



COURT OF APPEAL FOR ONTARIO

CITATION:
Meaford
    (Municipality) v. Grist, 2013 ONCA 124

DATE: 20130227

DOCKET: C54475

Winkler C.J.O., Pepall J.A. and Smith J. (
ad hoc
)

BETWEEN

The Corporation of the Municipality of Meaford

Plaintiff (Appellant)

and

Pauline
    Grist
, Eric Bruce Greaves, Susan Gwynneth Greaves,
Penelope Joan Seaman
,
    Jane Norah Williams, Trevor Noel Williams, Norah Ann Williams,
K. Orville
    Boyd
,
James Broatch Rathbun
,
Judith Elizabeth Rathbun
, Andrew
    James Rathbun,
Jocelyn Rathbun Gravlee
,
Napier Charles Rathbun
,
Oliver
    Grant Rathbun
, Barbara Kirkaldy, John Kirkaldy, Lorne Kirkaldy, Jennifer
    Kirkaldy and John Samuel Gibson Kirkaldy, et al.

(continued
    on Schedule A)

Defendants (
Respondents
)

Timothy J. Hill, Izaak De
    Rijcke and Andrea Skinner, for the appellant

Bruce
    Engell and Raivo Uukkivi, for the respondent Pauline Grist

Victor L. Vandergust, for the
    respondent Fairview Trailer Park Ltd.

Stanley
    M. Makuch and Konstantine J. Stavrakos, for the respondents Penelope Joan
    Seaman, K. Orville Boyd, James Broatch Rathbun, Judith Elizabeth Rathbun,
    Jocelyn Rathbun Gravlee, Napier Charles Rathbun and Oliver Grant Rathbun

Heard: November 19, 2012

On appeal from the judgment of Justice Peter A. Daley of
    the Superior Court of Justice dated September 21, 2011, with reasons reported
    at 2011 ONSC 5195, 87 M.P.L.R. (4th) 118.

Pepall
    J.A.:

A.

introduction

[1]

In 2004, the appellant, the Corporation of the Municipality of Meaford
    (Meaford), found a by-law in a box in its basement. The by-law was passed on
    August 7, 1854 by the Municipal Council of the appellants predecessor, the
    Township of St. Vincent (the Township). It was entitled
By-law No. 11 for
    1854, a by-law to establish the lake shore road from side road 21 and 22 to
    side road 24 and 25
(By-law 11). It stated:

Be it therefore enacted by the Municipal Council of
    the Township of St. Vincent, that the road on the lake shore from the side road
    between lots 21 and 22, be established a public road as far northward as the
    side road between lots 24 and 25. One boundary to be four rods from high water
    mark and the lake the other boundary. Any damages or costs accruing by
    establishing the said road to be paid by requisitionists.

[2]

The purported road surface would cover approximately 6000 feet, spanning
    Lots 22, 23 and 24 of Concession 6, the east sides of which abut Georgian Bay.

[3]

By-law 11 was not registered on title. Rather, it was lost to history
    for about 150 years. The purported road surface was largely lost to Georgian
    Bay when it was washed out in a storm in 1986.

[4]

Following the discovery of By-law 11 in 2004, the appellant municipality
    did three things. First, in 2006, it retained a surveyor to prepare a survey report
    on the southern portion of Lot 23, which is a 600-foot stretch of the 6000-foot
    road allegedly created by By-law 11. Second, in June 2007, it passed By-law 80
    which, among other things, accepted the location of the purported road as determined
    by the 2006 partial survey, and directed the appellants solicitor to take
    legal steps  including a court application if necessary  to confirm the
    appellants ownership of the road and to compel the removal of all obstructions
    from the surveyed portion of the road. Third, in July 2007, the appellant
    registered By-law 11 on title.

[5]

The appellant then commenced an action against those respondents who own
    the ten cottage properties that occupy the aforementioned 600-foot stretch of
    Lot 23, and are numbered lots 21 to 30. This included the respondents Pauline
    Grist (the Grist respondent), Penelope Joan Seaman, K. Orville Boyd, James
    Broatch Rathbun, Judith Elizabeth Rathbun, Jocelyn Rathbun Gravlee, Napier
    Charles Rathbun, and Oliver Grant Rathbun (the Seaman respondents). The
    appellant sought a declaration that the road is a public highway governed by
    the
Municipal Act, 2001
, S.O. 2001, c. 25, that is owned by the
    appellant and that the respondents are trespassing upon it.

[6]

In its statement of claim, the appellant asserted that the Township
    acquired title to the land along the waterfront by virtue of a public highway
    that existed in this location prior to the enactment of By-law 11.
    Alternatively, By-law 11 legally and effectively established a road and gave
    title to the Township. In the further alternative, the appellant acquired title
    as a result of the application of the common law doctrine of dedication and
    acceptance both before and after 1854.

[7]

Other property owners who had an interest in the lands covered by By-law
    11 were subsequently added as defendants to the action by court order: see
The
    Corporation of the Municipality of Meaford v. Grist
, 2010 ONSC 2288.

[8]

The Grist and Seaman respondents brought separate motions for summary
    judgment. The respondent Fairview Trailer Park Ltd. supported these motions.
    The respondents argued that there were no genuine issues requiring a trial and
    asked that the appellants action be dismissed. They asserted that there had
    been a private driveway between their cottages and the waters edge which was washed
    away in a 1986 storm. Neither the respondents nor the appellant restored the
    private driveway. Instead, the respondents, with the appellants approval,
    purchased land at the rear of their properties to serve as a private driveway
    and arranged for severance and re-zoning.

[9]

The motions judge granted summary judgment and dismissed the appellants
    action for a declaratory judgment.

[10]

The
    appellant appeals this judgment.

B.

Summary Judgment motions

[11]

The
    motions judge heard the summary judgment motions over the course of five days
    and gave extensive reasons for judgment.

(1)

Test Applied

[12]

The
    motions judge first considered the test to be applied on a summary judgment
    motion. He stated that the critical issue was whether a trial is genuinely
    necessary, quoting from
Healey v. Lakeridge Health Corp.
, 2010 ONSC
    725, 72 C.C.L.T. (3d) 261, at para. 28. He noted that t
he
    record was largely historical with few, if any, witnesses with personal
    knowledge available to testify.
He ultimately decided that there was no
    genuine issue requiring a trial and the matter was appropriately decided on a
    summary judgment motion.

(2)

Existence of a Public
    Highway Before 1854

(a)

Absence of Evidence
    that the Public Highway Actually Existed

[13]

The
    motions judge then considered the appellants argument that it acquired title
    to the lands in question by virtue of a public highway that existed prior to
    the enactment of By-law 11. He concluded that Meaford had not produced
    sufficient evidence to establish that a public highway existed in fact before
    1854.

[14]

Among
    other things, the motions judge noted that:

·

The original Crown survey of the Township, conducted in 1837, did
    not include a shoreline road allowance along the waters edge of Georgian Bay.

·

The 1840 Crown patent issued to David Seaman, for 100 acres which
    included the respondents lots, did not reserve any shoreline road allowance.

·

An 1841 map of the Township, also prepared by the original Crown
    surveyor, showed no such road.

·

A conveyance of David Seamans 100 acres to David Neelands in
    1848 contained no reference to any road on or near the shoreline.

·

In 1850, the
Baldwin Act
,

1849, 12
    Vict., c. 81,
[1]
established the Township as a municipality. Pathmasters responsible for
    roadways were appointed by the Township. No evidence on the motions identified
    which roads the pathmasters were assigned to oversee.

·

Also in 1850, a road petition made to the Township Council
    requested the establishment of a road from Lots 18 to 25. There is no evidence
    as to what happened to this petition.

·

In 1851, pathmasters were again appointed by the Township. One
    was appointed for lakeshore to 24, but Township records do not identify the
    location of this road. The appellant argued before the motions judge that this
    appointment confirmed the existence of a road prior to the enactment of By-law
    11; however, as the motions judge observed, the appellants surveyor conceded
    that the appointment of a pathmaster did not necessarily mean that a road
    actually existed.

·

A road described as a lakeshore road did come into existence later
    but it was an inland road. The motions judge noted that the appellants and
    the Grist respondents expert surveyors agreed that many roads described as
    lakeshore roads are in fact inland roads.

·

In 1852, the Township enacted By-law 5 to establish a public
    highway, but the location of this highway could not be determined.

·

In 1854, By-law 11 was passed. The appellant argued before the
    motions judge that the language of the by-law was itself evidence that the road
    existed prior to the by-laws enactment, as were the appellants steps to
    assume jurisdiction over the road and to expend municipal resources thereon.

[15]

Based on
    the evidence before him, including the absence of the road on any of the maps
    or surveys that predated 1854, the motions judge concluded that the evidence
    did not establish that a public highway existed prior to the enactment of
    By-law 11.

(b)

Inapplicability of
    the Doctrine of Dedication and Acceptance

[16]

The
    motions judge acknowledged that up until December 31, 2002, a municipal road
    could be created by the common law doctrine of dedication and acceptance. This
    doctrine requires the satisfaction of the following three conditions, as
    outlined in
Cooks Road Maintenance Assn. v. Crowhill Estates
(2001),
    196 D.L.R. (4th) 35 (Ont. C.A.), at para.10:

(i) an owner of the land on
    which the road is situated had formed the intention to dedicate the land to the
    public as a public road, or highway;

(ii) the intention was carried
    out by the road being thrown open to the public; and

(iii) the road was accepted by
    the public.

[17]

The
    motions judge observed that dedication may occur by usurpation and long
    enjoyment and may be inferred from use by the public.

[18]

The
    motions judge concluded that there was no evidence from which he could find or
    infer any intention to dedicate a roadway or that any roadway was open to the
    public, who accepted it. The appointment of pathmasters, the granting of a road
    petition and 14 years of possible usage
[2]
were insufficient to satisfy the conditions required to establish title based
    on the doctrine of dedication and acceptance.

[19]

The
    motions judge therefore concluded that the allegation that a public highway
    existed prior to 1854 raised no genuine issue requiring a trial.

(3)

Existence of a Public
    Highway in 1854

[20]

The
    motions judge then considered whether By-law 11 established a public highway
    and gave the appellant title to the lands in question in 1854. He agreed with
    the appellant that the Township had the legislative authority to establish a
    roadway by means of enacting a by-law. That being said, following the passage
    of the by-law, no Township record referenced the By-law 11 lands, nor was there
    any evidence that the Township created or maintained the purported road. There
    were no records reflecting the payment of any compensation for expropriation.
    There was no survey conducted on the lands, no evidence that a pathmaster was
    appointed, and no evidence of the road on any map.

[21]

Conveyances
    after 1854 also did not support the establishment of a road. While an 1877
    conveyance did reference a public highway along the edge of Georgian Bay, the
    same instrument provided conveyance of title to an adjacent waterfront parcel
    all the way to the waters edge. Indeed, almost every transfer of property
    after 1854 involved a deed asserting ownership to the waters edge. While the
    motions judge noted a reservation of a 33-foot-wide road in an 1878 conveyance
    of title to ten acres on Lot 23, the applicable
municipal legislation
precluded the creation of a public
    highway less than 66 feet wide. The only evidence of a road of any kind arose
    from the respondents or their predecessors using their land as a private
    driveway.

[22]

Prior to
    1881, a judge struck out the last sentence of By-law 11, which provided that
    any damages or costs accruing by establishing the said road were to be paid by
    the requisitionists. No evidence was advanced on the outcome of this decision.

[23]

In
    conclusion, the motions judge decided that a public highway was not established
    in 1854 pursuant to By-law 11.

(4)

Actual Notice and
    Priority of Registration

[24]

The
    motions judge then considered whether, even if a public highway was established
    by virtue of By-law 11, it was void and unenforceable as against the
    respondents due to their priority of registration. He held that while the
    Township was not required to register By-law 11 in 1854,
[3]
it was not exempt from the regime that provided for priority of title based on
    registration.
[4]
Therefore, in the absence of actual notice to the respondents of the road, the
    motions judge found that By-law 11 would be void and unenforceable as against
    the respondents. The motions judge found that there was no evidence of actual
    notice to the respondents of either By-law 11 or the public highway it
    purported to establish. Pursuant to the applicable registration legislation,
    the motions judge held that Meafords interest in the disputed lands was
    therefore void and unenforceable as against the respondents.

(5)

Modern Era

[25]

Section 26
    of the
Municipal Act
, 2001
, S.O. 2001, c. 25, addresses
    highways. It states:

The following are highways unless they have been
    closed:

1. All highways that existed on December 31, 2002.

2. All highways established by by-law of a
    municipality on or after January 1, 2003.

3. All highways transferred to a municipality under
    the
Public Transportation and Highway Improvement Act
.

4. All road allowances made by the Crown surveyors
    that are located in municipalities.

5. All road allowances, highways, streets and lanes
    shown on a registered plan of subdivision.

[26]

The
    motions judge conducted an extensive review of the treatment of the purported
    road from 1854 to the present day to ascertain whether a public highway had
    been established in fact or in law pursuant to the doctrine of dedication and
    acceptance, as alleged by the appellant.

[27]

The
    motions judge noted that:

·

In 1925, a plan of survey was laid out for lots 21 to 30 (the McDowall
    plan). These are the lots at issue in the action. The McDowall plan did not
    provide an access route to these lots; rather, an easement for a private
    driveway over those lots was created, which was parallel to the shoreline and
    was to be used in common by the owners of the lots from time to time.

·

In 1927, a plan of subdivision was registered in the area
    immediately to the south of the McDowall Plan. It laid out lots 31 to 69. These
    lots were separated from the water by a 66-foot-wide parcel labelled Marine
    Allowance.

·

In 1929, a plan of subdivision was registered in the area
    immediately to the north of the McDowall Plan. This plan laid out lots 1 to 20
    along the waters edge. There was no shoreline road. Rather, the plan provided
    for an inland road to the rear of these lots.

·

In 1945, Judge Morley ordered the removal of the reference to a
    lakeshore road found on an unregistered plan of the northerly end of the By-law
    11 lands. No road allowance was provided along the waters edge on that plan,
    and access was to be provided by a private inland road. The appellant was a
    party to that court proceeding.

·

In 1950, Judge Morley deleted the reference to the Marine
    Allowance on the aforementioned plan of subdivision relating to lots 31 to 69.
    Again, the appellant was a party to that proceeding.

·

An 1985 photograph of the By-law 11 lands depicts an area that is
    more consistent with the presence of a private right-of-way than a public
    highway.

·

In 1986, the purported road in front of the cottages on the
    McDowall Plan was washed out in a storm. There was no evidence that the
    appellant viewed the washed-out area as a public road.

·

To replace this mode of access, in 1987, the respondents
    established a private driveway to the rear of their properties. The appellant
    and the respondents entered into a maintenance agreement for the upkeep of this
    driveway.

·

The Grist and Seaman respondents built their cottages based on
    measurements commencing at the waters edge. The appellant was involved in
    granting the building permits and approvals for these cottages and never
    asserted that there was a public roadway along the shoreline.

[28]

The
    motions judge concluded that there was no evidence that the purported public
    road was created by any of the means listed in s. 26 of the
Municipal Act,
    2001
. Even if a public highway had been created, he found that it ceased
    to exist after the area was washed out in 1986. He observed that the
    respondents expert surveyor determined that any road was today under the
    waters of Georgian Bay.

[29]

The
    motions judge further found that the appellant failed to meet the test set out
    by the authorities in order to establish dedication and acceptance of the road
    in the modern era. He noted that there was no evidence of actual or implied
    dedication or acceptance of land. Particularly, the presence of a mutual
    right-of-way over the lands in question did not demonstrate an intention by the
    landowners to dedicate the land to public use. Further, there was no evidence
    of acceptance of the roadway by Meaford or its predecessor.

[30]

The
    motions judge also addressed the expert evidence given by the parties
    surveyors on the location of the boundaries of the purported road. He wrote, at
    paras. 151 and 153 of his reasons:

By-Law 11 established the edge of Georgian Bay as a natural
    boundary and both the surveying experts retained by the plaintiff [appellant]
    and the defendants [respondents] agreed that water level analysis was not an
    appropriate method to be used to establish the boundary of the road.



No evidence was offered by the plaintiff [appellant] or its
    expert that would establish the actual boundaries of the alleged road along the
    entire length of the By-Law 11 Lands.

[31]

As such,
    neither expert could precisely identify the boundaries of any road.

[32]

In
    conclusion, the motions judge rejected the appellants contention that a public
    highway was established either in fact or in law in the modern era.

(6)

By-Law 80

[33]

The
    motions judge next tackled the issue of By-law 80, enacted in 2007. He traced
    its history, including the 2005 report by Meaford municipal staff stating that
    access to the properties was a matter of concern between the private
    landowners. He also observed that By-law 80 only related to a limited number of
    properties, including those of the Grist and Seaman respondents, and excluded
    approximately 89% of the lands covered by By-law 11. The motions judge noted
    numerous procedural irregularities in the enactment of By-law 80, including
    closed municipal council meetings and a failure to provide timely material
    disclosure to interested parties. The motions judge therefore concluded that
    By-law 80 was void because it was not passed for a proper municipal purpose,
    and there were breaches of procedural fairness in the proceedings leading up to
    its enactment.

(7)

Laches

[34]

The last
    issue the motions judge addressed was delay, or laches. In light of the fact
    that Meaford and its predecessor slept on their rights for over 150 years, he
    also denied the appellants request for relief due to its acquiescence and
    exceptional delay in seeking to enforce its claim to the lands.

(8)

Conclusion

[35]

For all of
    the foregoing reasons, the motions judge was satisfied that there was no genuine
    issue requiring a trial. Accordingly, he granted the respondents summary
    judgment and dismissed the appellants action, as well as its request for
    interim injunctive relief. He ordered that submissions could be made on the
    respondents counterclaims, as the summary judgment motions did not encompass
    them. The counterclaims include claims for declarations of ownership,
    declarations that By-law 11 and By-law 80 are void, and damages.

C.

GROUNDS OF APPEAL

[36]

The
    appellant advances four grounds of appeal. It submits that the motions judge
    erred:

(i) in his interpretation and
    application of the test for granting summary judgment, specifically with
    respect to the issues of actual notice, the application of the doctrine of
    dedication and acceptance, and the status of By-law 80;

(ii) in failing to recognize
    that By-law 11 was all that was required to legally establish the road;

(iii) in finding that By-law
    11 was void and unenforceable under the provisions of the
Registry Act
;
    and

(iv) in his application and
    interpretation of the equitable doctrine of laches.

D.

ADDITIONAL ISSUES RAISED BY THE RESPONDENTS

[37]

The Seaman
    respondents submit that a high degree of certainty regarding the boundaries of
    a public highway is essential to the validity of a by-law establishing such a
    highway, and there was no such certainty here.

[38]

The Grist
    respondent submits that the appellant should not be permitted to rely on its
    surveyors opinion on legal matters. His evidence should be used to assist the
    court in re-establishing the boundaries of the purported road.

[39]

Fairview
    Trailer Park Ltd. argues that the appellants claim against it is barred due to
    the expiration of the applicable two-year limitation period.

[40]

For the
    following reasons, I would dismiss this appeal.

E.

ANALYSIS

(1)

Summary Judgment

[41]

The
    appellant submits that the motions judge failed to properly interpret and apply
    the correct test on a motion for summary judgment.

[42]

The
    motions judge
s decision was rendered prior to the release of
    this courts decision in
Combined Air Mechanical Services Inc. v.
    Flesch
,
2011 ONCA 764, 108 O.R. (3d) 1, leave to
    appeal to S.C.C. granted, [2012] S.C.C.A. Nos. 47-48. That decision
established the applicable test for a summary judgment, at para. 50:
    can the full appreciation of the evidence and issues that is required to make
    dispositive findings be achieved by way of summary judgment, or can this full
    appreciation only be achieved by way of a trial?

[43]

While obviously the motions judge did not apply that precise test, he
    had a full appreciation of the evidence and the issues and did not err in this
    regard. This was an appropriate case for summary judgment. As the motions judge
    noted,

t
he record was largely
    historical and documentary with few, if any, witnesses with personal knowledge
    available to testify. The motions judge was able to canvass all relevant facts
    and issues.
He ultimately decided that the record allowed for the
    determination of the issues without the need for a trial. I agree with his
    conclusion.

[44]

The appellant specifically complains about the application of the summary
    judgment test by the motions judge in his treatment of the issues of actual
    notice, dedication and acceptance, and By-law 80. I will address each of these
    in turn.

(a)

Actual Notice

[45]

On the
    summary judgment motions, the respondents took the position that absent actual
    notice of the existence of the public highway to the respondents or their
    predecessors in title, the appellants failure to register By-law 11 until 2007
    rendered it void and unenforceable as against the respondents. The motions
    judge accepted this argument and further concluded that there was no actual
    notice to the respondents.

[46]

The
    appellant argues that this issue ought not to have been decided on a motion for
    summary judgment. The appellant submits that the evidence before the motions
    judge was voluminous, complex, contentious, involved conflicting expert
    evidence and called for multiple findings of fact. As such, the appellant
    argues, a summary judgment motion could not serve as an adequate substitute for
    the trial process.

[47]

I
    disagree. The issue of actual notice depended on historical evidence, which largely
    consisted of title records, maps, photographs, and Township records. It was
    incumbent on the parties to place all relevant evidence before the motions
    judge. They did so and the motions judge was therefore well able to address the
    issue of actual notice without the need for an expensive and time-consuming
    trial. There was nothing that precluded the motions judge from having a full
    appreciation of the evidence and the issues as they related to actual notice.
    The interests of justice did not require a trial on that issue.

[48]

The
    appellant makes a further, substantive argument on the issue of actual notice that
    is unrelated to the issue of summary judgment and which I will address below.

(b)

Dedication and
    Acceptance

[49]

The
    appellant makes a similar argument with respect to the issue of dedication and
    acceptance. The appellant submits that the motions judge erred in deciding the
    issue of dedication and acceptance without a trial, particularly given the
    competing expert evidence.

[50]

Given the
    historical inquiry demanded by the doctrine of dedication and acceptance, a
    trial would serve no purpose in addressing its application prior to 1854. As
    for dedication and acceptance in the modern era, the doctrine was abolished by
    statute in 2003. As such, the inquiry would also largely be historical in
    nature.  Significantly, the motions judge was fully able to and did appreciate
    the evidence and issues relating to the application of this doctrine.
    Furthermore, he addressed them in great detail and with care in his reasons.

[51]

As to the
    parties experts conflicting evidence, the experts were all cross-examined
    beforehand and the transcripts were before the motions judge. It was open to
    the motions judge to reach the conclusions he did without requiring any oral
    cross-examination of the experts in court. As submitted by the Grist
    respondent, the motions judge was not required to consider the appellant expert
    surveyors legal opinion. The purport of the expert surveyors opinions on the
    boundaries of the alleged road was similar  they could not be established with
    precision.

[52]

The
    appellant makes a further, substantive argument on the issue of dedication and
    acceptance that is unrelated to the issue of summary judgment and which I will
    address below.

(c)

By-law 80

[53]

The
    appellant also takes issue with the motions judges interpretation and
    application of the summary judgment test in relation to the validity of By-law
    80. I fail to see why this issue could not be addressed on a summary judgment
    motion. Again, the motions judge had a full appreciation of the evidence and
    the issue and no trial was required. No error in law or in fact is evident.

(2)

Legal Requirements to
    Establish a Road

[54]

Under s.
    26 of the
Municipal Act, 2001
, all highways that existed on December
    31, 2002 are still recognized as public highways, unless they have been
    closed. Historically, there were many ways a highway could come into existence.
    Significantly, municipalities in 1854 had the power to enact by-laws
    establishing new roads pursuant to s. 31(10) of the
Baldwin Act
and
    could also be made to assume a road as a public highway by operation of the
    common law doctrine of dedication and acceptance. By contrast, after January 1,
    2003, all highways had to be established by by-law of a municipality: s. 31,
Municipal
    Act, 2001
.

(a)

Dedication and
    Acceptance

[55]

The
    appellant challenges the motions judges finding that there was no dedication
    and acceptance of the road and that the appellant had not offered any physical
    or documentary evidence that clearly established that a public highway existed
    prior to or after 1854.

[56]

On this
    issue, the motions judge simply preferred the totality of the evidence
    proffered by the respondents to that of the appellant. I agree with his
    assessment. The vast preponderance of the evidence supported the motions
    judges conclusion that no road was established by dedication and acceptance
    either before or after 1854. Indeed, even the appellants expert surveyor,
    Ronald James Stewart, stated in his report that [m]uch of the conveyancing and
    survey records reviewed above do not acknowledge the existence of the lake
    shore road opened by Bylaw 11 in 1854.
[5]


[57]

Apart from
    there being scant recognition of any road by landowners and surveyors alike,
    the appellant and its predecessor Township both consistently acted as if there
    were no road. This was a road not taken. There was simply no road to take.

(b)

By-Law
    11

[58]

The
    appellant submits that the motions judge erred in failing to recognize that in
    1854, By-law 11 was all that was required to legally establish the road. The
    Seaman respondents counter that certainty regarding the boundaries of a highway
    is essential to the validity of a by-law establishing a highway, and there was
    no such certainty here; as such, By-law 11 was in and of itself insufficient to
    establish the purported road.

[59]

As
    mentioned, in 1854, municipalities in Ontario were governed by the
Baldwin
    Act
.  Section 31 provided that:

[T]he Municipality of each of the Townships in Upper-Canada,
    shall have power and authority to make a By-law or By-laws for each, all or any
    of the following purposes, that is to say:



Tenthly
. For the
opening
, constructing,
    making, levelling, pitching, raising, lowering, gravelling, macadamizing, planking,
    repairing, planting, improving, preserving and maintaining of any new or
    existing highway, road, street  [Emphasis added.]

[60]

This
    provision gave Meaford the power to establish a new road, opening being the
    equivalent of establishing: see
Reid v. Hamilton (City)
(1856), 5
    U.C.Q.B. 269 (C.A.) and Ian MacF. Rogers,
The Law of Canadian Municipal
    Corporations
, 2d ed., looseleaf (Toronto: Thomson Reuters, 2009) at p.
    1203, n. (h).

[61]

The
    appellant relies on two authorities for the proposition that By-law 11 is in
    itself sufficient to establish a road, namely
Palmatier v. McKibbon

(1894)
, 21 O.A.R. 441 (C.A.), and
Fisher
    v. The Municipal Council of Vaughan
(1853), 10 U.C.Q.B. 492.

[62]

The case of
Palmatier v. McKibbon
involved a road that had been identified on an 1834 survey and then confirmed
    by the Court of Quarter Sessions, pursuant to an 1810 statute of Upper Canada.
[6]
The plaintiff landowner brought an action in trespass against the defendant,
    who contended that he had a right to use the road that traversed the
    plaintiffs property. The plaintiff submitted that the statute required the
    court not merely to confirm the surveyors report, but to direct that the road
    be opened. In the absence of such a direction, the plaintiff argued, the road
    never became a public highway in law. MacLennan J.A. rejected this argument and
    wrote at pp. 451 and 453:

[W]hat is the meaning of opening a road, as the phrase is
    used in this statute? Does it mean laying it out on the ground by survey in the
    usual manner, and declaring that as so laid out it is a public highway; or does
    it mean something more, namely, clearing the ground of the forest or other
    obstructions, so as to make it more or less fit for actual use? I think it is
    plain that it is used in the first of these senses only, and that laying out
    and opening out, are used in an equivalent sense.



I think it is very clear, looking at the whole Act, that it was
    the intention of the Legislature that, when the report of the surveyor was
    confirmed either by the justices themselves in the absence of opposition, or by
    the verdict of a jury in case of opposition, the road laid out by the surveyor
    and described in his report, should from that time be in law a public highway.
    This intention is not only expressed clearly and strongly in section 12, but
    also in section 35, which declares that when a road is
laid out
under
    the provisions of the Act, the soil and freehold thereof should be vested in His
    Majesty. [Emphasis in original.]

[63]

That case
    therefore involved a road created by a survey that had been confirmed by the
    court, pursuant to a particular legislative scheme. It did not involve the
    creation of a public highway by means of enacting a by-law. Moreover, the
    courts ultimate holding rested on the doctrine of dedication and acceptance.

[64]

The
    appellant also relies on
Fisher v. The Municipal Council of Vaughan
. This
    case is of little assistance, however, as it merely stands for the proposition
    that a by-law closing a road is not void simply because the municipal council
    has not recited all of the steps required to pass it within the body of the
    by-law.

[65]

On the
    other hand,
Black v. White
(1859)
,
    18 U.C.Q.B. 362, does lend some support to the appellants position that a
    by-law is sufficient to establish a road. In that decision, Robinson C.J. of
    the Upper Canada Court of Queens Bench stated, at p. 366, that:

[I]t is to be remarked that as the law now stands the
    municipalities seem to have a very wide discretion and ample power as to
    opening new roads: that is, authorising and establishing them; and I do not
    find that a new road authorised by a by-law must either have been laid out or
    reported upon by a
road surveyor
, (I mean, as distinct from a
    provincial land surveyor,) before it can be held to be established. [Emphasis
    in original.]

[66]

In
    contrast, the Seaman respondents rely on
Dennis v. Hughes
(1851), 8 U.C.Q.B.
    444, for the proposition that a road is not made when the by-law establishing
    it is passed. This was another decision written by Robinson C.J. He wrote in
    obiter, at p. 453: I do not consider that the road is made when the by-law is
    passed, but only that it is authorized to be made by the proper officer acting
    in a reasonable manner. The focus of the passage was on protection of
    landowners from immediate entrance on to their land by those charged with
    creating the road. At p. 453, Robinson C.J. states:

It would seem but reasonable that the owner of the land should
    have a certain time allowed him after notice to protect his fields, before his
    fences should be thrown down; and the mere passing of a by-law establishing a
    road, should not be considered as
ipso facto
the opening of a road,
    but merely as authority to open it in a proper manner. [Emphasis in original.]

[67]

The court
    went on to hold that the by-law was invalid because it was not specific enough
    as to the location of the road.

[68]

While it
    would appear, therefore, that a by-law in and of itself may authorize a road,
    this decision does not describe what more is required to establish an
    enforceable public highway.

[69]

In discussing
    the issue in
The Law of Canadian Municipal Corporations
, Ian MacF.
    Rogers
writes, at p. 1206:

It is not clear at what
    point a road declared to be a public highway by by-law of the council becomes a
    public highway. Section 26 of the Municipal Act declares that all highways laid
    out or established under the authority of any statute are common and public
    highways so that it would appear that all that is necessary to satisfy this
    provision is that a by-law should be passed for establishing the highway.
This,
    however, is not the case
;
    a council has no power, by declaring that land is a public highway, to make it
    one and so declaring is not equivalent to the establishment of a new highway.
    So the mere passing of a by-law for this purpose should not be considered as
    ipso facto the legal creation of the road but merely as authority to establish
    it and open it in the proper manner
.
Moreover,

a
    by-law establishing a road does not justify its immediate opening through
    private property unless this is authorized and directed in the by-law or a
    later by-law. It seems then that the road is not constituted a public highway
    until the lands have been expropriated by the corporation. But it is not
    essential that the actual work on the ground has been completed before the road
    becomes a public highway. [Emphasis added.]

[70]

Therefore
    while not entirely free from doubt, it would appear that the better view is
    that the mere passage of a by-law was inadequate to establish a road.

[71]

What is
    clear, however, is that certainty of description of the location of the road in
    the by-law is a necessity.

[72]

The Seaman
    respondents argued that By-law 11 did not possess the necessary degree of
    certainty regarding the boundaries of the purported public highway, and is therefore
    invalid.

[73]

A
    municipality must state with precision where a new road is to be, or at least
    lay out the road on the ground by survey:
Palmatier v. Mckibbon
, at pp.
    451-53;
Dennis v. Hughes
, at pp. 451-52.

[74]

The case of
Fawcett v. The Township
    of Euphrasia
, [1949] O.R. 610, relying on
St. Vincent v. Greenfield
(1887), 15 O.A.R. 567 (C.A.), affg (1886), 12 O.R. 297 (H. Ct. J.), addressed
    a road by-law that provided for a new road to be established between two identified
    concessions, crossing six lots and including a metes and bounds description.
    Nonetheless, the by-law was found to be invalid for insufficiency of the
    description of the new road, at p. 613:

Unless such a by-law contains a description sufficient to
    enable the road to be laid out, and to ascertain from whom the land is to be
    obtained, it is invalid: see
St. Vincent v. Greenfield
(1887), 15
    O.A.R. 567 affirming 12 O.R. 287. At p. 569 Osler J.A. says:

According to all the cases which have been decided in our
    Courts on the subject, from the earliest to the present time, it is essential
    to the validity of a by-law by which a corporation professes to expropriate
    land for, and to establish and lay out a highway, that the course, boundary,
    and width of such highway should be capable of being ascertained either from
    the by-law itself or from some document or description referred to by it which
    may be treated as incorporated therewith. Failing this, the by-law is
    necessarily inoperative and void, since, merely as regards the width of the
    road, it cannot be seen whether it was to be of the maximum or minimum width
    prescribed by the Act, or of some width intermediate between the two.

[75]

Although
    the motions judge framed the issue differently, he was alive to the imprecise
    boundaries of the purported road, as is evident from paras. 32, 74, 149, 151,
    and 153-55 of his reasons. The Crown survey of the Township that was completed
    in 1837 laid out a grid of road allowances but did not include a shoreline road
    allowance along the waters edge of Georgian Bay. Indeed, after 1837, the
    By-law 11 lands were not surveyed again at all until 2007, after Meaford discovered
    the by-law in the basement of its municipal offices.

[76]

Neither
    the appellants nor the respondents experts were able to identify where the
    boundaries of the road enacted by By-law 11 were located originally or would be
    located today. As stated in the report of the appellants expert, Ronald James
    Stewart, at para. E.1.1, the lake shore road has never been surveyed and the
    boundaries have never been defined beyond the general description set out in
    Bylaw 11. He noted, at para. E.1.2, that the boundaries of the Bylaw 11 lands
    have never been precisely defined and furthermore, at para. E.2.1, that
    finding the western boundary of the road  i.e. 66 feet from the high water
    mark of the lake  was not a simple matter. In addition, he noted, at para.
    E.3.1, that much of the lake shore road surface in the subject location was
    washed out in 1986  and all trace of the road has been removed.

[77]

As such,
    even if By-law 11 did establish a road, there is today a lack of precision and
    certainty as to its location. I agree with the motions judges conclusion that
    while the Township had the authority to enact By-law 11, an enforceable public
    highway has not been established.
[7]

(3)

Priority of
    Registration and Actual Notice

[78]

The
    appellant submits that the motions judge erred in reasoning that By-law 11 was
    void and unenforceable as against the respondents
because the road by-law was neither registered, nor were the
    respondents and their predecessors in title given actual notice of the
    existence of the road, pursuant to
the provisions of the
Registry
    Act
. The appellant argues that even if there was a requirement to provide
    actual notice of a by-law passed in 1854 (which they dispute), such notice was
    nevertheless provided.

[79]

When
    By-law 11 was enacted in 1854, the applicable registration legislation did not
    require municipal road by-laws to be registered:
An Act to Amend the Registry
    Law of Upper Canada
, 1850, 13 & 14 Vict., c. 63, s. 3. In 1865,
An
    Act respecting Registrars, Registry Offices, and the Registration of
    Instruments relating to Lands in Upper Canada
, 1865, 29 Vict., c. 24, was
    enacted. Section 61 required municipal road by-laws hereafter to be passed to
    be registered in the land registry system. Prior enactments, such as By-law 11,
    could be registered, but it was not obligatory to do so.

[80]

Sections
    62 and 65 of the 1865
Registry Act
set out the effect of registering or
    omitting to register an interest in land, such as a road by-law:

62. After any grant from the Crown of Lands in Upper
    Canada and Letters Patent issued therefor, every Instrument affecting the lands
    or any part thereof comprised in such grant shall be adjudged fraudulent and
    void against any subsequent purchaser or Mortgagee for valuable consideration,
    unless such instrument is registered in the manner herein directed before the
    registering of the instrument under which such subsequent purchaser or mortgagee
    may claim.

64. Priority of registration shall in all cases
    prevail unless before such prior registration there shall have been actual
    notice of the prior instrument by the party claiming under the prior
    registration.

These sections have remained part of Ontarios land registry
    laws in virtually the same form since their enactment: see
Registry Act
,
    R.S.O. 1990, c. R.20, ss. 70(1), 71.

[81]

Therefore,
    although the Township was not obliged to register By-law 11, by not doing so,
    it ran the risk that a subsequent purchaser of the land in question, without
    actual notice of the road, would gain priority over the Township by registering
    its interest first.

[82]

I thus
    agree with the motions judge when he stated, at para. 92 of his reasons, that
    actual notice of the By-law 11 road was required for any ownership interest
    created by By-law 11 to prevail over a subsequent registered transfer.
    Otherwise, a subsequent purchaser was entitled to rely on the registry to list
    all instruments affecting title to the property.

[83]

As discussed
    previously, the motions judge went on to find that the respondents and their
    predecessors in title had no actual notice of the purported road. The appellant
    submits that the motions judge thereby erred because there was compelling
    evidence before him that the lakeshore road existed and that it was used over
    many years. It argues that the motions judge failed to appreciate this evidence
    of the very existence of the road in fact, and other evidence including the
    enactment of By-law 11, the public nature and process of municipal government
    associated therewith, the municipal road by-law retention process, and the
    explicit reservation and excepting out of the roads lands in prior deeds of
    transfer. The appellant submits that as a result, the motions judge failed to
    recognize that the existence of the road, its usage, and the municipal process
    by which By-law 11 was enacted, would have constituted actual notice.

[84]

At its
    heart, the appellants real complaint is with the motions judges finding of
    fact that the respondents had no actual notice of the alleged public highway.
    The motions judge considered whether actual notice was a genuine issue
    requiring a trial and concluded that it was not. He made no error of law and
    his factual findings are entitled to deference. Indeed, it would be a very
    strange outcome were he to have found that actual notice had been given, in
    light of the lack of registration of the by-law, the lack of a road, the lack
    of any municipal record retention process and a 150-year-old by-law buried from
    view in the appellants basement.

[85]

I would
    not give effect to this ground of appeal.

(4)

Laches

[86]

The
    appellant submits that the motions judges application of the equitable
    doctrine of laches was wrong in law. It argues that its actions were within its
    rights pursuant to s. 440 of the
Municipal Act, 2001
,
which provides that if a by-law is
    contravened, the contravention may be restrained by application. It also relies
    on the decision of
Polai v. City of Toronto
, [1970] 1 O.R. 483 (C.A.),
    affd [1973] S.C.R. 38.

[87]

In light
    of my decision on the preceding grounds, there is no need to address whether
    the equitable doctrine of laches is applicable to a municipal corporation in
    the circumstances of this case.

F.

DISPOSITION

[88]

In light
    of the conclusions reached, it is also unnecessary to address the additional limitations
    issue raised by the respondent Fairview Trailer Park Ltd.

[89]

For the
    foregoing reasons, the appeal is dismissed.

[90]

The
    appellant is to pay the Grist respondent and the Seaman respondents $30,000
    each in costs of the appeal, inclusive of disbursements and applicable taxes,
    and is to pay the respondent Fairview Trailer Park Ltd. $12,500, inclusive of
    disbursements and applicable taxes.

Released:  February 27, 2013 WW

S.
    E. Pepall J.A.

I
    agree W. Winkler C.J.O

I
    agree Patrick Smith J. (
ad hoc
)


Schedule A

Attorney General for the Province of Ontario, Barbara Alice
    Cann, Larry Alexander Cann, Peter Charles McHardy, Corliss Suzanna McHardy,
    Bank of Montreal, Gail Starr Owen, Shari Lee Kartechner-Jolowski, Education
    Credit Union Limited, Gilbert Ronald Buckley, The Toronto-Dominion Bank,
    Frances Mason, Gordon Henry Mason,
Neil Korzack
,
Katharina Korzack
,
    Hugh Cleave Williams, Andrea Williams, The Bank of Nova Scotia, Patricia Ann
    Schmitz, Henry John Schmitz, Craig Wayne Roland Brooks, Kathleen Suzanne
    Brooks, 1504413 Ontario Ltd., CIBC Mortgages Inc., Union Gas Limited, Eileen
    Talarico, Anthony Talarico, Florence Bernice Stonehouse, Estate of Wilbur
    Maurice Stonehouse, National Trust Company, Victoria Ann McNaney, Michael
    Patrick McNaney, Royal Bank of Canada, Steven Wayne Ivanisko, Suzanne
    Juniper-Ivanisko, Gary Matthew Sorichetti, David Clayton Moore, Dawson Walter
    Clayton Moore, Shirley Bernice Moore, Katherine Louise Kreitner, Dorothy Marion
    Wilson, Neil Wesley Wilson, Linda Louise Verhey, Scotia Mortgage Corporation,
    Marjorie Ellen Stringer, John Edward Stringer, Catherine Patricia Cicero,
George
    Neil Korzack
, Jacek Sosniak, Malgorzata Sosniak, Glenford McKee Carbert,
    Sheri Corlenn Moore, James Clayton Moore, Anita Mitchell Carbert, Beverly Merle
    Carbert, Laurie Ann Carbert, Filomena Cigna, Daryl Douglas Burk, Laura Mary
    Alice Burk, John Edward Cook, The Hydro-Electric Power Commission of Ontario,
    William Arthur Taylor, Jean Dorothy Hewitt, Harold Gordon Hudson, Jean Mae
    Hudson, William Kenneth Hudson, Carol Ann Hudson, Dennis Mervin Risk, Mervin
    Cecil Risk, Nancy Dee Risk, Marguerite Aggnes Grace Risk,
Fairview Trailer
    Park Ltd.
, Bell Canada, Manuel Medeiros, Valerie Medeiros, Donald Wayne
    Snider, Vesta June Snider, Sherry Lynn Snider, Judy Kathleen Snider, Janeen
    Elizabeth Harman, Nancy June Sittler, Dorothy Irene Black, Patricia Marie Daza,
    Teresa Maria Rybarczyk, Jacek A. Rybarczyk, Richard Paul Valade, Lisa Dawn
    Valade, Stephanie Simmons, Dale Wilson, John Edward Dalziel, Donald Wayne
    Snider, June Vesta Snider, Rhonda Ellen Beare Emerson, Ronald Beare, Melba
    Beare, Harold Blenkin, Jean Shirley Blenkin, Maria Nonis,
Angelo Nonis
,
    John Andrew McKillop, Amanda Jane Turnbull, Sarah Ruth Eleanor Slater, Maria
    Caterina Agazzi, Annlee Mazza, Tito Mazza, Francoise Alice Roy, Alice Grave
    Baranski, Paul Devanand Christopher, Abha Patel-Christopher, Frank Hunter,
    Estate of Jacqueline Hunter, Douglas Robert McCutcheon, Barbara Anne
    McCutcheon, Joyce Christina Mary Walker, Anita Marguerite Taylor, Stephen
    Goodson, Wendy Goodson, Charles William Wayne Watts, Shirley Alice Rose Hudson,
    Kenneth Ellwood Hudson, Mervin Orville Smith, Teresa Eleanora Smith, National
    Bank of Canada, Mervin Cecil Risk, Marguerite Aggnes Grace Risk,
Norman
    Hilton Smith
,
Elsie Leona Smith
, Deidre Orr, Brian Richard Light,
    Pamela Claire Light, Canadian Imperial Bank of Commerce, Douglas Frank Haslam,
    Mary Lynn Haslam,
William L. Ryan
, William James Beatty, Norah Louise
    Beatty, North York Credit Union Limited, Susan Fay Grant, Charles Leslie Grant,
    Deanna M. Peprnik, Frank Halstead Brown, Maura Ellen Trainor Brown, Susan Jane
    Bradbury, Patricia Laraine Gullacher, Robert Curtis Gullacher,
William Henry
    McCartney
, Mark Leslie Maxwell, Margaret Elaine Maxwell and HSBC Bank
    Canada

Estate of Norman Hilton Smith, Estate of Elsie Leone Smith,
    Joanne Olsen, William Santin, Marilyn Santin, Wolfgang Teltz, Margaret Teltz,
    John Kinder Essington, Nancy Lee Essington, Kevin David Essington, Timothy
    Edwin Essington, Donald Bruce Burt, Kathryn Mary Burt





[1]
The full title of the act commonly known as the
Baldwin Act
is
An Act
    to provide, by one general law, for the erection of Municipal Corporations, and
    the establishment of Regulations of Police, in and for the several Counties,
    Cities, Towns, Townships and Villages in Upper-Canada.



[2]
The years between the issue of the Crown patent and the passing of By-law 11 
    i.e. 1840-1854.



[3]

An Act to Amend the Registry Law of Upper Canada
, 1850,13 & 14
    Vict., c. 63, s. 3.



[4]

An Act respecting Registrars, Registry Offices, and the Registration of
    Instruments relating to Lands in Upper Canada
, 1865, 29 Vict., c. 24, ss.
    62, 65;
Registry Act
, R.S.O. 1990, c. R.20, ss. 70(1), 71.



[5]
At para. D.13.1.



[6]

An Act to provide for the laying out, amending and keeping in repair, the
    Public Highways and Roads in this Province, and to repeal the Laws now in force
    for that purpose
, 1810, 50 Geo. III, c. 1.



[7]
Although the motions judge states, at paras. 59ff. of his reasons, that By-law
    11 is a valid enactment of the Township council, he was there referring only
    to the fact that the Township had the necessary legislative authority to enact
    a by-law establishing a road. He was not making a finding as to the sufficiency
    of By-law 11 to establish a road.


