



COURT OF APPEAL FOR ONTARIO

CITATION: Blanchard v. Tripp, 2019 ONCA 559

DATE: 20190704

DOCKET: C65515

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Roger Blanchard and
    Donna Blanchard

Plaintiffs (Appellants)

and

Donald Tripp, Ethel Tripp, Steven Tripp and Joyce
    Lavalle

Defendants (Respondents)

Daniel J. Wyjad, for the appellants

Michael M. Miller, for the respondents

Heard: April 23, 2019

On appeal from the judgment of Justice James A.S. Wilcox
    of the Superior Court of Justice, dated May 16, 2018, with reasons reported at
    2018 ONSC 3076, 74 M.P.L.R. (5th) 229.

REASONS FOR DECISION

[1]

This appeal arises in the context of litigation concerning road access
    to the appellants land. In 2009, the appellants purchased two adjoining parcels
    of land in the District of Parry Sound. In 2013, they commenced an application
    claiming unimpeded access to their land, using Trussler Road, a road that is
    located in part on public lands and in part on lands owned by the respondents.

[2]

The appellants claimed a declaration that Trussler Road is a public
    highway, and in the alternative that it is a common road or an access road as
    defined under the
Road Access Act
, R.S.O. 1990, c. R.34. They sought an
    interim and permanent mandatory injunction preventing the respondents from
    closing, barricading or otherwise blocking their use of Trussler Road, as the
    means of access to their land.

[3]

In 2017, and after the application had been converted into an action,
    both sides brought motions for summary judgment. R.S.J. Gordon, with reasons
    reported at 2017 ONSC 1260, dismissed the appellants claims under the
Road
    Access Act
. He adjourned the appellants motion in so far as it sought a
    declaration that Trussler Road is a public highway.

[4]

The subject of the present appeal is a judgment by Wilcox J. (the
    motion judge). After hearing the appellants summary judgment motion, he
    dismissed their claim that Trussler Road had become a public road, and then
    dismissed the appellants action in its entirety.

[5]

At issue on appeal is whether the motion judge committed any reversible
    error when he concluded that the appellants had not established that Trussler
    Road is a public highway, and in refusing them a declaration and an
    injunction protecting their use of the road.

[6]

For the reasons that follow, the appeal is dismissed.

[7]

The appellants land is located in the Township of Laurier. Laurier is
    an unorganized township, meaning that it has no municipal government. The
    appellants purchased two parcels (part of Lot 11, Concession 14 and part of Lot
    12, Concession 13) in 2009 as vacant land with no road access. A condition of
    the Agreement of Purchase and Sale was that the buyers would obtain written
    permission from the owners of a private roadway for access to the property. The
    appellants never obtained such permission from the respondents and waived the
    condition. Later, the appellants built a cottage on one of the parcels.

[8]

The respondents Donald, Ethel and Steven Tripp (jointly) and Joyce
    Lavalle own neighbouring properties. The Tripps own three parcels (part of Lot
    11, Concession 14, part of Lot 12, Concession 14 and Lot 13, Concession 14)
    while Ms. Lavalle owns part of Lot 12, Concession 13. The respondents access
    their properties using Trussler Road, which runs across the Tripp and Lavalle
    properties. They claim that the parts of the road that cross their lands remain
    private property. Other parts of Trussler Road pass over public lands, and
    there is no dispute that they are open to the public.

[9]

From Trussler Road, a spur road leads to the appellants lands. The
    appellants assert that the spur road, together with Trussler Road, provide
    vehicular access to their properties. They have abandoned their claim for
    relief in relation to the spur road. Only access to Trussler Road is at issue
    in this appeal.

[10]

The
    appellants claim that Trussler Road is a public highway relies on s. 261 of
    the
Municipal Act
, R.S.O. 1990, c. M.45, as repealed by  2001, c. 25,
    ss. 484(1), 485(1). Section 261 of the
Act
provided as follows:

Except in so far as they have been
    stopped up according to law, all allowances for roads made by the Crown
    surveyors, all highways laid out or established under the authority of any
    statute, all roads on which public money has been spent for opening them or on
    which statute labour has been usually performed, all roads passing through
    Indian lands, all roads dedicated by the owner of the land to public use, and
    all alterations and deviations of and all bridges over any such allowance for
    road, highway or road, are common and public highways.

[11]

The
    appellants claim that Trussler Road had the status of a public highway under s.
    261 as of December 31, 2002, and therefore was carried over by s. 26 of the
Municipal
    Act
,
2001
, S.O. 2001, c. 25, which provides, among other things,
    that all highways that existed on December 31, 2002 are highways under the new
    scheme unless they have been closed.

[12]

Before
    the motion judge, the appellants argued that Trussler Road met the requirements
    of s. 261 of the
Municipal Act
to constitute a public highway because:
    (a) it had been a colonization road, such that public money had been spent on opening
    it; (b) statute labour was usually performed on the road; or (c) the road was
    dedicated and accepted as a public road.

[13]

The
    motion judge rejected the respondents argument that the
Municipal Act
definition of public highway does not apply to the determination of whether a
    road in an unorganized township is a public highway. After considering the
    evidence, he rejected the appellants claim that Trussler Road had been part of
    a colonization road (at paras. 57 to 73) and that statute labour had been usually
    performed on the road (paras. 74 to 98). The appellants do not challenge these
    conclusions. They appeal only the dismissal of their claim that Trussler Road
    had become a public highway through its dedication and acceptance as a public
    road.

[14]

The
    law respecting dedication and acceptance is well-settled, and was correctly
    stated by the motion judge. Whether there was dedication and acceptance is a
    question of fact to be decided in each case on a balance of probabilities:
Reed
    v. Town of Lincoln
(1974), 6 O.R. (2d) 391, at pp. 400-402 (C.A.);
ONeil
    v. Harper
(1913), 13 D.L.R. 649, at p. 653 (Ont. S.C. (A.D.)). The
    claimant must prove that the owner had the actual intention to dedicate and
    that the intention was carried out, and was so accepted by the public. A long
    period of use of a road by the public can be evidence both of an intention to
    dedicate and of acceptance by the public. The intention to dedicate may be
    expressed in words or in writing, but is more often a matter of inference:
Cooks
    Road Maintenance Assn. v. Crowhill Estates
(2001), 196 D.L.R. (4th) 35
    (Ont. C.A.), at para. 22.

[15]

After
    setting out the applicable principles, the motion judge considered the
    evidence. He noted that the affidavits produced by the appellants with respect
    to the use of the road by various members of the public over the years were undermined
    by affidavits filed by the respondents, and that, since the non-party deponents
    were not cross-examined, many of the contradictions remained unresolved.

[16]

The
    motion judge concluded that, on balance, he did not find that the appellants
    evidence supported an intention to dedicate Trussler Road to public use, or an
    acceptance of it by the public. He characterized the instances of use of the
    road as situations of neighbourly tolerance rather than dedication to public
    use. And he stated that there was insufficient evidence of the use of the road
    by the general public for there to be a finding of acceptance. The motion judge
    also pointed to the fact that typically acceptance would require a municipal
    by-law, work done, or the expenditure of public money to maintain the road 
    actions that clearly and unequivocally indicate a municipalitys intention to
    assume the road. In this case, in the context of an unincorporated municipality,
    the province had not used any legal process to assume the road, nor was there
    evidence of the expenditure of public funds or work done on the road (with the
    possible exception of some statute labour) to demonstrate an intention to
    accept the road as a public road.

[17]

The
    appellants make a number of arguments on appeal.

[18]

First,
    the appellants say that the motion judge erred in finding that the possibility
    that the province may become an owner militated against a finding of a public
    road by dedication and acceptance. The appellants argue that a road can be a
    public road and still remain in private ownership and be maintained by people
    who use the road.

[19]

Contrary
    to the appellants assertion, the motion judges discussion of this issue at
    paras. 128 to 139 of his reasons did not inform his conclusion that the
    disputed lands were not a public highway. The motion judge had already decided
    (at para. 126) that dedication and acceptance had not been made out on the
    evidence, when he went on to set out the various arguments of counsel about
    whether dedication and acceptance would mean that the province would become the
    owner of the road, and the respondents position that the action had been improperly
    constituted because the province had not been named as a defendant. The motion
    judge noted that given the substantial possibility that the Province would
    become the owner of Trussler Road if it was found to be a public road, if the
    action were to have continued, he would have directed the province be added as a
    party (at para. 137). We therefore do not give effect to this argument on
    appeal.

[20]

Next,
    the appellants assert that the motion judge erred in concluding that the long
    history of use of the road by various people was a case of neighbourly
    tolerance rather than evidence of public dedication of the road. They say that
    the term neighbourly tolerance, which was used in
Reed
, would apply
    to public use of a road only in the short term or in the early stages of
    development and not in the present case, where the Trussler Road has been used by
    members of the public for some 80 years.

[21]

Reed

was a case where a municipality claimed that a road
    over private property had become a public highway through dedication and
    acceptance, in its defence to a claim for trespass. Martin J.A. stated, at p.
    396, that an intention to dedicate a road as a public highway ought not to be
    too readily inferred from the use by members of the public of a road traversing
    private property in a rural community, especially in a locality where the
    normal system of roads did not develop. He observed that the owner of the
    property may well, in a neighbourly spirit, permit local residents to use such
    a road for their convenience without having any intention of dedicating the
    road as a public highway, and that the inference of neighbourly tolerance is more
    likely when dedication is sought to be established at a period when the area is
    in a relatively early stage of its development.

[22]

After noting that the evidence was conflicting with respect to the use
    of the road in dispute, Martin J.A. concluded that, considered as a whole, the
    evidence was consistent with the use of the road by local residents for their
    convenience, by neighbours and friends and by hunters and sightseers, with the
    tacit permission of the owners. Although the case does not set out in any
    detail the evidence that was considered, the period of use at issue appears to
    have exceeded 26 years.

[23]

While
    we agree that
Reed
is distinguishable on its facts, it remained open
    to the motion judge here to conclude that the history of use of the road
    passing over the respondents property resulted from the acquiescence or
    tolerance of the owners, and was not evidence
in itself
of the owners
    intention to dedicate the road to public use. There is nothing in
Reed
or any other authority to suggest that a long period where various people are
    permitted to use a road over private lands would always or inevitably constitute
    proof of implied dedication and acceptance. While the period of time over which
    a road over private property has been used by members of the public is no doubt
    relevant, the function of the court remains to determine, on all the evidence, including
    the type of use and the explanations for why such use was tolerated or
    permitted, whether dedication and acceptance have been established.

[24]

In
    conclusion on this point, we disagree with the appellants submission that the
    motion judge misapplied neighbourliness as a principle of law. This was
    simply his characterization of what occurred  a factual conclusion, not a
    principle of law, that was open to him on the evidence.

[25]

Next,
    the appellants assert that the motion judge failed to consider, or misunderstood,
    the evidence in relation to severances of Charles Trusslers lands in 1976 
    evidence suggesting that Mr. Trussler, who was a roads commissioner from as
    early as 1948
[1]
and a long-time resident of the area, considered Trussler Road to be a public
    highway.

[26]

We
    disagree. At paras. 114 to 116 of his reasons, the motion judge referred to the
    evidence that, when Mr. Trussler was selling part of his land in 1971 (Lot 13,
    Concession 13) he expressly indicated that the land was served by a public road,
    which appears on an attached sketch to be Trussler Road. (The severance
    application  which is in fact dated December 1976, and so refers to a sale to Iris
    Stevens, the sister-in-law of Ethel Tripp, that took place in 1977  indicates that
    the lands intended to be severed and the lands intended to be retained were accessible
    by public travelled road or street.) And in 1977, when Mr. Trussler sold part
    of Lot 12, Concession 13, what appears to be Trussler Road is shown on a sketch
    of the property. The motion judge noted that this was one example of possible
    express dedication. The motion judge then referred to other evidence  in
    Donald Tripps affidavit  that when he bought his lands from Mr. Trussler in
    1969, the road to the property, Trussler Road, was over land owned by Mr. Trussler.
    Mr. Tripp deposed that he sought an easement, but because the quoted surveying
    cost exceeded the lands value, he bought the land in Lot 11, Concession 14
    from Mr. Trussler in 1973. As the motion judge concluded, If Charles Trussler
    had thought that Trussler Road was a public road, there would have been no
    reason for the Tripps to need an easement, let alone to purchase the property
    to ensure that there was access to the lots that they owned further down the
    road. The motion judge also noted that, if Mr. Trussler had intended to make
    the road public, he could have used the process in the
Statute Labour Act
,
    but apparently did not.

[27]

There
    is no merit to the argument that the motion judge ignored or misunderstood this
    evidence. He considered the evidence about the severance applications in the
    context of the other evidence that he mentioned, and refused to draw the
    inference sought by the appellants. This he was entitled to do.

[28]

The
    appellants also argue that the motion judges conclusion that the affidavits
    were contradictory was erroneous. They say that the only real contradiction was
    about a gate on the road, and whether and in what circumstances it was locked. The
    appellants say that the motion judge placed undue reliance on evidence that the
    gate, which was used to keep livestock from escaping, was locked at times by
    Mr. Trussler and, after 1969, by Mr. Tripp.

[29]

We
    disagree with the submission that the motion judge erred in concluding that the
    affidavits were contradictory, or that he over-emphasized the evidence about
    the gate. The broader point that the affidavits addressed, in relation to the
    dedication and acceptance issue, was the use of various parts of the road over
    the historical period beginning when all of the lands were owned by Mr.
    Trussler.  In particular, they addressed whether the various parts of the road
    in dispute were regarded as private land, and thus required the permission of
    the owners for their use. This evidence was indeed contradictory with respect
    to the claim that the use of the various parts of the road by members of the
    public over a number of years led to an inference of dedication and acceptance.
    As for the gate located on Mr. Tripps land, the motion judge was entitled to
    accept Mr. Tripps evidence that he had installed a new gate to replace a gate
    installed by Mr. Trussler at the CNR crossing, and that the gate was locked to
    keep cattle off the railway and trespassers out. In any event, this was only
    part of the evidence that was mentioned by the motion judge, and was not
    determinative of his finding that the appellants had not established an
    intention to dedicate the road to public use or an acceptance of the road by
    the public.

[30]

Finally,
    we note that, before the motion judge, the respondents argued that the concept
    of dedication and acceptance of a public road had no application to an
    unorganized township because there were statutory mechanisms available for the
    province to become the owner of a road. The motion judge noted that there was
    contradictory law on whether there can be a dedication of lands in an
    unorganized township, and he assumed, without deciding, that dedication and
    acceptance could apply. As the appellants observe, this court would need to
    determine the issue if the appeal were to be allowed.

[31]

The
    respondents repeat this argument in response to the appeal and both parties
    invited this court to determine the issue that was left unresolved by the
    motion judge.

[32]

We
    are not prepared to do so. The motion judge proceeded on the assumption that
    dedication and acceptance would apply, and then concluded that the appellants
    had not established dedication and acceptance on the evidence. We are satisfied
    that the motion judge committed no reversible error when he reached this
    conclusion. This is sufficient for the determination of the appeal, and it is
    therefore unnecessary to express any opinion on whether, if capable of being proven,
    dedication and acceptance would apply in the context of private lands in an
    unorganized township.

[33]

The
    appeal therefore is dismissed. The appellants shall pay costs of the appeal to
    the respondents in the agreed amount of $22,000, inclusive of disbursements and
    applicable taxes.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

G.T. Trotter J.A.





[1]

Roads commissioners had the power to open road allowances
    where they had been laid down in the original surveys, or roads in lieu, and
    direct the performance of statute labour thereon. Mr. Trussler was commissioner
    for the Sausage Lake road division; however, it was not established that
    Trussler Road was part of that division: Reasons of the Motion Judge, at paras.
    77 and 97.


