In Search of Lost Roads

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Once a highway, always a highway?  According to Section 26 of the Municipal Act, 2001, all highways that existed on December 31, 2002 continue to be recognized as public highways unless they have been closed.  Historically, highways (not just “highways” in the sense of a major paved road but also sideroads and concession roads, gravel or paved) could be established in a number of ways, including by passage of a municipal by-law or by operation of the common law doctrine of “dedication and acceptance”.  After January 1, 2003, however, all highways must be established by by-law of a municipality. 

The doctrine of dedication and acceptance required that the owner of land on which a road was located formed the intention to dedicate the land to the public as a public road, that the intention was actually carried out by opening the road to the public, and that the road was accepted as such by the public.  Dedication could also occur by “usurpation and long enjoyment” with the dedication by the landowner being inferred from the use of the road by the public. 

While it might seem that establishment of roads by dedication and acceptance would have been an imprecise and uncertain practice (which it was) as compared with establishment of roads by municipal by-law, the fact that a municipal by-law was once passed doesn’t always translate into the continuing existence of a road.  Some roads that were established by by-law have disappeared.  Some roads were never actually created.  The circumstances surrounding the passing of the by-law and the plans for the road may be lost to history.  Roads can be lost to history.  Those seeking to prove the existence of a disputed road today often face a tall order. 

An application decided by the Superior Court provides a case in point.  The applicant landowner owned a parcel of land bisected by a river.  The north section of the property, lying north of the river, was effectively landlocked and accessible by water only.  However, the local municipality had passed a by-law in 1890 purporting to establish a public road through neighbouring property (also to the north of the river) that would provide land access to the landlocked parcel.  The landowner applied for a declaration that the 1890 by-law established a road that ought to be opened up (through the neighbours’ property) for public use today.

The neighbouring owners opposed the application, as did the municipality.  The neighbouring owners contended that there was no evidence of a road ever having existed on the ground through their property.  Land registry documentation did not disclose a road on the property.  Some of the area where the road was supposed to have existed was now under water or part of environmentally sensitive wetlands.  An aerial photograph of the area from 1926 provided no evidence of a road.

The municipality said the highway described in the 1890 by-law was never built; the municipality never succeeded in acquiring all of the land necessary for the road. 

The applicant landowner took the position that the passing of the 1890 by-law, and its registration in the Land Registry, was sufficient to create a valid “highway” that continues to exist today regardless of its current physical condition.  The by-law, the applicant submitted, described the boundaries with certainty.  The applicant provided evidence of a land surveyor suggesting that the location of the road can still be established.  The applicant also pointed to “visual evidence of a historical road in the area”. 

The Court sided with the respondents and dismissed the application.  While Council Minutes from the 1880s and 1890s suggested there was substantial community interest in the development of a road across the neighbours’ property, and some steps were actually taken to create the road, the process was never completed.  A survey for the proposed road was prepared.  The municipality acquired some of the land needed for the road.  There was even evidence that some portions of the proposed road were opened for public passage.  However, the full road never came to fruition and eventually, it seemed, was lost.

Apparently, some portions of the road that were constructed did not follow the original survey, which caused friction between landowners.  The municipal record contained reference to a “forced road” in one location where the road deviated from the planned route onto private property.  The Court noted that there was ample evidence that sections of the proposed road were through wet and marshy land, which would complicate construction.  Ultimately, the Court disagreed with the applicant that the location of the road could be described with certainty.  This was one reason for the dismissal of the application.

The application also failed because there was no modern record showing that the road ever existed as planned by the 1890 by-law.  The evidence did not show that all necessary land was acquired by the municipality.  The survey that laid out the road had been lost.  There was no reliable historical photographic evidence that showed the location of what might have been a publicly travelled road. 

The road, to the extent it ever truly existed, had been lost to history.

Read the decision at: 2021 ONSC 3215 (CanLII).

Divisional Court tells Municipality of West Grey to change by-laws and grant permits required for local wind farm

The applicant wind farm developer (NextEra Energy Canada ULC) sought judicial review of two municipal permitting by-laws that prevented it from proceeding with the construction of a project; in order to complete the development, the applicant said that it required permits from the Municipality of West Grey.  The Divisional Court hearing the application noted: "The application raises the question of when and how a municipal by-law or policy may frustrate the purpose of a provincial legislative instrument.  The factual backdrop for this legal question is the ongoing renewable energy revolution in Ontario that was ushered in by the Green Energy Act, S.O. 2009, c. 12.  This revolution has spawned much litigation, particularly around wind energy projects."

 

The applicant received the Renewable Energy Approval (REA) from the Ontario Ministry of the Environment for its 14-turbine project in January, 2014.  However, the applicant would also need "entrance permits" to connect access roads on private lands to the public highways within the municipality, as well as "oversize/overweight haulage permits" to allow for the conveyance of large and heavy project materials by truck along public highways.  The municipality declined to grant the required permits, in part on the basis of changes it had made to its by-laws.

 

The applicant argued to the Divisional Court that it holds a valid REA from the province and that, since the municpal by-laws are in direct conflict with the REA, the by-laws are inoperative to the extent of the conflict (under Section 14(1) of the Municipal Act, 2001).  The Court noted that a municipality can only exercise its powers by by-law, and the Municipal Act, 2001 provides that a by-law cannot frustrate the purpose of a provincial or federal Act, regulation or instrument. 

 

Based on the Court's interpretation of the REA, it found that the municipality's permitting by-laws did prevent the project from being built.  Therefore, the by-laws frustrated the purpose of the REA and must be held inoperable, but only to the extent of the conflict with the REA. 

 

However, the Divisional Court did not accept the applicant's alternative argument that the municipality had acted in bad faith in refusing to grant the required permits.  As the Court stated, "The Municipality is a democratic body accountable to its constituents.  It has a broad legislative discretion to enact by-laws governing issues that regulate daily life and the built infrastructure within its jurisdiction ... Council's call for a moratorium on wind energy projects in Ontario and its declaration that it is an "unwilling host" for such projects are not acts that, in and of themselves, support a finding of bad faith."

 

Read the decision at: East Durham Wind, Inc. v. The Municipality of West Grey.

City of Burnaby challenges NEB on access rights of companies for pre-approval project work - NEB sides with company

The National Energy Board (NEB) is considering an application by Trans Mountain Pipeline ULC (Kinder Morgan) to access lands owned by or within the authority of the City of Burnaby for preliminary work related to the proposed Trans Mountain Expansion Project.  The work includes land surveying and related studies that Trans Mountain wishes to conduct in anticipation of the eventual approval of its project.  In particuar, the work relates to a new proposed pipeline route that was not inclued in Trans Mountain's original application for approval to the NEB. 

Burnaby has so far delayed in deciding on Trans Mountain's request for access over outstanding concerns about environmental protection, environmental remediation, safety and inadequate notice to owners.  A number of properties affected are located in conservation areas under the authority of the City, and the activities that may be carried out on lands dedicated for park and recreation use are extremely limited.  In other words, the proposed access and use of the lands being sought by Trans Mountain are in conflict with municipal by-laws.

Trans Mountain applied for access under Section 73(a) of the NEB Act, which sets out that the powers of a "company" include the power to enter onto land "lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline."  In past instances involving private landowners, the NEB has readily granted access to pipeline companies in spite of landowner objections and without the company having served a notice under Section 87 of the NEB Act.  Section 87 requires that a company serve a notice to landowners where the company requires their land for a pipeline.  The notice then provides protection to the landowner for any costs incurred in dealing with the proposed pipeline if the project is later withdrawn. 

Not surprisingly, the NEB has also ruled that the company can serve the Section 87 notice whenever it wants - there is no obligation on it to serve the notice prior to entering on lands pursuant to Section 83(a) even though the company obviously knows by that point that it "may require" the lands in question.

Burnaby challenged the NEB on Section 83(a) on a different basis.  First, Burnaby questioned whether a company may even apply for access under Section 83(a), arguing that the section does not provide for making such an application.  Second, Burnaby argued that Section 73 does not override provincial law or muncipal by-laws.  Burnaby submitted, "There is room for both the operation of Section 73(a) of the NEB Act and Burnaby's by-laws, if access to Burnaby lands is granted subject to Burnaby reviewing the Request and making a determination. Trans Mountain, for instance, would still be able to access the land to survey and examine, even if such access was subject to conditions imposed by Burnaby to protect the purpose for which the property was reserved [i.e. as park or conservation land], pursuant to its by-laws."

Burnaby also argued that Section 73(a) does not authorize the intentional disturbance of land as proposed by Trans Mountain, including the installation of infrastructure or facilities. 

A notice of constitutional question was filed with the NEB and the Attorneys General of Canada and the provinces and territories.  The specific issues raised were:

• Section 73(a) of the NEB Act does not empower the NEB to make orders that override provincial and municipal jurisdiction pursuant to Section 92(8) of the Constitution Act, 1867; and,
• In so far as Section 73(a) of the NEB Act purports to empower a company to enter land, Section 73(a) does not override municipal jurisdiction or by-laws enacted pursuant to the Community Charter, S.B.C. 2003, c. 26 and the Municipal Act, S.B.C. 1958, c. 32, as amended.  Further, or in the alternative, to the extent that they are able, Section 73(a) of the NEB Act and by-laws enacted pursuant to the Community Charter and the Municipal Act, as amended, must operate concurrently.

In a ruling made on August 19, the NEB rejected the submissions made by Burnaby.  The NEB ruled that, pursuant to Section 73(a), Trans Mountain has the power to enter into and on Burnaby land without Burnaby's agreement and Trans Mountain does not require a temporary access order for this purpose.  The NEB says that the Trans Mountain application was not one requesting temporary access; the NEB says the application was one only requesting confirmation of Trans Mountain's rights under the Act, which the NEB has now given.

On that basis, the NEB also found that the Notice of Constitutional Question was misdirected, saying that Trans Mountain did not apply for access.  The NEB added that it did not find that "co-operative federalism" should apply to or influence the powers of Trans Mountain under Section 73(a) of the NEB Act.

Since this decision was made, Burnaby's mayor has said that the City will continue to enforce its by-laws prohibiting access to Burnaby mountain.  We can speculate on what will happen if the City continues to hold out against Trans Mountain.  Trans Mountain would likely have to apply to the NEB for an access order (the application the NEB says Trans Mountain didn't already make).  Assuming the order would be granted, Burnaby could appeal the decision in court.  It would be helpful to have some judicial consideration of the NEB's interpretation of Section 83.  Individual landowners are generally in no position to fight this issue - the City of Burnaby may be in that position.

Appeal Tribunal awards costs against landowner in drainage case

The Agriculture, Food and Rural Affairs Appeal Tribunal has ordered an appellant landowner, Alan Webster of Thornhill, Ontario to pay costs related to a motion brought by the City of Kawartha Lakes.  Although the motion to dismiss by the City was unsuccessful, the Tribunal found that Webster had failed to abide by procedural directions made by the Tribunal, which led to the need for the motion.

Those procedural directions were given in the context of an agricultural drainage project that has been under appeal since 2006.  The project involves the drainage of about 21,000 acres of land at approximately 400 landowners.  There have been a total of 72 appeals to either the Drainage Referee or to the Appeal Tribunal.  The only remaining outstanding proceeding is Webster's appeal to the Tribunal under section 48 of the Drainage Act.  The Tribunal had exercised its discretion to intervene with procedural directions to case manage the remaining appeal through to an expeditious resolution.  The Tribunal stated that expeditious resolution would benefit all of the 21,000 acres and 400 landowners potentially affected by the drainage project. 

More than five years had passed since delivery of the original Engineer's Report.  Webster had had more than five years to crystallize and refine his section 48 Appeal issues, marshal his evidence and defined his appeal strategy.  Webster was self represented in the proceeding.  The Tribunal found that Webster's failure to abide by simple and clear procedural directions was unreasonable.  The Tribunal found that Webster was an educated, sophisticated and articulate litigant.  The Tribunal was unable to suspend disbelief sufficient to accept the explanation Webster offered about why he failed to comply with the procedural order. 

The City sought recovery of costs for the dismissal motion.  The Tribunal ordered Webster to pay the costs of the City of Kawartha Lakein the amount of $7080.70.  The Tribunal also ordered that the cost award be credited to the drain account and added to the tax roll, therefore having priority lien status under section 61 of the Drainage Act and section 1 of the Municipal Act. 

Read the decision at: Short and No. 2A Drain, 2006 - Costs of Motion Decision.

Ontario municipality loses claim over forgotten 1854 lakeshore road

An Ontario Superior Court judge has granted summary judgment dismissing a claim by the Municipality of Meaford related to a long-forgotten road on the shoreline of Georgian Bay.  In 1854, the former Township of St. Vincent passed a by-law to establish a public road on the lakeshore over lots 21-25 of Concession 6:

Be it therefore enacted by the Municipal Council of the Township of St. Vincent, that the road on the lakeshore 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 the requisitionists, all of which is hereby established.

The by-law was not registered on title to any land until after 2004, when it was discovered in a box stored in the basement of the Meaford municipal offices.  The public road as called for by the by-law would cover approximately 6,000 feet over three concession lots.

Following the discovery of the by-law, Meaford passed a new by-law which accepted the purported location of the public road over the south part of Lot 23 (about 600 feet affecting 10 cottage properties).  The by-law also directed that Meaford's lawyer take steps, including court action, to confirm municipal ownership of the road. 

Meaford commenced an action asserting that the public road was established over the defendants' properties as a result of the enactment of By-Law 11 and further as a result of the doctrine of dedication and acceptance of the road as evidenced by the expenditure of public funds on the road and the historic use of the road by members of the public.  Meaford sought a declaratory judgment that the Disputed Road is a public highway governed by the Municipal Act, 2001 and that it is owned by and under the jurisdiction of Meaford.  Meaford also sought a declaratory judgment that the defendants are trespassing on the road.

The defendants in the action included the cottage owners affected by the purported road.  They brought motions for summary judgment to have the action dismissed before trial.  Meaford brought a cross-motion asking for injunctions to preserve the Disputed Road pending trial.  On a motion for summary judgment, the critical issue is "whether a trial is genuinely necessary, not because it is to be given some preferred status in the administration of justice, but because the issue to be resolved cannot be truthfully, fairly and justly resolved without the forensic machinery of a trial."

Justice Daley found that the paper evidentiary record before him was sufficient to allow for the determination of the question as to whether there was a genuine issue requiring a trial.  In the end, he found that there was no genuine issue requiring a trial.  He cited several reasons, including:

• Meaford did not establish that a public highway existed prior to the enactment of the 1854 by-law;
• While the Township did have the necessary legislative authority to establish the road in 1854, there were no records that any work was done or any money was expended for the road after 1854;
• No survey of the 1854 by-law lands was ever completed;
• The Township failed to register the road by-law on title.  In this case, the registered interests of the defendant landowners take precedence over the unregistered interest of Meaford;
• There is no evidence that the road has been dedicated by the owner of the land for public use;
• Meaford has not offered evidence that a public road existed in fact during the modern era;
• The new by-law passed by Meaford is void as it was not passed for a proper municipal purpose.  Meaford preferred the wishes of a small group of citizens to the concerns raised by its own planner and prior to the enactment of the by-law failed to carry out all proper inquiries and to give timely and adequate notice of the contemplated by-law to the property owners who may be affected by it;
• Over 153 years passed between the enactment of By-Law 11 and when the plaintiff located the by-law and thereafter took steps to try to enforce it.  No evidence has been offered by the plaintiff to adequately explain the extraordinary delay in the municipality asserting its rights to a public roadway pursuant to the by-law.  It would be unjust to grant Meaford's claim.