Superior Court of Justice – Ontario

Court File No.: CV-21-00001794
Date: 2025-02-03

Parties

Applicant: Roderick John Melson
Respondent: The City of Kawartha Lakes

Before

R.E. Charney

Counsel

• Roderick John Melson, Self-Represented
• Paul E.F. Martin, Counsel for the Respondent

Date Heard

2025-01-28

Endorsement

[1] The Applicant, Roderick Melson, commenced this Application in May 2021, seeking a declaration that cement blocks placed by the Respondent, the Corporation of the City of Kawartha Lakes (the “City”), trespassed on his property, and a mandatory injunction ordering the City to remove the cement blocks from his property.

[2] The City argues that the cement blocks are on the City’s property, a recreational trail known as the Victoria Rail Trail (the “Trail”). The cement blocks were placed on the trail because the Applicant was driving trucks across the Trail, which created a safety hazard and nuisance for patrons of the recreational trail. To remedy the unsafe situation created by the Applicant’s refusal to comply with lawful demands from the City to stop using the unauthorized access, the City in September 2020 blocked his illegal entrance using concrete bollards that are on public lands forming part of the Trail.

[3] When the matter came before me, the Applicant had not filed any material or uploaded anything to Case Center. The Applicant claimed that he mailed a box containing his factum and the Application Record to the Court in September, 2024. He did not keep a copy of any of the material he sent to the Court. He did not serve the factum on the Respondent. I asked the Registrar to see if she could locate the box, but she was not able to do so. The Applicant did not upload any of his material to Case Center, notwithstanding RSJ Edwards’s Order dated December 10, 2024, that “Parties are to upload their material to Case Center forthwith.”

[4] I was able to glean the basis of the Applicant’s position from the material filed by the Respondent, and we proceeded on that basis.

Facts

[5] The Applicant is the owner of property municipally known as 14 Sunset Lane in Fenelon Falls (the “Property”). He has owned the Property since at least 1990 and operated a sole proprietorship known as “Avalon Farms” that was in the business of industrial peat extraction. The Property is adjacent to the recreational Trail owned and maintained by the City, which is known as the “Victoria Rail Trail” owing to its former use as a railway line.

[6] The Applicant’s peat extraction business relies upon industrial trucks routinely entering and exiting the Property. Those trucks created safety concerns for persons lawfully using the Trail, including members of the Kawartha Lakes Snowmobile Club who own the adjoining parking lot and facilities that connect to the Trail. Trucks crossing the Trail to access or depart the Property at the illegal entrance increase the likelihood of a motor vehicle accident with unsuspecting pedestrians, bicyclists, or snowmobilers along the Trail. The trucks also created divots and other irregularities in the surface of the Trail that increase safety risks and the risk of a motor vehicle accident at the entrance to the snowmobile parking lot.

[7] There is an authorized entrance across the Trail that is available to the Applicant and his neighbours who own residential lands along an unlicensed roadway known as ‘Superior Road’.

[8] The Applicant ignored several demands by the City to stop using the unlawful entrance. Accordingly, the City obtained a land survey from Coe Fisher Cameron Land Surveyors dated March 22, 2019 to confirm property lines in the subject area before installing concrete bollards on the Trail on September 2, 2020 blocking the illegal entrance.

Analysis

[9] The only credible evidence provided on the issue of trespass comes from the City’s certified land survey prepared by Coe Fisher Cameron Land Surveyors dated March 22, 2019. This land survey confirms that the bollards are placed well within public lands.

[10] The Applicant’s trespass argument is not supported by any survey, and he appears to have abandoned that position in a subsequent affidavit, in which he claimed that he had a prescriptive right of way over the Trail.

[11] The Respondent has, however, provided evidence (date-stamped aerial photographs) that demonstrate that the driveway for which the Applicant claims a right of way did not exist prior to 2013, and that the Applicant cleared the forest to create the driveway at some point between 2013 and 2018.

[12] To establish a prescriptive easement, a claimant must first satisfy the following four essential characteristics of an easement or right-of-way: (i) there must be a dominant and servient tenement; (ii) an easement must accommodate the dominant tenement; (iii) the dominant and servient owners must be different persons; and (iv) the easement must be capable of forming the subject matter of a grant: Barbour v. Bailey, 2016 ONCA 98, at para. 56.

[13] In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years: Barbour v. Bailey, 2016 ONCA 98, at para. 60.

[14] I am satisfied from the evidence provided by the City that the Applicant cannot meet the requirement that the easement claimed was “continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years”. After the Applicant ignored Trespass Notices starting in May 2018, the City blocked use of the illegal driveway with the bollards on September 2, 2020. It is clear that the Applicant has not enjoyed uninterrupted, open and peaceful use of the driveway for a period of twenty years.

[15] While I have dealt with this Application on its merits, I note that the Application is moot. The Property was mortgaged, and the mortgagee for the Property issued a Writ of Possession against Mr. Melson. On February 2, 2024, the mortgagee obtained vacant possession of the Property by executing the Writ of Possession. Since that time, the Applicant has not had access to the Property. While the Applicant remains the owner of the Property pending a Power of Sale, he is no longer in control of the Property. The Property has been listed for sale. The mortgagee has consented to the placement of the boulders.

Conclusion

[16] The Application is dismissed.

Costs

[17] The Respondent seeks costs on a substantial indemnity basis in the amount of $45,124 plus HST, or $33,091 plus HST on a partial indemnity basis.

[18] The Applicant commenced this Application nearly four years ago, and the Respondent has had to make considerable efforts to move the Application along and have it heard (see my Endorsement re: motion to dismiss for delay, dated January 11, 2023: Melson v. Kawartha Lakes (City), 2023 ONSC 291). While I appreciate the Respondent’s frustration in trying to have the Application proceed on a timely basis, I do not believe that any of the Applicant’s conduct merits costs on a substantial indemnity basis.

[19] In addition, the Respondent’s costs outline includes fees in relation to their motion to dismiss for delay, and costs were already ordered with respect to that motion in the amount of $3,390, inclusive of HST.

[20] Based on the factors listed in Rule 57.01, I am of the view that the costs of this Application should be fixed at $25,000 inclusive of HST and disbursements. These costs are payable by the Applicant to the Respondent within 45 days.

Justice R.E. Charney
Date: 2025-02-03