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Friday, March 31, 2017

Road Access Act saves landlocked neighbour from conviction on trespassing charge

Landowner W was charged with trespass, a provincial offence under the Trespass to Property Act, after he used a road he had constructed through a neighbour's property to reach his own landlocked property.  In her decision acquitting W of the charge, Justice of the Peace MacKinnon described the properties involved as follows:
This case involves three parcels of land, two of which front on Highway 609. Highway 609 is a two lane secondary highway in a rural area of Northwestern Ontario and runs in an east-west configuration.
On the south side of Highway 609 there is a parcel of land belonging to [M]. The west side of the [M] property fronts on the Wabigoon River. To the east of the [M] property is property belonging to [B] which is the North part of Lot 5, Concession 5. Its north boundary is Hwy 609, and its south boundary is on the north side of the defendant’s ([W]’s) property.
The defendant’s property is to the south of both the [M] and [B] properties. Its western boundary includes grasslands and the shore of the Wabigoon River. North is the [B] property and east is another property.
It is not disputed that the defendant purchased his lot as a landlocked property. He arranged for an easement over the [M] property from Highway 609, and received authority from the province for an entrance from the highway. He built a road south from Highway 609 through the [M] property but eventually turned southeast onto the [B] property and crossed it to his lot. [emphasis added]
A dispute arose surrounding the portion of this road on the [B] property.
At trial, W admitted that he had purchased his landlocked property as having water access only; it was his intention to purchase access from his neighbours (which he did from neighbour M, but not neighbour B).

The fact that W had constructed a road in part on lands owned by B and the fact that W had used that road were not in dispute.  What was at issue in the trial was whether W had a right or authority conferred by law which allowed W to go on the road through B's property.

Justice of the Peace MacKinnon examined whether W had a right or authority based upon the Road Access Act.  She noted:
The Act sets out strict prohibitions against landowners taking matters into their own hands and blocking or obstructing access roads, and requires an application to a Superior Court judge for an order closing the road. Landowners may only block a road when there is an alternate route for the landlocked owner to access their land. Such alternate routes must be in existence contemporaneously. A charge against a landowner who violates the Act, is a provincial offences matter with fines of up to $5,000 (s.61 POA).
MacKinnon, J.P. then found that W's road through B's property was a "road" for the purposes of the Road Access Act, meaning that W had a legal authority to use the road at the time for which he was accused of having trespassed.  The road was not owned by a municipality or dedicated as a public highway.  The road served as an access to landlocked property.  W had a "limited and temporary statutory right to use the road".  In fact, MacKinnon J.P.'s decision says that until such time as a closing order is obtained by B from the Superior Court as required by the Road Access Act, W would not be a trespasser on the road.

On top of the prosecution for trespass, W also faced (or faces) a civil claim from B related to the road through B's property.  It would be interesting to know how the decision to dismiss the trespass charge will affect the civil proceeding.  Was it correct to find that W could establish a right to trespass on B's property by building his own road, even after he had asked for and was denied permission to do so? The Road Access Act may protect use of existing roads, but does it effectively empower a landlocked landowner to use a new road as long as that landowner can manage to get the road built on the neighbour's lands?  And will the court hearing the civil claim be bound by the ruling made by the Justice of the Peace in the trespass case, even if it is incorrect?

Read the decision at: R. v. Weber.