Ontario Superior Court of Justice

Court File No.: CV-5-5
Date: 2025/06/02

B E T W E E N:
IN THE MATTER OF TITLE TO MACDONALD STREET IN WELLINGTON, ONTARIO, being all of PIN 55027-0569(R)
APPLICATION UNDER SECTION 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, by the Applicant, THE CORPORATION OF THE COUNTY OF PRINCE EDWARD

Jennifer Ng, for the Applicant
Heard: May 26, 2025 (By video conference)

Reasons for Decision

Sylvia Corthorn

Introduction

[1] MacDonald Street in Wellington, Ontario (“the Subject Lands”) is a relatively short, paved street which runs between Main Street and a body of water. There is no registered owner on title to the Subject Lands. The Corporation of the County of Prince Edward (“the County”) seeks declaratory relief and a vesting order regarding the Subject Lands.

[2] The County filed an affidavit from a longstanding employee with the County’s Community Services Initiatives & Programs Department. The employee sets out the County’s historical treatment and use of the Subject Lands. The County relies on a by-law passed in 1983 regarding the Subject Lands; the historical and continuing expenditure of public money to service and maintain the Subject Lands; and an inference that the unknown historical owner(s) dedicated the Subject Lands to the County.

[3] The relief requested is granted, with the declaration of ownership and vesting order made.

Background

[4] In late 2024, the County’s attention was drawn to the Subject Lands. At that time, the County received two complaints from individuals within the community. One complaint related to the presence of a bench which had been placed on a grassy area of the Subject Lands. Both complaints identified a “No Trespassing” sign placed at the end of the Subject Lands.

[5] As a result of those complaints, the County investigated the historical ownership of the Subject Lands. The County was unable to locate a root deed setting out title to, or identify a historical owner of, the Subject Lands.

[6] The County records identify that, in 1983, the County passed By-Law No. 1017, pursuant to which it was resolved that the Subject Lands were “declared to be and dedicated as, Public Lands”. In January 2025, the County registered By-Law 1017 on title to the Subject Lands.

[7] Through the declaratory and other relief sought on this application, the County seeks to address ownership of the Subject Lands.

The Issues

[8] A preliminary issue to be determined is whether the County is entitled to proceed with the application without notice. There are two substantive issues determined in these reasons:

1. Has the County established that it is the owner of the Subject Lands by reason of one or both of (a) expenditure of public money on the Subject Lands, and (b) an inference that the historical owner(s) dedicated the Subject Lands to the County?
2. Is this an appropriate case for the court to exercise its discretion to grant a vesting order?

[9] I will first determine the preliminary issue and then the two substantive issues.

The Preliminary Issue – The Application May Proceed Without Notice

[10] Nothing in Rule 38 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), which governs the court’s jurisdiction on and procedure for an application, addresses bringing an application without notice. Subrule 38.06(1) stipulates that a notice of application “shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.” Subrule 38.06(2) gives the court discretion regarding the relief that may be granted in the event a notice of application ought to have been served on a person who was not served.

[11] Who, then, are the “parties” to the application now before the court and is there any person who ought to have been served who was not served? By definition, the County is the applicant: see Rules, r. 1.03, in which “applicant” is defined as “a person who makes an application”. There is no respondent to the application. Rule 1.03 defines “respondent” as “a person against whom an application is made or an appeal is brought, as the circumstances require”.

[12] Despite there being no rule stipulating the circumstances in which an application may be brought without notice, there is a rule entitling a party or other person to bring a motion for an order setting aside a judgment granted on an application without notice. Subrule 38.11(1) provides that,

[a] party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[13] By contrast, the Rules specifically address when service of a notice of motion is not required. Pursuant to r. 37.07(1), a notice of motion “shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.” Subrule 37.07(2) provides that service of a notice of motion is not required “[w]here the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”. In those circumstances, the court has the discretion to make an order without notice.

[14] As noted in the Background section of these reasons, there is no owner registered on title to the Subject Lands. I am satisfied that the owners of any lands abutting the Subject Lands do not have a proprietary interest in the Subject Lands. The owners of those lands have benefitted, and will, with the declaratory relief granted and vesting order made, continue to benefit, from the County’s maintenance of and provision of services to the Subject Lands.

[15] I rely on rr. 1.04(1) and (3) in concluding that there is no “party or other person” who will be affected by the order sought; the court is entitled to apply r. 37.07(2) by analogy; and the court has the discretion to hear the application without notice. I am satisfied that proceeding with the hearing without notice is “the just, most expeditious, and least expensive” manner in which to determine the application: see Rules, r. 1.04(1).

[16] I turn, then, to the County’s request for declaratory relief and a vesting order.

Issue No. 1 – Has the County Established That It Is the Owner of the Subject Lands?

a) Expenditure of Money on the Subject Lands

[17] In 1983, when By-Law 1017 was passed, the County was unable to identify the owner(s) of the Subject Lands. The preamble to that by-law is as follows:

WHEREAS the Council of the Corporation of the Village of Wellington deems it necessary to declare a ‘Right of Way’ a Public Road as has been the use of the ‘Right of Way’ for several years and that the Village has made use of the right of way for the installation of Village services and that the owners of such right of way cannot be found.

[18] The by-law passed first, second, third, and final readings, and the Subject Lands were declared to be and dedicated as Public Lands.

[19] When By-Law 1017 was passed, the version of the Municipal Act then in force was Municipal Act, R.S.O. 1980, c. 302. Section 257 of that statute defines the highways, roads and bridges that constitute public highways:

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

[20] Based on the employee’s evidence, I find that, since at least 1983, the County has:

a) considered the Subject Lands to be a public road;
b) maintained and serviced the Subject Lands as a public road; and
c) neither levied nor collected taxes related to the Subject Lands.

[21] Based on the applicable statutory definition of what constitutes a highway or a road, I am satisfied that the County has established the Subject Lands are a public highway; the County is entitled to the declaratory relief sought. If, however, I am wrong in that regard, as explained immediately below, the evidence supports an inference that the historical owner(s) of the Subject Lands dedicated them to the County—entitling the County to the declaratory relief sought.

b) Inference Drawn of Historical Dedication of the Subject Lands to the County

[22] As explained by the Court of Appeal for Ontario in Cook’s Road Maintenance Association v. Crowhill Estates et al., para 22, “[t]he legal principles that apply to the creation of a public highway by dedication are of ancient origin”. The Court therein cites Halsbury’s Laws of England, 4th ed., vol. 21 (London: Butterworths, 1981), at pp. 47-48 for a comprehensive explanation of the doctrine of dedication and acceptance. The basic principles for the creation of a public highway by dedication are as follows:

“Dedication” means that the owner of the soil has either said in so many words, or so conducted himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage. From the moment that a dedicated way has been accepted by the public there is a right of passage by the public.

… Dedication necessarily presupposes an intention to dedicate. The intention may be expressed in words or writing, but is more often a matter of inference.

… Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute. User by the public is a sufficient acceptance; it is not necessary that the way should be adopted as repairable or maintainable at the public expense.

[23] Whether lands have been dedicated as a public highway is a question of fact: Macoomb v. Welland (Town), [1907] O.J. No. 95 (C.A.), at para. 29. In Macoomb, at para. 29, Meredith J.A. notes that in many cases, no direct evidence of dedication is available and cases are determined on the basis of circumstantial evidence.

[24] In the same paragraph, Meredith J.A. addresses when an inference of dedication may be drawn, stating that, “it is not difficult to infer, from the mere fact of the existence of the way, the exercise of the right of public passage over it, for such a length of time and in such a manner that it must have been with the knowledge of the owner, that its existence was actually based upon a dedication by him; unless there is outweighing evidence to the contrary.”

[25] On the application before this court, the factors supporting an inference of dedication of the Subject Lands as a public highway include (a) the County’s acceptance of the Subject Lands as a public highway; (b) the County’s expenditure of money for several decades on the maintenance of the Subject Lands; and (c) the absence of any taxes levied against the Subject Lands: see Hunsinger v. Simcoe (Town), pp. 635-39.

[26] Turning to acceptance, the passage of By-Law 1017 is evidence of the County’s clear and unequivocal acceptance of the Subject Lands as a public highway. In addition, the County’s pattern of expenditure of money on and maintenance of the Subject Lands is neither occasional nor trivial: see Sioux Lookout v. Canada et al., 2010 ONSC 2137, paras 68-70.

[27] I find that the requirements for the application of the doctrine of dedication and acceptance are met; the County is entitled to the declaratory relief requested. Before turning to the request for a vesting order, I will address the revisions to the Municipal Act which came into force in 2003 and their impact on the status of the Subject Lands as a public highway pursuant to By-Law 1017.

c) The Municipal Act, 2001

[28] The Municipal Act, 2001, S.O. 2001, c. 25 came into force in 2003. Pursuant to s. 26 of that statute, highways that existed as of December 2002 continue to be designated as highways. With the Subject Lands having been established as a public highway as of 1983, and by reason of the doctrine of dedication and acceptance, the Subject Lands continued, under the Municipal Act, 2001, to be a public highway. The Subject Lands were “grandfathered” as a public highway: see Sioux Lookout, at para. 78.

Issue No. 2 – Is This an Appropriate Case for the Court to Exercise Its Discretion to Grant a Vesting Order?

[29] The court’s jurisdiction to make a vesting order is found in s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which says: “A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.” The court’s jurisdiction to grant a vesting order is discretionary.

[30] In Langston et al. v. Landen et al., 2008 ONCA 321, para 26, MacPherson J.A. considered the logic and necessity of granting a vesting order as a precursor to an order for the sale of property in the context of estate litigation. On the application before this court, the County submits that there is logic and necessity in granting the vesting order requested—so as to correct the title to the Subject Lands. I agree; the relief requested in that regard is granted.

Disposition

[31] For the reasons given, I make the declaration requested, grant the vesting order requested, and make an order with respect to the amendment to be made on the title to the Subject Lands:

1. The applicant is the owner of the parcel / tract of land municipally known as MacDonald Street in (the former Village of) Wellington, legally described by PIN 55027-0569(R) being PRIVATE ROW W OF LT 70K PL 8 WELLINGTON HILLIER AKA MACDONALD ST; PRINCE EDWARD (the “Subject Lands”) by virtue of By-Law Number 1017 passed by the County on September 1, 1983 whereby the Subject Lands were declared to be and dedicated as “Public Lands”.

2. All right, title and interest in the Subject Lands shall vest in the applicant.

3. The applicant shall be recorded as the owner on title to the Subject Lands as:

   Name: The Corporation of the County of Prince Edward
   Address for Service: 332 Main Street
   Picton ON K0K 2T0

[32] There shall be no costs of the application.

Released: June 2, 2025

Sylvia Corthorn