RESTRICTING THE PUBLIC USE OF PUBLIC ROADS
PAPER DELIVERED TO THE ANNUAL INSTITUTE OF THE ONTARIO BAR ASSOCIATION, FEBRUARY 16TH, 2010
MARSHALL GREEN - Partner
ELLEN BROHM -Student-At-Law
There is perhaps no more ensconced right in the municipal branch of our common law than the right of the public to have uncontrolled use of roads under public ownership. The battles, both legal and sometimes physical, over the right to use shore road allowances are only one manifestation of the deeply-held feelings that people exhibit over this right. Referred to generally as the common law right of passage, the principle goes as far back as when roads were laid out in this Province, and earlier.
WHEN DOES A MUNICIPAL ROAD BECOME A “PUBLIC HIGHWAY”?
What is in fact a public highway over which to exercise the right of public passage include:
- All those roads laid out as original road allowances by the Crown
- Roads that have been dedicated by owners of land to a municipality, and which have been “accepted” by the municipality. Details of this second branch of the requirement are set out below
- Roads which are part of a registered plan of subdivision
- Other roads, which, before December 31st, 2003, have been “accepted” or “deemed accepted” by a municipality.
The last of these bullet points had been the subject of much controversy, confusion, and litigation prior to the amendments to the Municipal Act in 2001. Prior to the amendments, one could assert that extensive public use of a roadway, whether owned by the municipality or not, or the expenditure of public monies on a roadway or trail, imbued that strip of land with the character of a public road. The writer also suffered an interesting case in point, facing the owner of a parcel that was literally buried in a forest, but fronting a seemingly unopened road allowance. The rather inventive owner of this land, barred from a building permit for “not fronting on an open public road” researched the County archives to discover that for five years in the late 1800s, an owner with frontage on that road had provided statute labour on the road. The issue was settled with the Township and owner splitting the cost of upgrading the road to his property line.
My partner, Paul Rabinovitch has, in his paper dealt with this issue in very much more detail. For my purposes, I will just conclude (perhaps too simplistically) that the amendments made to the Municipal Act as of 2001 ended any uncertainty as to when a road becomes a public road. By section 31(2) of that Act:
After January 1, 2003, land may only become a highway by virtue of a by-law establishing the highway and not by the activities of the municipality or any other person in relation to the land, including the spending of public money.
In general, then, for roads that are either not established as public roads, or that, if public, are not open, as of December 31st 2002, there must be a bylaw passed by the municipality, confirming the municipal intent to designate the road as public, establishing the right of public or common passage, and, as we set out next, assuming liability for passage on the road.
Once established, the common law right of passage is quite immutable. As far back as 1943, Justice Hope, in Big Point Club v. Lozon et al. [1943] O.J. no. 469, (H.C.J.) citing with approval an earlier City of Toronto case, stated:
Ownership of highways is held by municipalities in trust for all such of the King’s subjects as have occasion to make use of them for purposes of communication or for other lawful purpose, or in order to gain access to or egress from adjacent lands.
Justice Hope, in referring to the earlier case of Code v. Jones (1923), 54 O.L.R. 189 (S.C. – Appellate Div.) went on to add that the municipality further did not have the right to do anything or allow anything to be done that would negatively impact the common law right of passage.
WHAT IS THE EFFECT OF A ROAD BEING “PUBLIC” VIS A VIS THE MUNICIPALITY?
Several provisions of the prior (R.S.O. 1990) Municipal Act (see former sections 284, 287 and 289) have been crystallized in section 44 of the new Act to make clear the liability of municipalities for roadways that are either established by statute or common law prior to January 1st, 2003, or by bylaw on or after that date to be “public”. Subject to specific defences set out in section 44, that provision states:
44. (1) 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.
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Roads that are owned by a municipality, are under their “jurisdiction”. Once under the municipality’s “jurisdiction”, a municipality is liable for a roadway, and must keep it in a reasonable state of repair, as set out in s. 44(1). The “character”, then becomes a key element in determining liability, and the degree of the “public nature” of the highway is an important factor in determining a road’s character.
It is important to note that with respect to roads that are in fact “open” the province has now, by regulation, set minimum standards for highways. By following these minimum standards, a municipality, pursuant to section 44(3) of the Act, escapes liability for non or negligent repair. By the converse, to fail to meet these standards for a particular road, the municipality will more or less be deemed to have been negligent. To quote from Rogers on Canadian Municipal Corporations,
The courts have frequently stated that “repair” is a question of fact. It is local and relative because what may be good repair in one locality may amount to non-repair in another. The extent of the duty therefore depends on conditions and surrounding circumstances. They have taken into consideration many factors such as the requirements of the local traffic, the means at the command of the council, the ordinary purposes for which the road is used and varying conditions likely to arise. A municipality is entitled to decide to what degree it will maintain the gravel roads with its jurisdiction.”
It is for these reasons that municipalities have been, and still largely are, reluctant to formally open roads, or to offer ratepayers any services on or along a road that has not been opened by bylaw or at least by one of the pre-January 1st 2003 tests. The use of these roads even as bike paths, snowmobile or other recreational trails, all begs the question as to the “character” of the roadway, and then can lead to questions of liability for maintaining that “character”. This forms the basis for official plan policies that prevent new lot creation where the property does not front on a “municipal road maintained to municipal standards year round”. It also is one of the reasons why municipalities are so strict about providing any services on otherwise unopened road allowances that cottagers use to access their lakeside properties. In the County of Simcoe, we have devised a special agreement that must be signed by all property owners on an otherwise unopened roadway before the County will enter upon it to collect garbage. In the past, this helped assure that the road did not, by public use, become a municipal road. Presently, this assists in making sure that nothing is attributed in “character” to the road that will impart any liability to the municipality, even if it should not be brought up to the standard set out by the regulations made under section 44(3).
Perhaps the clearest statements related to the principle of the almost absolute liability of a municipality for roads that are open within its boundaries, is found in the Supreme Court decision of Vancouver (City) v. Burchill [1932] S.C.R. 620. In this case, the City of Vancouver argued that a taxi driver who had not renewed his licence, should not be allowed to hold the City liable in a case where he was injured as a result of a poorly maintained roadway. The City argued that his lack of a licence put him illegally on that road. In fact, that the Plaintiff in that case was owed no more duty than would be owed to a trespasser. The Court stated:
The appellant draws a distinction, in the premises, between the position of an ordinary defendant and that of a municipality. It points out that the municipality is the owner of the driveway and contends that the respondent’s husband, holding no permit and no licence, was unlawfully upon the street, that he was at all times material a trespasser and the appellant owed him no duty other than not to do or cause him malicious or wilful injury; in other words: that Burchill had to take the road as he found it.
We are unable to accede to the proposition which would, in that respect, assimilate the municipality to an ordinary land-owner or make a trespasser of the unlicensed chauffeur. Under statutes where the fee simple is vested in them, the municipalities are in a sense owners of the streets. They are not, however, owners in the full sense of the word, and certainly not to the extent that a proprietor owns his land. The land-owner enjoys the absolute right to exclude anyone and to do as he pleases upon his own property. It is idle to say that the municipally has no such rights upon its streets. It holds them as trustee for the public. The streets remain subject to the right of the public to “pass and repass”; and that character, of course, is of the very essence of a street. So that the municipality, in respect of its streets, does not stand in the same position as a land-owner with regard to his property.
COMING PART WAY – RESTRICTING THE COMMON LAW RIGHT OF PASSAGE:
There are many situations that call out for a particular, lesser, and different use of a particular roadway. Especially in more rural municipalities, otherwise public roadways that the municipality might not want either the cost or liability attached to a full right of common passage, might be perfectly suited as walking or cross-country ski trails. Thus the use of section 35 to give municipalities the strict legal authority, and the “liability comfort zone” to prescribe these for such uses, without running the risk of a higher use, for which they might be sued.
Attached to this paper is a sample bylaw from the Township of Springwater which prohibits vehicular traffic on certain roads set out in the schedule, but keeps those roadways available for non-motor vehicular uses.
I have also encountered bylaws where section 35 is quoted as authority for bylaws that limit parking, or that authorizing temporary closing of streets for particular events. It is the writer’s personal opinion that while there is no harm in quoting section 35 for those particular matters, this is likely not the purpose behind this section as envisioned by its drafters. Bylaws from the Township of Oro-Medonte and the City of Stratford accompany this paper.
What I wanted to mainly emphasize in my paper, though, is what I feel is the more creative use of section 35, and what I personally feel was the main purpose behind its introduction. Many situations call out for a compromise position. There are many situations where developments of particular kinds might benefit from a limited use of a public roadway, but fear of liability on the part of the municipality prevents this from occurring.
Attached to this paper are three examples based loosely on situations where a restricted right of common law passage was agreed to between parties. The situations that I describe come, roughly, from situations that are firm have been involved with. Two involve applications by aggregate operators, the concern being mainly the impact that haul routes have, both on surrounding residences, and on municipal transportation budgets. The third is an attempt to assist a landowner make use of an otherwise potentially landlocked vacant lot. The upside, of course, is the municipality gets increased assessment from the lot.
In my first example, Z, an aggregate producer, had a pit on the South side of County Road 3. Z was looking to develop a second pit on property it owned on the North side of Road 3 which ran east/west. It planned to take its product to its markets along Road 3 till it met Township Road 21, then north. The section of Road 3 between the pits and Township Road 21 was already busy with through traffic, and to add trucks to it would make an unsafe situation unless several millions of dollars was spent to improve sight lines, re-align etc.
Solution – close the portion of Road 3 that separates the two pits, and sell this to the quarry operator. Limit the right of common passage on that portion of Road 3 between the pits and Township Road 21 to allow only the 3 residential owners on that street, and the truck traffic from the quarry, their legitimate invitees, etc. to use this portion of road. With the money that the quarry operator saves on having to repair that portion of Road 3, and with the money it obtains from being able to mine the part of the road that gets closed, the operator can improve the surrounding Township roads which are better aligned, in order to make up for what might otherwise have been a restriction of through traffic.
As a second example, property owner A, many years ago purchased a lot that fronts onto an unopened roadway, but also connects to an opened road through two separate, but narrow easements – one crossing private property, one crossing property that was originally a CN rail line, now de-commissioned and part of a Township trail system. Subsequent to the purchase of the lot by A, the Township has established Official Plan policies that prevent the use of lots that don’t front on a public street, maintained year round. Quere whether this lot, which was created years before this policy, can be denied a building permit. Quere whether the Township may be required to give it some right of passage across a walking trail.
Solution – agree to open the as yet unopened right of way, but only for a limited right of passage to serve only the lot of Property Owner A. A agrees to upgrade the road only to the standard of a driveway. A obtains a contribution towards those costs from Owner B, who then gets the release of the easement running across his property. The Township gets A to release any rights it might have to cross the former rail line, now a walking trail.
And a third example: ABC Gravel Company owns and operates a quarry (Pit A) fronting on Road 1, which has been through a prior hearing and is a designated haul route. It now wishes to open Pit B on Road 2, which is a lower-than-standard Township road. The pits are separated and bordered on the north by the lands of a farmer whose lands front on Road 3, where this farmer has his entrance. The neighbours on Road 2 oppose the opening of Pit B if it means that dump trucks will be hauling stone down their road (and empty trucks returning) six days per week all construction season. The farmer is prepared to help (at a price from ABC) but is leery of a road through his property to connect these two pits if same is to be controlled, maintained, etc., by a company that may either disappear, or, once the pit is completed, simply ignore its responsibilities to rehabilitate.
Solution: The farmer sells a strip of land wide enough for a driveway at the south end of his property to ABC. The Township opens the road but limits the right of passage simply for the use of ABC Gravel Company. The Township gets appropriate securities to make sure that the road is kept up and then rehabilitated once the pit is depleted. The farmer has his security in knowing that the Township is ultimately liable. Depending on the nature of the agreement when the road is dedicated to the Township, the farmer could end up with a severance of his lands.
There are issues to be considered in each of these circumstances that are particular to each one. The ones that relate to quarries are routinely the subject of a comprehensive haul route agreement that covers a myriad of concerns, from ongoing repair, to the payment of royalties, etc. The situation with the private owner might also be the subject of, for instance, a “best efforts” agreement on the part of the Township to reclaim monies spent by the landowner if any other owner along the road might want to share this access. The municipality will want the appropriate releases, hold harmless clauses, insurance, and perhaps security.
In each case, of course, the agreement between landowner and municipality must be accompanied by an appropriate bylaw. A sample bylaw drawn by my partner on behalf of the Township of Essa is attached to this paper for your information. It is also very important, and a primary element of bylaw drafting, that the particular sections upon which one relies for authority should be quoted. It is worthy of note, that the sample bylaw involved a land in which the Crown was potentially interested, and thus section 34(2) of the Municipal Act had to be followed. My partner’s particular preference to cover as many bases as possible in these situations is also reflected in the detail with which he outlines the responsibilities of the municipality and the particular landowners. Some draftpersons prefer to put some of this detail in an agreement that is either a schedule to, or separate from the bylaw itself.
Section 35, being of relatively recent vintage, has yet to be fully explored by the various Boards and Courts. I was able to find glancing references to limiting the common law right of passage in two OMB decisions – Port Hope (Municipality) Official Plan Redesignate Lands Amendment, [2003] O.M.B.D. No. 1065, and Dawsco (Cyraro) Development Corp. v. King (Township) [2008] O.M.B.D. No. 711. Interestingly, in the latter decision, the Board, while recognizing its lack of jurisdiction to order a section 35 bylaw, points out how section 35 could be effectively used to create a fire access route for a particular development.
Lastly, and perhaps most interestingly, In our research we came across the is the case of KRP Enterprises Inc and 1643078 Ontario Inc. v. The Corporation of Haldimand County, et al. The case popped up in our search for cases under section 35 of the Municipal Act, but the reported decision only referred to it in passing. It was the case that involved the First Nations road blockade in Caledonia. With the assistance of the counsel for the developer applicant (who was on the losing side of the case on other grounds), we learned that he was preparing to argue that without a bylaw under section 35, the municipality had a positive duty to keep its roadways fully open to the public. Perhaps other creative arguments for the use of this section will develop in the future.
