



COURT OF APPEAL FOR ONTARIO

CITATION: Lehtiniemi v. Mattawan (Municipality), 2016 ONCA
    940

DATE: 20161215

DOCKET: C61534

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Leo Lehtiniemi

Applicant

(Appellant)

and

The Corporation of the Municipality of Mattawan

Respondent

(Respondent in Appeal)

Paul A. Webber, Q.C., for the appellant

Michael M. Miller, for the respondent

Heard: November 15, 2016

On appeal from the judgment of Justice George T. Valin of
    the Superior Court of Justice, dated November 30, 2015, with reasons reported
    at 2015 ONSC 8133.

Lauwers J.A.:

[1]

The appellant owns Lot 34 in Concession 8 of the respondent municipality.
    He brought an application for a declaration that the laneway he built on his
    property is his own and not a public highway. The application judge dismissed
    his application. For the reasons set out below, I would dismiss the appeal.

A.

Factual Context

[2]

It is common ground that the appellants laneway begins at the north-westerly
    limit of Lot 34, aligned with Marion Road. The laneway immediately angles south
    of the north property line of Lot 34 and continues east to Lot 35 and beyond.

[3]

The Municipality asserts that the appellant built the laneway on top of
    an existing, though unmaintained, public road known as Marion Road, to which it
    holds title. The appellant disputes this assertion, on the basis that the old public
    road, now vanished, was actually built on the blind line between Concession 9
    and Concession 8, in a twenty foot corridor at the northern limit of his
    property. This corridor, and the old public road it is said to contain, is located
    north of his laneway. He argues that the laneway and the old public road are
    separate roads, and accordingly the laneway is not a public road, and he has
    title to it.

B.

The Issues

[4]

There is no dispute as to the applicable law. The appellant argues that
    the application judge made several errors of fact that together constitute
    palpable and overriding errors within the meaning of that expression set out in
Benhaim v. St-Germain
, 2016 SCC 48, at paras. 38-39. He asserts that
    the errors are obvious and go to the very core of the outcome of the case.

C.

The Appellants Challenges to the Evidence

[5]

The hearing before the application judge was entirely based on a paper
    record. Testimony was received by way of affidavit and the application judge
    looked at historical records, including survey notes and surveys.

[6]

The appellants theory is that the old public road is not located beneath
    his laneway, but north of his property. To succeed in this application he was
    obliged to prove this fact on the balance of probabilities.

[7]

The appellant asserts that the application judge made two significant
    and related errors in failing to so find. First, he failed to give proper
    weight to the survey prepared by O.L.S. Macdonnell registered April 7, 1972 as
    Plan NR-2238. Second, he unreasonably rejected the supporting evidence provided
    by forester Ron Magee.

(1)

The Macdonnell Survey

[8]

The Macdonnell survey identified 20 feet of a travelled road as being
    in Concession 9, and 20 feet as being in Concession 8, and ending at the border
    between Lot 33 and the appellants land in Lot 34. The note inscribed on the
    survey links back to much older surveys and states: Corner set at split of
    fences on C/L of travelled road at position or survey post by Bell O.L.S. and
    found and used by L.V. Rorke O.L.S.

[9]

O.L.S. Macdonnells survey was accompanied by a Report of Survey,
    which describes what he found on the site at the time. His survey accorded with
    the old field notes by L.V. Rorke, O.L.S., dated June 24, 1892. The Report
    states:

Mr. Rorke had done a survey for the Township of Mattawan for a
    road allowance. Traces of this old road can still be found and the line between
    Lots 32 and 33 runs up the road as built. When this road reached the point at
    the blind line marking the northwest corner at Lot 33, Concession 8, a circle
    was built around the corner so as not to disturb it, and the road was continued
    east along the blind line between Concessions 7 and 8, eventually coming back
    onto the present travelled road.

The parties agree that the Reports author meant to
    say between Concessions 8 and 9.

(2)

Forester Magees notes

[10]

Mr.
    Macdonells survey is supported by the notes of forester Ron Magee, dated
    February 18, 2015. Mr. Magee prepared a sketch and identified a fence line to
    the north of Marion Road that diverges from the laneway as it proceeds to the
    east. The sketch notes specifically that he measured the distances between the
    laneway edge and the fence line physically, not by way of GPS. However, the
    sketch also bears a note that this information was recorded using a handheld
    GPS with accuracy of 3 metres plus or minus on December 17, 2014.

(3)

The application judges alleged errors

[11]

Mr.
    Webber, counsel to the appellant, argues that O.L.S. Macdonnell undertook a
    full cadastral survey that was registered. It is, he submits, the best
    evidence of the existence of a road north of the appellants laneway that was
    not refuted by other evidence of similar quality. He asserts that the
    application judge misapprehended forester Magees evidence as to the foresters
    use of GPS technology. In particular, the application judge failed to notice
    that the fence line data was measured physically, not by GPS, and this makes
    all the difference. The application judge said, at para. 66 of his reasons:

[F]orester Magee concludes that there could have been a road
    immediately north of the Lehtiniemi laneway. However, the sketch he made to
    support that conclusion is not to scale. He used a GPS device to make the
    measurements shown on the sketch. His notes on the sketch indicate the accuracy
    of the measurements is plus or minus 3.5 metres. Since the measurements noted
    on the sketch range between 2 metres and 7 metres, the report offers little, if
    any assistance.

(4)

The application judges reasoning

[12]

The
    application judge did not accept the Macdonell survey for several reasons. First,
    he referred to the opinion of another surveyor retained by the applicant, Paul
    Goodridge of P.A. Blackburn Limited, explaining that the topography made
    Macdonells conclusion that the public road continued east along the blind
    line through Lot 34, without jogging south, unlikely, and to the survey by R.D.
    Miller O.L.S., dated April 10, 2012, which shows that Marion Road jogs to the
    south before the lot line between Lots 33 and 34 and does not jog back to the
    north at the line between Lots 34 and 35. He noted, at paras. 53, 54:

[I]n a letter to the applicant dated September 13, 1990,
    surveyor P.A. Blackburn opined that he did not agree with Plan NR-2238 by
    surveyor D.J. Macdonell that the northwest corner of Lot 34 Concession 8 was
    co-incident with the center line of a travelled road. He noted that, due to
    local topography, at a point about 150 feet west of the line between Lots 33
    and 34, the travelled road swings south missing the lot corner. The road
    returned to a straight line further to the east, but remained south of the line
    between Concessions 8 and 9. He noted that the location of a travelled road at
    the northwest corner of Lot 34 Concession 8 was highly improbable because, at
    that point, the land slopes steeply down a rocky incline making that location
    unsuitable for road construction.

The survey by R.D. Miller O.L.S. dated April 10, 2012 shows
    that Marion Road jogs to the south before the lot line between Lots 33 and 34
    and does not jog back to the north at the line between Lots 34 and 35. The
    survey is consistent with the evidence of surveyor Blackburn who noted a
    serious topographical impediment to the construction of a road along the blank
    line between Concessions 8 and 9 at the northwest corner of Lot 34 Concession
    8. For those reasons, I prefer the survey evidence and the evidence of surveyor
    Blackburn to the applicant's statement in paragraph 31 of his October 2015
    affidavit. It is more likely that Marion Road, as originally built, took a jog
    south in Lot 33 before continuing east when it was originally built.

[13]

The
    application judge noted, at para. 65, that he preferred the evidence of Goodridge
    (surveyor Blackburn), which, he said, discredits surveyor Macdonnells
    finding that the corner post delineating lots 33 and 34 was on the centre line
    of the travelled road.

[14]

It
    must be acknowledged, as Mr. Webber argues, that O.L.S. Goodridge did not
    perform a cadastral survey, but only provided an opinion. He points out that
    the situation would appear differently today than it would have decades ago
    when O.L.S. Macdonnell did the survey, and the older evidence is better.

[15]

Beyond
    the survey evidence, the application judge referred to the affidavit evidence
    of a number of elderly residents who swore that Marion Road went over the
    appellants land in the same alignment as the laneway. He obtained further
    support for this conclusion from the maps and aerial photographs in the record,
    the latter dating from 1948 until at least 1977. The application judge noted,
    at paras. 71, 72:

All the maps and aerial photographs forming part of the record
    in this case indicate there was only one road in that area. That is the road
    that was, and is, known as Marion Road.

It is clear from the evidence that I have accepted that Marion
    Road in the area of Lots 33 to 35 was not built along the Blank Line between
    Concessions 8 and 9, but rather was built slightly to the south of that line.
    The result is that the portion of Marion Road that passes through Lot 34
    Concession 8 is a trespass or forced road that crosses private property and to
    which the respondent does not have freehold title.

[16]

After
    reviewing the evidence, the application judge found, at para. 69, that the
    preponderance of evidence compels the conclusion that Marion Road, as
    constructed for the use of settlers in the early 1900s, crossed Lot 34
    Concession 8 in the same location that the applicant claims to have built his
    private road.

[17]

The
    application judge added other findings, at paras. 78-79:

I find that the public used Marion Road openly and without
    interruption from the time it was constructed in the early 1900s until after
    the applicant purchased Lot 34 Concession 8 in 1981. There is no evidence that
    any previous owner of Lot 34 Concession 8 interrupted the use of Marion Road by
    the public across that lot. There is no evidence of a contrary intention.

It is reasonable to infer from that lack of evidence of any
    interruption in the use of the road by the public that the predecessors in
    title of the applicant dedicated the land occupied by Marion Road in Lot 34
    Concession 8 as a public highway.

[18]

The
    application judges ultimate conclusion, at para. 81, was, On the evidence
    viewed as a whole, I find that there was dedication and acceptance of that
    portion of Marion Road that crosses the applicant's land.

[19]

In
    reaching this conclusion, the application judge applied the reasoning in
ONeil
    v. Harper
(1913), 28 O.L.R. 635 (C.A.), at p. 643, and
Sioux Lookout
    (Municipality) v. Canada (Attorney General)
2010 ONCA 867, 98 R.P.R. (4th)
    159, at para. 26, the latter explaining the common law doctrine of dedication
    and acceptance as a mechanism by which a passage over private land becomes a
    public highway in respect of which title is transferred from the owner to a
    municipality. The application judge went on to observe, at para. 83, that once
    a dedication is complete, neither the owners nor their successors in title can
    revoke it, citing
Gibbs v. Grand Bend (Village)
(1995), 26 O.R. (3d)
    644 (C.A.), at p. 680. I would find no reviewable error in the application
    judges reasoning.

D.

Disposition

[20]

Despite
    the able advocacy of Mr. Webber, I am not persuaded that the application judge
    made a palpable and overriding error of fact, or that he misapprehended the
    evidence. To the contrary, the application judges findings find ample root in
    the record.

[21]

Given
    this conclusion on the merits, there is no need to address the Municipalitys
    other argument, which was accepted by the application judge, that the appellant
    was bound by the decision of a Small Claims Court judge issued in 1993.

[22]

I
    would dismiss the appeal with costs payable by the appellant to the respondent
    in the amount of $15,000.00, all-inclusive, as agreed.

Released: K.F. December 15, 2016

P.D. Lauwers J.A.

I agree K. Feldman
    J.A.

I agree B.W. Miller
    J.A.


