Landowners seek to rely on 60-year old drainage maintenance agreement with municipality

Landowners and a municipality disagreed over the continuing effectiveness of an agreement made in 1953 that required the municipality's predecessor to maintain a drainage system and to make good any and all damage caused to the landowner (property owner).  The agreement had been made at a time when the local Township wished to construct a drainage system along a road.  In exchange for a right of access to the neighbouring property belonging to the predecessor-in-title to the current landowners, the Township gave the undertakings respecting maintenance and repair of damages.  The agreement was not registered on title, but the current landowners were aware of it.

When the current landowners asked the current municipality (the successor of the original Township) to meet its obligations under the agreement, the municipality responded that it was no longer bound by the agreement.  The parties then agreed to have the Court decide the question in a "Special Case" under Rule 22 of the Rules of Civil Procedure.

The result was the following series of declarations by the Court in favour of the landowners:

1. A DECLARATION that the Agreement on April 27, 1953, properly interpreted, did impose a perpetual obligation of the Township of Thurlow to maintain the drainage system it had installed in good working condition at all times and to make good any and all damage caused to the property owner whoever that may be from time to time as a result of lack of repair or of acts done at any time by the corporation in maintaining and repairing the system.

2. A DECLARATION that as a result of the amalgamation of the Township of Thurlow and the Defendant City in 1998, the Defendant City is bound by the contractual obligations of the former Township which are found to have been created by the Agreement.

3. A DECLARATION that the Agreement is valid and binding notwithstanding that it was not entered into or, the system was not constructed, under or in accordance with legislation such as the Drainage Act.

4. A DECLARATION that the Agreement can be enforced against the Defendant City although it was not registered on title under the Registry Act and/or the Land Titles Act.

5. A DECLARATION that the Plaintiffs are not barred from enforcing the Agreement by s. 449 of the Municipal Act, 2001.

6. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’ claim on the basis that the conduct of the Defendant amounts to the exercise or non-exercise of a discretionary function resulting from a policy decision.

7. A DECLARATION that the Plaintiffs are successors of the Agreement and thus, are entitled to enforce the Agreement without an express assignment.

8. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs' claim on the basis that the Plaintiffs are trying to enforce a positive covenant in regard the land.

9. A DECLARATION that the Agreement, which imposes a perpetual obligation upon the City, is not invalid as contrary to public policy because it does impose a perpetual obligation.

10. A DECLARATION that there is sufficient description of the property and easements in the Agreement to create an enforceable agreement.

11. A DECLARATION that the Defendant does not have a valid defence to the Plaintiffs’claim on the basis that the Plaintiffs did not inquire about the Agreement and/or its status before they bought the land, and/or by reason of the defence that the Plaintiffs did not rely on the Agreement when they bought the land.

12. A DECLARATION that the Agreement is not void as against public policy as fettering the Defendant City’s discretion with respect to future uses of roads and road allowances.

13. A DECLARATION that there is no statutory limitation period that acts to bar an action by the Plaintiffs.

14. A DECLARATION that the Plaintiffs’ claim for damages for breach of the Agreement is not defeated by the doctrine of laches.

Read the decision at: Brown v. Belleville (City).

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.