992275 Ontario Inc. et al. v. Krawczyk, (2006) 209 O.A.C. 302 (CA)

• Judge: Simmons, Cronk and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 07, 2006
• Jurisdiction: Ontario
• Citations: (2006), 209 O.A.C. 302 (CA)

992275 Ont. v. Krawczyk (2006), 209 O.A.C. 302 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MY.016

992275 Ontario Inc. and Karin Winkelmann (appellants/respondents by cross-appeal/plaintiffs) v. Frank Krawczyk and Lesley Scott-Krawczyk (respondents/appellants by cross-appeal/defendants)

(C42109)

Indexed As: 992275 Ontario Inc. et al. v. Krawczyk

Ontario Court of Appeal

Simmons, Cronk and Rouleau, JJ.A.

May 2, 2006.

Summary:

The trial judge granted the plaintiffs' claim for a declaration that a road that passed through the defendants' property was an access road to the plaintiff, 992275 Ontario Inc., within the meaning of the Road Access Act. However, he also declared that 992275 was not entitled to use the road for its own purposes, except to enter or leave its property in its motor vehicle, and he denied the plaintiffs' claim for costs. The trial judge denied the defendants' request for an order under the Act closing the access road. He also stayed the parties' damage claims pending the disposition of an outstanding criminal charge against the spouse of the personal plaintiff. The plaintiffs appealed, arguing that the trial judge erred in restricting their right to use the road and in denying their claim for costs. The defendants cross-appealed, arguing that the trial judge erred in declaring that the road was an access road, in proceeding on the basis that s. 2(1) of the Act prohibited closing the road without a court order, in denying their request for an order closing the road and in directing that the parties' damage claims be stayed.

The Ontario Court of Appeal allowed the appeal and the cross-appeal in part. The court directed a new trial to determine the issue of whether the access road should be closed and the parties' damage claims.

Damages - Topic 808

Assessment - Time for determination of assessment - The Ontario Court of Appeal held that the trial judge erred in staying the parties' damage claims pending the disposition of a criminal charge against the spouse of one of the plaintiffs - The parties had not requested such an order - The court stated that "even if the issues in the proceeding below overlap with the issues in the criminal proceeding, we are not persuaded that any prejudice will occur as a result. The standard of proof in a civil case is different from the standard of proof in a criminal proceeding. Accordingly, adverse findings of fact in a civil case generally do not create prejudice in a criminal proceeding. Finally, to the extent that punitive damages may be awarded in the civil action prior to the determination of the criminal proceeding, that is a matter that can be taken into account in the criminal proceeding" - See paragraphs 27 to 29.

Highways - Topic 13

General and definitions - Definitions - Access road - The Ontario Court of Appeal rejected an argument that in order to qualify as an access road under the Road Access Act, a road must have been used for motor vehicle access by the access seeker with the landowner's acquiescence or consent - The status of a road as an access road did not depend on the use of the road by the party claiming that the road was an access road - The definition of "access road" set out in s. 1 of the Act required only that "a road located on land not owned by a municipality ... serve as a motor vehicle access route to one or more parcels of land" - It did not require that a specific party use the road - See paragraphs 5 to 7.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - The trial judge granted the plaintiffs a declaration that a road that passed through the defendants' property was an access road within the meaning of the Road Access Act - He also denied the defendants' request for an order closing the access road - On appeal, the defendants argued that the trial judge erred in holding that s. 2(1) of the Act prohibited closing the road without a court order - Section 2(1) prohibited closing an access road without a court order where closing the access road "prevents all road access to one or more parcels of land" - The defendants submitted that an unopened road allowance adjacent to the northern boundary of the plaintiffs' property provided viable alternate access to the relevant parcels of land - The Ontario Court of Appeal rejected the argument - It was implicit in the trial judge's reasons that he found that there was a significant amount of water covering the unopened road allowance - He did not err in holding that the prohibition in s. 2(1) of the Act applied - See paragraphs 10 to 13.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - The trial judge granted the plaintiffs a declaration that a road that passed through the defendants' property was an access road within the meaning of the Road Access Act - He also denied the defendants' request for an order closing the access road under s. 3(1)(b) of the Act - On appeal, the Ontario Court of Appeal held that the trial judge erred by failing to make an explicit finding concerning whether the condition for a closing order set out in s. 3(1)(b) was satisfied, namely, that the parties entitled to notice of the application to close the road did not have a legal right to use the road - The court further stated that while the trial judge noted that the plaintiffs had purchased their land before s. 3(1)(b) came into effect, applying s. 3(1)(b) in this case would not involve applying the section retrospectively - See paragraphs 14 to 26.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - Under s. 3(1)(b) of the Road Access Act, a judge could grant an order closing an access road upon being satisfied that the parties entitled to notice of the application to close the road did not have a legal right to use the road - The Ontario Court of Appeal held that in the case before it, the trial judge's finding that the road in question was an access road should not affect the determination of whether the condition in s. 3(1)(b) was satisfied - The trial judge's finding that the road was an access road did not give persons whose property was served by the road a legal right to use it within the meaning of s. 3(1)(b) - If the fact that the road was an access road itself established a legal right to use the road, the condition in s. 3(1)(b) could never be met - See paragraphs 22 to 25.

Highways - Topic 2487

Closing highways - Access roads - Entitlement to use - The Ontario Court of Appeal upheld the trial judge's conclusion that a road was an access road within the meaning of s. 1 of the Road Access Act - However, the court stated that it saw no statutory basis for declaring that the road was an access road to or for the benefit of particular parties - The statutory definition of access road did not refer to an access road serving particular parties - Similarly, there was no statutory basis for imposing conditions either permitting or restricting the use of an access road - See paragraphs 8 to 9.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - [See Damages - Topic 808 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - [See second Highways - Topic 2486 ].

Cases Noticed:

Whitmell v. Ritchie et al. (1994), 74 O.A.C. 317; 20 O.R.(3d) 424 (C.A.), leave to appeal denied (1994), 190 N.R. 239; 89 O.A.C. 78 (S.C.C.), refd to. [para. 9].

Bogart et al. v. Thompson et al., [2002] O.T.C. 329 (Sup. Ct.), refd to. [para. 11].

Whitmell v. Ritchie et al., [2003] O.T.C. 413 (Sup. Ct.), refd to. [para. 22].

Deluca v. Guiho (Paul) Trucking and Construction Ltd. (1984), 4 O.A.C. 7; 46 O.R.(2d) 634 (C.A.), refd to. [para. 23].

Statutes Noticed:

Road Access Act, R.S.O. 1990, c. R-34, sect. 1 [para. 6]; sect. 2(1) [para. 10]; sect. 3(1)(b) [para. 15].

Counsel:

David A.S. Mills and Geoff Cobham, for the appellants/respondents by cross-appeal;

Michael M. Miller, for the respondents/appellants by cross-appeal.

This appeal was heard on February 7, 2006, before Simmons, Cronk and Rouleau, JJ.A., of the Ontario Court of Appeal. The Court of Appeal released the following judgment on May 2, 2006.