directly labelled on Plan 1598 (e.g., no lot number or other labelling is located on the drawing of this strip of land). The 0020 property is located almost directly below the strip of land north of Poplar Bluff Drive labelled Lakeview Drive, which is identified as 0010 on Plan 1598. The 0020 property appears to be smaller in width than the 0010 property.

[14] The third strip of land is located at the eastern end of Poplar Bluff Drive and is not labelled on Plan 1598 and is not the subject of this Application.

[15] Immediately east of the 0020 property is the Applicant’s residence at 601 Poplar Bluff Drive, being Part Lot 9, Plan 178 (the “Applicant’s home”). As noted above, immediately west of the 0020 property is the Applicant’s vacant lot, at 301 Poplar Bluff Drive, being Lot 1, Plan 1598.

[16] The building Lots (2-9 & 13-15 on Plan 1598) were contemplated to be residential Lots situated north of Poplar Bluff Drive. Lakeview Drive is labelled on Plan 1598 as potential access from Poplar Bluff Drive to the area between building lots 7 and 8 and toward the golf course. The three smaller lots south of Poplar Bluff Drive were for potential access to the lake for the 14 building lots, and to permit the Golf Course to be able to pump water from Lake Erie.

[17] The building lots on Plan 1598 were never built into residences. The Golf Course did not put its infrastructure on or under Lot 1 (per the right-of-way), which is now the Applicant’s vacant lot. Rather, its infrastructure is on and beneath the 0020 property.

[18] The 0020 property designated on Plan 1598 as Lakeview Drive, north of Poplar Bluff Drive, has never existed as a road. It is covered by nature and, according to photographs, is considered indistinguishable from the Golf Course. The 0020 property is south of the proposed Lakeview Drive and is also covered by nature. It is used by the Golf Course to attend to its irrigation equipment.

[19] The Golf Course pumps water from Lake Erie through a water line that is installed underground on the 0020 property, pursuant to an annual renewable permit from the Ministry of the Environment, which has been in place for 35 years. There is a pump house on the land close to the shore of Lake Erie with a pump and electrical equipment, which is accessed by the Golf Course. The Respondent Golf Course asserts that the water source from the lake is critical for operation of the golf course.

[20] The Applicant has planted some gardens on her vacant land that extends over the 0020 property. There is no dispute that there are multiple trees, bushes and plant life on the 0020 property. Based on photographs, there is no identifiable road. Both the Applicant and the Golf Course have conducted routine maintenance on the 0020 property, mainly relating to landscaping.

[21] The Applicant has admitted that there is no hindrance to her ability to enjoy her properties and she has no interest in restricting the Golf Course from their necessary pumping of water.

[22] The Applicant intends to install retaining walls on her residential lot and her adjacent vacant lot. Her goal is to purchase the 0020 property (between her properties) to create a continuous, and what she believes would be a stronger, retaining wall across her expanded land.

[23] After the Applicant approached the Town of Essex to purchase the 0020 property, it was discovered that the Respondent Golf Course is the registered owner, and the Town never held title, despite any designation on Registered Plan 1598. Furthermore, no by-law exists and no council minutes were in evidence accepting the road as a highway.

Positions of the Parties

[24] The Applicant seeks the following relief:

a. A declaration that the 0020 property is Lakeview Drive, in the Town of Essex, and is a highway pursuant to section 26 of the Municipal Act, 2001; and
b. An order that the Registrar of Land Titles for the County of Essex be directed to amend the title to reflect that the Town of Essex is the owner of Lakeview Drive pursuant to section 30 of the Municipal Act, 2001.

[25] The Applicant asserts that despite the Respondent's registered title, statutory law dictates that the Town of Essex is the rightful owner of the 0020 property. Their argument rests on the premise that Lakeview Drive was a highway, as statutorily defined, and was designated as a public roadway on the Registered Plan of Subdivision. As such, the ownership of the 0020 property is vested in the Town of Essex by statute under the Act.

[26] The Respondent Golf Course counters that the situation is not as simple as the Applicant suggests. The Respondent’s position is that the common law doctrine of dedication and acceptance of roads for public use is applicable in interpreting the Act, particularly because of the character of the 0020 property over the last 44 years. The building lots were never sold, and Lakeview Drive was never built. Effectively, the subdivision proposed in Plan 1598 never came to be. The Golf Course argues that the lands do not meet the Act’s criteria or definition of “highway,” and therefore could not and cannot legally vest in the Municipality. It contends that the 0020 property was never dedicated or intended to function as a public roadway, serving only as access to the lake, via a road allowance or easement. Moreover, the Town did not accept the land as a highway.

[27] The Applicant accepts that to fit under subsection 1 of section 26 of the Act, the land or road at issue must have met the established qualifying criteria for a "highway" at a point in time prior to 2003, but she contends that the same analysis is not required for subsection 5 of section 26. Rather, her position is that the legislation is clear that if the 0020 property is stated as either road allowances, highways, streets or lanes shown on a registered plan of subdivision, it is considered a “highway” and title automatically vests to the Town by virtue of s. 30 of the Act. The Applicant contends that the common law doctrine of dedication and acceptance does not apply but even if it does, it may only apply to s. 26.1 of the Act for determining whether the “highway” existed prior to December 31, 2002 but not for subsection 5.

[28] The Town of Essex’s position is that the subject road is a private right of way under private ownership. The Town does not own the right of way and does not desire to own the right of way, and no public need exists that would require the Town to acquire the land.

[29] In the event the 0020 property vests in the Town of Essex, it may be responsible for maintaining the lands, may impose liability in some circumstances, and it may impact the ability to seek taxes from private owners.

The Issue

1. Does the 0020 property fit the definition of highway under the Act such that it vests to the Town of Essex?
2. Does the registration of the Plan of Subdivision create a road such that the 0020 property automatically vested to the Town of Essex?
3. Who is the proper owner of the 0020 property?

Analysis

Statutory Framework

[30] Pursuant to section 30 of the Act: “A highway is owned by the Municipality that has jurisdiction over it, subject to any rights reserved by a person who dedicated the highway or any interest in the land held by another person.”

[31] A “highway” is defined under the Act as “a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway.”

[32] By virtue of s. 31(2), “[a]fter January 1, 2003, land in Ontario may only become a highway by virtue of a by-law establishing the highway and not by the activities of the municipality or any other person in relation to the land, including the spending of money”. However, s. 31(3) of the Act sets out that 31(2) does not apply to highways described in s. 26 of the Act, which is as follows:

What constitutes highway
26 The following are highways unless they have been closed:

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

[33] Section 26 and 30 operate to vest ownership of lands which are considered a “highway” under the Act where the municipality has jurisdiction.

[34] In this case, the current Act came into effect about 44 years after Plan 1598 was registered. I was not pointed to any by-law (or council minutes) making the 0020 property a highway, either before or after January 1, 2003. In determining whether the 0020 property constitutes a "highway" for this proceeding, the relevant provisions of the Act are subsections 1 and 5 of section 26, namely: “1. All highways that existed on December 31, 2002”; and “5. All road allowances, highways, streets and lanes shown on a registered plan of subdivision”.

[35] Section 159 of the Land Titles Act, RSO 1990, c L.5, provides that a court of competent jurisdiction may make an order directing the rectification of the Land Titles Register when required.

Was the 0020 property a highway that existed prior to December 31, 2002?

[36] As noted, pursuant to subsection 1 of section 26 of the Act, a by-law is not required where a highway existed on December 31, 2002. The Applicant asserts that the common law doctrine of dedication and acceptance does not override the statute such that it is not applicable for interpreting section 26 of the Act. Her position is that the previous versions of the Act essentially mirror the current section 26, including from 1950 such that the common law does not apply.

[37] Section 31(2) of the Act requires a by-law and is not based on the activity on the land. As such, the common law doctrine of dedication and acceptance was abolished once the Act was enacted: Meaford (Municipality) v. Grist, 2013 ONCA 124, para 50 (“Meaford”). As I read section 31(2) and Meaford, the abolition relates to circumstances where a by-law exists, such that it is not necessary to look beyond the by-law and determine the character of the land through common law.

[38] In the absence of a by-law, determining whether a highway existed necessitates applying common law principles. This process hinges on whether the land was dedicated and accepted as a highway according to the Act's definition. Without this approach, a strict reading of section 26 of the Act would impede the ability to ascertain the owner's genuine intent to dedicate their land and the Municipality's subsequent acceptance for public use.

[39] In my view, this is consistent with the Ontario Court of Appeal’s decision in Scott et al. v. City of North Bay, paras 11-16, applying the common law doctrine of dedication and acceptance to determine whether a highway (road) was accepted by the Municipality.

[40] To determine if a highway existed before the Act's enactment, the Ontario Court of Appeal in Skinner v. Thames Centre, 2014 ONCA 164, paras 4, 6 clarified how the statute and common law interact when interpreting the Act:

Until December 31, 2002, with the amendment to the Municipal Act, 2001 to require a by-law to be passed by a municipality in order to assume a road (s.31(2)), an open road in a municipality could be created by the common law doctrine of dedication and acceptance. The onus was on the applicant to establish that, at some point during its history, the road...had been dedicated by the owner for public use, had become open to the public and that the Municipality had demonstrated the intention to accept and assume responsibility for the road.

[41] The Court of Appeal makes it clear that the common law doctrine of dedication and acceptance could create an open road in a municipality until December 31, 2002. This changed with an amendment to the Act, which required a municipal by-law for road assumption after January 1, 2003. Prior to the enactment of the Act the applicant had to demonstrate that the road had been dedicated for public use by the owner, had become accessible to the public, and that the municipality had shown intent to accept and assume responsibility for it at some point in its history.

[42] The Court of Appeal outlined the common law doctrine of dedication and acceptance, as a mechanism by which a passage over private land becomes a public highway and title is transferred from the owner to a municipality: Sioux Lookout (Municipality) v. Canada (Attorney General), 2010 ONCA 867, paras 26-27. Specifically, the party advancing the claim must demonstrate:

a. an intention on the part of the owner to dedicate; and
b. acceptance by the public of the road as a highway.

[43] Consequently, in the absence of a by-law, the doctrine requires both dedication and acceptance for a municipality to assume ownership and responsibility for a highway.

[44] The definition of “highway” under the Act is applicable for determining whether the 0020 property was a highway prior to December 31, 2002. The Act uses specific words such “a common” and “public” highway. At common law, a “highway” is defined, generally, as "a public road or way open equally to everyone for travel": Broslaw v. North York (City). The underlying principle is that public use as a common road is a prerequisite for land to become a legal highway to potentially vest in a municipality.

[45] The Ontario Court of Appeal referenced its decision in Broslaw at p. 463, adopting its earlier statement: “the question whether land has been dedicated by the owner thereof for use as a public highway is one of fact, and dedication must not be too readily presumed”: Sioux Lookout, para 27.

[46] In Gibbs v. Grand Bend (Village), para 72, which was a case of implied dedication of land for public beach use, Brooke J.A. wrote:

Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance...Once a dedication is complete, neither the owners nor their successors in title could revoke it: see Hunsinger v. Simcoe (Tn.), [1946] O.R. 203. Neither the dedicator nor his successors in title can resume control of or convey the land free from the public rights to its use, nor can anything be done by the present owners to take back that which had been previously given away: see Gion v. Santa Cruz, 2 Cal. 3d 29 at pp. 52-53 and 60.

[47] If a road is open for common or public use, that is good evidence that it was dedicated and accepted as a highway under the Act. The character and use of the land are important considerations. The common law rule of “once a highway always a highway” applies “until by legal means its character is destroyed, although the long-continued existence of an obstruction may tend to shew that there never was a highway”: O'Neil v. Harper, at p. 656.

[48] Therefore, to determine whether the 0020 property was intended to be, or accepted as, a common or public highway prior to December 31, 2002, one must look at the use and character of the lands. As noted by the Ontario Court of Appeal, the issue is whether, considering the character, use and maintenance of the road, at any time since its creation, it had been accepted and assumed by the Municipality, based on the Municipality’s conduct: Skinner at para. 6.

[49] To establish dedication and acceptance, the claimant must prove the owner's actual intention to dedicate the land as a road, the execution of that intention, and its acceptance by the public. Protracted public use of a road can serve as evidence of both the owner's intent to dedicate and the public's acceptance: Blanchard v. Tripp, 2019 ONCA 559, para 14.

[50] In this case, there was no evidence that the Town or the Respondent ever participated in or initiated any ditching or grading of the 0020 property to create a road on the 0020 property. The Town has never maintained the 0020 property, never used public funds on it, and still does not accept it as a public or common road. Indeed, the public does not use the 0020 as a roadway, or otherwise.

[51] Evidence demonstrates the 0020 property has consistently remained undeveloped. Photographs depict it as vacant land characterized by trees, bushes, and plant life. Although the Applicant admits the presence of these obstructions, they do not accept that this negates its potential as a roadway. However, this persistent physical state of the 0020 property ultimately supports the conclusion that no highway, common or public road allowance, or roadway ever existed.

[52] The Golf Course uses the land to access water from Lake Erie, through its irrigation equipment installed underground and maintains electrical and plumbing equipment as well as an outbuilding that it uses as a pump house on the 0020 property near the shoreline. It states that it is an integral part of their operations. The Applicant admits that the Golf Course’s pump house and irrigation equipment is on the 0020 property.

[53] The public does not use the land for access to Lake Erie. Based on the evidence, it is only the Respondent (its employees) and the Applicant who use the 0020 property. The main purpose for the Applicant’s use of the 0020 property is to extend her landscaping from her parallel vacant land.

[54] As of 1959 to the present, I find the 0020 property has not been a highway as defined by the Act. It has never been used or accepted for use by the public, nor has the Town of Essex accepted it for public use. While there has been some development in the surrounding area, the 0020 property itself has never been developed, utilized, or accepted for public purposes. Instead, the land's use and features are consistent with either Golf Course ownership or a private right-of-way or easement for the Golf Course's irrigation system.

[55] I conclude that the 0020 property was not a highway existing on or before December 31, 2002, according to s. 26.1 of the Act. Although s. 26.5 might have some overlap with subsection 1, in my view they are separate legal tests; a distinction emphasized by their separate enumeration in the legislation.

Was the land a highway designated on a plan of subdivision?

[56] Section 26.5 of the Act states that "all road allowances, highways, streets and lanes shown on a registered plan of subdivision" are highways for the statute's purposes. Once more, the Applicant contends that this statutory provision supersedes common law. She asserts that the mere presence of a road allowance, highway, street, or lane on a Registered Plan of Subdivision is enough for the 0020 property to automatically vest in the Municipality. In her view, the doctrine of dedication and acceptance is inapplicable to subsection 5 due to the statute's plain language.

[57] The parties have not cited any case specifically on point regarding a property identified as a road on a registered plan of subdivision that was never developed, and where the road was never brought into existence, nor used by the public.

[58] Case law supports that, when no by-law exists, one must review the history of the lands to determine the actual intention of the owner and the Municipality, even when there is a registered plan of subdivision. Our courts have applied common law principles when considering claims that an allowance in a subdivision plan is a "public highway" under the Act, focusing on whether dedication and acceptance as a highway occurred: Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, paras 42-45, 49; and Scott.

[59] In Oro-Medonte, the property was a largely vacant piece of land following the shoreline and named Lake Shore Promenade in a plan of subdivision registered more than 100 years earlier. The property was not actually developed into a road (nor had the ability to build a road without great expense) but it was used by the public as walking trails. The Court applied the doctrine of dedication and acceptance in determining whether it was a highway under the Act, based on it being named on a Plan of Subdivision.

[60] In Scott, the Ontario Court of Appeal noted that absent a by-law, registration on a plan of subdivision may become a public street, but that is not the end of the matter. It may be some evidence of an intention by the owner to dedicate the lands. However, one must also look at the assumption by the Municipality of any highway shown on the plan, for example to render the corporation liable for repair: Scott, at paras. 11-16.

[61] Given the responsibilities and liabilities involved, interpreting s. 26.5 necessitates considering both the owner's actual intention and the municipality's acceptance of the highway. In my view, absent a by-law, the mere designation of a property as a road on a Plan of Subdivision is not enough for it to automatically vest in the Municipality. The property's nature and its historical use are significant factors in determining the intent to dedicate and accept it as a highway.

[62] Evidence of the actual intention of dedication by the owner can be evidenced by reference to a registered plan of subdivision or it can be inferred from evidence of use over the years. However, even if there is evidence of dedication, the common law doctrine requires the municipality to demonstrate an intention to accept and assume responsibility for the highway. Oro-Medonte at paras. 42-45 and 49.

[63] In this case, there is some evidence of the intention of the previous owners of the 0020 property, through registration of Plan 1598, to dedicate a road allowance for common use for the Golf Course and future owners of the building lots to access Lake Erie. Plan 1598 shows a strip of land north of Poplar Bluff Drive labelled as Lakeview Drive. There is no label for the 0020 property on Plan 1598, which runs continuously and almost directly south of Poplar Bluff Drive. However, on common sense review of the drawing of the Plan, it appears that Lakeview Drive was intended to extend south of Poplar Bluff Drive. Lakeview Drive shows no indication of a break or division across Poplar Bluff Road. Indeed the 2023 survey lists it as Lakeview Drive. However, I find that the mere labelling of the road is insufficient to determine whether this is a highway under the Act.

[64] I find that Plan 1598 shows Lakeview Drive as permitting access for the Golf Course from Poplar Bluff Drive between the proposed building lots 7 and 8. I also find that the intention of the owner was to dedicate the 0020 property to permit access by the Golf Course and the building lots north of Poplar Bluff Road to access Lake Erie, since they would not be waterfront properties.

[65] It is apparent that the 0020 property was intended to be for limited access for the potential cottage owners and the Golf Course and not for the public at large. I am not satisfied that the intention of the owner was to dedicate the 0020 property for public use as a highway, as defined in the Act, on Plan 1598.

[66] Even if the owner had an intention to dedicate the 0020 property as Lakeview Drive, I am not satisfied that the Town of Essex accepted or assumed the road for public use. As noted above, the character of the land has not substantially changed since 1959. Lakeview Drive was not built into a road and the building lots were never developed nor sold as individual lots. The only development of the lands appears to be the creation of Poplar Bluff Drive, the sale of Lot 1 to the Applicant and the use of the 0020 property by the Golf Course to access Lake Erie for its water irrigation purposes.

[67] It is also compelling that Poplar Bluff Road, which is clearly dedicated on Plan 1598, was not apparently assumed by the Municipality as a highway. Poplar Bluff Drive is privately owned by the Golf Course, for which it pays property taxes. The waterfront properties require Poplar Bluff Drive to access their cottages. The Poplar Bluff Drive Association is responsible for maintaining the Road and not the Town.

[68] No by-law or council minutes were entered into evidence showing that the Town expressly assumed responsibility for the 0020 property as a highway as defined by the Act. Moreover, the conduct of the Town of Essex has never implied acceptance of the 0020 property as a highway; indeed, its actions indicate a lack of acceptance (as set out above).

[69] The exclusive use of the lands by the Respondent Golf Course and their predecessors aligns with the consistent character and purpose of private ownership. The Town has clearly stated its lack of interest in acquiring the 0020 property, identifying it as a private right of way and explicitly disclaiming any desire for ownership based on the absence of public necessity. This continuous historical and present use, together with the Respondent's ownership and the Town's stated position, further reinforces the finding of private ownership.

[70] In my view, as previously noted, a strict interpretation of subsection 5 of section 26 of the Act would inhibit the ability to ascertain the true intentions of the owner and the municipality concerning the designation and acceptance of lands for public use. Designating a road on a subdivision plan, by itself, is not enough for ownership to vest in the Town. While this might be some evidence of an intention to dedicate the lands, acceptance by the Town for public use remains a requirement. The Plaintiff has failed to cite any case that supports a contrary view.

[71] There was no evidence in this case that the Town of Essex ever accepted the lands for public use. I find that the 0020 property is privately owned by the Respondent 11662724 Canada Ltd. and did not vest to the Town of Essex pursuant to section 26 of the Act.

Costs

[72] The parties are urged to reach an agreement on costs of this application and if they are unable to do so, the parties may make submissions of no more than three pages, plus cost outlines. The Respondents will deliver their costs submissions no later than May 30, 2025 and the Applicant will deliver their costs submissions no later than June 11, 2025.

Justice Barbara A. MacFarlane

Released: May 23, 2025