Viceversa Developments Inc. v. Winnipeg (City), (2015) 319 Man.R.(2d) 25 (CA)

• Judge: Beard, Cameron and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 27, 2014
• Jurisdiction: Manitoba
• Citations: (2015), 319 Man.R.(2d) 25 (CA);2015 MBCA 38

Viceversa Dev. Inc. v. Winnipeg (2015), 319 Man.R.(2d) 25 (CA);

      638 W.A.C. 25

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.006

Viceversa Developments Inc. (plaintiff/appellant) v. The City of Winnipeg (defendant/respondent)

(AI 14-30-08115; 2015 MBCA 38)

Indexed As: Viceversa Developments Inc. v. Winnipeg (City)

Manitoba Court of Appeal

Beard, Cameron and Burnett, JJ.A.

April 20, 2015.

Summary:

In December 2003, the plaintiff purchased two parcels of land from the Canadian National Railway. There were streets, sidewalks and paths on the property that were used by the public and maintained by the city. In October 2012, the plaintiff commenced an action, seeking a permanent injunction to prevent the city from trespassing on its property, an order requiring the city to take steps to prevent third parties from entering the property and damages for the continuous trespass by motorists, cyclists and pedestrians.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 301 Man.R.(2d) 77, dismissed the action. The plaintiff appealed.

The Manitoba Court of Appeal dismissed the appeal.

Highways - Topic 162

Establishment of highways and public rights of way - Dedication - Elements (conditions precedent) - The Manitoba Court of Appeal discussed the law related to dedication to public use, including the burden of proof and the conditions that had to be met to establish that land had been dedicated to public use - See paragraphs 27 to 31.

Highways - Topic 164

Establishment of highways and public rights of way - Dedication - What constitutes dedication - In December 2003, the plaintiff purchased two parcels of land from the Canadian National Railway (CN) - There were streets, sidewalks and paths (the roadways) on the property that were used by the public and maintained by the city - In October 2012, the plaintiff commenced an action, seeking, inter alia, a permanent injunction to prevent the city from trespassing on its property and damages for the continuous trespass by motorists, cyclists and pedestrians - Bryk, J., dismissed the action, finding that, while there was no direct evidence supporting an intention to dedicate the roadways to public use, that intention could be inferred from the long, uninterrupted (over 50 years) public use - The Manitoba Court of Appeal dismissed the plaintiff's appeal - The court rejected each of the plaintiff's arguments regarding why an inference of dedication was not possible - There was considerable evidence to support the inference, including the long, uninterrupted public use; the roadways were built, maintained and controlled by the city; one part of the roadways was constructed to provide access to a major motor vehicle/pedestrian bridge; and another part was an extension to connect two public roads - Bryk, J., made no palpable and overriding error when he concluded that there was sufficient evidence of an intention by CN to dedicate the roadways to public use - See paragraphs 38 to 56.

Highways - Topic 171

Establishment of highways and public rights of way - Dedication - Evidence and burden of proof - [See Highways - Topic 162 ].

Highways - Topic 175

Establishment of highways and public rights of way - Dedication - Implied dedication - General - [See Highways - Topic 164 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - In December 2003, the plaintiff purchased two parcels of land from the Canadian National Railway (CN) - There were streets, sidewalks and paths (the roadways) on the property that were used by the public and maintained by the city - In October 2012, the plaintiff commenced an action, seeking, inter alia, a permanent injunction to prevent the city from trespassing on its property and damages for the continuous trespass by motorists, cyclists and pedestrians - Bryk, J., dismissed the action, finding that, while there was no direct evidence supporting an intention to dedicate the roadways to public use, that intention could be inferred from the long, uninterrupted (over 50 years) public use - The plaintiff appealed - The Manitoba Court of Appeal stated that the issue on appeal, which was whether Bryk, J., had erred in determining that CN had dedicated the roadways to the public, was a question of fact that was reviewed on the standard of palpable and overriding error - See paragraphs 32 to 35.

Cases Noticed:

Gibbs et al. v. Grand Bend (Village) et al. (1995), 86 O.A.C. 321 (C.A.), refd to. [para. 25].

Bailey v. Victoria (City) (1920), 60 S.C.R. 38, refd to. [para. 27].

Dunstan v. Hell's Gate Enterprises Ltd. (1987), 20 B.C.L.R.(2d) 29 (C.A.), refd to. [para. 28].

Brady et al. v. Zirnhelt et al. (1998), 111 B.C.A.C. 299; 181 W.A.C. 299 (C.A.), refd to. [para. 28].

Foothills No. 31 (Municipal District) v. Stockwell (1985), 64 A.R. 335 (C.A.), refd to. [para. 28].

Nelson et al. v. 1153696 Alberta Ltd. (2011), 510 A.R. 153; 527 W.A.C. 153; 2011 ABCA 203, refd to. [para. 28].

Reed v. Lincoln (Town) (1974), 6 O.R.(2d) 391 (C.A.), refd to. [para. 28].

Skerryvore Ratepayers Association et al. v. Shawanaga Indian Band et al. (1993), 68 O.A.C. 68; 16 O.R.(3d) 390 (C.A.), refd to. [para. 28].

New Brunswick (Attorney General) v. Fredericton (City) (1967), 68 D.L.R.(2d) 45 (N.B.C.A.), refd to. [para. 28].

MacNabb v. Walmsley (1991), 89 Nfld. & P.E.I.R. 124; 278 A.P.R. 124 (P.E.I.C.A.), refd to. [para. 28].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 30].

Folkestone Corp. v. Brockman, [1914] A.C. 338 (H.L.), refd to. [para. 30].

Macoomb v. Welland (Town) (1907), 13 O.L.R. 335 (C.A.), refd to. [para. 30].

O'Neil v. Harper (1913), 28 O.L.R. 635 (C.A.), refd to. [para. 30].

Taylor v. Clanwilliam, [1924] 34 Man.R. 319 (C.A.), refd to. [para. 30].

Toronto (City) v. Grand Trunk Railway (1905), 37 S.C.R. 210, refd to. [para. 32].

Fulton v. Creelman, [1931] S.C.R. 221, refd to. [para. 32].

Industrial Glass Co. v. City of Lachine (1977), 20 N.R. 305 (S.C.C.), refd to. [para. 33].

Cook's Road Maintenance Association v. Crowhill Estates (2001), 140 O.A.C. 370 (C.A.), refd to. [para. 33].

Prince Edward Island (Minister of Transportation and Public Works) v. Gillis (2006), 256 Nfld. & P.E.I.R. 324; 773 A.P.R. 324; 2006 PESCAD 14, refd to. [para. 33].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 34].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 34].

Osoyoos Indian Band v. Oliver (Town) et al., [2001] 3 S.C.R. 746; 278 N.R. 201; 160 B.C.A.C. 171; 261 W.A.C. 171; 2001 SCC 85, refd to. [para. 36].

Counsel:

C.R. Huband and J.S. Michaels, for the appellant;

M. Buchart, for the respondent.

This appeal was heard on October 27, 2014, by Beard, Cameron and Burnett, JJ.A., of the Manitoba Court of Appeal. On April 20, 2015, Burnett, J.A., delivered the following judgment for the court.