May 28, 2006

Prior to the appeal decision (992275 Ontario Inc. & Karin Winklemann v. Frank Krowczyk & Lesley Scott-Krowczyk), the common belief was that the Road Access Act was remedial in nature designed to provide road access to owners of parcels of land adjacent to an access road who had no other possible access to their land other than over the access road. The Act does not grant any property rights over the access road other than to allow parties with vested interests in abutting parcels to pass over the road without being trespassers and to not be subject to road closures without a Court hearing and a subsequent Order closing the road if it was found not to be an access road.

This Court of Appeal decision confirms much of the existing jurisprudence around the Act:

• “…the status of a road as an access road does not depend on the use of the road by the party claiming that the road is an access road.”
• there is “no statutory basis for declaring that the road is an access road to or for the benefit of particular parties. As already noted, a road meets the statutory definition of an access road where it serves as a motor vehicle access route to one or more parcels of land.”
• A positive position expanding the decision in Bogart v. Thompson which case held that “an access seeker must demonstrate that construction of an alternate access road on an adjacent unopened road allowance is impossible, not just inconvenient and expensive.” The Court of Appeal found that there was a significant amount of water from various sources covering the unopened road allowance in question and it affirmed the trial judge’s position that “it has been found to be impossible to create road access over water, but not over rough ground.” So if a parcel is served by an access road and that parcel is adjacent to an unopened road allowance over which lies significant water, that road allowance will not be deemed to be an alternate access to the parcel so that a judge could issue an Order allowing the access road to be closed. Apparently the Court will not require the owner of the parcel to bring in thousands of yards of fill plus culverts to overcome the ambient water. The parcel owner presumably would be spared the task of obtaining environmental and municipal consents to build the road and divert the water.

The Court then turned its attention to the meaning of s.3(1)(b) of the Act and in doing so appears to turn the remedial nature of the Act on its head or out the door. This subsection became effective January 1, 2003. It deals with the granting of Orders to close an access road and states in part: “The judge may grant the closing order upon being satisfied that in the case of an access road that is not a common road, persons described in s.2(3) do not have a legal right to use the road.”

On several readings of this decision, it appears that the Court of Appeal, in interpreting 3(1)(b) as they do, has rendered the remedial nature of the Road Access Act negligible to non-existent. The Court held: “In our view, the trial judge’s finding that the road is an access road does not give persons whose property is served by the road a legal right to use it within the meaning of s.3(1)(b).” Well excuse me but I thought that was exactly what the Act was all about. It was legislated to provide access in situations where otherwise parcels would be landlocked with no right of access whatsoever.

The Court of Appeal went on to suggest that this interpretation of s.3(1)(b) is supported by the wording of s.6(1): “Nothing in this Act shall be construed to confer any right in respect of the ownership of land where available to any applicant or other person.” But does s.6(1) affirm the Court’s interpretation of s.3(1)(b)? Surely we can agree that the Act does not grant any ownership rights without also concluding that an “access road” so found, does not grant the right to use that road unless such person has some independent right apart from the Act to use the road. If such persons had rights independent of the Act, they would not have to resort to the remedial provisions of the Road Access Act in the first place.

The Court of Appeal held: “Finally, we note that if a finding that a road is an access road created a legal right to use the road within the meaning of s.3(1)(b), the condition in s.3(1)(b) would make no sense. Under s.3(1)(b), a landowner may apply to close an access road if the persons entitled to notice of the application to close the access road do not have a legal right to use it. If the fact that the road is an access road itself established a legal right to use the access road, the condition in s.3(1)(b) could never be met.”

It would appear that the Court of Appeal was so focused on giving s.3(1)(b) a certain meaning that they failed to realize that in doing so, they rendered the meaning and effect of the Act uncertain at best and totally unusable at worst. Surely the main purpose of the Act was to provide access independent of the existence or non-existence of any other rights the access seeker might have.

It is inconceivable that the Court was unaware of the overall effect of its decision so one is left to conclude that the Court is of the opinion that the Act is too intrusive onto the rights of the registered owner of the land upon which the access road is located and that if the access seeker does not at least have a prescriptive right of way over the road in question, the access seeker does not deserve access.

In the very recent Supreme Court of Canada decision of Placer Dome Canada Ltd. v. Ontario (Minister of Finance), Justice LeBel wrote the following in interpreting a portion of the Mining Tax Act, R. S. O. 1990, c. M. 15: “Under the presumption against tautology, every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose; …To the extent that it is possible to do so, Courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant.”

I leave it to the reader to conclude whether in this case that is just what the Ontario Court of Appeal has done to remedial purpose of the Road Access Act.