Whitmell v. Ritchie et al., (1994) 74 O.A.C. 317 (CA)

• Judge: Dubin, C.J.O., Doherty and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 10, 1994
• Jurisdiction: Ontario
• Citations: (1994), 74 O.A.C. 317 (CA)

Whitmell v. Ritchie (1994), 74 O.A.C. 317 (CA)

MLB headnote and full text

Bert Edward Whitmell and Judith Ann Whitmell (respondents) v. James Ritchie, Gertrude Betty Ritchie, Alessandro Flaugnattie, Maureen Sandra Flaugnattie, Steven James Ritchie and Magdalena Ritchie (appellants)

(C11946)

Indexed As: Whitmell v. Ritchie et al.

Ontario Court of Appeal

Dubin, C.J.O., Doherty and Weiler, JJ.A.

September 8, 1994.

Summary:

The only road access to the Ritchies' prop­erty was by way of a road on the Whitmells' property. The Whitmells applied under the Road Access Act for an order closing the access road. The trial judge ordered that the Ritchies were entitled to use the road between May 1 and November 1 for $250 per year. The Whitmells appealed the refusal to close the road year round. The Ritchies cross-appealed for use of the access road year round.

The Ontario Divisional Court, in a decision reported at 54 O.A.C. 239, allowed the appeal and dismissed the cross-appeal. The court issued an order closing the access road. The Ritchies appealed.

The Ontario Court of Appeal allowed the appeal, set aside the order of the Divisional Court and dismissed the Whitmells' applica­tion to close the access road.

Highways - Topic 2482

Closing highways - Access roads - Ap­plicable legislation - Interpretation - The Whitmells applied under the Road Access Act for an order closing an access road on their property - The road was used by the Ritchies to get to their property - The Ontario Divisional Court ordered the access road closed - The court held that s. 6 of the Act provided that the Act did not confer any right in respect of ownership of land and that the grant of a right of way over the Whitmells' property was such a grant - The Ontario Court of Appeal held that a refusal to close the road did not grant a right of way which was an interest in land and that the Divisional Court erred in its interpretation of s. 6.

Highways - Topic 2486

Closing highways - Access roads - Order closing access road - When available - The only road access to the Ritchies' prop­erty was by way of a road on the Whit­mells' property - The Whitmells applied under the Road Access Act for an order closing the access road - The Ontario Court of Appeal dismissed the application, holding that the Ritchies' use of the road did not amount to substantial damage or injury to the Whitmells' interests and there was therefore no basis for ordering the access road to be closed (s. 3 of the Act).

Real Property - Topic 7075

Easements, licences and prescriptive rights - Rights of way - What constitutes - [See Highways - Topic 2482 ].

Cases Noticed:

Eaton v. Abram (1993), 15 O.R.(3d) 74 (Gen. Div.), refd to. [para. 9].

Deluca, Deluca, Simmons and Simunovic v. Paul Guiho Trucking and Construction Ltd. (1984), 4 O.A.C. 7; 46 O.R.(2d) 634 (C.A.), agreed with [para. 11].

Statutes Noticed:

Road Access Act, R.S.O. 1990, c. R-34, sect. 1(a), sect. 1(e), sect. 2(1)(a), sect. 3, sect. 6(1) [para. 7].

Counsel:

John L. Gignac, for the respondents;

John Weingust, Q.C., for the appellants.

This appeal was heard on June 10, 1994, before Dubin, C.J.O., Doherty and Weiler, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on September 8, 1994.