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by admin
13May
2010

ROADS AND HIGHWAYS

PREPARED FOR THE ANNUAL INSTITUTE OF THE ONTARIO BAR ASSOCIATION – FEBRUARY 16, 2010 

Paul A. Rabinovitch

Ellen Brohm Student-at-Law

Graham Partners LLP Barrie, Ontario

1.                 Establishing, Dedicating, and Assuming Roads

 Historically public highways or roads could have been created in a number of ways.  Some examples of the ways in which public highways could have been created are as follows:

  1. They were laid out as original 66 foot wide road allowances by the Crown in the 1800’s.
  2. They were laid out as 66 foot Shore Road Allowances by the Crown around lakes and rivers in Northern Ontario.
  3. They were laid out as roads on registered plans of subdivisions.
  4. By-laws were passed by municipalities setting out what land was to become a road.
  5. They were created as “Forced Roads”.  Forced Roads occurred more in Northern Ontario where difficult  terrain dictated were a road could or could not go.  Forced Roads were often constructed in lieu of an Original Road Allowance, which could not be constructed due to difficult topography.  Over time these Forced Roads became maintained by Municipalities and became municipal roads.  Many cottage roads that are now municipal roads were created in this fashion.  Interestingly, many of these Forced Roads were never deeded to the municipality and in the local Registry Office, a search of title may have disclosed that ownership was actually still in a private name.  In the Land Titles System, the Registry Office has shown these types of roads to be owned by Municipalities, if they are now maintained by the Municipalities, so that the ownership has effectively been cleared up.
  6. Roads dedicated to a Municipality, which means either specifically transferred by Deed to the Municipality and accepted by the Municipality through the expenditure of funds for road maintenance or in some cases, dedicated without an actual transfer of title, either through acquiescence or active knowledge by the owner and then accepted by the Municipality through the expenditure of funds for road maintenance.
  7. All of these types of roads were considered public highways whether or not they were used as roads or had been constructed as roads.  As such they were open to the public for use even if they had not been constructed as roads.  The use of unopened roads can now be restricted through the enactment of a by-law limiting the public use of public roads, if the roads have not been brought up to municipal standards.

 Section 26 of the Municipal Act, 2001 c. 25 defines what constitutes a highway today which is as follows:

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

 Highways that existed on December 31, 2002

Criteria items numbered 2-5 above can generally be confirmed by reviewing a municipality’s old records. Criteria item number 1 presents more of a challenge as additional local research may be required to discover the information necessary to confirm what is or is not a highway today.

The determination as to whether something was a highway that existed on December 31, 2002 may be complex.  This issue typically deals with how a road which was once a private road but through the application of the doctrine of Dedication and Acceptance has become a municipal highway.  The doctrine has been explained as a mathematical formula.

          Dedication by Private Owner for Public Use + Acceptance by Municipality = Municipal Ownership[1]

The doctrine of Dedication and Acceptance has existed in Canadian jurisprudence and municipal legislation since the 1800s. There is a considerable amount of Canadian jurisprudence that considers and applies the doctrine to different roads for various reasons. The leading Canadian cases, however, have been and continue to be Reeds v. Town of Lincoln[2]and Scott et. al. v. City of North Bay[3]. The legislation first recognized this doctrine in the Municipal Act of 1913.[4]

The doctrine is still relevant where the facts, which give rise to the doctrine’s formula, occurred prior to January 1, 2003. The doctrine is less relevant and largely not applicable to fact situations after January 1, 2003.  The reason for this is that the Municipal Act has now made it necessary for a municipal by-law to be passed in order to establish a new highway. Section 31(2) of the current Municipal Act, 2001 sets this out as follows: 

31(2) By-law Necessary – after January 1, 2003 land may only become a highway by virtue of a by-law passed under section (1) and not by the activities of the Municipality or of any other person in relation to the land, including the spending of public money.

 31(3) – Certain Highway Not Affected – Subsection (2) does not apply to highways described in paragraph 3, 4 and 5 of section 26.

The doctrine is still relevant for the pre January 1, 2003 highway establishment. There continue to be relevant court cases which interpret and apply the doctrine of Dedication and Acceptance. The formula indicates that there must be dedication by the fee simple owner of the land. This dedication, however, can be implied from the owner’s conduct, (i.e. by allowing the public to use the road) or the owner’s lack of conduct (i.e. by not stopping the public from using the road). The acceptance by the municipality can also be implied from the municipality’s conduct. This includes maintaining the road, expending public money on the road, or by performing statute labour.[5]

The Ontario courts continue to be presented with situations in which to apply the doctrine. These are situations in which the facts constituting dedication and acceptance have occurred before January 1, 2003. One of the most recent decisions in which the court considered the doctrine was that of Clark v. North Kawartha (Township).[6] In this decision the Applicants requested, from the court, a declaration that the West Eels Lake Road had been dedicated, by the Ministry of Natural Resources (“MNR”) for public use. It also requested that the court find that the municipality had accepted the road by expending public funds on the road and passing by-laws dealing with the road as well as negotiating with the MNR to take over the road.

The court considered the doctrine of dedication and acceptance and determined that the road in question was a Forest Access Road and was governed by the Public Lands Act. Section 49 of the Public Lands Act[7] allows for public to pass over the lands in question. The court found that the MNR could not therefore dedicate, for public use, a road that was already subject to public use by the Public Lands Act. The first requirement of the doctrine’s formula (i.e. dedication) was not made out.

In addition, the recent case of 1394170 Ontario Ltd. v. Bracebridge (Town)[8]JR Mc Isaac J reaffirmed the principal that implied assumption by a Municipality will be difficult to assert unless there is clear and unequivocal  evidence that the Municipality intended to assume the road through expenditure of money and labour in a substantial and regular fashion.  This premise has changed very little since the earlier case of Reed. V. Town of Lincoln in 1975.[9]

 Highways – Established by By-law on or after January 1, 2003

Criteria number 2 deals with the creation of a highway after January 1, 2003. It must be determined that the highway was “established” by a by-law of the municipality before it will qualify as a highway. There is, however, no definition as to what “establish” means. There is no jurisprudence, to date, that considers what type of by-law passed by a municipality would “establish” the highway.

The Blacks Law Dictionary defines “establish” as follows:

This word occurs frequently in the Constitution of the United States, and it is there used in different meanings: (1) To settle firmly, to fix unalterably; as to establish justice, which is the avowed object of the Constitution, (2) To make or form; as to establish uniform laws governing naturalization or bankruptcy. (3) To found, to create, to regulate; as: “Congress shall have power to establish post-offices.: (4) To found, recognize, confirm, or admit; as: “Congress shall make no law respecting an establishment of religion.”(5) To create, to ratify, or confirm.

The Merriam-Webster Dictionary defines establish as follows:

  1. to institute (as a law) permanently by enactment or agreement
  2. obsolete : SETTLE 7
  3. a : to make firm or stable b : to introduce and cause to grow and multiply <establish grass on pasturelands>
  4. a : to bring into existence : FOUND <established a republic> b : BRING ABOUT, EFFECT <established friendly relations>
  5. a : to put on a firm basis : SET UP <establish his son in business> b : to put into a favorable position c : to gain full recognition or acceptance of <the role established her as a star>
  6. to make (a church) a national or state institution
  7. to put beyond doubt : PROVE <established my innocence>

These dictionary definitions suggest that there can be a broad interpretation as to what the term “establish” means. It is possible that mere recognition of a roadway in a municipal by-law could be enough to “establish” the highway.

It must be noted, however, that the legislature could not have intended for it to mean the same as “assume”. This is because, as noted in section 31(4) of the Municipal Act, “assuming” by by-law is something that a municipality does to a road that is already a “highway” but for which the municipality doesn’t yet have maintenance responsibilities.

Therefore, when examining road issues there are times when you will be required to conduct research prior to January 1, 2003 to ascertain whether a road is a municipal highway, or not.  The answer lies in research with the municipality and adjoining owners as to whether the municipality expended funds on the road, maintained it, and treated it as a municipal road.

There has been much discussion over the difference between the words “establish”, “assume” and “accept” in relation to roads.  Section 31(2) uses the word “establish” which is generally taken to mean that a parcel of land is now owned through a registered transfer of title to the Municipality, and work has been completed on it to create a road. 

Section 31(4) and (5) however use the word assume and state:

31(4)    “A municipality may by by-law assume the following highways for public use and section 44 does not apply to the highways until the municipality has passed the by-law:

1.    An unopened road allowance made by the Crown surveyors.

2.    A road allowance, highway, street or lane shown on a registered plan of subdivision.

31(5)    Other Exclusions – Section 44 does not apply to a highway laid out or built by any person before January 1, 2003 unless it was assumed for public use by a Municipality or it has been established by by-law.

The intention of section 31(4) is to make it clear when a Municipality is liable for a highway.  It appears to only invoke liability if the road was assumed by a by-law. 

Assumption is typically taken to mean that the Municipality is liable for maintenance and for all liability issues for the road and therefore a Municipality would not typically pass a by-law to assume a road unless it had been brought up to full municipal standards and it was being fully maintained by the Municipality.  The current view is that the road must be established by the Municipality by by-law under Section 26(2) and then if they wish to bring it fully within their road system as a fully constructed and maintained road they would pass a by-law to assume it under section 31(4).  In that case section 44 would apply and specifically sections 44 (1) and (2) which state as follows:

44(1)    Maintenance – The Municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

44(2)    Liability – A Municipality that defaults in complying with subsection (1) is subject, to the Negligence Act, liable for all damages any persons has sustained because of the default.

A road/highway may become “established” as a highway without the need for a by-law to establish it if it was established before January 1, 2003.  In many cases due to the expenditure of public money on a road, it was deemed to be “opened” or assumed, however no by-law was passed.

An example of this would be where the Municipality was acquiring land from a private individual to extend a road.   It would then pass a by-law to establish the road and subsequently assume it by by-law once the road had been completely constructed.  If the road were already owned by the Municipality then there would be no need to pass a by-law to establish it, only to assume it, to bring it fully into the municipal road system.  There was much written in the past on “opening” roads, however there is no such wording in the Municipal Act  and therefore opening would typically be covered by assuming in the current wording of the Municipal Act.

New Plans of Subdivision

When new plans of subdivision are registered today, roads are dedicated on the face of the plan of subdivision referred to as an M-Plan by the Registry Office.  The roads are also named on the M-Plan.  For this reason no specific by-law is required to establish them as roads, however, in most cases Municipalities pass an overall by-law authorizing entering into a Subdivision Agreement which arguably authorizes the establishment of the roads as well.  Technically the roads have not been assumed by the Municipality for liability and maintenance purposes until a by-law has been passed specifically assuming them.  In many situations, the Municipalities do not pass by-laws for new roads on plans of subdivisions as they feel that they are not required.  In some cases municipalities will pass one by-law at the end of each year assuming all new roads on new plans of subdivisions in that Municipality.  In the past these by-laws were often registered on title.   Today there is no requirement to register them and typically they are not registered on title, therefore if you wish to ensure that such an assumption by-law has been passed you would have to make enquiries with a specific Municipality.

2.                 Closing and Conveying Roads

The sections of the Municipal Act dealing with closing and conveying of roads have changed significantly in the last 20 years.  Originally there were many restrictions on how roads could be closed and more recently section 268 of the Municipal Act, 2001, S.O. 2001, c.25, set out vary specific criteria for municipalities disposition of real property.   Recently most of the sections were removed and the current provisions of the Municipal Act give Municipalities much greater discretion in how they wish to deal with this matter.  The current Municipal Act sets out very few specifics in this regard.  Section 270 of the Municipal Act currently reads as follows:

Section 270 (1) – A municipality shall adopt and maintain policies with respect to the following matters:

  1. Its sale and other disposition of land.
  2. Its hiring of employees.
  3. Its procurement of goods and services.
  4. The circumstances in which the municipality shall provide notice to the public and, if notice is to be provided, the form, manner and times notice shall be given.
  5. The manner in which the municipality will try to ensure that it is accountable to the public for its actions, and the manner in which the municipality will try to ensure that its actions are transparent to the public.
  6. The delegation of its powers and duties.

Since the previous Municipal Act required Municipalities to have a by-law dealing with the disposition of real property, most Municipalities had enacted one.  Many Municipalities have since amended their by-law to make it more specifically suited to their needs, and have taken out many of the former statutory requirements.  As long as Municipalities deal in good faith such a by-law can be tailored very specifically to their own needs.  An example that I was involved in was where there was an urgent need to deal with a road disposition, and all of the procedures which were in a Municipalities former disposition by-law could not be followed, as there was insufficient time.  The Municipality enacted a new by-law which allowed them to use their discretion to provide shortened notice periods for the road closing.  This occurred when in the Municipality’s opinion, no prejudice was being caused to anyone by shortening these time frames, however, prejudice would be caused to the Municipality if the road closing transaction could not close in a timely fashion.

The specific section dealing with closing roads is section 34 which now requires the Municipality only to contact the Crown in certain situations but no other parties need be contacted for road closings.  In addition, in the past whenever a road was closed and then proposed to be sold it had to be offered equally to any adjoining land owners along the portion of the road allowance being closed.  This is no longer the case.  The Municipality can now sell it to any party in any quantity.  They must bear in mind any prejudice this would cause, but they are not obligated to split it in half and sell it to each adjoining land owner.   This change has made life much simpler for Municipalities as this requirement often posed significant difficulties for them.

Such a by-law must be registered in the relevant Registry Office for the road closing to be effective.  This is one of the few road by-laws that continue to need to be registered in the Registry Office.  In the past a significant number of road by-laws were registered.  Under the former Municipal Act a Certificate of Compliance was prepared by the Municipality and registered on Title along with their Transfer for both roads and other municipal lands being sold, which was clear authority to a purchaser’s solicitor that the Municipality had followed all the proper procedures when selling a road.  This is no longer a requirement of the Municipal Act.  For this reason few Municipalities are still registering a Certificate of Compliance, so it is therefore now up to the purchaser’s solicitor to determine that they are obtaining good title and that the appropriate by-laws have been passed.  In the case of acquiring a closed road, typically registration of a road closing by-law is deemed to be sufficient to satisfy the purchaser’s solicitor.

Section 268 (3)(a) formerly stated the following:  Conditions – Before selling any land, every Municipality and local board shall, (a) by by-law resolution declare the land to be surplus.  This wording is no longer in the current Municipal Act however almost all Municipalities still incorporate this practice of first declaring land surplus before authorizing a road to be closed and sold.

For this reason typically the road would be declared surplus by by-law, and in the same by-law authorize it to be closed and then conveyed.  In the past the words “stopped up and closed” were typically used when referring to road closings.  There is no reference to “stopped up” in the Municipal Act and therefore it is now called a road closing.  Attached is a sample by-law declaring land surplus, closing the road and authorizing the sale of it.

Prior to January 1, 2007, sections 37 and 38 of the Municipal Act, 2001 dealt with closing of private roads which connected with an opened Municipal Highway.  These sections have now been completely deleted, however Municipalities would still have jurisdiction over restricting access to Municipal Highways and therefore can still deal with all of these same matters. 

There has been significant discussion in the past on the process of closing assumed roads versus un-assumed roads.  In the past there were two (2) separate processes required.  One was under the Municipal Act and one was under the Registry Act. 

The past practice was that only certain types of roads were closed pursuant to the Municipal Act.  This included all roads that had been dedicated in one of the accepted methods and assumed by a Municipality through a by-law or through the expenditure of funds, and also included all unopened/unassumed Original Road Allowances which were still in the ownership of the Municipality.  If the road to be closed was located on a registered plan of subdivision which had not yet been assumed by the Municipality, although it might have been dedicated to the Municipality, the process was to close the road under the Registry Act.

In some Municipalities the practice was to assume the unopened road on the registered plan of subdivision, and then immediately pass a by-law closing it under the Municipal Act.  If someone wished to challenge the validity of the assumption by-law, they might be successful, as arguably it was passed only for the purpose of utilizing the Municipal Actfor closing it, and the road was never intended to become an open municipal road.  In most situations where this occurred, no one was likely to challenge the road closing as the process was undertaken on agreement by all parites to expedite matters.

With the changes in the Municipal Act it can be argued that there is no longer any distinction and all road closings can occur under the Municipal Act.  The Municipal Actdoes not categorically state this and to date I am not aware of any cases that have decided on the validity of closing an unopened unassumed road on a registered plan of subdivision under the Municipal Act, however Municipalities are likely to utilize this process until a successful challenge is made through the courts.

 3.                 Cottage Road Issues

There are two road issues that are fairly specific to cottage country, however they also apply to other rural parts of Ontario.  These issues are the Original 66 Foot Shore Road Allowances and access to cottages over roads other than open, assumed year round municipal roads/highways.

Original Shore Road Allowances

In many parts of Northern Ontario the Crown created a 66 foot Shore Road Allowance (“SRA”) around lakes and rivers.  The reason for the creation of the SRA was said to be to allow ships and their occupants to be able to anchor where needed and cut trees as necessary to repair their ships, or to allow ship wrecked sailors to gain access to the shore at any point.  In addition, many of the lakes and rivers where used for logging and floating logs to mills.  Many of the logs grounded on shore and this allowed the loggers to go on shore wherever necessary to retrieve their logs so that they did not become the property of the waterfront owners.  In most cases, roads were never created on the land.  All they were were lines drawn on surveys.  Typically the line was drawn 66 feet back from the original high water mark.  There has been much written on exact location of the original high water mark, since there are various approaches that can be taken in determining it’s exact location.  This is primarily a surveying issue that may also require the input of a lawyer. 

Today the SRA is largely an anachronism.  For this reason, the Crown has downloaded them to local Municipalities, in almost all situations.  Most local Municipalities are willing to close them and sell them to the adjoining land owners for a fee.  In many cases cottages have been built on the SRA as this was the closest area to the lake and often the nicest area.   Recently as more stringent by-laws with greater set backs have been enacted, fewer cottages were built on the SRA.  It can easily be determined whether or not there is a SRA affecting a specific property through due diligence searches at the local Registry Office.  You cannot automatically assume that because one cottage on a lake has a SRA that every cottage on the lake has one.  If there is a SRA and an adjacent owner wishes to purchase it, most Municipalities have set procedures and fees in place for this.  Typically if a portion of the SRA is now under water, that portion would not be closed and conveyed to the adjoining land owner, only the portion that is still above water.  This can create some boundary issues when new surveys are being prepared.  In some cases Municipalities will only sell a building envelope if the actual buildings are located on the SRA.  It is preferable to purchase the entire SRA if at all possible, regardless of the cost, as it is the most valuable portion of the property.  Surveys are critical in determining what if any buildings are located the SRA.

SRA have been the subject of very few recent court decisions. Those that do deal with the SRA do little to change any existing common law principles.

1261053 Ontario Inc. v. 1510846 Ontario Inc.[10] is a 2009 decision from the Ontario Superior Court. This case dealt with a mortgagee being entitled to the original shore road allowance that was sold by the township to the mortgagor subsequent to the mortgage transaction. The plaintiffs were the mortgagee’s for the defendant/mortgagor. The plaintiffs provided over $400,000 dollars for the defendant to purchase land along the Deer Lake in Parry Sound. The defendant built cabins on the land and rented them out to vacationers. There existed, between the land and the water, a shore road allowance. Subsequent to the purchase of the land and the signing of the mortgage documents, the defendants applied for the shore road allowance to be sold to them. The application was successful and the shore road allowance was sold by the Ministry of Natural Resources to the defendants for $1,000. The defendants eventually defaulted in the mortgage. The mortgagee claimed that the shore road allowance should be incorporated into the land that was the subject of the mortgage and also subject to the default rights.

The court found that notice of the defendant’s original application to the MNR should have been provided to the mortgagee as the adjacent land owner. This is pursuant to the Public Lands Act. The court found that if that notice requirement had been complied with, the mortgagee would have taken steps to ensure that the shore road allowance was transferred to itself. This would have been justified and would have been done at that time. The court found that the shore road allowance should therefore be correctly put in the name of the mortgagee. The mortgagee was required to reimburse the defendant for the $1,000 that was paid to the MNR.

In 2007, Justice DiTomaso of the Barrie Superior Court was asked to make a very fact driven ruling on the ownership of a shore road allowance.[11] This very lengthy decision dealt with six main issues. The issues dealing with the shore road allowance was original ownership (which the judge found was always the municipality’s) and subsequent ownership (which the applicants argued was theirs as a result of the “road in lieu” provisions). The applicants claimed that since a road was opened in lieu of the original shore road allowance, that section 316 of the 1990 Municipal Act entitled them to ownership of the remaining unused shore road allowance. The judge determined on the facts that there was no evidence that the road, the one that was claimed to be opened in lieu of the shore road allowance, was actually opened in lieu of the shore road allowance. The landowners could not, therefore, make use of section 316 of that Act.

In 2004, the Superior Court was presented with several propositions regarding a shore road allowance. The Applicant, in Uukkivi v. Lake of Bays (Township), was an owner of land abutting a shore road allowance.[12] The Applicant built a structure on the shore road allowance that was intended to be a sauna, boat house and storage facility. The Applicant did not apply for any permits for the project. The township passed a by-law that required the landowner to remove the structure because it was on municipal property and also because it did not meet the Building Code requirements or the municipal zoning by-law requirements. The Applicant requested the court to order that the by-law, which would force the Applicant to remove the structure, was void. The court did not.

The Applicant, in the alternative, requested the court to order that the municipality was forced to sell the parcel of the shore road allowance to the Applicant. This proposition was based on the wording of the town’s Official Plan. The court did not. The Applicant also asked the court to find that the municipality was acting in bad faith because there were other property owners who had also built structures on the shore road allowance who were not being ordered to remove the structures. The court found that it was the municipality’s discretion to determine which structures were “offending” and which were not. It was also the municipality’s discretion to determine which policies it would enforce and when, especially because it was the municipality’s resources that would be expended to enforce those policies. The by-law which would force him to remove the structure remained in effect.

­Cottage Access Issues

The following are the main means of road access to a cottage:

  1. Access by a year round municipally maintained road;
  2. Access seasonal municipally maintained road;
  3. Access by an unmaintained, unopened municipal road allowance;
  4. Access through a forest road maintained by a municipality either seasonal or year round;
  5. Access over Crown Land;
  6. Access registered deeded easements or rights of way over private land or municipal land;
  7. Access by non maintained roads on a registered plan of subdivision;
  8. Access over private land without any registered right of way or registered easement by written  agreement or without written agreement

 This most common issue arising from these types of access, is access over private land where there is no registered right of way or registered easement.  This is typically referred to as a prescriptive right or a prescriptive easement for access.

 Prescriptive Easement/Right

There are four elements that must be proven in order for a prescriptive easement/right to be asserted. These four criteria were outlined in Ellenborough Park, Reby the English Court of Appeal[13] and have not been altered to date. They are:

  1. There must be separate lands benefitted and separate lands served by the easement.
  2. The right that is claimed by the lands which are benefitted by such an easement must be connected to the enjoyment of the lands benefitted,
  3. The lands benefitted by the easement and the lands serving the easement must be owned by different persons.
  4. The easement being claimed must be capable of forming a grant of Easement by the Courts. I.e. described for land registry purposes, cannot be too vague.

These four criteria were approved by the Ontario Court of Appeal in Hodkin v. Bigley[14]

Section 31 and 32 of the Real Property Limitations Act sets the 20 year period. This section reads:

31.  No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

32.  Each of the respective periods of years mentioned in sections 30 and 31 shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.

The interaction between the common law requirements, as found in Ellenborough, with the statute requirements, as found in the Real Property Limitations Act, have been most recently discussed by the Ontario Court of Appeal in the decision of Kaminskas v. Storm.[15]

In this decision the Court of Appeal reviews the three means by which one could assert a prescriptive easement/right. The three means are (1) prescription at common law, (2) prescription by the doctrine of lost grant, or (3) prescription by statute (i.e. the Real Property Limitations Act).[16] The court notes that the first, prescription at common law, is no longer relevant. This is because it requires proof of the use since time immemorial and there is no legal memory, in Canada, on which to found it.[17]

Prescription by the doctrine of lost grant is considered to be “still alive”. The court states:

Under the doctrine of lost modern grant, the courts will presume that there must have been a grant made sometime, but that the grant had been lost. Uninterrupted user as of right at any point in time will create the prescriptive right under this doctrine, provided it was for at least 20 years.[18]

The Court then quotes the following from the decision of Henderson v. Volk[19]

The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfil the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made.

It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action.

As well, the enjoyment must not be permissive. That is to say, it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established.

The Court of Appeal notes that this doctrine of lost grant had its problems. One of these problems was said to be the requirement of asking a jury to believe that at one point in history a grant had actually existed, even though they didn’t believe it had. The Court of Appeal states that this is likely the reason the English Prescription Act was enacted. It was designed to deal with this issue. The Court states that the Real Property Limitations Act is an echo of that same language.[20]

The court goes on to explain that the statutory sections do not displace the right to argue under the doctrine of lost grant.[21] For either kind of prescription, however, the original four criteria must be met. In this decision the court refers to them as follows:

a)            there must be a dominant and servient tenement;

b)            an easement must accommodate the dominant tenement;

c)            the dominant and servient owners must be different persons; and

d)            a right must be capable of forming the subject matter of a grant.[22]

In addition, for an easement to be created by prescription, the user of the alleged right (for the applicable time period) must be shown to have been (i) continuous, and (ii) “as of right”.[23] User “as of right” means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time.[24]

The court then explains the differences between prescription under the doctrine of lost grant and prescription under the statute. The prescription under the statute requires a 20-40 year period “next before” the commencement of the action or claim.[25] The doctrine, however, requires the period to be any 20 year period. There is no emphasis on the 20 years directly before the commencement of the action or claim.

The second difference is with regard to permission. A prescription by statute can only be defeated by permission if the permission was in writing.[26] The doctrine allows for permission or consent to be written or oral. In addition the 40 year concept is unique to the statutory prescriptive right. It has no bearing on the doctrine of lost grant.[27]

If the land is registered within the Land Titles System there is no longer any possibility of asserting a successful claim for a prescriptive easement/right.  This is the case in much of Northern Ontario and for this reason many cottage owners only access is legally at the will of a private land owner, over whose land the private road may cross.  This is always subject of course to the Road Access Act, which may prohibit the private land owner from restricting the right to cross his land to access other cottages if this is the only possible road access.  There have been numerous cases dealing with this issue and each decision relies heavily on the specific fact situation affecting that parcel of land.  When access is allowed pursuant to the Road Access Actthe right is less than an easement but still allows access over the land.

If the land was formerly in the Land Registry System a prescriptive easement/right could be asserted if it could be successfully proven that the right existed for twenty (20) years before the land was placed into the Land Titles System.

It is technically and legally possible to obtain a prescriptive easement/right against a Municipality over a road that has not been opened or assumed by a Municipality, however it is extremely difficult to prove.  Sometime ago a law was enacted to the effect that as of the 13th day of June, 1922 adverse possession and prescriptive right were no longer possible over a public highway.  If it could be proven that you had possession or prescriptive right prior to June 13, 1922 and in the case of a prescriptive rights for an additional twenty (20) years prior to that date, then assuming you could prove that the Municipality owned the road during the prior twenty (20) years, you may have a claim for a prescriptive easement/right.

In addition, adverse possession or prescriptive easement/rights are possible against Crown Land and Crown Roads.  They require proof of a sixty (60) year period of use and therefore you must have satisfactory evidence going back over sixty (60) years to be successful.  Such situations are rarely successfully proven.  In addition, if the prescriptive easements/right has been seasonally used only, then it is possible that there is a valid prescriptive easement/right for seasonal use, but that does not entitle the owner to expand it to year round use if they wish to expand the use of their cottage to a year around home.  There have been a number of cases dealing with this and generally the law of easements states that one cannot expand the grant of easement beyond what it was originally intended for, regardless of the expanded uses of the holder of the easement or prescriptive right. 

 

[1] Clark v. North Kawartha (Township) [2009] O.J. No.3309 at para 32. See also, W.D. (Rusty), Russell Q.C. Russell on Roads 2ndEdition (2008) Thomson Carswell at page 79. 

[2] (1975) 6 O.R. (2d) 391

[3] (1977) 18 O.R. 2d 365.

[4] W.D. (Rusty), Russell Q.C. Russell on Roads 2ndEdition (2008) Thomson Carswell at page 83. 

[5] Ibid. at page 79.

[6] [2009] O.J. No.3309

[7] R.S.O. 1990, c. P.43

[8] [2009] O.J. 4971

[9] Ibid

[10] [2009] O.J. No. 185.

[11] Collingham v. Algonquin Highlands (Township) [2007] O.J. No. 209

[12] [2004] O.J. No. 4479.

[13] [1955] 3 W.L.R. 91.

[14] [1998] O.J. No. 4844 (C.A.),

[15] [2009] O.J. No. 1547, 2009 ONCA 318.

[16] Ibid. at para 20.

[17] Ibid. at para 21.

[18] Ibid. at para 22.

[19] (1982), 35 O.R. (2d) 379 (C.A.), at p. 382

[20] Supra note 15 at para 24

[21] Ibid. at para 26.

[22] Ibid. at para 27.

[23] Ibid. at para 28.

[24] Ibid. at para 30.

[25] Ibid. at para 31.

[26] Ibid. at para 34.

[27] Ibid. at para 36

APPENDIX A

 LIST OF CASES

1261053 Ontario Inc. v. 1510846 Ontario Inc.[2009] O.J. No. 185, 79 R.P.R. (4th) 315, 2009 Carswell Ont 222.

1394170 Ontario Ltd. v. Bracebridge (Town) [2009] O.J. No. 4971.

Clark v. North Kawartha (Township) [2009] O.J. No. 3306.

Kaminska v. Storm[2009] O.J. No. 1547, 2009 ONCA 318, 310 D.L.R. (4th) 549, 78 R.P.R. (4th) 40, 2009 Carswell Ont 2035, 248 O.A.C. 297, 95 O.R. (3d) 387.

Reed v. Town of Lincoln (1975), 6 O.R. (2d) 391.

Scott et al. v. City of North Bay 18 O.R. (2d) 365

Uukkivi v. Lake of Bays (Township) [2004] O.J. No. 4479, [2004] O.T.C. 970, 2 M.P.L.R. (4th) 240, 134 A.C.W.S. (3d) 909.

 

APPENDIX B

                             THE CORPORATION OF THE COUNTY OF SNOW

                                                          BY-LAW NO.  ______-

A By-law to declare surplus, close and sell Part of the Original Shore Road Allowance between Lots 15 and 16, Concession 6, Geographic Township of Ontario, now Township of Ontario North, County of Snow, designated as Part 1 on Plan 99R-12345, being all of PIN 12345-0002 (LT)

WHEREAS Part of the Original Road Allowance between Lots 15 and 16, Concession 6, in the Geographic Township of Ontario, now Township of Ontario North, County of  Snow, (“Subject Property”) was laid out as an Original Road Allowance by the Crown.

AND WHEREAS The Corporation of the County of Snow has determined that the Subject Property was a Municipal Road by virtue of being an Original Road Allowance laid out by the Crown.

AND WHEREAS the Subject Property was assumed by by-law 1990-01 as a Municipal Highway.

 AND WHEREAS the Subject Property is no longer required by the Corporation of the County of Snow for Municipal Purposes;

AND WHEREAS the Corporation of County of Snow determined that the Subject Property is not required for Municipal Purposes and declares the Subject Property to be surplus pursuant to Procedural By-law 9999 enacted on January 1, 2008;

AND WHEREAS Section 34 of the Municipal Act, S.O. 2001, c. 25, authorizes the Municipality to permanently close a part of a highway.

AND WHEREAS Sections 9 and 270(1) of the Municipal Act, S.O. 2001, c. 25, authorizes the Municipality to sell or dispose of municipal property including closed highways.

AND WHEREAS The Corporation of the County of Snow deems it necessary and expedient to declare surplus, close and sell the Subject Property.

NOW THEREFORE the Council of The Corporation of the County of Snow hereby enacts as follows:

  1. This Council does hereby declare surplus and close Part of the Original Road Allowance between Lots 15 and 16, Concession 6, in the Geographic Township of Ontario, now Township of Ontario North, County of Snow, designated as Part 1 on Plan 99R-12345, being all of PIN 12345-0002 (LT).
  2. This Council does hereby authorize the sale of Part of the Original Road Allowance between Lots 15 and 16, Concession 6, in the Geographic Township of Ontario, now Township of Ontario North, County of Snow, designated as Part 1 on Plan 99R-12345, being all of PIN 12345-0002 (LT) to John Smith for a purchase price of $2.00 with each party being responsible for their own legal costs;
  3. This Council does hereby authorize the Warden and Clerk to take all necessary action to carry out the provisions of this by-law including the execution of any documentation in connection with the closing and sale of the Subject Property.
  4. This Council does hereby authorize that there shall be attached to this by-law as Schedule “C” the affidavit of John Doe, Clerk, setting out the procedures taken for giving notice to the public of its intention to pass this by-law.
  5. This by-law shall come into force and effect on and from the date it is finally passed by Council of the Corporation of the County of Snow and registered on title.

 READ a first and second time this 1st day of January, 2010.

 READ a third time and finally passed this 18th day of January, 2010.

                                                                         _________________________________

                                                                        Mary Jones, Warden

                                                                        _________________________________

                                                                        John Doe, Clerk

           

                                                               SCHEDULE “C”

                                           THE CORPORATION OF THE COUNTY OF SNOW

PROVINCE OF ONTARIO           IN THE MATTER OF Part of the Original Road Allowance between Lots 15 and 16, Concession 6, in the Geographic Township of Ontario, now Township of Ontario North, County of Snow, designated as Part 1 on Plan 99R-12345, being all of PIN 12345-0002 (LT)

 I, John Doe, Clerk of The Corporation of the County of Snow, do solemnly declare as follows:

  1. That I am the Clerk of The Corporation of the County of Snow and as such have knowledge of the matters herein deposed to.
  2. That pursuant to S.34 of the Municipal Act, S.O., 2001, c.25, and The Corporation of the County of Snow’s Procedural By-law 9999, I did cause public notice to be given in the following method:                          Posting on the County of Snow Website one time, being on January 5, 2010.
  3. Attached to this my affidavit and marked as Exhibit “A” is a copy of the said Notice as it appeared on the Website on the 5th day of January, 2010.
  4. That the proposed by-law came before Council of The Corporation of the County of Snow for consideration at a meeting on the 1st day of January, 2010, and no objections were received.

SWORN before me at the               )

of                                                         )

in the County of Snow                        )           ________________________________                                           

this        day of                    , 2010.      )           John Doe

A commissioner, etc.

THIS IS EXHIBIT “A”

REFERRED TO IN THE AFFIDAVIT

OF JOHN DOE

Sworn before me the ____

day of _________, 2010

A Commissioner, etc.

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