Township of Clearview et al. v. Wargon et al., 2026 ONSC 2252

CITATION: Township of Clearview et al. v. Wargon et al., 2026 ONSC 2252

COURT FILE NO.: CV-20-327

DATE: 2026-04-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Corporation of the Township of Clearview and the Corporation of the County of Simcoe

Applicants

– and –

Allan Wargon, Esther Wargon, The Corporation of the Township of Melancthon and Matthew Leonard Bailey

Respondents

Counsel:

Sarah Hahn and Carly Emmett, Counsel for the Applicant, Corporation of the Township of Clearview Email: shahn@barristonlaw.com Email: cemmett@barristonlaw.com

Kyle Gossen and Lauren Yan Lin Cao, Counsel for the Respondent, Matthew Leonard Bailey Email: kyleg@davieshowe.com Email: laurenc@davieshowe.com

HEARD: March 27, April 4, 2025

REASONS FOR JUDGMENT

Lack J.

1The Township of Clearview claims ownership of land currently registered in the name of the respondent Matthew Leonard Bailey. Both the Township and the County of Simcoe, of which it is a part, claim that the land constitutes a highway and seek a declaration to that effect and rectification of title to the property under s. 159 of the Land Titles Act, R.S.O. 1990, c. L.5.

2Matthew Leonard Bailey responds to the claim by asserting that his title to the land is indefeasible, and ownership cannot be changed.

3On October 25, 2024, the applicants abandoned this application as against the original respondents Allan Wargon and Esther Wargon.

4The parties agree that the application can be determined on the written record.

BACKGROUND

(a) Description of the Lands in Question

5The land in question is wholly within the Township of Clearview, in the County of Simcoe. Clearview is the successor to the Township of Nottawasaga under the County of Simcoe Act, 1993, S.O. 1993, c. 33. Clearview is north of the Township of Melancthon, County of Dufferin. To the east of Melancthon is the Township of Mulmur. The original road allowance is to the south of Clearview and is between Clearview and Melancthon. The road allowance is a boundary line between the two townships, Clearview and Melancthon, even though the public sometimes refers to it as the Mulmur-Nottawasaga Townline.

6The land is a deviation from part of the original road allowance. It is referred to as the “Deviation Road.” I will call it that for convenience, without any predetermination that it is legally a “highway.” The Deviation Road terminates on its west and east ends at the “Melancthon-Nottawasaga Townline Road,” the original road allowance/boundary road, a public highway. The Deviation Road includes a bridge over the Noisy River. Because a boundary road is under the joint jurisdiction of the two townships that share it, the applicants have named Melancthon as a respondent in this proceeding. Melancthon did not respond to the application.

7The Deviation Road is part of the East Half of Lot 1, Concession 12, Clearview (Nottawasaga). It spans land now owned by Mr. Bailey in the Township of Clearview, municipally known as 825941 Melancthon-Nottawasaga Townline Road. In 1981, Reference Plan (“R-Plan”) 51R-10847 was prepared. I have attached a copy. The reference plan shows part of the Deviation Road as Part 2, an area of .76 acres. The R-Plan also shows the remainder of the Deviation Road, but not as “Parts” on the R-Plan. For visualization purposes, I have highlighted the Deviation Road in its entirety. On the R-Plan, the surveyor has called the entirety of it the “Deviation Road”, and in doing so noted: “Centre Line of Deviation Road established in accordance with By-Law 260 Inst. No. 3948.” I am satisfied that what I have highlighted on the R-Plan is the land in issue.

8The land in contention is contained today as part of the lands registered in the Land Titles Office #51, as PIN 58224-0008 (LT) and PIN 58224-0009 (LT).

(b) Conveyancing History

9On October 1, 1878, the owner of the land, Samuel Pound, executed a transfer of the land in contention to the Township of Nottawasaga for one dollar. The land transferred was said to be “two acres and thirty two hundredths of an acre,” and was described in metes and bounds. These are the lands I have highlighted. Both the granting and habendum clauses in the deed set out the purpose of the transfer as “to be used for the purpose of a public highway.”

10On October 21, 1878, Nottawasaga passed By-Law No. 260 purporting to establish that land as a deviation for a road. The by-law referred to it as an “important road and public highway.” The by-law was never registered on title.

11The 1878 transfer of the land to Nottawasaga was registered in the Simcoe County Land Registry Office on September 17, 1884, as instrument number NOT3948.

12On December 18, 1901, Mr. Pound transferred his land in the area to Walter Morgan Tolton. It was described as the East Half of Lot 1, Concession 12, Nottawasaga. In failing to save and except the land that he had already transferred to Nottawasaga in the 1878 deed, the description in the 1901 deed included it.

13After 1901, the East Half of Lot 1, Concession 12 was transferred another five times to various purchasers until a tax sale in 1966. In each transfer, the description error was repeated.

14In 1966, Allan Wargon purchased the East Half of Lot 1, Concession 12 in the tax sale. Again, the Deviation Road land was not saved and excepted from the general description of the East Half of Lot, Concession 12 in that transfer.

15In 1981, Mr. Wargon had a Reference-Plan prepared. Part 2 was a portion of the Deviation Road. Mr. Wargon then transferred Parts 1, 2 and 3 on the R-Plan 51R-10847 to himself and his spouse Esther Wargon. The purpose of this conveyance was a severance. The severance had been approved. The remaining land stayed in Mr. Wargon’s sole name and included the Deviation Road (except for Part 2, then in the joint names of the spouses).

16On October 16, 2000, the two parcels of land were converted to the Land Titles System of land registration. Prior to October 16, 2000, they were governed by the Registry Act, R.S.O. 1990, c. R.20, in force from time to time. The Land Titles Register shows that on first registration the lands were Land Titles Conversion Qualified (LTCQ), which means there are some qualifications.

17On December 12, 2005, the Township of Melancthon passed a resolution purporting to close the Deviation Road. The stated purpose was to “relieve the Township [Melancthon] of any snowplowing and maintenance and liability obligations on this road form [sic] the westerly side of the County Bridge East to the Melancthon-Mulmur Townlines.” Melancthon’s present position, ascertained from correspondence attached to an affidavit, is that the issue of legal ownership of the Deviation Road is for Clearview to resolve.

18The old bridge on the Deviation Road, which crossed the Noisy River, was reconstructed in 2012 by the County of Simcoe at a cost to taxpayers of approximately $220,000.

19About August 2019, Melancthon barricaded access to the Deviation Road at the east end. No by-law had been passed to enable Melancthon to take any action to block the public’s access to or use of the Deviation Road.

20On February 21, 2020, Clearview commenced this application.

21On May 9, 2022, by Instrument No. SC189458, Matthew Leonard Bailey purchased land from Mr. and Mrs. Wargon and the description in the transfer included the entirety of the Deviation Road.

22A by-law has never been passed closing the Deviation Road by either Clearview or Melancthon.

ISSUE

23The sole issue in this proceeding is: who owns the Deviation Road?

THE POSITIONS OF THE PARTIES

24The following is a general overview of the positions of the parties.

25The applicants take the position that Clearview is the owner of the Deviation Road. It was conveyed to it. It was a public highway in 1878 and remains a public highway today. As such, it is governed by legislative safeguards that have been in place over the years protecting public highways from falling into private hands, through adverse possession or otherwise. There were errors in conveyancing, which culminated in an error in the tax sale deed in 1966. Rectification of title is not required because the Deviation Road remains a public highway, but a declaration and rectification is sought to quiet this dispute.

26Mr. Bailey's position is that the Deviation Road was never a public highway. The statutory requirements in effect when By-Law 260 was passed were never met. That prevented it from becoming a highway. The original transfer of the land to Nottawasaga was wiped out 40 years after it was registered. The tax sale in 1966 was final and binding, creating another bar to Clearview’s title. Mr. Bailey's title is indefeasible, and ownership of the land cannot be changed. As well, the claim against Clearview to the land began to run in 1901 when the path went into private ownership. It is now statute barred. Also, the equitable doctrine of laches prevents Clearview from taking private property a century after it was last in public ownership.

(a) Was the Deviation Road ever a public highway?

27The crucial question is whether the Deviation Road was ever a public highway because it is on the outcome of that consideration that the remaining arguments must proceed.

(b) What is a “public highway”?

28There is a bare bones description of what constitutes a highway in s. 26 of the Municipal Act, 2001, S.O. 2001, c.25. If, after January 1, 2003, it is alleged that a road was previously a “highway”, then its history must be investigated. This is because s. 26, clause 1, of the current Municipal Act grandfathered all “highways” that existed on December 31, 2002, into the new legislation, unless they have been closed. A “highway” also includes all road allowances made by the Crown Surveyors located in municipalities, unless they have been closed: see Municipal Act, 2001, s. 26, clause 4.

29The Highway Act of 1810, Statutes of Upper Canada, 50 Geo. III, c. 1, was the patriarch of Ontario’s present road legislation, followed by the Municipal Institutions Act of 1849, 1849 12 Vic., c. 81 (the “Baldwin Act”). The consolidated Municipal Institutions Act of 1858, S.U.C. 1858, c. 99, restated the definition of a highway as:

300 – What Constitute Highways

All allowances for roads made by the Crown Surveyors in any Town, Township or place already laid out, or hereafter laid out; and also all roads laid out by virtue of any Act of the Parliament of Upper Canada, or any roads whereon the public money has been expended for opening the same, or whereupon the Statute Labour hath been usually performed, or any roads passing through the Indian Lands, shall be deemed common and public highways, unless where such roads have been already altered, or may hereafter be altered according to Law.

30This definition was in effect in 1878. However, public highways were not confined solely to those that fell within that definition. As the applicants point out, highways could be created by the common law principles of dedication and acceptance.

31The first legislative recognition of roads and streets being created by “dedication by the owner” and “acceptance by the municipality on behalf of the public” appeared in s. 432 of the Municipal Act of 1913, S.O. 1913, 3-4 Geo. V, c. 43 (“Municipal Act of 1913”), which provided:

432 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, shall be common and public highways. [Emphasis added.]

32Despite the late statutory recognition in 1913, the common law also applied in 1878 and following. As stated in Russell on Roads,¹ C.R.W. Biggar wrote in The Municipal Manual 1900:

A third class of highways has, since the passing of 50 Geo. III, c. 1 [the Highway Act of 1810] become so important as to require detailed consideration. It embraces all such public roads, streets, lanes, etc., as have been dedicated by private owners, and accepted as highways by or on behalf of the public.

Whether the private owner of lands has, or has not dedicated a trespass road to the public for highway purposes, must in every case be a question of fact. His intention to do so may be evidenced:

(1) By his executing a deed or other written document in which the land is described as a highway.

33Russell on Roads indicates that owners “dedicating” their land and the municipality “accepting” it to create a road has been recognized in the common law since the early 1800s. The reference quoted is from Meredith & Wilkinson: Canadian Municipal Manual as follows:

The law as to the dedication of highways is well and compendiously stated in O'Neil v. Harper (1913), [1913 CarswellOnt 820, 13 D.L.R. 649, 28 O.L.R. 635, [1913] O.J. No. 91 (Ont. S.C.)] where it is laid down, though not for the first time, that land dedicated for the purpose of passage becomes a public highway when accepted for that purpose by the public; there must be the intention to dedicate. Acceptance may be inferred from public user, and no formal act of adoption is necessary. Open and unobstructed user by the public for a substantial time is, as a rule, evidence from which both dedication and acceptance may be inferred, but an intention to dedicate can only be inferred against a person who is absolute owner in fee simple and sui juris, all of which propositions are supported by citation of the authorities.²

34Since the first Baldwin Act in 1849, there have been various legislative provisions (up until December 31, 2002 when s. 26 of the Municipal Act, 2001 was passed) that acknowledged that both the common law formula and the statute law formula led to municipal ownership of roads.³ This applied even in the case where the municipality did not receive an actual deed to the land in question. For example, s. 433 of the Municipal Act of 1913 provided that:

433 Unless otherwise expressly provided, the soil and freehold of every highway shall be vested in the corporation or corporations of the municipality or municipalities, the council or councils of which for the time being have jurisdiction over it under the provisions of this Act.

35When a municipality acquires title to a road by deed from the owner for road purposes, it does not mean that it has assumed the road.

36Formal acceptance by the municipality could be by passage of a by-law accepting ownership. However, in Rorabeck et al. v. Township of Sidney et al. (1977), 16 O.R. (2d) 296 (H.C.) at p. 303, Labrosse J. wrote that it is well settled that acceptance by a municipality can be established without being dependent upon a by-law or resolution of the municipality.

37Indirect acceptance by the municipality can be established by showing that the municipality assumed the road by performing work and incurring expenditures in connection with it. In Reed v. Town of Lincoln, [1973] 3 O.R. 969 (H.C.), at p. 978, the trial judge found that the municipality’s minor acts of assistance did not constitute “assumption.” The Court of Appeal in that case agreed that the small expenditure of public funds there was not sufficient to create a presumption of acceptance of the road as a public highway: Reed v. Town of Lincoln, [1975] 6 O.R. (2d) 391 (C.A.), at pp.402-03.

38In Scott et al. v. City of North Bay (1976), 12 O.R. (2d) 730 (S.C.J.), the trial judge found that two loads of gravel on the road over a period of several years, removing a protruding rock, some minor grading and laying some calcium chloride were sufficient acts of assumption. The Court of Appeal disagreed on the basis that the acts were minor maintenance, trivial, infrequent and insufficient to show that the township intended to assume the road: see Scott et al. v. City of North Bay, [1978] 18 O.R. (2d) 365 (C.A.), at p. 369.

39More recently, in Meaford (Municipality) v. Grist, 2013 ONCA 124, 360 D.L.R. (4th) 224, at para. 16, Pepall J.A. re-affirmed the common law doctrine of dedication and acceptance, which require satisfaction of the following three conditions:

(i) an owner of the land on which the road is situated had formed the intention to dedicate the land to the public as a public road, or highway;

(ii) the intention was carried out by the road being thrown open to the public; and

(iii) the road was accepted by the public.

DEDICATION – FINDING

40Dedication is a question of fact. I find that Samuel Pound’s transfer of the land forming the Deviation Road to Nottawasaga dated October 1, 1874 “for purposes of a public highway” was the purest form of dedication.

ISSUE – ACCEPTANCE

41The remaining issue is whether Nottawasaga accepted the road.

42The applicants’ position is that the evidence of Nottawasaga’s acceptance of the property as a highway is By-Law 260 passed October 21, 1878; registration of the transfer; construction and maintenance of the road; and public use of it.

43Mr. Bailey’s position is that the Deviation Road was prevented from becoming a public highway because statutory requirements at the time were not met.

(a) The Statutory Requirements

44The first legislative provision mandating the registration of by-laws to open roads took effect on March 4, 1868.⁴ Section 1 of the Registration of Instruments Act 1867-1868 provided that an “Instrument” included a “municipal road by-law.” Section 63 provided of the Registration of Instruments Act 1867-1868 set forth:

63 All By-laws hereafter to be passed by any Municipal Council, under the authority of which any street, road, or highway shall be opened upon any private property, shall before the same becomes effectual in law, be duly registered in the Registry Office of the county where the land is situate….

45New municipal legislation⁵ was given Royal Assent on March 29, 1873, and repeated s. 63 above in its s. 445.

46The Registry Act in the 1877 Revised Statutes of Ontario (the “Registry Act of 1877”)⁶ provided in s. 73(1):

73(1) Every by-law passed since the twenty-ninth day of March, eighteen hundred and seventy-three, or thereafter to be passed by any municipal council, under the authority of which any street, road, or highway has been or is opened upon private property, shall before the same become effectual in law, be duly registered in the Registry Office….

47Although the Registry Act of 1877 was amended in other ways, the equivalent to s. 73(1), dealing with by-law registration, remained virtually unchanged until the 1960s.

48A similar section was included in s. 507 of the Municipal Act, R.S.O. 1877 (the “Municipal Act of 1877”).⁷

(b) Did the failure of Nottawasaga to register By-Law 260 contravene the provisions of the [Registry Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-r20/latest/rso-1990-c-r20.html) of 1877 and the [Municipal Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m45/latest/rso-1990-c-m45.html) of 1877 and prevent the Deviation Road from becoming a highway?

49By-Law 260 purports to “establish” the Deviation Road as a public highway. The provisions of the Registry Act of 1877 and Municipal Act of 1877 in force at the time relate to “opening” a highway “upon private lands.” How do these words relate to one another and “assuming” a road?

50At p. 187, Russell on Roads concludes: “Prior to the 1950s, the term “opening” meant “assuming” the road for maintenance purposes.” At page 249, the author sets forth:

Now for the question. In this day and age, what interpretation is to be given to the words “establishing a highway?” Does it mean: (1) laying out a highway; (2) constructing a highway; or (3) maintaining a highway?

A similar question arose in the case of Palmatier v. McKibbon (1894) [(1894), 21 O.A.R. 441 (C.A.)]. The issue was the interpretation to be given to the words “laying out” and/or “opening a road”, being a phrase used in the statute of the day. It was held that surveying a road on the ground and declaring it to be a public highway was sufficient to satisfy those terms. Construction and/or maintenance was not a pre-requisite. However, construction and maintenance, would, by itself, be sufficient to constitute “establishing” a highway.

51I find that in the present context, the words “opening, “establishing” and “assuming” are synonymous.

52The relevant provisions of the Registry Act of 1877 and Municipal Act of 1877 only relate to “private property.” There is no definition of “private land” in either Act. Private land obviously is not public land. Public land is land that is owned by a government for public purposes. Here, the owner had signed a deed transferring the lands to Nottawasaga, a government entity, “to be used for the purpose of a public highway.” When the township passed By-Law No, 260, the land was no longer private property. The Township owned it for public purposes. For that reason alone, I find it was not necessary for Nottawasaga to register By-Law No. 260.

53If I am wrong, that does not end the matter. The authorities show that acceptance is not contingent on a by-law. Acceptance may be found based on the municipality “assuming” the road. Assumption can be direct, or it can be inferred by the municipality performing work on the road, incurring expenditures for it, and facilitating public use of it as a road. This makes sense because the effect of such acts serves as notice that the lands have been converted to a public highway.

(c) If I am wrong, does the evidence establish that Nottawasaga assumed the Deviation Road?

54The onus is on the municipality to show that the land in dispute is a public highway.

55There is simply no evidence before me of any acts by the municipality from 1878 to 1966 in relation to the land, apart from the surveying that would have been required to come up with the legal description for the deed, the passing of By-Law No. 260 and the registration of the deed. There is no evidence about the construction of the road during that period. There is no evidence that statute labour was performed on the road. In fact, I have no idea when statute labour was abolished in the township. There is no direct evidence of any expenditure of public money on the road – no vouchers, correspondence, or records of any kind. No maps or surveys from the time were produced. There is no direct evidence of open and unobstructed public use for a substantial time during that period. That is not surprising due to the time that has passed. However, to complete the picture, I must consider whether, on the evidence that does exist today, I can infer assumption in the past.

56If By-Law No. 260 was ineffectual in law to establish that the road was opened, it is nevertheless part of the history and provides proof that the council intended to establish the deviation as an important road.

57There is no issue that the Deviation Road was a route that clearly detoured around part of the original road allowance, which was a boundary road between Nottawasaga and Melancthon. As such, it had the attributes of a replacement boundary. It was also connected to roads in the Township of Mulmar. I infer that a complete boundary road was a necessity in the past to connect residents of Nottawasaga and Melancthon in that area to one another and to the Township of Mulmur in the southeast and to the King’s Highway to the immediate west. There is no issue that there was a mill on Mr. Pound’s property fronting on the Deviation Road, built around 1864. There was a bridge on the Deviation Road close to the mill, making travel possible over the Noisy River. All of this explains why Mr. Pound donated the land to the municipality for a road, particularly with the mill on his property. It is difficult to see how the residents in the area could have travelled in a reasonable fashion without it or how the mill could have functioned.

58A surveyor suggested to Mr. Wargon that he make further inquiry about the Deviation Road when, in 1964, he purchased other land in the area, before his 1966 tax purchase. There was obviously awareness of the Deviation Road at the time. In 1981, the presence of the Deviation Road was plotted on Reference Plan 51R-10847. Today the Deviation Road in some places is just two parallel ruts with a hump of grass in the centre. In other places, it is in better repair.

59From this history of the Deviation Road, I infer that a road had been constructed and used by the public. I find that Nottawasaga assumed the Deviation Road in the 1878 to 1884 period. It is a highway, unless prevented or defeated by other statutory provisions or events.

(d) Did non-compliance with s. 417 of the 1873 Municipal Institutions Act[^8] (dealing with boundary roads) prevent the Deviation Road from becoming a highway?

60A boundary road is one that is on the boundary between two municipalities. In the present case, the road allowance between the Townships of Nottawasaga and Melancthon is a boundary road between those two townships. The Municipal Act, 2001,⁹ carried forward prior legislation that gave adjacent municipalities “joint jurisdiction” over a boundary road.

61Section 416 of the 1873 Municipal Institutions Act provided:

416 In case a road lies wholly or partly between a county, town, city, township or incorporated village, and an adjoining county or counties, town, city, township or incorporated village, the councils of the municipalities between which the road lies, shall have joint jurisdiction over the same, although the road may so deviate as in some places to be wholly or in part within one or either of them, and the said road shall include a bridge forming part of the road.

62When the townships were originally set up, all road allowances, including boundary ones, were laid out by the original Crown Surveyors without regard to how hospitable the terrain was for the construction of a road. As a result, roads often had to deviate from the original allowances. There was long recognition that boundary roads included deviations from the original road allowances, although legislation did not specifically provide that boundary roads included deviations of boundary roads prior to 1913. However, earlier recognition is shown. For example, Brant (County) v. Waterloo (County) (1860), 19 U.C.Q.B. 450 was a case about an alleged deviation from a boundary road. As with most cases about joint jurisdiction at the time, the issue between the two adjacent municipalities was over finances and whether the road in question was truly a deviation road mandating joint sharing of expenses. The issue was whether the road was too far afield to be considered a deviation.

63There was no issue that a proper deviation was to be treated in the same way as a boundary road laid out by the Crown Surveyors. In 1871, in McBride v. York (Township), (1871), 31 U.C.Q.B. 355, Wilson J. found that the part wholly within one township that deviated from the original road allowance was a boundary road. He found that it was subject to the incidents and law which govern highways between townships. Wilson J. held at para. 12:

It is not necessary that the road between townships should consist of original road allowances only. Such roads may be acquired or may be added to by purchase or by dedication, as in other cases, and when once established by any lawful means it is a road for all purposes, and subject to the common incidents and law applicable to highways in the particular locality in which they are situated.

64In the present case, there is no dispute that the Deviation Road was a deviation from the original road allowance, operating as a bypass around the unusable portion of the original road allowance.

65The 1873 Municipal Institutions Act contained provisions dealing with by-laws relating to boundary roads:

417 No by-law of the council of any one of such municipalities with respect to such last-mentioned road or bridges, shall have any force until a by-law has been passed in similar terms as nearly as may be, by the other council or councils having joint jurisdiction in the premises.

445 All by-laws hereafter to be passed by any municipal council under the authority of which any street, road or highway shall be opened upon any private property, shall, before the same becomes effectual in law, be duly registered in the registry office of the registry division in which the land is situate….

66The respondent’s position is that if the Deviation Road was part of a boundary road, Nottawasaga and Melancthon would have joint jurisdiction over it. The argument is that a by-law relating to it, like By-Law No. 260, which Nottawasaga had passed, had no force until Melancthon passed one on similar terms. Since Melancthon never passed such a by-law, Nottawasaga’s By-law No. 260 was of no force and, consequently, the Deviation Road was never a public highway.

67I do not accept the respondent’s argument. F.J. Joseph, editor of Harrison’s Municipal Manual,¹⁰ commented on the precursor to s. 417 of the 1873 Municipal Institutions Act (which contained provisions similar to s. 417 and s. 445) at p. 509 as follows:

It is doubtful if the words used in this section, conferring joint jurisdiction, standing by themselves, mean anything other than that the municipalities jointly interested are to concur in any regulation necessary to be applied to the road or bridge in regard to tolls or otherwise.

68In my view, the failure of Melancthon to pass a corresponding by-law affects only the viability of Nottawasaga’s claim for contributions to the maintenance of the Deviation Road. Despite Melancthon’s failure to pass a by-law, there is history of it maintaining the Deviation Road. In fact, the reason it gave when it barricaded the Deviation Road years later was its desire to be “relieved” of snowplowing and maintenance and liability obligations relating to it.

69Since the Deviation Road was obviously a true deviation from the original road allowance, it should be treated in the same way as an original allowance for roads by the Crown Surveyors, based on the comment in McBride, at para. 12, that once established, a deviation road between townships is a road subject to the common incidents and law applicable to highways in the particular locality. In other words, it comes within the definition of “highway.” That was recognized by statute in the Municipal Act of 1913 which provided in s. 432 that “all alterations and deviations of … any such allowance for road, highway or road, shall be common and public highways.” That has been carried forward in every Municipal Act up to and including s. 261 of the Municipal Act, R.S.O. 1990, c. M.45. When the other municipality in the case of joint jurisdiction has assumed obligations relating to a road, as Melancthon viewed it had, it too had accepted the road.

70I find that Nottawasaga’s failure to comply with s. 417 of the 1873 Municipal Institutions Act did not prevent the Deviation Road from becoming a highway.

(e) What is the effect of the notice provisions of the Registration of Instruments Act 1867-1868 and the Registration of Instruments Act 1893[^11] on the Deviation Road?

71The respondent’s position is that Nottawasaga did not comply with the notice provisions in either iteration of the Registration of Instruments Act. Consequently, the transferees in the chain of title did not have notice that the land in issue was a highway and so title to that part of the land passed to them on each consecutive transfer. The respondent relies on Meaford, as authority for this proposition. His position is also that “the original transfer of the land to Nottawasaga, now Clearview, was wiped out 40 years after it was registered.”

72Section 1 of the Registration of Instruments Act 1867-1868 provided that an “instrument” included a municipal by-law. The legislation contained the following notice provisions:

64 After any grant from the Crown of Lands in Ontario, and Letters Patent issued therefor, every instrument affecting the lands or any part thereof comprised in such grant shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such instrument is registered in the manner herein directed before the registering of the instrument under which such subsequent purchaser or mortgagee may claim.

66 The registry of any instrument, under this Act, or any former Act, shall, in equity, constitute notice of such instrument, to all persons claiming any interest in such lands subsequent to such registry.

67 Priority of registration shall in all cases prevail unless before such prior registration there shall have been actual notice of the prior instrument by the party claiming under the prior registration.

73Those provisions were contained in the subsequent legislation, the Registration of Instruments Act 1893, but with different section numbers.

74In Meaford, the Court of Appeal for Ontario dealt with the notice provisions in the Registry Act in force at the time relevant in that case. The underlying facts in Meaford predated what took place in the present case, but the relevant statutory enactments were virtually the same then and remained part of Ontario’s land registry laws afterwards. The Court of Appeal found in Meaford that, by failing to register its by-law, the Township ran the risk that because of those provisions a subsequent purchaser of the land, not having registered notice of the road, would gain priority over the Township by registering his or her interest first. The Court of Appeal agreed with the motion judge, at para. 82, that “actual notice of the By-law” road was required for any ownership interest created by the By-law to prevail over subsequent registered transfers. Otherwise, a subsequent purchaser was entitled to rely on the register to list all instruments affecting title to the property, in the absence of actual notice. The issue then became whether there was actual notice to the purchaser. The motion judge in Meaford found there was no actual notice. The Court of Appeal found that decision unassailable.

75The situation in Meaford was very different from the present case. There the Township claimed ownership to the land, alleged to be a road, solely on the basis of its by-law, which purported to establish a road. It based its claim to ownership on s. 432(2) of the 1913 Municipal Act of 1913, which specifically recognized that the freehold of every highway is vested in the municipality or municipalities, which have jurisdiction over it. The Township in Meaford had simply found the by-law establishing the road among its old records years after it had been passed. The by-law had never been registered. There was no proper legal description of the road in it. The land had never been deeded to the municipality. No road was ever constructed on it.

76Unlike in Meaford, in the case at bar, Nottawasaga had received a deed to the lands “to be used for the purpose of a public highway.” The transfer was registered. The transfer contained a metes and bounds legal description prepared by a surveyor, which was clear.

77I have found that the land had been dedicated to Nottawasaga by the deed and had been accepted by Nottawasaga. This made the registration of By-Law No, 260 unnecessary. In addition to this, there was registered notice of the instrument of dedication when the deed was registered. The physical presence of the road gave actual notice of acceptance of the road to all.

78In light of the foregoing and the application of the 40-year rule, I find that the notice provisions of the Registration of Instruments Act 1867-1868 and the Registration of Instruments Act 1893 had no impact on the status of the Deviation Road as a highway.

(f) The Application of the 40-year Rule

79The provisions of the Registry Act, R.S.O. 1990, c. R. 20, Part III Investigation of Titles, ss. 111-115, are relevant. This modern Registry Act provides:

112(1) A person dealing with land shall not be required to show that the person is lawfully entitled to the land as owner thereof through a good and sufficient chain of title during a period greater than the forty years immediately preceding the day of such dealing, except in respect of a claim referred to in subsection 113(5).

(3) A chain of title does not depend upon and is not affected by any instrument registered before the commencement of the [40 year] title search period except …

(c) an instrument in relation to any claim referred to in subsection 113(5)

113(1) A claim that is still in existence on the last day of the [40-year] notice period expires at the end of that day unless a notice of claim has been registered.

80In 1387881 Ontario Inc. v. Ramsay, 77 O.R. (3d) 666 (C.A.), Lang J.A. traces the history of the legislation beginning with the Investigation of Titles Act, 1929, S.O. 1929, c. 41, which codified the common law on title searches.

81This legislation is retrospective, and by virtue of s. 115(2), applies to every claim, whether registered before or after August 1, 1981.

82The respondent, Mr. Bailey argues that under this legislation the claim of each subsequent purchaser, in turn, to good title to the land in question is unaffected by the rights of Nottawasaga under the 1878 transfer.

83I disagree with the respondent’s position.

84Section 112(1) of the Registry Act applies except in respect of a claim referred to in s. 113(5). Clause 112(3)(a) also excepts an instrument in relation to any claim referred to in s. 113(5). Clause 113(5)(a)(iii) provides that Part III of the Act (the Investigation of Titles Part of the Registry Act), “does not apply to (a) a claim, (iii) of the Crown or a municipality in a public highway or lane.” Finally, ss. 115(1) of the Registry Act provides that, where there is a conflict between any provision of Part III and any provision in Part I or Part II of the Registry Act, or of any provision of any other Act or any rule of law, the provisions of Investigation of Titles Part prevail.

85The transfer from by Samuel Pound to Nottawasaga, which was registered on title on September 17, 1884, as instrument number 3948, stated in the granting and habendum clauses that the subject land was granted to the Township of Nottawasaga “for purposes of a public highway.” Nottawasaga’s interest thereunder was a public claim to ownership of the land by a municipality in a public highway.

86The failure to save and except the Deviation Road from subsequent transfers up to the time of the tax sale in 1966 was clearly a conveyancing error, begun by Mr. Pound. Nottawasaga was not a party to any of those transfers in the chain of title. The transferees all had registered notice of Nottawasaga’s interest by virtue of the Pound transfer to Nottawasaga. Any competent real estate lawyer and conveyancer would have been aware that to conduct a proper search of title, it was necessary to search back 40 years to a good root of title, and, also, to search the entire register outside the 40-year period for interests in public roads and highways. That would have disclosed the Pound transfer to Nottawasaga for road purposes. Title to the Deviation Road was not passed to the subsequent transferees because a transferor cannot transfer what he does not own: “nemo dat quod non habet.” The 40-year rule does not apply to a highway (see Registry Act, s.113(5)(a)(iii)).

87I find that the original transfer of the land by Mr. Pound to Nottawasaga was not “wiped out 40 years after it was registered.” Each transferee under the Registry System had registered notice of Nottawasaga’s interest.

(g) Did Mr. Wargon obtain ownership of the Deviation Road by virtue of the tax deed of 1966?

88On September 19, 1966, the East Half of Lot 1, Concession 12 was transferred to Allan Wargon in a municipal tax sale. The legal description in the deed was the same as in the deviant taxpayer’s deed – in other words, it did not save and except the Deviation Road from the description.

89The position of the respondent, Mr. Bailey is that since the Deviation Road was never a public highway, all of the East Half of Lot 1, Concession 12 was owned by the delinquent taxpayer and the tax deed from the Township of Nottawasaga was effective in transferring all of it to Mr. Wargon. I have found that the Deviation Road was a public highway, and so, it was not owned by the delinquent taxpayer. The respondent argues that, even if that were the case, by virtue of the legislation in force at the time, the transfer of the land in the tax deed, including the Deviation Road, is final and non-reversible.

90The transfer was made by officials of the Township of Nottawasaga pursuant to their legal authority under the provisions of the Assessment Act, R.S.O. 1960, c. 23 (the “Assessment Act of 1960”). That mechanism is grounded on the property owner’s delinquency in paying municipal taxes on the property. It is important to recall that a municipality is not acting in its capacity as owner of the land in a tax sale, but as a conduit. In Raynor v. Gaspini et al. (1982), 39 O.R. (2d) 51, (H.C.), the court held that a municipality is simply facilitating a transfer between two private owners. It is in no way acting as an owner of the land. Consequently, it cannot be said that Nottawasaga was transferring its interest in the Deviation Road to Mr. Wargon.

91Section 4, clause 8 of the Assessment Act of 1960, exempts highways from municipal taxes:

4 All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation:

8 Every highway, lane or other public communication and every public square, but not when occupied by a tenant or lessee other than a public commission.

92Since highways are not subject to taxation under the Assessment Act of 1960, the municipality had no jurisdiction to sell the Deviation Road for delinquent taxes. Mr. Bailey argues that, even accepting that, ss. 189-190 of the Assessment Act of 1960 makes the tax sale final and binding on the former owner of the land upon the expiry of the one-year redemption period, and subject to a two-year limitation period. See Raynor; Zeitel v. Ellscheid, [1994] 2 S.C.R. 142.

93The argument is also grounded on the Tax Sales Confirmation, 1974, S.O. 1974, c. 90 which provided in s. 1:

1 All sales of land held prior to the 1st day of July 1973, and purporting to have been made for arrears of taxes payable to a municipal corporation…with respect to the land so sold, are confirmed and declared to be legal, valid and binding, and every conveyance of land so sold purporting to have been executed as required by the Assessment Act or the Municipal Act and purporting to convey such land to the purchaser thereof…is also confirmed and declared to be legal, valid and binding and shall be deemed to have had the effect of vesting such land in the purchaser…at the time of such sale and clear of and free from all charges and encumbrances thereon…”

94The respondent’s position is that Hunt Estate v. Renfrew (County) (Gen. Div.), [1991] 75 O.R. (2d) 310 (S.C.J.) supports the proposition that s. 1 of the Tax Sales Confirmation Act, 1974 took away all of the previous owner’s rights in the subject property. In that case, the tax sale transfer stood, even though it mistakenly took place where there were no arrears of taxes.

95I do not accept the respondent’s argument. There is no issue that a tax sale is meant to be final. However, in Hunt, the taxpayer (mistakenly said to be delinquent) was the owner of the property. Here the municipality owned the Deviation Road. There was stringent legislation in place that set up procedures for the stopping up of a highway and its sale or transfer by a municipality. The Municipal Act, R.S.O. 1960, c. 249 (“the Municipal Act of 1960”) at the time included provisions:

• giving the council of a municipality power to stop up a highway: s. 459(1)(c);
• prohibiting a municipality from passing a by-law to stop up a highway if the effect of it would be to deprive any person of the means of ingress and egress to and from his land or place of residence unless prescribed measures were taken: s. 460;
• requiring published and posted notice before such a by-law for stopping up or selling a highway: s. 462(1);
• requiring confirmation of the township actions by the county council in which the township was located: s. 459(6)(c);
• requiring joint action of the exercise of the power where the highway is under joint jurisdiction: s. 414; and
• relating to the sale of road allowances and highways: ss. 477 to 479.

96None of the steps required by the Municipal Act of 1960 to stop up the Deviation Road or sell it were taken by Nottawasaga. In addition, none of the steps were taken by Melancthon, which had joint jurisdiction over the Deviation Road as a boundary road that deviated from the original road allowance.

97In Tonks et al. v. Reid et al., [1967] S.C.R. 81, the Supreme Court of Canada held that non-compliance with the provisions of the Municipal Act of 1960 in passing a by-law to close up and transfer land rendered the by-law ultra vires and, in turn, rendered the transfer of the public highway void.

98In the present case, the Township was acting as a surrogate. It did not purport to act otherwise or to transfer its own land. The Deviation Road was not specifically mentioned in the transfer. The Deviation Road was a highway, not subject to tax, so in that respect the provisions of the Municipal Act relating to deviant taxes did not apply to it. No by-law was passed. No required procedures for stopping up and transferring a highway were followed. The municipality’s action in including the Deviation Road in the transfer to Mr. Wargon was ultra vires.

99The Municipal Act of 1960 protected the public interest in highways. That interest has been protected consistently in many ways going back to colonization. I find that interest to be paramount to protection of the finality of tax deed transfers. I find that as a public highway, established by dedication and acceptance, the Deviation Road was owned by Nottawasaga, and continued to be owned by it notwithstanding the tax deed of 1966.

(h) Mr. Wargon’s Knowledge of the Property

100In my view, Meaford does not apply. However, if I am wrong and actual notice is required based on Meaford, this is a convenient point to discuss it for purposes of appellate review.

101Mr. Wargon deposed that he was under the impression when he purchased the property that he was purchasing what he calls “the path.” He does not say that anyone told him that at the time. He did not produce a copy of his solicitor’s reporting letter on the purchase transaction.

102Mr. Wargon deposed that he did not visit the property until October 1965. However, in 1964 he became the owner of the West Quarter of Lot 1, Concession 11 in Nottawasaga, which is the land immediately adjacent to the east of the subject property. He constructed a cabin on it. At the time that he purchased Lot 1, Concession 11, he had it surveyed to establish the southwest corner of the property (which is the southeast corner of Lot 1, Concession 12). That corner is shown on the survey as 220 feet from the Deviation Road. In a reporting letter of June 24, 1964, with the survey, the surveyor advised Mr. Wargon: “We will have to obtain more information on the deviation road into Mulmur….” Clearly, Mr. Wargon was aware of the presence of the Deviation Road at the time of his 1966 tax purchase.

103Mr. Wargon admits that he saw the path running through the lands and connecting to public roads on both the west and east ends of the subject property. It was narrow and deeply rutted in some areas, but was maintained better in others.

104Mr. Wargon says that in the 1960s vehicles would occasionally drive over the path. Most were local residents, but other members of the public used it infrequently. He did not prevent it.

105In 1967 Mr. Wargon converted the existing mill into a house. The house and garage were on opposite sides of the path. Mr. Wargon says that he would not have converted the mill and built the garage if he had believed that the path was a public road. However, he placed two mailboxes on the path, across from the barn and set his garbage out there for municipal pick up. This assumes a public road. People do not put their garbage in the middle of their private property for municipal pick up. People in rural areas do not put mailboxes in the middle of their property for mail delivery.

106Mr. Wargon deposed that in the 1970s, Melancthon performed occasional maintenance on the road. Once each summer they graded it. Every year, when rainfall caused a culvert to be washed out, Mr. Wargon would call Melancthon to repair it. The evidence establishes that Clearview contributed to the cost.

107In the 1970s Mr. Wargon went to the registry office and reviewed documents. He deposed that his review confirmed that he owned the path. He did not say what his review entailed or what expertise he had in reviewing title.

108Mr. Wargon deposed that in the 1980s Simcoe County began performing occasional maintenance on the bridge by sweeping it, clearing debris from the grates, and checking its condition. Mr. Wargon said he regularly maintained the bridge by clearing off debris and occasionally replacing wooden guard rails. In October 1994 Melancthon wrote to him and thanked him for doing so, writing: “This is indeed a public service.”

109In the 1980s the traffic on the path increased. Mr. Wargon put up “Private Property” and “No Trespassing” signs at both ends of the path. In the 1990s, Mr. Wargon asked Clearview to close the path by blockading the public road. Clearview refused. The use of the path continued and increased in the 2000s. The Clearview Road Superintendent told Mr. Wargon that Clearview believed it owned the path.

110Mr. Wargon deposed that he ploughed the path in the winter during his 56 years as owner. In June 1994, the Clerk of Melancthon wrote to Clearview that Melancthon had made arrangements with Mr. Wargon to snow plough the town line deviation between the Townships of Clearview and Melancthon from the point where Melancthon turns it’s plough to 10 metres past the easterly boundary of Mr. Wargon’s home property, but otherwise Melancthon maintains the road year round.

111In 2005, Mr. Wargon asked the Township of Melancthon to close the Deviation Road by blockading the public road immediately east of the path. At an intersection one kilometre west of the west end of the path Melancthon erected signs stating, “Narrow Bridge No Trucks” and “No Exit.” On December 12, 2005 when Melancthon purported to close the Deviation Road, the resolution that it passed provided:

We agree to the closure of the road as proposed by Allan Wargon re: Melancthon-Mulmur Townline Line west through Concession 1 OS, East Part Lot 32 to Melancthon-Clearview Townships. This relieves the Township of any snowplowing and maintenance and liability obligations on this road from the westerly side of the County Bridge East to the Melancthon-Mulmur Townlines.

The Township of Melancthon did not comply with any of the road closing requirements in the Municipal Act, 2001, S.O. 2001, c. M. 25, as amended, which, at the time, in s. 34 stipulated highway closing procedures by municipalities. No notice was given. The consent of Clearview was not obtained. No by-law was passed. No certified copy of the by-law was registered on title.

112In 2012, the County of Simcoe reconstructed the bridge on the Deviation Road at a cost to taxpayers of $220,000. On August 24, 2012, Mr. Wargon sent a letter to the County entitled: “Re: the bridge over the Noisy River on the Melancthon-Nottawasaga Townline.” He wrote: “This bridge, which is being rebuilt, is located on a deviation of the Melancthon-Nottawasaga Town Line that runs through our property, indeed, the bridge is roughly in the center of our farm property.” He also wrote that if the road was to be paved, it needed to be paved up the slope and around the curve to where it met relatively level ground, roughly to just past where his mailboxes were located.

113Christian Meile, the Director of Transportation Construction and Maintenance for the County of Simcoe deposed that when the County bridge reconstruction work was being carried out, neither Melancthon Township nor Mr. and Mrs. Wargon complained that County workers were trespassing on private property or that the County was spending public funds for the reconstruction of a bridge located on private property. However, the Wargons did complain on several occasions about the people using the road who end up trespassing on their property.

114In 2019, Melancthon closed the eastern end of the path by adding large concrete blocks as a barrier. On July 22, 2019, Mr. Wargon erected a gate near the western end of the path and placed rubble near the eastern end of the path. In August 2019, Clearwater’s counsel wrote a letter claiming that Nottawasaga was the owner of the path.

115The evidence establishes to my satisfaction that Mr. Wargon knew when he purchased the subject property that the Deviation Road was a public way. In the 1980s, when Lavendar Falls on the Wargons’ adjoining property (part of Lot 1, Concession 11) was publicized in the press, people began using the Deviation Road to travel to see the Falls. They trampled over the Wargons’ fields and wreaked havoc. This was Mr. Wargon’s real complaint – too much traffic.

116It is evident in Mr. Wargon’s letter of August 8, 2018 to the Townships and the County that he recognized the municipal interest in the Deviation Road. There he stated that he wanted the “summer road closed.” He continued:

What is being considered is not the whole road but only what is called the “summer road”, the short portion from east of our house to where it joins the Melancthon-Mulmur Town Line and the Mulmur-Nottawasaga Town Line.

No one is proposing to affect the rest of the road. If the “summer road” were closed the bridge would be unaffected. Access by mail, garbage and other vehicles would be just as it is now. All existing easements would stay in place.

117This is similar to the theme in his 2012 letter to the County of Simcoe where Mr. Wargon suggested that if the County was paving the road from the bridge, it needed to be paved roughly to just past where his mailboxes were located.

118I find that when Mr. Wargon purchased the land, and throughout, he knew that the Deviation Road was a public highway.

(i) Does Adverse Possession arise in the circumstances?

119Since the early 1900s, legislative enactments have curtailed the availability of adverse possession in certain situations. The result is s. 16 of the Real Property Limitations Act, R.S.O. 1990, c L.15 (the “RPLA”), which provides:

16 Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922.

120In the face of that provision, adverse possession does not arise in this case. There can be no claim of “adverse possession” against a public highway. Section 16 does not foreclose any right, title or interest acquired by any person against a municipality’s road, based on adverse possession prior to June 13, 1922. However, there is no evidence of adverse possession here by anyone in any period prior to June 13, 1922. There are simply misdescriptions in a chain of deeds.

(j) Conversion to Land Titles

121After the tax sale, in 1981, Mr. Wargon had Reference Plan 51R-10847 prepared and deposited on title. The Reference Plan shows the location of the Deviation Road and references By-Law No. 260 and Instrument No. 3948, the deed to Nottawasaga. On May 21, 1982, he transferred to himself and Esther Wargon, “Part of Lot 1, in the Twelfth (12) Concession, of the said Township of Nottawasaga, and being more particularly described as Parts 1, 2 and 3 on the Reference Plan 51R-10847, deposited on title on December 18, 1981.” This was the first time that any part of the Deviation Road was specifically described on title after the 1878 transfer from Pound, registered in 1884. Mr. Wargon retained the balance of the East Half of Lot 1, Concession 12 in his name, which included the Deviation Road, except for Part 2. On October 16, 2000, these two parcels of Wargon land were converted to the Land Titles System of land registration.

122On May 9, 2022, by Instrument No. SC189458, Mr. Bailey purchased from Mr. and Mrs. Wargon the Lot 1 Concession 12 land, which included the entirety of the Deviation Road land, along with adjacent land in Concession 11 and other lands. The legal description of the Lot 1 Concession 12 land in the transfer included “Parts 1, 2 and 3 on Reference Plan 51R10847.”

123Generally, the Land Titles register is a perfect mirror of the state of the title of land. However, there are exceptions.

124The Land Titles register for these lands contains a notice that the lands are Land Titles Conversion Qualified (“LTCQ”). This means the parcel has the following qualifications, which are stated on the parcel register:

Subject, on first registration under the Land Titles Act, to: Section 44(1) of the Land Titles Act, except paragraph 11, paragraph 14, provincial succession duties and escheats or forfeitures to the Crown; The rights of any person who would, but for the Land Titles Act, be entitled to the land or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention; Any lease to which section 70(2) of the Registry Act applies.

125The land remains LTCQ until an application is made by the owner to have the land qualifiers removed under s. 46 of the Land Titles Act. This is a formal process which has not been undertaken in this case.

126Section 45 of the Land Titles Act provides:

45 The first registration of a person as owner of land, in this Act referred to as first registered owner with an absolute title, vests in the person so registered an estate in fee simple in the land, together with all rights, privileges and appurtenances, free from all estates and interests whatsoever, including estates and interests of the Crown, that are within the legislative jurisdiction of Ontario, but subject to the following:

1. The encumbrances, if any, entered on the register.

2. The liabilities, rights and interests that are declared for the purposes of this Act not to be encumbrances, unless the contrary is expressed on the register.

3. Where the first registered owner is not entitled for the owner’s own benefit to the land registered, then as between the owner and any persons claiming under the owner, any unregistered estates, rights, interests, or equities to which such person may be entitled.

127A public highway is one of the exceptions, since s. 44(1) of the Land Titles Act provides it is not an “encumbrance” for the purposes of the Act. Section 44(1) clause 8 provides:

44(1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:

8. Any public highway.

128In my view, there are no concerns about notice, as raised in Meaford, if applicable, relating to Mr. Bailey. By virtue of the LTCQ designation, Mr. Bailey is deemed to be aware that the title to the land was not absolute and remained subject to public highway interests. A proper search of title, behind the Land Titles register, in the Registry System was required to ascertain if highway interests existed. The registered transfer to Nottawasaga gave registered notice to Mr. Bailey. Not searching is no excuse. In addition, the description of the property in Land Titles in 2022 relating to “PIN 58224-0008LT” is “Description Pt Lt 1 Con 12 Nottawasaga PT 1, 2 & 3, 51R10847.” I recognize that in the Registry System a reference plan is not a registered document. However, by incorporating the R-Plan in the legal description in the Land Titles transfer, Mr. Bailey was put on actual notice of the Deviation Road, which is clearly shown and labelled on the reference plan. In addition, when Mr. Bailey purchased the property, there was a municipal bridge on the Deviation Road, which he had to have seen.

129I find that the Deviation Road, which is a public highway, remains a public highway despite the conversion to Land Titles because the title is LTCQ.

(k) Is Clearview’s claim statute barred?

130The respondent argues that Clearview’s claim for a declaration that it owns the Deviation Road and rectification accordingly is statute barred either under the former Limitations Act, 1990, R.S.O. 1990, c. L.15, or the current Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The respondent’s position is that Clearview’s claim concerns a loss of property in 1901, when the Deviation Road was transferred to private ownership.

131As I have found, the title to the Deviation Road was not transferred to private ownership in 1901. The municipality had nothing to do with the 1901 transfer, in which Samuel Pound was the transferor; nor did it have anything to do with any transfer up to 1966. From a practical perspective, a property owner does not monitor transfers of adjoining property to guard against a neighbour misdescribing property when the neighbour sells. In 1966, Nottawasaga was involved only as a surrogate in the 1966 tax deed. Clearview’s claim at its heart is for rectification of the 1966 tax deed, and the instruments thereafter.

132Section 16 of the Limitations Act, 1990 provides that its provisions (sections 1 to 15) do not apply to any land included in any road allowance or to any lands laid out as a public highway where the freehold of such road allowance or highway is vested in a municipal corporation.

133Section 2(1)(a) of the Limitations Act, 2002 provides that the Act it does not apply to proceedings to which the RPLA applies. Section 4 of the RPLA sets out a limitation period for the recovery of land. Section 15 extinguishes title on the expiry of the limitation period. However, as set out above, s. 16 of RPLA exempts lands from the limitation period lands, which include “any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation.” The Supreme Court clearly recognized that in Kosicki v. Toronto (City), 2025 SCC 28, at p. 36.

134In light of s. 16 of the RPLA, Clearview is not barred by either the Limitations Act, 1990 or the Limitations Act, 2002 from the rectification it is seeking in the circumstances.

RECTIFICATION

135Under s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, a court may, by order, vest in any person an interest in real or personal property that the court has authority to order to be disposed of, encumbered, or conveyed.

136Under s. 159 of the Land Titles Act, where a court has decided that a person is entitled to an estate, right or interest in or to registered land and as a consequence of the decision is of the opinion that a rectification of the register is required, it may make an order directing the register to be rectified in such manner as is considered just.

137Under s. 160 of the Land Titles Act, where a person is aggrieved by an entry made or by the omission of an entry from the register, the aggrieved person may apply to the court for an order that the register be rectified and the court may, if satisfied of the justice of the case, make an order for the rectification of the register.

160 Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register.

138In McLean v. McLean, 2013 ONCA 788, 118 O.R. (3d) 216, citing Swainland Builders v. Freehold Properties Ltd., [2002] 2 E.G.L.R. 71 (C.A.), at para. 34, approved in Chartbook Ltd. v. Persimmon Homes Ltd., [2009] U.K.H.L 38, at para 48, the Court of Appeal for Ontario noted, at para. 45, that “[t]he fact that a party intends a particular form of words in the mistaken belief it is achieving his intention does not prevent the court giving effect to the true common intention.” Rectification is appropriate where there is oral or written evidence that there was a common intention between the parties not reflected in writing due to error.

139The deed of 1966 to Allan Wargon was a tax deed, the intent of which, as it recites, was to transfer title under the authority of the Assessment Act of 1960. The statutory mechanism of that Act did not apply to a highway. The common intention of the parties to the transaction was to employ that mechanism. They ought reasonably to have known that the Deviation Road was not included in the property transferred because of the owner’s failure to pay taxes. Apart from the municipality’s involvement in that transfer as a conduit, the municipality has never been a party to any transfer of the Deviation Road since it obtained title to the land in 1878. Describing the property transferred in the tax deed as the East Half of Lot 1, Concession 12 was clearly a mistake. A proper search of title gave registered notice to Mr. Wargon of the municipality’s interest. All of the surrounding circumstances satisfy me that Mr. Wargon had actual notice of the presence of the Deviation Road at the time.

140Mr. and Mrs. Wargon repeated this mistake in their inter-spousal transfer. It was repeated again in the transfer to Mr. Bailey. By then, Mr. and Mrs. Wargon had obtained the Reference Plan showing the Deviation Road.

141The court’s power of rectification is subject to the indefeasibility of title under the Land Titles Act, but as set out above, the title here is LTCQ and, under that Act, is subject to the exceptions relating to public highways as has already been discussed.

142Mr. Bailey professes to be a bona fide purchaser without notice. He was not. He had registered notice of the Deviation Road, as I have found. The parties are deemed to have known the state of the title of the lands, which were the subject matter of the transaction.

LACHES

143The remaining issue is whether the application for rectification is barred under the equitable doctrine of laches, as Mr. Bailey’s counsel argues. He relies on the trial decision in Meaford v. Meaford, 2011 ONSC 5195, at para. 186, where the court held that it would be “unjust to grant Meaford’s claim.” As I have noted, the circumstances were very different in that case, and I do not accept that Meaford applies here.

144Laches provides an equitable defence to a claim under certain circumstances. Justice Howden considered the application of the doctrine of laches in Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44. At para. 136, Justice Howden quoted from Halsbury’s Laws of Canada, at HLM-50 as follows:

If a proceeding is not subject to a limitation period, or if the limitation period has not yet expired after a lengthy period, the equitable doctrine of laches may apply as a defence to the claim. Laches permits a defendant to avoid an equitable (although not a legal) claim against him or her if one can demonstrate that the plaintiff, by delaying the institution of his case, has either (i) acquiesced in the defendant’s conduct; or (ii) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.

145Justice Howden noted at para. 139 that the doctrine of laches may be applied to claims seeking declaratory relief: see Hongkong Bank of Canada v. Wheeler Holdings Ltd., [1933] 1 S.C.R. 167

146By analogy to the doctrine of estoppel, Justice Howden determined that the first step is to determine whether the doctrine of laches is established on the facts of the particular case. The second step is to analyse the circumstances with particular attention to the applicable legislation to determine whether operation of the doctrine is prohibited or permitted.

147Delay alone is not sufficient to establish acquiescence. Neither Nottawasaga/Clearview nor the County of Simcoe has ever acknowledged Mr. Wargon’s position. In fact, the evidence goes the other way. Nor have they acknowledged Mr. Bailey’s position in any way. There is no evidence of any actions, by either the Township or County upon which Mr. Bailey can rely to show detrimental reliance. The title to the property, which a proper search would have disclosed, the legal description of the property incorporating the reference plan, as well as the physical presence of the path and bridge put him on notice of the municipality’s interest. Even with the presence of barriers that others constructed, it was obvious that the circumstances required investigation. I find that the doctrine of laches is not established on the facts here. I find that there is no basis for the doctrine of laches to apply in this case.

148I find that the applicants are entitled to the rectification order sought.

CONCLUSION

149For these reasons, I order and declare as follows:

(i) I order and declare that the Corporation of the Township of Clearview, formerly the Township of Nottawasaga, is the owner of the land described in a deed dated October 1, 1878 and registered September 17, 1884 as Instrument No. NOT3948 in the Land Registry Office of the County of Simcoe, being a transfer from Samuel Pound to the Municipal Corporation of the Township of Nottawasaga, now the Township of Clearview, for purposes of a public highway, namely the Deviation Road, and which is presently included as part of each of the following properties, the balance of which is owned by the respondent, Matthew Leonard Bailey:

(a) PIN 58224-0008 (LT) being Part of Lot 1, Concession 12 Nottawasaga; Part of Lot 1, Concession 11 Nottawasaga as in RO889730; and

(b) PIN 58224-0009 (LT) being Part of Lot 1, Concession 12 Nottawasaga described as Parts 1, 2 & 3 on Reference Plan S1R-10847.

(ii) I order and direct the Land Registrar for the Simcoe Land Registry Office (No. 51) to enter this Order on the parcel for Part of Lot 1, Concession 12 and Part of Lot 1, Concession 11, Township of Nottawasaga, County of Simcoe, being PIN 58224-0008(LT), and Part of Lot 1, Concession 12, Township of Nottawasaga, being Parts of 1, 2 & 3 on Reference Plan 51R-10847 being PIN 58224-0009(LT) until the requirements of subparagraph (iii) below of this Order have been fulfilled;

(iii) I order and declare that title to the property described in subparagraph (i) above of this Order is vested in the name of the Applicant, the Corporation of the Township of Clearview and upon deposit of a reference plan to properly describe the said Deviation Road, which I order the Township of Clearview to obtain at its own expense forthwith, I direct the Land Registrar to enter the Corporation of the Township of Clearview as owner.

(iv) I have not heard submissions on costs. I see no reason why the Township of Clearview should not have its costs against the respondent Mr. Bailey on a partial indemnity basis, as agreed on by counsel, or as assessed. If there are relevant matters to be argued in this respect, counsel will have to advise the Regional Senior Justice and me so that directions may be obtained from the Regional Senior Justice in light of my retirement.

150Counsel for the applicants is to prepare a draft order approved by counsel for the respondent and in a form which the Register of Land Titles approves for registration to implement this order. The draft is to be forwarded to my assistant for me to sign at Joanna.Skalko@ontario.ca

The Hon. Justice M. L. Lack

Footnotes

1. 1W. D. (Rusty) Russell, Russell on Roads, 3rd ed. (Toronto: Carswell, 2015), at p. 252.
2. 2Russell on Roads, at pp. 251-52, citing Meredith & Wilkinson: Canadian Municipal Manual (1913), edited by Sir William Ralph Meredith, Chief Justice of Ontario (Toronto: Canada Law Book, 1917) at p. 571.
3. 3Russell on Roads, at p. 253.
4. 4An Act respecting Registrars, Registry Offices and the Registration of Instruments relating to Lands in Ontario, S.O. 1867-68, 31 Vic., c. 20, s. 63, (the “Registration of Instruments Act 1867-1868”).
5. 5Municipal Act Amendment, 1873, 36 Vic., c. 48.
6. 6An Act respecting the Registration of Instruments relating to Lands, R.S.O. 1877, c. 111.
7. 7An Act respecting Municipal Institutions, R.S.O. 1877, c. 174.
8. 9Municipal Act, S.O. 2001, c. 25, s. 26, ss. 29 and 29.1, amended prior to January 1, 2003 by S.O. 2002, c. 17, Sch A, s. 8 (the “Municipal Act, 2001”).
9. 10F. J. Joseph, Barrister, The Municipal Manual, 1889, 5th ed. of Harrison’s Manual of 1859.
10. 8An Act respecting Municipal Institutions Act in the Province of Ontario, 36 Vic. c. 48 (1873) (the “1873 Municipal Institutions Act”).
11. 11An Act respecting the Registration of Instruments Relating to Lands, 56 Vic. c. 21 (1893) (“Registration of Instruments Act 1893”).