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2008795 Ontario Inc. v. Kilpatrick, 2006 CanLII 2182 (ON S.C.)

 

 

COURT FILE NO.:  04-B-6985

DATE:  2006/01/20

 

 

ONTARIO

 

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:	)
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2008795 ONTARIO INC.	) ) )	Ms. K. Grace, for the Plaintiff/Defendant by counterclaim
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Plaintiff	)))))
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– and –	)
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GORDON KILPATRICK, SYLVIA KILPATRICK, LARRY HASLER, KIM HASLER, GEORGE KOESLAG, JANICE MINO, MARK PURDY, BRIAN WAITES, KAREN WAITES, VINCE SUTCH and TODD RICHARDSON               Defendants	) ) ))))))	Ms. P.R. McMurtry, for Kilpatrick et al., Defendants/Plaintiffs by counterclaim
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AND BETWEEN:   GORDON KILPATRICK, SYLVIA KILPATRICK, LARRY HASLER, KIM HASLER, GEORGE KOESLAG, JANICE MINO, MARK PURDY, BRIAN WAITES, KAREN WAITES, VINCE SUTCH, and TODD RICHARDSON   Plaintiffs by Counterclaim   -and-   2008795 ONTARIO INC. AND ATTORNEY GENERAL OF CANADA               Defendants by Counterclaim	)))))))))))))))))	Ms. F. Parsons and Ms. A. Bourke for the Attorney General of Canada, Defendant by Counterclaim         HEARD:  June 27, 28, 29, 2005

 

HOWDEN J.:

 

[1]          The combined actions before me arise from the closure of an access road used by a group of cottagers through a privately owned rural property, the ownership of which recently changed.  It is, as well, a dispute over the law and due process in circumstances where the land owner asserts there is possible alternate road access which could be developed and, having offered terms of continued use more restrictive than in the past, closes the access road to the cottagers.

Background

[2]          The plaintiff corporation purchased lot 18, located within concessions 3 and 4 of the Township of Ramara, in 2003.  Prior to purchase by the plaintiff, lot 18 was used primarily for pasturing cattle.  The video tape entered in evidence showed it to be mostly cleared, rural land bounded by dense tree growth, with a curving gravel road through it from the end of the public road on the east to the road in lot 19 to the west.

[3]          The concession lot to the west, lot 19, is reserve land held by the Crown represented by the Minister of Indian Affairs and Northern Development ( Minister ).  The reserve land is occupied by the Mnjikaning First Nation.  Lot 19 is located geographically in the vicinity of Lake St. John, which unfortunately does not appear on any of the surveys submitted in evidence at the trial. Along the shore of Lake St. John, various non-band persons and families have leased parcels of land for terms of 20 years and have built cottages which they use throughout the year.  A number of band members also live on parcels of land in lot 19, with some residing there year-round.  Both the cottagers (the non-band members) and band members have been using the gravel road over lot 18 to drive to their cottages or homes on Lake St. John, at least since the early 1990 s with one cottager s use extending back to 1983.  The access road had been gated and access was acquired by using a key.  Prior to closure on November 1, 2003, the cottagers and band residents obtained the key upon paying a yearly fee.  In the 1980 s, the access fee was under $100 yearly.  By 2002 the fee had increased to $500.  This increase had occurred because the prior owner had recently performed work on the road beyond regular maintenance, building it up in places and varying its configuration.  In 2003, receipts supplied to the cottagers on payment of the annual fee contained words to the effect that payment was for May to October.  The evidence is that the access road over lot 18 was never limited in use to those months, including 2003, until closure in late 2003. 

[4]          The plaintiff corporation purchased lot 18 on July 31, 2003 from Joseph Carrick.  It subsequently advised the cottagers by individual letters dated October 15, 2003 that they could no longer use the road unless they each entered a road access agreement with the plaintiff and paid $2,000 yearly for limited (seasonal) access between May and October.  The cottagers did not respond to this offer and the plaintiff closed the road to them on November 1, 2003.  Mr. Kilpatrick testified that he and his family went to their cottage by skidoo between November 2003 and the spring of 2004.

[5]          The plaintiff sued Mr. and Mrs. Kilpatrick in trespass for an injunction restraining use of the access road and damages.  The Kilpatricks entered a statement of defence and counter-claimed against the plaintiff, adding the Attorney General of Canada ( Attorney General ) as a defendant by counter-claim and alleging breach of covenant in their lease.  The other cottagers brought a separate action (Court file 04-B7202) against 2008795 Ontario Inc. and the Attorney General, who have defended both the counter-claim in the first action and the claims in the second.  The two actions have been consolidated by pretrial order under Court file 04-B6985 (the first action s file number).  Most of the cottagers have been allowed to continue use of the access road since May 20, 2004 by pretrial orders, on payment of $500 per year.  The band members residing on lot 19 near Lake St. John continue to use the gravel road over lot 18 without fee. 

The Positions of the Parties

(i)         The Cottagers

[6]          The cottagers claim a limited entitlement to use the road as they have for many years, for the purpose of motor vehicle access to their cottage lots.  They rely on two grounds:  the Road Access Act, R.S.O. 1990, c. R.34 as am., and in the alternative, the equitable doctrine of proprietary estoppel. 

[7]          The Road Access Act ( the Act ) was proclaimed in force on November 24, 1978.  By s. 2(1), no one shall place or maintain a barrier or other obstacle across an access road that prevents all road access to one or more parcels of land, except in the limited circumstances mentioned in the Act.  Those exceptions include a closure of the road by court order provided 90 days notice of the hearing is given to all interested parties.  Otherwise, obstruction of an access road is permitted in the following very limited circumstances:  by written agreement, or temporarily for repair or maintenance work, or for a period no longer than 24 hours once per year (s. 2(1)).  Access road is defined in s. 1 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.

                         

Road is defined to mean, "land used or intended for use for the passage of motor vehicles . 

[8]            The cottagers claim that the gravel road over lot 18 is an access road as defined by the Act.  In addition, they assert that its closure prevents all road access to their parcels of land on lot 19.  They submit that, therefore, the Act should be held to apply to this case and that the plaintiff acted in contravention of s. 2(1) by closing the road to them.  The cottagers claim a permanent injunction restraining the plaintiff from interfering with their use of the road without complying with s. 2(1) of the Act on payment of a $500.00 annual fee for maintenance and repair of the lot 18 road. 

[9]          If the Act is held not to apply, in the alternative the cottagers claim an irrevocable licence to use the road, relying on the doctrine of proprietary estoppel.  This term refers to the equitable jurisdiction of a court to prevent the assertion of strict legal rights in unconscionable circumstances where the landowner has induced or somehow encouraged the claimant to believe that they have acquired an access way across the owner s property; Eberts v. Carleton Condominium Corp. No. 396, [2000] O.J. No. 3773 (C.A.). 

[10]      The cottagers claim damages against the Attorney General on behalf of the Minister of Indian Affairs and Northern Development.  The cottagers lease the land on which their cottages stand from the Crown.  The cottages are all located on lot 19, the reserve land of the Mnjikaning First Nation.  The cottagers point out that they relied on the lease terms regarding access, which granted them a right of ingress or egress to and from the demised land over access roads and rights of way in common with others legally entitled thereto .  They allege that the Minister is in breach of these leases due to the plaintiff s denial of ingress and egress over the gravel road on lot 18, alleging that the leases amount to a guarantee of continued road access to the cottages.  The cottagers claim against the Minister is for payment of the annual fee.

(ii)        The Plaintiff 2008795 Ontario Inc.

[11]      The plaintiff 2008795 Ontario Inc. is the owner in fee simple of lot 18 since July 2003.  It is a corporation owned by the Mnjikaning First Nation.  The band chief is a director.  The manager of the Mnjikaning First Nation is the corporate treasurer and a director.  All of the shares are held by the Mnjikaning First Nation.  Daniel Shilling, a respected member and official of the band who is the plaintiff s treasurer, gave evidence regarding the plaintiff s purpose and intentions for lot 18.  It is summed up in the plaintiff s counsel s written submissions (at paras. 19 and 20):

                        19.  20008795 Ontario Inc. purchased lot 18 to increase the Mnjikaning First Nation s land holdings and to ensure that their reserve on the adjacent land, lot 19, was not landlocked.

 

                        20.  The purpose of the land purchase was for the betterment of the Mnjikaning community.  The purchase was also made with the intent of facilitating access and services for the sick and elderly Mnjikaning First Nation s band members currently residing on the reserve land in the Lake St. John area and for those band members who may choose to move there in the future.

 

                         

[12]      The plaintiff sees this litigation as the means to assert its right as a private landowner to enjoy its land without interference (plaintiff s submissions, para. 8).  2008795 Ontario Inc. seeks a permanent injunction restraining the cottagers from using the road over lot 18 except with the plaintiff corporation s consent.  It claims damages for the difference between the $500 and the $2,000 annual fee required by the plaintiff since November 2003.

[13]       The plaintiff s position is that the Road Access Act does not apply so as to prevent closure of the lot 18 road.  The plaintiff submits that the cottagers have not met the onus of proof placed on them to establish that there is no alternate access to their land within the intent and meaning of the legislation.  In the plaintiff s submission, the Road Access Act should apply only in the narrowest of circumstances and not in situations where there is possible alternate access by development of a road on unopened road allowances.

[14]      The plaintiff argues that the evidence in this case negates the grounds for invoking the alternative equitable relief claim and, even if equitable rights were found to have been established before the plaintiff s purchase of the land, it had no notice of them.  The plaintiff submits that it acted reasonably in determining the terms of use of the access road and the cottagers chose to decline them.

 (iii)      The Attorney General for Canada

[15]      The Attorney General submits through counsel that there is no claim in breach of contract, no detrimental reliance, and that the action in contract is barred in any event by the statutory limitation period.  It is submitted that the cottagers leases are integrally linked to the statutory scheme of the Indian Act, R.S., 1985, c. I-5, as am. ( Indian Act ).  The access provision in their leases relates only to reserve lands and does not extend the Crown s obligations beyond those lands so as to guarantee rights over property that it does not own.  In the Attorney General s view, the cottagers evidence indicates that, until institution of this litigation, they simply assumed that they could continue to cross lot 18 on similar fee terms to those in the past.  None of the cottagers looked seriously at whether they had any legal or equitable right to do so.  The Attorney General s counsel submits that the cottagers simply did not turn their minds to the fact that no guarantee of access existed, and that the leases, when read as a whole, cannot and do not support the cottagers recent re-interpretation. 

[16]      The Attorney General s further submission is that the cottagers claim ignores their situation as lessees of reserve land within a statutory scheme.  Land within a reserve under the Indian Act is held for the benefit of the First Nation as a whole, but a right of possession of individual parcels may be allocated by way of certificate of possession to individual band members or locatees.  In this case, the locatees are Mark Douglas (in regard to all but one of the lots leased to the cottagers) and Sharla Peltier.  Mr. Douglas and Ms. Peltier had the right to request these leases and they were issued pursuant to the Minister s authority under s. 58(3) of the Indian Act.  The cottagers properties are required to be appraised every five years to determine the rent to be charged.  These lots were appraised on the basis that they were landlocked, with water access only.  Thus, in the Attorney General s submission, the cottagers enjoy lakefront properties at very reasonable rent due to the lack of land access; there is no guarantee that the leases will be renewed in the future and no entitlement granted by the leases from the Crown to the use of an access road over non-reserve, privately owned land. 

[17]      Finally, the Attorney General relies on the Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(g).  It is submitted that, because access was always conditional on payment of a fee since the early to mid 1980 s and the leases were entered more than ten years ago, the claim for breach of contract is barred.

 

 

 

 

The Road Access Act Claim

i)                    Approach to Statutory Interpretation

 

[18]      The issues before me in respect of the Road Access Act resolve themselves largely into one of statutory interpretation.  The starting point in Canada is the modern approach to statutory interpretation enunciated in Driedger on Construction of Statutes, 3d ed. by Ruth Sullivan (Markham, Ontario:  Butterworths Canada Ltd., 1994).  See Barrie Public Utilities v. Canadian Cable Television Assn. [2003] S.C.R. 28 (S.C.C.) at para. 20; 118143 Ontario Inc. v. Mississauga (City) [2004] O.J. No. 4143 (C.A.) at para. 12.  The modern approach is described in the following except from the Driedger text s 3rd edition (at p.181):

                        There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids.  In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.  After taking these into account, the court must then adopt an interpretation that is appropriate.  An appropriate interpretation is one that can be justified in terms of a) its plausibility, that is, its compliance with the legislative text; b) its efficacy, that is, its promotion of the legislative purpose, and c) its acceptability, that is, the outcome is reasonable and just. 

                         

[19]      Counsel for the plaintiff appropriately commenced her submissions on the Road Access Act by addressing its overall meaning and significance.  There is no doubt that the fundamental issue to be addressed in this case is whether there is alternate road access and, more specifically, whether the unopened road allowances running northerly from the existing public road and thence westerly to meet the road into lot 19 should properly be found to constitute alternate road access.  However, to address that question, the court must arrive at a just and informed understanding of the meaning and scope of the Act, in light of its intent and purpose, and having regard to the acceptability and appropriateness of the outcome. 

[20]      The plaintiff casts the cottagers claim as an invasive one i.e. the cottagers claim to be entitled to unfettered use of the road on lot 18 pursuant to the Road Access Act .  Reference is made at several points in the plaintiff s submissions to this Act as an extraordinary exception that encumbers the rights of private owners (plaintiff s submissions, para. 54); a drastic and extraordinary measure (plaintiff s submissions, para. 53, citing Atkins v. Carter, [2004] 23 R.P.R. (4th) 311 (Ont. S.C.J.), 2004 CarswellOnt 2109, at para. 14:); and a severe infringement on the rights of private land owners (plaintiff s submissions, para. 85).  The conclusion urged by the plaintiff is that the court should adopt a restrictive approach to the application of the Act, limiting its application to:

                        only the narrowest of circumstances.  For these reasons, it simply makes sense that courts have concluded that the Act does not apply in situations where it is simply more convenient or a less costly alternative.  Private land owners are not required to bear the burden of trespass created by the Act unless there is absolutely no alternative ;  (plaintiff s submissions, para. 54).

                         

[21]      From this perspective, the requirement that the obstruction must prevent all road access is not met wherever there is a possibility of constructing a vehicular access road in the future, no matter whether it is on land owned by the parcel owner or someone else or a public authority. 

[22]      On the other hand, the cottagers weight their submissions more to the purpose and intent of the legislation as a generalized attempt to avoid the confrontation and potential violence where one vehicular access route exists and it is subsequently barred.  In other words, this perspective would appear to allow persons a right over another s land without any clear time, condition, or frequency of use standards to be met, without any clear end, and where no right in law exists (such as a right of way acquired after 20 years of open notorious use). 

[23]      In approaching whether and how this Act applies in the circumstances before me, the court must look not only at its effect and purpose.  The court must consider the words used by the legislature, their context, the legislative purpose and intent, as well as the reasonableness and fairness of the interpretative result.  In doing so, the court may consider extrinsic aids.  Both sides have seen fit to put such references before me.  Decided cases, particularly appellate authorities, are also an important experiential source for reaching a considered approach to the application of statute law.

ii)                  The Legislation and its History

 

[24]      The scheme of the present Act is traditional: first, the definition of key terms, followed by the prohibition against arbitrary closure, the process required to apply for closure, the remedy in urgent circumstances, appeal rights, offence/remedial orders, and provision for emergency forestry road closings. 

[25]      The Road Access Act categorizes the kinds of roads to which it is aimed in two ways.  It defines an access road and a common road .  The definition of access road contains the following essential elements:

                        (i)  a road , which in turn is defined in s.1 as land used or intended for use for the passage of motor vehicles ,

 

                        (ii)  located on land that is not owned by a municipality and not a public highway,

 

                        (iii)  that serves as a motor vehicle access route,

 

                        (iv)  to one or more parcels of land.

 

A common road is simply an access road maintained by public money.  The road in question here has not been maintained by public money and is clearly not a common road.

 

[26]      Section 2 identifies the conduct at which the Act is aimed: 

                        2.(1)  No person shall construct, place or maintain a barrier or other obstacle over an access road that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,

 

                        (a)  the person has made 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 for 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 the acquisition of prescriptive rights.

 

[27]      Subsection 2(2) prohibits blockage of use of a common road and only two exceptions are allowed:

                        (a)  by court order on notice to all parties, or

 

                        (b)  for maintenance or repair.

 

Subsections 2(3), (4), (5) and (6) direct how notice of an application to close an access or common road is to be given.  Sections 4 and 5 deal with interim closing orders and appeal rights.

[28]      Section 3(1) provides the grounds on which a court may grant an order to close a road.  It is discretionary in that the court may grant a closing order on grounds of:

                        (a)  reasonable necessity in order to prevent substantial damage or injury to the applicant s interests or in the public interest,

 

                        (b)  no legal right to use an access road, or

 

                        (c)  no legal right to use a common road.

 

Subsection 3(2) importantly stresses the court s ability to impose conditions in a closing order as may be found reasonable and just .  No provision is made for the imposition of conditions should the closing order not be granted; see Whitmell v. Ritchie 1994 CanLII 858 (ON C.A.), (1994), 20 O.R. (3d) 424 (C.A.) at para. 14 where the Court of Appeal found no authority for the imposition of conditions of gated entry requiring payment of a yearly fee related to road maintenance cost; the application must be either allowed or dismissed and conditions cannot be imposed on a dismissal.

[29]      Section 6(1) importantly limits the reach of the Act in the following terms: 

                        6(1)  Nothing in this act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person. 

                         

This provision confirms, and has been upheld in so doing, that the Act confers no right of ownership on an access user; it subjects the land to the limited use of vehicular access only. Deluca v. Paul Guilho Trucking and Construction Ltd. (1984), 46 O.R. (2) 634 (C.A.) ( Deluca ); Cook s Road Maintenance Association v. Crowhill Estates (2001) 17 N.P.L.R. (3d) 146 ( Cook s Road Maintenance ).

[30]      Section 7 provides that contravention of s. 2(1) or (2) is a chargeable offence and upon conviction, the removal of the barrier may be ordered. 

[31]      The Act as it presently stands is much the same as when it was first passed in 1978.  On introducing the legislation, the Minister stated that the government s intention was to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property . 

[32]      In Cook s Road Maintenance Assoc., Justice Borins quoted the above excerpt (at para. 41) and found:

                        The legislature intended the act to relieve against the precise situation which the cottagers were encountering in 1980 as a result of the appellant s attempts to impede their use of the road.

 

The 1980 situation referred to by Justice Borins involved an obstruction by the landowner of the cottagers use of the access road through his property, which had been used by them for some decades.  The cottagers commenced an action for a declaration that the road was an access road within the Road Access Act.  The action was settled for a time by an agreement permitting use of the road and the assigning of responsibility for maintenance, with closure to be only as permitted by the Act.  In the end, an injunction reflecting the terms of the agreement was ordered; see Cook s Road Maintenance, paras 4 to 7 and 48.

[33]      The original bill on which the Road Access Act was based was introduced in 1977, the year before the Act came into force.  According to the plaintiff s submissions, the member who introduced the Bill, Lorne Maeck, stated his reasons for supporting it and at one point referred to cases in which alternate access is possible, perhaps by developing an existing road allowance.  His concern was said to be cases where no other road access is feasible (plaintiff s submissions, para. 57).  This is some indication of Mr. Maeck s intention but not necessarily the corporate purpose of the legislature in later enacting the Road Access Act.  As enacted, the Act contains no reference to feasibility as a test, or to an unopened road allowance constituting an access road or access for purposes of s. 2(1).  Such road allowances are found throughout cottage areas and other less developed areas. It is these very areas with which the Act is most concerned.

[34]      In 1989, the legislative purpose for the Road Access Act was considered and restated on introduction of an amendment to ss. 2(1) and (2).  The former wording of section 2(1), no person shall construct or place , was before the Court of Appeal in a case where the land owner was not proven to have constructed or placed the barrier; he simply left it in place;  R.. v. Gilbert Schauer (1982), W.C.B.J. LEXIS 12716, 8 W.C.B. 385 (Ont. C.A.).  Sections 2(1) and (2) of the Act were amended to read, No person shall construct, place or maintain a barrier .  The following was the explanation for the amendment, which restated the legislative purpose of the Act (excerpted from Hansard, session 34:1, February 21, 1989):

                        Problems frequently arise with these roads when new owners purchase a property and find that the people using the road over their property appear to have no legal right to do so.  This often results in a barricade being erected by the new owners to prevent the continued use of the road.

 

                        The Road Access Act has successfully addressed this situation by prohibiting anyone from placing a barricade over a common or access road unless the person has been granted a judge s order to close the road.  This cooling-off period allows the road to remain open while the legal issues are settled in court.  In practice, the Act has given police officers an effective means of persuading individuals to remove barricades before charges have to be laid.

 

                        A recent Ontario Court of Appeal judgment undermined the effectiveness of the Act by ruling that the legislation does not make it a continuing offence to maintain a barricade.  The decision means that unless the barricade is discovered and legal proceedings are commenced within six months, the provisions of the Road Access Act cannot be used.  Chief Justice Howland made it clear in his judgment that if the prohibition in the Act had included maintaining a barrier, he would have been satisfied that the intent of the Act was to create a continuing offence. 

 

                        The proposed amendment will make it clear that this is the intent of the Act by prohibiting both the placing and the maintaining of a barricade over a common or access road unless a judge s order has been obtained.

 

[35]      Finally, in 2001, the present s.3 was enacted.  The former s. 3 had outlined, in a more summary form, the grounds for granting a closing order now contained in s. 3(1)(a).  The 2001 amendment added an additional ground for closure of an access road or a common road no legal right to use the road.  Section 3 remains discretionary. I do not mean to imply that a closure order automatically flows from the establishment of one of the enumerated grounds.  But the Act now includes, as a ground for closure of an access or common road, a no legal right consideration in addition to the substantial damage and public interest grounds which continued in place.  Regarding imposition of conditions, the former s. 3 had provided that the judge may impose such conditions as are considered to be reasonable and just under the circumstances, including a requirement that a suitable alternate road be provided .  The underlined phrase was not repeated in the 2001 amendment enacting ss. 3(1) and (2).  Section 3(1) now provides:

                        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 subsection 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.  2001, c.25, s. 483.

 

 

   (2)  The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances. 

 

iii)                 Seeking the Appropriate Interpretation of the Act

 

[36]      Despite the limitation on the scope of remedy for breach of s.2 already noted in Deluca and Cook s Road Maintenance, there is concern expressed in some trial decisions over the degree to which the Road Access Act impinges on private rights and land ownership.  One response has been to impose a heavy onus on the access user to show circumstances that trigger the prohibition against terminating an existing access road over private property under s. 2 and to give an expansive interpretation to alternate access for purposes of s. 2(1).  The problem with that approach is that it tends toward a subjective and highly variable level of adjudication and to judicial amendment of the legislation in order to discourage perceived undue interference with private rights.  It appears to me that a careful scrutiny of the words and meaning of the provisions within the Act as a whole and in the context of the legislative purpose, produces an acceptable, more objective and appropriately restrained approach to applying the Act.

[37]      It is settled law that the party seeking to continue access must show that circumstances exist which trigger the application of s. 2; Ebare v. Winter [2005] O.J. No. 14 (C.A.) at para 22.  The onus of proof on the access claimant is to the civil standard, by a preponderance of evidence or a balance of probabilities.  It is for the access claimant to show as the first part of the threshold test that an access road is in place that contains the following four elements constituting the definition in the Act:

(i)                  that a road exists as defined in s. 1

(ii)               that the road is on land not owned by a municipality and not a public highway

(iii)               that the road is used as a motor vehicle access route, and

(iv)              that it is used as access to one or more parcels of land.

[38]      In each case in which an access road has been found to exist across a land owner s property, its use for vehicular traffic from and to the access claimant s land has been established for some years prior to purchase by the objecting land owner (or prior to a significant change of attitude of the land owner); Deluca v. Paul Guilho Trucking & Construction Ltd., supra; Roth v. Roth reflex, (1991), 4 O.R. (3d) 740, 1991 CarswellOnt 44 (Gen. Div.); Whitmell v. Ritchie, supra; Eaton v. Abram reflex, (1993), 15 O.R. (3d) 74 (Gen. Div.); 553173 Ontario Ltd. v. Bank of Montreal 1995 CanLII 7246 (ON S.C.), (1995), 26 O.R. (3d) 617 (Gen. Div.), affirmed 1998 CanLII 3047 (ON C.A.), (1998), 38 O.R. (3d) 575 (C.A.); Cooks Road Maintenance Assoc. v. Crowhill Estates, supra; Grodecki v. Collins, [1999] O.J. No. 4185 (S.C.J.); Atkins v. Carter, supra.  In all of these cases, the access road originated by permission or consent of the land owner over whose land the access road passed, or as in Deluca, by acquiescence of the owner. 

[39]      In several of the recent cases in which relief was not granted, the ground for rejection was that the access claimant failed to prove that no alternative access existed.  There were suggestions in those cases that the presence of unimproved, unopened road allowances abutting the claimant s land may be accepted as alternate road access for purposes of the Act.  In most of those cases, no finding was made that the first part of the threshold test was met, i.e. whether the court was dealing with an access road as defined by the Act.  For instance, in Bogart v. Thompson, [2002] O.J. No. 1986 (S.C.J.), 2002 CarswellOnt 1659, the trial judge found no reliable history of use by the access claimant s predecessors in title and considerable doubt as to the location of the alleged roadway; see paras. 13-16.  

[40]      In Cates v. Salamon, [1998] O.J. No. 3060, 1998 CarswellOnt 3041 (Gen. Div.), the trial judge ruled that the access claimant had failed to prove that the alleged road ever served as a motor vehicle access road to her property.  The court was not satisfied that the plaintiff or anyone else had ever used the access road to, or parking lot of, an adjacent landowner to access the plaintiff s property, and if it had been used in that way, it was not of sufficient use to be caught by the statute , or the (rare) use was by a route not supported by the topography and done without the landowner s permission; at para. 7. 

[41]      In 553173 Ontario Ltd. v. Bank of Montreal, the trial judge found that no access road existed.  She held that, because the landowner prevented access from being established from the time the claimant s parcel came into existence as a separate lot, no access road as meant by the Act had been proven to exist.  The trial judge found that, to be an access road, there must be evidence of the use of the road as a motor vehicle access route to a parcel of land; at para. 42.  In that case she found no evidence that this was in fact the case.  Although lack of permission by the landowner is referred to, I see no reason for inferring that permission by the owner should be the only prerequisite to the establishment of an access road .  Acquiescence for a significant period in the road s use as a motor vehicle route to the access claimant s parcel, or permission, are common features of each case where an access road has been found.  As the definition states, an access road must be a vehicular route, which infers that it has been used and recognized as such for a significant time, and originated or continued by the permission or acquiescence of the owner over whose land it passes.

[42]      If it is found that the four requirements of an access road are met, and that the access road originated or continued for a significant time by permission or acquiescence, there is another statutory hurdle which must be cleared.  That is, proof that closure of the access road prevents all motor vehicle access to the claimant s parcel or parcels of land.  In other words, closure must be shown to cause the parcel of land of the access claimant to be landlocked.  Ebare v. Winter, supra.  It is this final part of the threshold test on which the parties in this case actively join issue.

[43]      The purpose of the Act appears to be two fold:  to prevent the arbitrary closure of a vehicular access road where no other vehicular access exists, without prior judicial authorization; and to provide a summary process for those concerned to access the courts where the issues, interim and final, can be dealt with judicially.  Deluca indicated the evil to which the statute is addressed the serious problems so often encountered in disputes of this nature including risks of violence to persons and property.  Cooks Road Maintenance refers to one aspect of the Road Access Act, the prevention and arbitrary closure of private roads (para. 41).  With respect, the Act as a whole leads me to conclude that there is a dual purpose here to prevent arbitrary action without prior judicial authorization, and to direct those involved to a fair process to decide or resolve the conflict.

[44]      I find that the Road Access Act is driven by practical concerns and is straightforward legislation with a well-defined and narrow application.  It deals with existing facts using historic realities, while providing for future change.  It aims at ensuring that closure of an operating access road that provides the only existing motor vehicle access to the access user s parcel of land or a boat docking facility is not accomplished by arbitrary, self-help means.  The Act provides a means to set the interim obligations of the disputants regarding an access road, and to address judicially whether the road should be closed or not.  It aims to de-escalate the dispute and reduce the likelihood of violence or other serious conflict.

[45]      In the end, and in the narrow situations to which it does apply, it creates no proprietary right or interest in the land over which the access road passes.  It provides an interim status to the access user whereby the access user is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook s Road Maintenance).  He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it.  The access user cannot grant the use of the road to others.  The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra.  The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para 45.  And, if another access road is subsequently provided, the access user s continuing status under s. 2 ceases because alternate access would then exist. 

[46]      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. 

(iv)  The Alternate Road Access Issue

 

[47]      The principal issue between the plaintiff and the defendant cottagers arises out of the words in s. 2 which require that closure of the access road prevents all road access to the land in question.  Section 2(1) reads:

                        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 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 for 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 the acquisition of prescriptive rights.

 

[48]      The road in question in this case has been proven to be an access road on the evidence before me.  It serves as a motor vehicle access route to the cottagers and other residents parcels of land over private land that is not a public highway, and has so served since at least 1983.  It meets all four elements of an access road under the Act.  The cottagers have also proved that it originated and continued to be used for vehicular access for at least 15 years by permission of the prior owners whose land it crossed.  The party seeking to invoke the Act must also demonstrate that there is no alternate access.  The burden of proof is to the civil standard, on a preponderance of the evidence; Ebare v. Winter, supra.  In this case, therefore, the onus is upon the cottagers to show that there was no alternate vehicular access when the lot 18 road was closed to them on November 1, 2003. 

[49]      The plaintiff submits that alternate road access is possible using the unimproved and unopened road allowances running northerly from the end of the public road up the easterly side of lot 18 to its northeasterly corner and thence westerly along the northern perimeter of lot 18 to its northwestern corner where the road to the parcels in question takes over and that the cost of requiring the cottagers to build a road is irrelevant.  The plaintiff cites the Court of Appeal judgment in Ebare v. Winter and trial court judgments in Bogart v. Thompson, supra, Vanalstyne v. Legg, [2001] 42 R.P.R. (3d) 302, 2001 CarswellOnt 2249 (Ont. S.C.J.), and Kanhai v. Elliott Lake Textiles & Draperies Inc., [2005] 29 R.P.R. (4th) 133, 2005 CarswellOnt 649 (Ont. S.C.J.) for the proposition that the existence of these unopened road allowances constitutes alternate vehicular access.  Therefore it is submitted that the cottagers cannot meet the final part of the threshold test under the Road Access Act. 

[50]      In Bogart at para. 18, the trial judge stated:

                        Between lot 4, concession IV and the Concession A lots to the east, there is an unopened road allowance.  There is also an unopened road allowance between Concessions IV and V to the north of the Defendants properties as well as an unopened road allowance between lots 5 and 6 extending north from Camel Lake Road between Concessions II and III to the south.  I have received anecdotal evidence about swamps and rocky bluffs that would appear to make vehicular summer travel difficult by way of those road allowances to the boundaries of the Defendant s land and from there to the locations on his land where he has planted and built shelter.  At the present time there is no other route by which the Defendant could drive a vehicle to his lots.

 

This comment was part of a series of references by the presiding judge to problems with the application before her.  Those problems included the following, in addition to the reference to unopened road allowances:

        no reliable history of use by the defendant s predecessors in title;

        the roadway claimed by the defendant for access was not in the same location as an historical road nor was there evidence that any such road existed;

        there was much evidence about snowmobile trails and logging routes seen or not seen by various witnesses;

        there was evidence that the unopened road allowance was within the legal box around the parcel ; the trial judge used the term legal box for the legal boundary of the parcel and rights of the access claimant, as distinguished from the physical box within the legal boundary wherein topographical impediments are the problem of the access claimant;

        there was evidence accepted by the court of reasonable alternatives for access that were physically possible;

        there was evidence that on purchase, the access claimant knew that he had no access to the parcel of land;

        a single passage of a motor vehicle over land was rejected as sufficient to bring the subject land within the definition of access road .

[51]      In Vanalstyne, the trial judge referred, at paras 11 14, to a definition of road allowances as strips of crown land reserved for the purpose of making roads when and as roads may be required .  He ruled that, as defined, they would fall within the definition of a road in s. 2 of the Road Access Act and therefore the application was incorrectly brought on the ground that there was alternate road access available.

[52]      In Kanhai, the trial judge dealt with whether an unopened road allowance running northerly to the corner of the plaintiff s lot was an alternate route for access to the subject lands.  He could not conclude that alternate road access did not exist.  This was after he had decided that access was provided by means of a prescriptive easement, which had been proven. 

[53]      The problem with the plaintiff s references in these cases is that they are incomplete, misleading and do not represent the actual findings of the court in each case.  For example, Bogart turned on the onus or burden of proof and the trial judge was not satisfied as to the unavailability of alternate road access.  The initial part of the threshold test whether evidence established that an access road existed was not addressed.  As to the reference by the plaintiff that the test of an alternate route is impossibility and not inconvenience and expense, all that I can take from it is that this is a reference to the existence of physical impediments to construction within the parcel which could be overcome.  It cannot be taken to refer to off-parcel impediments to construction; paragraph 28 of that judgment held that `no alternate access applies to the legal box around the parcel and not to physical inconveniences .

[54]      Vanalstyne dealt with a road constructed for the most part on a road allowance but which deviated from it in three locations.  There was a natural barrier across the road allowance where the greatest deviation occurred.  The trial judge was asked to determine preliminarily whether the Road Access Act applied.  The matter was dealt with using a short agreed statement of facts and a definition of road allowance from a legal text.  The definition assumed that road allowances are Crown land reserved for the purpose of making roads when and as required.  The trial judge ruled out the Road Access Act as an issue because the road allowance over which the parties had permission to build, and where they had built a road albeit erroneously in places, came within the definition of road in the Road Access Act and formed alternate access.  This case did not deal with the status of unopened road allowances as under the ownership, control and jurisdiction of the municipality whose discretion is to be exercised in the public interest.  (Municipal Act, 2001, S.O. 2001, c. 25, ss. 26 and 30).  Furthermore, as the road allowance was primarily the location of the access road which was the subject of that case, it is difficult to see how the road allowance could form an alternate access.  In my view, and with respect, it is a case limited to its own facts and narrowly confined record and may stand for nothing more than the proposition that errors in road construction do not per se invoke the protection of s.2 of the Road Access Act.

[55]      The references to Kanhai in respect of the Road Access Act are references to a discussion which was obiter.  The court found that an access easement was created by prescription in that case, and therefore no determination was required under the Road Access Act (paras. 89 and 90).  In obiter remarks, the court found itself unable to set aside an unopened road allowance leading to the claimant s parcel of land as a potential alternate road access.  The court did not appear to have considered the statutory purpose or appropriateness of that interpretation.

[56]      It is important to consider the jurisprudence regarding the Road Access Act in light of the onus on the claimant and the wording and intent of the Act.  If there is another existing useable road connecting directly or via a right of easement to the access seeker s parcel of land, the Road Access Act simply cannot be invoked to preserve a private road over a neighbour s land.  Section 2 quite clearly refers to an access route to a parcel or parcels of land, meaning a tract or tracts of land under common ownership and control.  Costs of construction of a road within the access claimant s own property, in order to connect with an existing public road or access road, is simply not a relevant consideration under the Act.  The problem is not in such cases access to the parcel of land, but rather, connection within the access claimant s property from his/her home or business premises to an existing public road or road legally useable by the claimant which abuts the parcel.  Resort to a metaphorical, indistinct notion such as a legal or physical box is, with respect, not necessary.  It is up to the access claimant to connect their home or business site(s) within the claimant s parcel of land to an existing abutting road and it is in that context that the issue of construction and impossibility vs. cost, and inconvenience, arose in the cases.  With respect, I do not see the Road Access Act as requiring access users otherwise coming within its limited protection to submit to a means test to determine whether the person or persons could build and maintain a road beyond their own lands to municipal standards.

[57]      For instance, in Atkins v. Carter the access seeker could not use the Road Access Act as a way to avoid the expense of clearing land located within an existing easement lawfully granted to the access claimant and useable with some effort for vehicular access from and to her own parcel of land.  The fact that a neighbour had given permission to use an access road that was more convenient did not diminish the significance of the existence of the right of way for purposes of the test of alternate access.  The judge in Atkins had no evidence before him that use of the easement necessitated more than minor clearance of the land.  The lands within that right of way were found to be in much the same condition as most cottage roads used in Muskoka (paras. 27-28). 

[58]      I do not accept the plaintiff s submission that alternate road access is present simply because an unopened road allowance exists in a location such that it could, if it were developed, provide alternate road access.  It is suggested that the Court of Appeal in Ebare v. Winter expressly or implicitly supports the proposition that the mere existence of an abutting unopened road allowance immunizes the lot 18 road from the Act.  Ebare does not hold that alternate road access, for purposes of s. 2, encompasses such road allowances, which are owned and regulated by a public authority.  In this case, the municipality not only owns the road allowances under s. 26 of the Municipal Act, 2001; it can, under s. 30, actively require whether, at what time and to what standard, a road on any such unopened road allowance is built.  Ebare held that the appellants had to show that there was no alternate road access to their parcel of land.  The court went on to find that alternate access meant alternate legal access and that legal access can be achieved over private property by permission or as access roads under the Road Access Act.  As the appellants failed to show that legal access, in that case, was unavailable over several private roads referred to by the respondent surveyor, their action and appeal failed.  Several private roads used by logging trucks in the past were in evidence in that case.  As well, Ebare was found by the Court to be another instance, like Bogart, of an aggressive access seeker who simply disregarded concerns over access when he purchased the property to remove wood.  His method was to assess a prospective property for logging use, and the access thereto, by consulting solely with himself and then deciding, I m goin loggin .   No one had contested his right to do so in the past.  It was a misuse of the Act as a sword rather than for its intended function as a temporary shield.

[59]      The evidence of the chief administrative officer and clerk of Ramara Township before me was that the Township is the trustee of lands comprising unopened road allowances within its boundaries.  For an unopened road allowance to be used as a road, the Township would require an application to do so and either grant or refuse it after considering all of the circumstances as well as its land use planning and other policies.  If the Township were to grant the application, the clerk s evidence was that it would require the applicants to build it to municipal standards.  The applicants would have to pay for the engineer, survey, environmental scan, design plans, construction, i.e. everything.  Evidence from the town clerk as well as an engineer and a road builder indicated a design and construction cost of over $450,000.00, plus an ongoing, yearly share of the maintenance costs.

[60]      In Ebare and Bogart, there was no evidence as to the ownership, jurisdiction and regulation, let alone cost, of developing an unopened road allowance.  It appears that the court in Bogart was asked to simply assume that the road allowance could be used as a road after physical clearance work made it useable. 

[61]      In most areas of this province, municipalities actively regulate and control the use and development of unopened road allowances in the public interest, as does Ramara Township.  In Goudreau v. Chandos (Township) reflex, (1993), 14 O.R. (3d) 636, 1993 CarswellOnt 59 (Gen. Div.), Justice Weekes dealt with an application to determine rights in law respecting an unopened road allowance.  He was asked to determine whether a member of the public who used an unopened road allowance for access purposes had the right to cut trees, remove or grade soil and clear natural obstructions in order to permit vehicular use, without the municipality s permission.  He held as follows (at para 11-12):

                        There is a sound policy basis for coming to the conclusion that municipal consent is required to improve an unopened road allowance.  The province has a great number of unopened road allowances.  To rule that consent is not required would make available all of these road allowances for unregulated development.  The chaos and destruction that could ensue is frightening to contemplate.  There would be no standards.  Protection of wetlands and other areas of natural significance would be more difficult, if not impossible, to ensure.  With the consent of the municipality being required, there will be the control essential to ensure that proper environmental standards are adhered to, and that the opening of such road allowances is done after consideration is given to the greater public interest.

 

                        I am supported in this approach by the holding of our Court of Appeal in Scarborough (City) v. R.E.F. Homes Ltd.  (1979), 9 M.P.L.R. 255, that in a broad general sense a municipality is the trustee of the environment for the benefit of the residents in the area of the road allowance and, indeed, for the citizens of the community at large.  Bearing in mind that ownership of the soil and freehold of the road allowance is vested in the municipality by s.262 of the Municipal Act, it would seem logical that even if there were no trees on a particular road allowance, municipal consent to develop the road allowance would be required so that the municipality could properly perform its obligations as trustee of the environment.

 

Justice Weekes held that a member of the public who wants to use an unopened road allowance for access does not have the right to cut trees and remove or grade other natural obstructions without the express permission of the municipality.  The application was dismissed. 

[62]      Given that unopened road allowances are owned and regulated in use by the local municipality, can it be said that their existence on the periphery of lot 18 in this case constitutes alternate access within the meaning and purpose of the Road Access Act?

[63]      Section 2 of the Road Access Act requires that there be no alternate access to the parcel of land in question, i.e. that closure of the access road prevents all vehicular access to it.  In my view, having considered the meaning, purpose and intent of the Act, section 2 is referring to existing alternate vehicular access, or, as in Atkins, a right of access available to, and useable by, the claimant, as in the case of most cottage roads.  This reading meets the test of plausibility because the Act in s. 2 is speaking to the present: access road is one that serves as a motor vehicle access route , not one that has the potential of doing so in due time.  It is noteworthy, in this regard, that despite the sponsoring member s remarks about unopened road allowances perhaps serving as feasible or possible or eventual alternate road access in 1977, the Act as enacted in 1978 contained no suggestion to that effect despite the presence of such road allowances virtually everywhere in rural and cottage areas.  It seems clear that that issue must have been considered at the time of passage by the legislature.

[64]      In conclusion, I find no support in the Road Access Act or its jurisprudence to date nor in the evidence before me to find that the mere existence and alternate configuration of unopened road allowances, which cannot be used for vehicular traffic without municipal approval in the broad public interest and without construction and maintenance to municipal standards, constitute alternate road access within the Road Access Act.

[65]      In my view the road in question over lot 18 meets all of the requirements of an access road as defined, closure of which prevents all road access to the parcels of land of the cottagers.  The evidence led by the plaintiff established that it purchased lot 18 for this very reason; the evidence of Mr. Shilling disclosed that the plaintiff purchased lot 18 because it feared that certain band members who lived near Lake St. John would be landlocked but for the road over lot 18.  He admittedly knew of the use of the road across lot 18 before the plaintiff corporation purchased it.  The plaintiff continues to allow the band members to use this road now and apparently in the future.  There is no other alternate access by vehicle to the properties on Lake St. John and lot 19.

[66]      The plaintiff, in closing the road as it did, ignored the requirements of the Road Access Act in barring the cottagers from access to their leased properties.  Section 2(1)(a) indicates that it was open to it to make an application to a judge to close the access road.  Section 3 now permits a judge, within his or her discretion, to grant a closing order on being satisfied that a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interest of the applicant or for some other purpose in the public interest; or b) in the case of an access road, that those using it do not have a legal right to use the road.  As the Court of Appeal in Cooks Road Maintenance held, s. 2(1) does not affect the property rights of the plaintiff; it merely allows the cottagers to continue to use the road on lot 18 for the purposes of vehicle-only access upon payment of a fee related to the cost of maintaining the road.

[67]      Pursuant to the Road Access Act, the use by the cottagers of the road over lot 18 for vehicular access does not render them trespassers on or since November 1, 2003.  There is no evidence that Mr. and/or Mrs. Kilpatrick caused damage, as claimed.  The action by the plaintiff in trespass is therefore dismissed; Deluca, supra at paras. 14-15, Cooks Road Maintenance, supra.  The cottagers request for an injunction subject to payment of a yearly fee of $500 to the plaintiff, or such other fee as is directly related to the actual maintenance and repair costs of the existing gravel road, is granted.  The fee suggested by the plaintiff prior to closure was fixed taking into account costs far beyond maintenance of the gravel road and was arbitrarily set.  This judgment does not intend to address in any way other issues such as whether a fee is to be charged to band members who use the road access lot 18.  The First Nations corporation has stated that they purchased lot 18 for the benefit of the Mnjikaning First Nation and, specifically, to provide access for band members to the reserve on lot 19.  Whether a fee is charged to band members, none of whom are parties to this action, remains within the discretion of the plaintiff corporation s board of directors. 

[68]      The cottagers claim via proprietary estoppel was put forward in the alternative, if I found the Road Access Act not to apply.  In view of my finding that the Act does apply, there is no need to deal with the alternative claim.

The Cottagers Claim for Damages Against the Crown

[69]      Each of the cottagers have use of their parcels of land on Lake St. John under a lease from the Crown in right of Canada represented by the Minister.  The leases recite the reserve land of which the leased parcels are part, the name or names of the locatees (the band members in lawful possession of the particular parcel), and the resolution by which the council of the Rama First Nation Band consented to each lease.  The leases describe the parcel to which each applies as being part of the Chippewas of Rama First Nation Reserve #32, with the particular lot number within the Canada Land Survey records, Ottawa.  The reserve is referred to in the preamble to the lease as the lands set aside for the benefit of the Rama (now Mnjikaning) First Nation.  The usual covenants follow thereafter dealing with term of the lease, rent payment and review, taxes, renovations, fire standards, compliance with applicable laws, etc.  At para 14(a) the following appears:  the lessee shall have the right of ingress or egress to and from the demised land over access roads and rights of way in-common with others legally entitled thereto.

[70]      In their submissions, the cottagers defined the first issue as:  did the Minister breach its lease agreements with the cottagers?  Their counsel s submissions argue that the doctrine of contra proferentem should apply, requiring any ambiguity to be interpreted against the Minister whose staff drafted the leases.  The submissions of the cottagers refer to, and recite, para. 14(a).  They refer to the evidence of Ms. Simcoe, the First Nation land manager who approved the leases, and Mr. Brant, manager of lands and resources for the Ministry.  The submissions go on to state that the cottagers interpreted para. 14(a) to mean that it provided them with access over lot 18.  Finally, the cottagers submission is that the lease refers to the right of ingress or egress from the demised land and that this somehow extended beyond the reserve land to include privately owned land beyond the control of the Minister.

[71]      There is no submission by counsel stating that the interpretation of the cottagers rests on facts established in evidence or how this interpretation is consistent with their own knowledge and conduct to which they testified.  Each of the cottagers knew that lot 18 was privately owned.  Several dealt before 1993 with the lessee of lot 18, Mr. Snider, and after 1993, the immediate past lot owner, Mr. Carrick.  Each cottager-family always paid an annual fee in order to access the gravel road through lot 18.  Several cottagers assisted with the maintenance of the road over lot 18 and met Mr. Carrick in the course of doing this.  There is nothing in the lease or in the known facts on which to base the cottagers present interpretation of paragraph 14(a): that they possessed all along an unrestrained right of access through leases unrelated to lot 18.  The bounds of the lease as set out expressly in it are the reserve lands which are entirely in lot 19.  Neither the Minister nor the First Nation represent in the leases any assertion of control or right over privately owned lands situate beyond the reserve land.  The lease deals only with rights of access in common with others on the reserve.  While para. 14(a) of the lease is broadly worded when looked at completely alone and isolated from its context, in view of the cottagers own dealings over access with the prior owners and their labour contributions to, and payment of a yearly fee for, maintenance of the gravel road, and upon a reading of the leases themselves, I find no basis for the claim of breach of contract against the Minister.  That claim is dismissed.

[72]      I thank all counsel for their very able assistance to the court and their willingness and ability to keep the evidence within the bounds of relevance and the scheduled time.  Their written submissions were complete and useful.  I regret that the court s schedule and the requirements of the case have not enabled this judgment to issue until some five months following receipt of the final submission.

 

 

[73]      If costs are not agreed, counsel may make written submissions to me within thirty days.  Counsel may address me regarding the form of the order, as well.

___________________________

HOWDEN, J.

 

 

Released:       January 20, 2006

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2008795 Ontario Inc. v. Kilpatrick, 2006 CanLII 22651 (ON S.C.)

COURT FILE NO.:  04-B-6985

DATE:  20060704

 

 

SUPERIOR COURT OF JUSTICE – ONTARIO

 

 

 

RE:                 2008795 ONTARIO INC. v. KILPATRICK et al.

 

BEFORE:      The Honourable Mr. Justice P.H. Howden

 

COUNSEL:   Ms. K. Grace, for the Plaintiff/Defendant by Counterclaim

 

                                    Ms. P.R. McMurtry, for Kilpatrick et al., Defendants/Plaintiffs by Counterclaim

 

                                    Ms. F. Parsons and Ms. A. Bourke for the Attorney General of Canada, Defendant by Counterclaim

 

 

 

E N D O R S E M E N T

 

 

[1]          I have reviewed the submissions of counsel. 

[2]          The cottagers succeeded in their principal claim for relief against the plaintiff/defendant by counterclaim 2008795 Ontario Inc. ( 2008795 ).  There is no reason to deviate from the usual principle that the successful party should be awarded costs. 

[3]          2008795 submits that the scale of costs should not go beyond partial indemnity because the cottagers did not beat their offer under rule 49.10.  The cottagers pre-trial offer included substantial indemnity costs and the judgment did not cap future road fees. 

[4]          I do not accept that submission.  The road use fee set by the judgment is less by one-third than that proposed in the offer, $500.00 instead of $750.00 per year.  The judgment limits any increase to the actual cost of maintaining the access road as a gravel road, and there was no evidence at trial that any increase is yet warranted, let alone to the $750.00 per year level.  A yearly increase above the $750.00 was offered by the cottagers based on the CPI.  As to the costs requested in the offer, the proposal was that each party bear their own costs but that if the offer was not accepted within 5 days, thereafter substantial indemnity costs were proposed.  The offer remained open until trial commenced on June 27, 2005.  In my view, the judgment obtained was less favourable to 2008795 than the offer it could have settled for prior to May 2, 2005 and thereafter because costs at that time would not have included 3 days of trial.  Correspondingly, the judgment was more favourable for the cottagers than their offer.  The offer of 2008795 was clearly not achieved in that it required a seasonal limit on use yearly, a much higher road use fee without any rational connection to the actual road maintenance cost, and future use after three years to be at the sole discretion of 2008795.  The cottagers defended all claims of 2008795 successfully.  They shall have their costs on a partial indemnity basis to April 27, 2005 and thereafter on a substantial indemnity basis. 

[5]          The Attorney General for Canada seeks costs resulting from dismissal of the cottagers action against the Crown.  The Attorney General seeks partial/substantial indemnity costs against the cottagers.  The claim of the cottagers at trial was for damages limited to the annual fee for use of the road.  It was an obviously weak claim and it failed.  The Crown s claim of well over $100,000.00 in costs to defend this claim in a 3-day trial is out of all proportion to the subject matter.  On the other hand, it was not a tenable position for the cottagers to suggest that the crown pay for access that they knew full well it had no control over and, though the cottagers did propose to stay their claim until the claim against 2008795 was determined, that offer came very late in the process and after much of the trial preparation had been completed.

[6]          The cottagers counsel submits that the Crown should be denied its costs because the cottagers offered to stay the action pending determination of the claims between them and 2008795.  In the alternative, the cottagers ask that any costs to be awarded to the Crown should be paid by 2008795, in other words, they claimed a Bullock order. 

[7]          The test for a Bullock order is whether it was reasonable to join the successful defendant and keep it in the action until judgment.  Orkin, Law of Costs, 2nd Ed. (Aurora, Canada Law Book, 2001), cited in Wicken (Lit. Guar. of) v. Harssar (2002), Carswell Ont. 2410 (SCJ).  Orkin s Law of Costs describes the Bullock order as appropriate where a plaintiff is in doubt as to which of two persons in responsible for the act that caused the injury .  (at para 209.2)

[8]          In regard to the claim against the Attorney General, I found that to the knowledge of the cottagers, there was no basis for their claim.  The source of the access issue was the owner of lot 18 and its action in barricading the access road, not any action of the Crown which had nothing to do with passage of persons through lot 18.  Therefore a Bullock order is not appropriate in this case. 

[9]          The cottagers were unsuccessful at trial against the Attorney General.  However, I fail to see why it was necessary for the Crown to participate in the trial of the claim and counterclaim in respect of 2008795.  The claim against the Crown was dependant on how the liability issues between 2008795 and the cottagers were decided.  The cottagers position that the claim against the Crown should be stayed until after the disposition of the main claim would have saved the Crown the costs of trial attendances.  Unfortunately, the motion by the cottagers was brought only 5 days before the scheduled trial date and 1 months before the trial actually began.  The Crown opposed it and the motion was abandoned.  Costs on the abandonment were awarded to the Crown in the sum of $2,751.00.  I find that the Crown s opposition to the stay motion was not warranted but that the Crown is entitled to costs up to and including some trial preparation.

[10]      As to the quantum of costs, the terms partial and substantial indemnity refer to making the successful cost claimant partially or substantially whole, not full indemnity.  Therefore, the actual rate charged is important, and even in the case of substantial indemnity, there is not an inference of full reimbursement.  The goal in fixing costs is to arrive at a fair and reasonable amount for the work done, taking into account the particular scale which is applicable.  Fixing of costs is not a detailed line by line assessment.  In regard to the cottagers counsel s bill of costs, I have reduced the rates attributable to Ms. McMurtry to $120.00 and $170.00 per hour respectively on partial and substantial indemnity scales.  The proportionate reduction for the work on the claim by the Crown, which is not separated from the total bill, should be 20%.

[11]      The claim of the cottagers involved an undecided point of law under the Road Access Act, i.e. whether unopened road allowances could be regarded as alternate road access for purposes of the Act.  The facts and evidence were detailed but were not seriously in issue.  In fact, the parties expert witnesses were in complete agreement as to the feasibility and costs of building a road to municipal standards.  The legal issues made it a more complex case.  I have not allowed recovery for the injunction motions, costs of which were dealt with.  As for the examinations, I have reduced the amount by removing costs (i) for the June 16 attendance which resulted from late amendments to the pleadings by the cottagers as well as (ii) for the injunction cross-examinations. 

[12]      As for the Crown s costs claim of $184,442.63 on a substantial indemnity scale and $139,972.86 for partial indemnity, I find these claims to be out of all proportion to the issues which, for the Crown, were not difficult.  As well, opposition to the cottagers stay motion was not warranted and I do not allow any costs of the trial which were not a necessary expense for the Crown.  I fix the costs of the Crown on a partial indemnity basis at $18,329.96 including disbursements of $3,329.96.  Regarding the costs claimed on behalf of the cottagers, I make the following findings:

Preliminary Matters                                          $  5,000.00

Pleadings                                                         $  4,400.00

Discovery of Documents                                   $  1,050.00

Examinations                                                   $  4,300.00

Trial Scheduling and Pre-trial Conf.                  $  1,620.00

Offers to Settle                                    $   650.00

Trial Preparation                                               $18,400.00

Trial-Counsel Fee $2,750.00 per day x 3

                Legal assistant at $60.00 per hour               $10,290.00

Bill of Costs                                                      $  1,525.00

Total Fees                                                        $46,235.00

Total Disbursements                                         $10,770.00

Total                                                               $57,005.00 plus GST

 

[13]      Accordingly, 2008795 is ordered to pay the costs of the cottagers fixed at $57,005.00 plus GST.  As well, the cottagers are ordered to pay the costs of the Attorney General of Canada fixed at $18,329.96 (not including GST).

___________________________

Howden J.

 

DATE:            July 4, 2006