Whitmell v. Ritchie, (2009) 250 O.A.C. 205 (DC)

• Judge: Swinton, Low and van Rensburg, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 23, 2009
• Jurisdiction: Ontario
• Citations: (2009), 250 O.A.C. 205 (DC)

Whitmell v. Ritchie (2009), 250 O.A.C. 205 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.020

Bert Whitmell and Judith Whitmell (applicants/appellants) v. Steven James Ritchie and Magdalene Ritchie (respondents/respondents in appeal)

(458-08)

Indexed As: Whitmell v. Ritchie

Court of Ontario

Superior Court of Justice

Divisional Court

Swinton, Low and van Rensburg, JJ.

May 21, 2009.

Summary:

The Whitmells applied under the (Ontario) Road Access Act for an order to close an access road on their land. The access road provided the sole motor vehicle access to the Ritchie's cottage property. A 2005 court order, issued on consent, provided that the Ritchies could use the access road. The parties had been in litigation over the access road for 20 years.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. T03, dismissed the application on two grounds: (1) that s. 3(1) of the Act reserved to the court a residual discretion to refuse to order an access road closed; and (2) that the application was, "if not an abuse of the process of the court, at least a lack of respect for the finality of a court order." The court did not make a finding as to whether the Ritchies had a legal right to use the road. The Whitmells appealed on the ground that the Ritchies did not have a legal right to use the road. They argued that a 2003 amendment to s. 3 of the Act, as well as appellate decisions, required that a closing order be granted.

The Ontario Divisional Court dismissed the appeal. The issue was res judicata. And, had the application judge done the analysis, he could not have held that the Ritchies had no legal right to use the road. Accordingly, it was not necessary to deal with the issue of whether a residual discretion existed.

Editor's Note: there are numerous reported decisions relating to these parties.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - The applicants applied under the (Ontario) Road Access Act for an order to close an access road on their land - The access road provided the sole motor vehicle access to the respondents' cottage property - The parties had been in litigation over the access road for 20 years - An application judge dismissed the application on two grounds, including that the application was, "if not an abuse of the process of the court, at least a lack of respect for the finality of a court order", where a 2005 consent order provided that the respondents could use the access road - The applicants appealed on the ground that the respondents did not have a legal right to use the road - They argued that a 2003 amendment to s. 3 of the Act altered the rights of the parties, and together with appellate decisions, required that a closing order be granted - The Ontario Divisional Court dismissed the appeal - The issue was res judicata - The applicants had the opportunity and should have raised in the 2005 application all of their arguments in support of their position - They elected to settle the litigation - That did not diminish the estoppel - A judgment by consent was to be regarded as a judgment after a hearing on the merits - The rights and obligations that the parties had in relation to each other were the subject of the 2005 settlement - The consent order was a final disposition of those rights and obligations made in the context of the amended s. 3 - See paragraphs 38 to 43.

Estoppel - Topic 399

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Application where prior judgment obtained by default or consent - [See Estoppel - Topic 387 ].

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - [See Estoppel - Topic 387 ].

Highways - Topic 2487

Closing highways - Access roads - Entitlement to use - The applicants applied under the (Ontario) Road Access Act for an order to close an access road on their land - The access road provided the sole motor vehicle access to the respondents' property - The Ontario Divisional Court dealt with the assertion that the respondents had no legal right to use the road - There was no legal right to use the road incidental to a property right, nor was there a license agreement - However, the source of a legal right to use the road "may arise from statute, from the common law, from rights incidental to a property interest, from agreement or from a court order " - In this case, at least one and arguably several such court orders existed and were valid at the time of the application - The parties bargained their respective rights and obligations on the subject of the access road in Minutes of Settlement which were incorporated in a consent order - The only reasonable construction of the order was that it conferred the legal right on the respondents to use the access road in the manner stipulated in the order - Had the application judge done the analysis, he could not have held that the respondents had no legal right to use the road - See paragraphs 44 to 59.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 10].

Deluca et al. v. Guiho (Paul) Trucking and Constructions Ltd. (1984), 4 O.A.C. 7; 46 O.R.(2d) 634; 10 D.L.R.(4th) 267 (C.A.), refd to. [para. 17].

992275 Ontario Inc. et al. v. Krawczyk (2006), 209 O.A.C. 302; 268 D.L.R.(4th) 121 (C.A.), reving. 2004 CanLII 12088 (Sup. Ct.), consd. [para. 36].

Lehndorff Management Ltd. et al. v. L.R.S. Development Enterprises Ltd., [1980] 5 W.W.R. 14 (B.C.C.A.), refd to. [para. 40].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321 (C.A.), leave to appeal refused (1998), 227 N.R. 288; 167 N.S.R.(2d) 400; 502 A.P.R. 400 (S.C.C.), refd to. [para. 41].

Abramson v. Oshawa (City) (1998), 68 O.T.C. 390; 79 A.C.W.S.(3d) 1252 (Gen. Div.), refd to. [para. 42].

Hees v. National Trust Co., [1946] O.W.N. 544 (H.C.), refd to. [para. 42].

Canada Permanent Corp. v. Christensen, [1929] 2 W.W.R. 198 (B.C.S.C.), refd to. [para. 42].

2008795 Ontario Inc. v. Kilpatrick (2007), 86 O.R.(3d) 561 (C.A.), refd to. [para. 55].

Blais et al. v. Belanger (2007), 224 O.A.C. 1; 282 D.L.R.(4th) 98; 2007 ONCA 310, dist. [para. 56].

Statutes Noticed:

Road Access Act, R.S.O. 1990, c. R-34, sect. 3 [para. 2].

Counsel:

Bert Whitmell and Judith Whitmell, appearing in person;

John Weingust, for the respondents.

This appeal was heard at Toronto, Ontario, on April 23, 2009, by Swinton, Low and van Rensburg, JJ., of the Ontario Divisional Court. Low, J., delivered for the following reasons for judgment of the court, released on May 21, 2009.