



COURT OF APPEAL FOR ONTARIO

CITATION: Skinner v. Thames Centre
    (Municipality), 2014 ONCA 164

DATE: 20140303

DOCKET: C56296

Feldman, Epstein and van Rensburg JJ.A.

BETWEEN

Bradley Skinner

Applicant (Appellant)

and

The Corporation of the Municipality of Thames
    Centre

Respondent (Respondent in appeal)

Carolyn Brandow, for the appellant

M. Paul Morrissey, for the respondent

Heard: November 19, 2013

On appeal from the order of Justice Alan W. Bryant of the
    Superior Court of Justice, dated October 24, 2012 and the costs decision dated
    November 19, 2012.

ENDORSEMENT

[1]

Storey Drive is a forced road
[1]
located between Lots 34 and 35 of the Third Concession in the respondent Municipality. 
    The road has been described in this litigation for convenience, as comprised of
    three sections or parts.  In May 1993, the appellant acquired property abutting
    Section II of Storey Drive.  By application commenced in May 2012, he sought a
    declaration that Sections I and II of Storey Drive had been assumed by the Municipality
    as a public highway, and accordingly that the respondent is responsible for the
    maintenance of these sections of the roadway pursuant to subsection 44(1) of
    the
Municipal Act, 2001
, S.O. 2001, c. 25. Subsection 44(1) requires a
    municipality that has jurisdiction over a highway or bridge to keep it in a
    state of repair that is reasonable in the circumstances, including the
    character and location of the highway or bridge.

[2]

By the time the application was argued, it was acknowledged that Section
    I of Storey Drive had been assumed by the Municipality through regular
    maintenance. It was also common ground that the Municipality had not assumed Section
    III.  The only issue was whether the Municipality had assumed Section II as a
    public highway. The application judge determined that the Municipality had not
    assumed Section II, and he dismissed the application.

[3]

On appeal the appellant challenged this decision, as well as the award
    of costs in favour of the respondent.

[4]

The parties agree that the application judge identified the correct
    legal principles to govern his decision.  Until December 31, 2002, with the
    amendment of the
Municipal Act, 2001
to require a by-law to be passed by
    a municipality in order to assume a road (s. 31(2)), an open road in a
    municipality could be created by the common law doctrine of dedication and
    acceptance.  The onus was on the applicant to establish that, at some point
    during its history, the road (in this case Section II of Storey Drive) had been
    dedicated by the owner for public use, had become open to the public, and that
    the Municipality had demonstrated the intention to accept and assume
    responsibility for the road.  The test was articulated by this court in
Scott
    v. City of North Bay
(1977), 18 O.R. (2d) 365 at p. 367 as follows:

The assumption of a road or street for public use can be
    effected only by a corporate act of the municipal corporation.  If there is no
    by-law, an assumption may be inferred from work done by municipal employees, or
    other expenditure of public money in improving or maintaining the road or
    street.  In such a case the work or expenditure must be clear and unequivocal,
    and such as clearly and unequivocally indicate[s] the intention of the
    corporation to assume the roadIf there has been no regular expenditures of
    public money, and if the repairs are trivial and infrequent, they may be
    ascribed to courtesy rather than to the assumption of responsibility [citations
    omitted].

[5]

What constitutes a clear and unequivocal improvement or maintenance is a
    question of fact, and will vary with the use and nature of the particular road:
Grierson v. West Wawanosh (Town)
, [1998] O.J. No. 3173 (S.C.J.) at para.
    72.  The entire history of the road in question may be relevant, as once a road
    has become a public highway, its status can only be changed by way of a by-law:
Grierson,
at para. 70,
Simek v. Gravenhurst (Town)
2012 ONSC 6314
    at para. 10.

[6]

In this case, the fact that the road was open to the public was not in
    dispute. Sections I and II, according to the Land Titles registration system, are
    located on land owned by the Municipality.  There are no records to show how
    the Municipality came to own these portions of Storey Drive.  Although there
    was no record of a conveyance or deed of the land, the road had been referenced
    historically in property deeds (one dating back to 1911) as a public highway.
    All three sections of the road had been used by various people over the years,
    including the Story family
[2]
that had a farm at the end of Section III. The issue was whether, considering
    the character, use and maintenance of the road, at any time since its creation,
    Section II had been assumed by the Municipalitys conduct.

[7]

The appellant did not take issue with any material finding of fact of
    the application judge.  Rather, the appellant argued that the application judge
    erred in limiting his focus to the period after 1992, and in failing to
    consider the entire history of the road, including evidence of the use and
    maintenance of Section II of the road from the time when it was created.

[8]

The appellant referred to evidence that six properties had been accessed
    from Storey Drive over the years  two with houses, two that were regularly
    farmed and two that were used only for recreational and maple syrup collection
    purposes (one of which was later purchased by the appellant).  One house had
    been accessed from Section I. The second house was a permanent residence at the
    end of a laneway, accessed from Section III.  Mr. Story lived in that residence
    from the time he was born until 1992 when he moved into a long-term care
    facility. In 1976 Ian McKay, a beef cattle farmer, purchased the Story property,
    and between 1976 and 1981, when he obtained other access to his property from
    Section I, he travelled all three sections twice a day to access his cattle
    herd.  While there was no evidence who built the road, to the best of
    everyones recollection only the Municipality had maintained it.  The appellant
    submitted that the maintenance was sufficient to keep the road open for the use
    of a permanent resident for more than 60 years, and that in these
    circumstances, the work done on the road for Mr. Story demonstrated an
    intention by the Municipality to assume the roadway.

[9]

We disagree with the submission that the history of the road prior to
    1993 was not considered by the application judge. He noted at para. 17 of his
    decision, that there was evidence that infrequent, unplanned and sporadic
    measures were taken to assist Mr. Story (a long-time resident) as a courtesy
    and that Mr. Story had farmed there until he sold the property to Mr. McKay in
    1976.  The application judge referred to Mr. McKays evidence that Section II
    was not maintained by the Municipality and that the laneway was occasionally
    plowed for Mr. Story.  The application judge specifically concluded, at para.
    28, that the assistance provided to Mr. Story by an employee of the Municipality
    does not prove an intention by the Municipality to assume responsibility for
    Sections II and III of Storey Drive.

[10]

It
    is understandable that the reasons of the application judge addressed at some
    length the history of Storey Drive after Mr. Skinner acquired his interest.  It
    was Mr. Skinners evidence that, when he conducted his due diligence before
    purchasing the property, Section II had been graded and was generally in good
    condition, and that there had been a marked decline in the state of repair of
    Storey Drive since the early 1990s.  The application judge rejected this
    evidence as inconsistent with and contradictory to other evidence, including that
    of Mr. McKay, and two long-time employees of the Municipality, Stewart
    Findlater and Dennis Shand, which he reviewed in some detail and accepted.

[11]

The
    standard of review for questions of fact and questions of mixed law and fact is
    deference, absent a palpable and overriding error or an error in principle:
Housen
    v. Nikolaisen
, [2002] 2 S.C.J. No. 31, at paras. 8, 10 and 37.

[12]

The
    question is not whether this court would arrive at the same decision on the
    evidence, but whether the application judge overlooked important evidence in
    his decision and accordingly made a palpable and overriding error.  We are not
    persuaded that there was any such error in this case, and accordingly dismiss
    the appeal.

[13]

With
    respect to costs, we grant leave to appeal the costs decision, but dismiss the
    appeal.  There was no error in principle in the application judges approach to
    the issue of costs.  While the appellant sought a declaration that Sections I
    and II had been assumed, by the time the application was argued it was apparent
    that there was no issue with respect to Section I.  We agree that, on the
    record that was before the application judge, the respondent was entirely
    successful.

[14]

Costs
    of the appeal are fixed at $8,000 inclusive of disbursements and applicable
    taxes, and payable to the respondent by the appellant.

K.
    Feldman J.A.

Gloria
    Epstein J.A.

K.
    van Rensburg J.A.





[1]
The forced road was described in the Affidavit of Stewart Findlater, an
    employee of the respondent Municipality, as a road that had been forced without
    a legal survey across the subject lots, presumably to access the back of the west
    parts of Lots 34 and 35, and known as Road 34/35.  Sections I and II of Road
    34/35 were renamed Storey Drive in 1995 for the purpose of providing 911
    emergency services.  In these proceedings, the parties referred to all three
    sections of the forced road as Storey Drive.



[2]
Although Sections I and II of the road were named Storey Drive by the Municipality
    in 1995, the name of the family that had lived at the end of the road,
    according to the materials filed in the application, was Story.


