ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David B. Labreche
Applicant
– and –
Tony Zammit and Trish Zammit
Respondent
– and –
Joel Sénécal, counsel for the Applicant
Ryan Breedon, counsel for the Respondents
Heidi Rudnick, Steven Bradburn, Peter Devos, Wilma De Haan, Marsha Koenigsbauer, Tracy Chiasson, Peter Chiasson, Robert Decker, Michael Decker, Kathy Pinzone, Marvin Patience, Joanne Patience, Cherie Weston, Jim Weston, and Peter Nault
Non-Party Respondents
Colin Pye, counsel for the Non-Party Respondents
HEARD: February 3, 2026
Bellows, J.
1This is the second application brought by the applicant against the respondents regarding their use of Labreche Drive in the District of Parry Sound. The first matter was heard by Justice S.K. Stothart in 2023.
2In her decision1 of November 30, 2023, Justice Stothart provided a detailed overview of the dispute between the parties, including the history of the use of the property, written private road access agreements (“PRAA”), the Labreche Drive Roads Board, and the conflict between the parties. I adopt the “Factual Background” as it appears in paragraphs 5-29; I will not reproduce those paragraphs here.
3Justice Stothart made several findings that necessarily impact the assessment of the application before me. The following declarations and findings were made:
a. A declaration that the Zammits do not have a legal right to use Labreche Road on the sole basis of the Road Access Act.
b. A finding that the Zammits have trespassed on Labreche Road by operating snow machines on the road.2
c. A declaration that Labreche Drive is an access road, as defined by the Road Access Act, R.S.O. 1990, c. R.34.
d. A finding that Labreche Drive is governed by the Road Access Act, which prohibits any obstruction of the road without an application to close the road.
4The applicant is now before the Court seeking to close Labreche Drive to the Zammits.
5The burden of proof for closing a road was discussed by Justice Howden in 2008795 Ontario Inc. v. Kilpatrick, 2006 2182(Ont S.C.), at para. 46, aff’d 2007 ONCA 586:
In summary, the test under the Road Access Act requires the access user to establish, on the civil standard, that (i) the road is an in-use “access road” as defined under the Act; (ii) its use originated or continued by permission or acquiescence of the landowner; and (iii) its closure prevents all motor vehicle access to a parcel or boat docking facility. If these threshold requirements are met, the road cannot be closed unless the landowner applies to the court under s.3 for a closure order. On such application the landowner must establish, to the civil standard of proof, that a ground for closure in s.3 applies and that the court’s discretion to close should be exercised in the circumstances. Each case will be decided on its own facts.
The Positions of the Parties
6The applicant seeks an order closing the access road. He proposes erecting a gate at one of three locations along Labreche Drive to preclude the Zammits from using the road while keeping it open to the other landowners for access to their respective properties. He further seeks a declaration as to the boundaries of the road to avoid further conflict over same.
7The proposed gate locations are shown in the applicant’s affidavit of December 27, 2024, at exhibits F, G, and H:3
a. Location F – erect a gate at the entrance to Labreche Drive and provide the Property Owners with access.
b. Location G – erect a gate on Labreche Drive just before the Zammits’ properties and provide the Property Owners beyond the gate with access.
c. Location H – erect two gates: one at the roadway entry to the two properties owned by the Zammits.
8The respondents state that since Justice Stothart’s decision, they have continued to use the road responsibly, abiding by Her Honour’s decision and the Road Access Act. That decision declared Labreche Drive an access road and declined to impose any conditions or limitations on its use. Labreche Drive is the only road access to their properties. They allege that, despite their compliance, the applicant has harassed or interfered with them, their guests, and contractors who access their property. They seek to have the application dismissed with costs.
9The non-party respondents to this matter are the other landowners on Labreche Drive, collectively the “Property Owners”. They fall into two groups: those with easements over Labreche Drive (“Easement Holders”),4 and those with PRAAs for the use of Labreche Drive (“Licence Holders”).5
10The Property Owners are represented by the same counsel and take the same position on this application: they oppose the road closure, maintaining that the gate will substantially interfere with their access, and cite practical consequences that extend beyond their own use of their properties and engage serious public interest concerns.
11Alternatively, if the application is granted, the Property Owners oppose two gate locations that would impede the unobstructed access they currently have to their properties, specifically Locations F and G. If the gate is placed at any of the proposed locations, they seek conditions under s. 3(2) of the Road Access Act to always guarantee an unimpeded and practical right-of-way access, and in particular, to ensure that emergency and utility vehicles can enter without delay, including during winter conditions.
12The questions in this application come down to the following issues:
a. What is an access road, and when can an access road be closed?
b. What are the competing interests in considering road closure?
What is an access road, and when can an access road be closed?
13Labreche Drive is an access road, but what does that mean? Section 1 of the Road Access Act defines an access road as “a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land.”
14It is helpful to return to Justice Stothart’s decision of November 2023:
[43] A person who uses an access road cannot claim a legal right to use the road on the sole basis that the road is an access road. 200875 Ontario Inc. v. Kilpatrick, 2007 ONCA 586 at para. 20; 992275 Ontario Inc. v. Krawczyk, 2006 13955 (ON CA) at para. 25.
[44] In Limlaw v. Ryan, 2009 ONCA 832, at para. 53, the Ontario Court of Appeal noted that the rights afforded by the Road Access Act are extremely limited and only provide a limited right to occupants of lands served by the road to not be treated as a trespasser when using the road in a motor vehicle to access their property.
[45] A road owner has no basis to block the road with a gate or charge money for a key, unless they obtain a closing order or make an agreement in writing with the landlocked owners permitting them to do so. Limlaw v. Ryan, at para .71.
15The Road Access Act provides conditions for when an access road may be closed in s. 2, as follows:
2(1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefore, not owned by that person unless,
(a) the person has made an application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
(c) the closure is of a temporary nature of the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing acquisition of prescriptive rights.
16It is not disputed that Labreche Drive is the only road access to all the responding parties’ properties. There is no agreement between the parties that could satisfy s. 2(1)(b). In this case, therefore, the application is brought pursuant to s. 2(1)(a).
17Section 3 of the Road Access Act permits a court to grant closure on conditions:
3(1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in 2(3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so.
(2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.
18Subsections (a) through (c) operate disjunctively, that is, only one section must be satisfied. However, in this case where the respondents do not have a legal right to use the road as found by Justice Stothart – subsection (b) applies; and where the Property Owners do have a legal right to use the road – subsection (a) applies.
19In either case, as held at para. 7 in Whitmell v. Ritchie, 2008 73618 (Ont. S.C.), aff’d [2009] O.J. No. 2064, s. 3 gives the court hearing a road closure application the residual discretion to decline to close a road even where the applicants satisfy the applicable subsection. Whitmell goes on to say that “[t]he Court of Appeal decision in 992275 Ontario Inc. directs the court to exercise any residual discretion while balancing the competing interests of the parties.”
What are the competing interests in considering road closure?
20In balancing the competing interests of the parties in this matter, I have to consider the impact of closing the road on the property owners against the impact of keeping the road open on the applicants.
21The applicant’s property rights are not to be taken lightly. Though not enshrined in the Charter of Rights and Freedoms, personal property ownership is valued in Canada. Individuals who own property expect to have certain rights and privileges conveyed to them by that ownership. However, there are limits.
22The applicant proposes a gate or gates with key access to the other affected property owners. Location F proposes a keyed gate at the entry to the access road. This option would impact all Property Owners. Location G proposed a keyed gate partway down the road, just prior to the first property owned by the respondents. In large measure, this would impact fewer properties, though it may impact snow clearing in the winter for all properties. There are two gates proposed by Location H, one at the driveway entrance to each of the respondents' properties. This would primarily serve to enforce a closure against the respondents; however, it may have collateral consequences for utility services such as Hydro One as noted by the Property Owners.
23Interestingly, Locations F and G would both result in increased road usage by the Property Owners as they would be required to attend at the gate to permit entry for any guests, deliveries, and service providers. Increased road access would lead to greater wear and tear and higher road maintenance costs.
24The applicant’s Affidavit dated December 27, 2024, at para. 5 discloses a misinterpretation of Justice Stothart’s decision that the respondents “do not have a legal right to use” the access road. I find this interpretation to be disingenuous. As I have already reproduced above, paragraphs 43-45 of Justice Stothart’s decision provide clarity to what is and is not permitted.
25To reiterate, while the Road Access Act does not convey a “legal right” in the same way that a registered easement would, for example, it does not prevent them from using the road to access their property. All property owners on the access road are permitted to use the road for access.
26In this way, the applicant is the maker of his own frustrations. His decision to be selective of the paragraphs he relied on has led him to confront at least one contractor, stop the respondents’ son, and call the police. There were several other interactions between the parties that were entirely unnecessary.
27The applicant’s affidavit discloses no substantial damage or injury to his property interests that would make it reasonably necessary to close the road. By contrast, for example, in Whitmell, at para. 9, the Court notes that “Bert Whitmell sets out in detail the nature of emotional, financial and other damages that he and his wife have suffered and sustained through the use of the road.”6
28Since May 2024, the Easement Holders have formed an association responsible for the maintenance of Labreche Drive. This is the de facto situation for road maintenance, and, as the de facto situation, that association can and does make decisions about road maintenance, including who performs the maintenance. The evidence before me is that the respondents contribute to the maintenance costs through the association.
29The impact on the Property Owners and respondents would be more than mere inconvenience. It would be a return to keyed, controlled entry that has not existed for approximately 20 years. It would increase road use and, therefore, maintenance costs, which are carried by the Property Owners and respondents. It would impede snow removal and other winter maintenance.
30Moreover, there are no public-interest reasons that would support the application to close the road. The public-interest considerations weigh in favour of the access road remaining open. These considerations include access for utility service and maintenance, such as Hydro One servicing the above-ground hydro lines that cross the respondents’ and other Property Owner properties, and access for emergency services.
31By keeping the access road open, the respondents’ use of the road remains unchanged; they would not gain any legal right to use the road other than as an access road. It does not diminish the applicant’s right to his land, which he agreed in the first application includes an access road.
32Neighbour disputes are often some of the most difficult for courts to navigate. Regardless of my decision, these parties will continue to reside proximate to one another. As with many things in life, the parties themselves must choose a more peaceful approach. It is my hope that with some finality, they can and will do just that.
33Considering all of the circumstances, the application is dismissed. The access road shall not be closed.
Costs
34As the successful parties, the respondents are entitled to costs on this application.
35If the parties are unable to agree on costs, they may provide written submissions of no more than 3 pages double-spaced, in addition to relevant offers and a draft bill of costs. The respondents may submit their materials within 30 days of this decision. The applicant may submit one reply of no more than 4 pages, double-spaced, within 15 days of receiving all respondent submissions, and not later than 45 days of the date of this decision. No submissions will be considered outside of this timeline.
Justice R.A. Bellows
Released: April 27, 2026
CITATION: Labreche v. Zammit et al., 2026 ONSC 2481
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David B. Labreche
Applicant
– and –
Tony Zammit and Trish Zammit
Respondent
– and –
Heidi Rudnick, Steven Bradburn, Peter Devos, Wilma De Haan, Marsha Koenigsbauer, Tracy Chiasson, Peter Chiasson, Robert Decker, Michael Decker, Kathy Pinzone, Marvin Patience, Joanne Patience, Cherie Weston, Jim Weston, and Peter Nault
Third Parties
REASONS FOR JUDGMENT
Bellows, J.
Released: April 27, 2026
Footnotes
- Labreche v. Zammit, 2023 ONSC 6786.
- Justice Stothart awarded David B. Labreche damages for the tort of trespass in the amount of $1, without any pre-judgment interest: at para. 106.
- Herein after referred to as Location F, Location G, and Location H, corresponding to the exhibits of the same letter.
- The easement holders include: Heidi Rudnik, Steven Bradburn, Peter Devos, and Wilma De Haan.
- The PRAA holders include: Marsha Koenigsbauer, Tracy Chiasson, Peter Chiasson, Robert Decker, Michael Decker, Kathy Pinzone, Marvin Patience, Joanne Patience, Cherie Weston, Jim Weston, and Peter Nault.
- Despite this, the application in Whitmell was also dismissed for reasons set out in para. 7 and following.