Margettie et al. v. Snell et al., 2009 ONCA 838

• Judge: Gillese, Blair and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 19, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 838;(2009), 256 O.A.C. 69 (CA)

Margettie v. Snell (2009), 256 O.A.C. 69 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.016

Lynda Margettie, Raymond Young and Robert Young (applicants/respondents by counter-application/appellants) v. Roy Renze Snell and Lizanne Marie Barron (respondents/applicants by counter-application/respondents)

(C50057; 2009 ONCA 838)

Indexed As: Margettie et al. v. Snell et al.

Ontario Court of Appeal

Gillese, Blair and MacFarland, JJ.A.

November 27, 2009.

Summary:

In 1982, Snell and Barron (the applicants) purchased a cottage property that abutted the Healey Lake Lodge property. A municipal road (the road) that ran across the Lodge property provided access to the applicants' property. In 2000, Margettie and the Youngs (the respondents) purchased the Lodge property. A dispute arose regarding the applicants' use of the road. The applicants refused to share the cost of maintaining the road and the respondents' offer of a parking space on the Lodge property. The applicants and other cottagers applied to the Ministry of Natural Resources for a permit to construct a road on an existing ATV trail. The application was denied on the basis of the respondents' opposition. The applicants applied for a declaration under the Road Access Act that the road was an access road and for an order preventing the respondents from obstructing its use. The respondents counter-applied, disputing that the road was an access road, but, if it were so found, for an order under s. 3(1) closing the road.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. 392, found that the road was an access road and made a closing order. The applicants appealed and the respondents cross-appealed.

The Ontario Court of Appeal dismissed the applicants' appeal and the respondents' cross-appeal.

Highways - Topic 2482

Closing highways - Access roads - Applicable legislation - Interpretation - [See first Highways - Topic 2486 ].

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - The applicants applied for a declaration under the Road Access Act that a road that ran across the respondents' property was an access road and for an order preventing the respondents from obstructing its use - The respondents counter-applied, disputing that the road was an access road, but, if it were so found, for an order under s. 3(1) of the Act closing the road - The applications judge found that the road was an access road and made a closing order - The Ontario Court of Appeal dismissed the applicants' appeal - The court rejected the applicants' argument that the requirements in ss. 3(1)(a) and 3(1)(b) were to be read conjunctively, such that once the applicants were found to have no legal right to use the road (s. 3(1)(b)), the applications judge had to consider whether the closure of the road was reasonably necessary (s. 3(1)(a)) - Such an interpretation was contrary to the wording of s. 3(1), which used the word "or", and was inconsistent with the structure of s. 3(1) - Going backwards in an application of s. 3(1) made little sense - Nor did reading the sub-sections disjunctively render s. 3(1)(a) meaningless or redundant - Finally, previous decisions had proceeded on the basis that the provisions were disjunctive - Once the applications judge found that the applicants had no legal right to use the road, he was entitled to consider the closing order - See paragraphs 23 to 32.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - The applicants applied for a declaration under the Road Access Act that a road that ran across the respondents' property was an access road and for an order preventing the respondents from obstructing its use - The respondents counter-applied, disputing that the road was an access road, but, if it were so found, for an order under s. 3(1) of the Act closing the road - The applications judge found that the road was an access road and made a closing order - The Ontario Court of Appeal dismissed the applicants' appeal - The court rejected the applicants' argument that, once the applications judge had determined that he might grant a closing order, he should have invited the parties to submit further evidence regarding the effects that such an order would have on their interests - The respondents' counter-application made it clear that a closing order was being sought - The applications judge was entitled to assume that the parties had provided the court with the necessary information - Further, the applications judge had sufficient evidence of the parties' competing interests and clearly understood the effect that a closing order would have - In light of the alternative access solutions available, he was not inclined to exercise his discretion in a way that restricted the ownership rights of the respondents - His reasons demonstrated that he was alive to, and had balanced, the parties' competing interests - See paragraphs 33 to 36.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - In 1982, Snell and Barron (the applicants) purchased a cottage property that abutted the Healey Lake Lodge property - A municipal road (the road) that ran across the Lodge property provided access to the applicants' property - In 2000, Margettie and the Youngs (the respondents) purchased the Lodge property - A dispute arose regarding the applicants' use of the road - The applicants refused to share the cost of maintaining the road and the respondents' offer of a parking space on the Lodge property - The applicants and other cottagers applied to the Ministry of Natural Resources for a permit to construct a road on an existing ATV trail - The application was denied on the basis of the respondents' opposition - The applicants applied for a declaration under the Road Access Act that the road was an access road and for an order preventing the respondents from obstructing its use - The respondents counter-applied, disputing that the road was an access road, but, if it were so found, for an order under s. 3(1) closing the road - The applications judge found that the road was an access road and made a closing order - The Ontario Court of Appeal dismissed the applicants' appeal - The court rejected the applicants' argument that the applications judge had erred in failing to balance the parties' competing interests - An assumption underlying the argument was that the applications judge's exercise of discretion was limited to a consideration of the parties' competing interests - However, nothing in s. 3(1) limited the court to only those considerations - The applications judge had considered the process that ensued following the application to the Ministry of Natural Resources and found that the public interest was better served by having the competing claims reconciled through that process - There was nothing improper in taking the public interest into account - The applications judge had not erred in considering the nature of the application process to the Ministry and its likely result - See paragraphs 37 to 40.

Practice - Topic 5446

Judgments and orders - Operation and effect of judgments and orders - Commencement of - The applicants applied for a declaration under the Road Access Act that a road that ran across the respondents' property was an access road and for an order preventing the respondents from obstructing its use - The respondents counter-applied, disputing that the road was an access road, but, if it were so found, for an order under s. 3(1) of the Act closing the road - The applications judge found that the road was an access road and made a closing order - In dismissing the applicants' appeal, the Ontario Court of Appeal rejected the applicants' assertion that, having determined that a closing order was appropriate, the applications judge should have postponed its operation to allow alternative arrangements to be made - Given the alternatives available to the applicants, there was no need to give the applicants time to establish alternate access - See paragraph 41.

Statutes - Topic 2413

Interpretation - Interpretation of words and phrases - General principles - Conjunctive words or phrases - [See first Highways - Topic 2486 ].

Statutes - Topic 2414

Interpretation - Interpretation of words and phrases - General principles - Disjunctive words or phrases - [See first Highways - Topic 2486 ].

Cases Noticed:

992275 Ontario Inc. et al. v. Krawczyk (2006), 209 O.A.C. 302; 268 D.L.R.(4th) 121 (C.A.), refd to. [para. 18].

2008795 Ontario Inc. v. Kilpatrick (2007), 86 O.R.(3d) 561 (C.A.), refd to. [para. 29].

Blais et al. v. Belanger (2007), 224 O.A.C. 1; 282 D.L.R.(4th) 98 (C.A.), refd to. [para. 30].

Wasauksing First Nation et al. v. Wasauksink Lands Inc. et al. (2004), 184 O.A.C. 84 (C.A.), leave to appeal denied (2004), 337 N.R. 200; 203 O.A.C. 394 (S.C.C.), refd to. [para. 41, footnote 1].

Statutes Noticed:

Road Access Act, R.S.O. 1990, c. R-34, sect. 3 [para. 15].

Counsel:

D.J. Wyjad, for the appellants;

M. Miller, for the respondents.

This appeal and cross-appeal were heard on November 19, 2009, by Gillese, Blair and MacFarland, JJ.A., of the Ontario Court of Appeal. On November 27, 2009, Gillese, J.A., delivered the following judgment for the court.