May 2007

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Access Road Use and Closure

Where a road across private lands provides access to other lands, can its use be limited to certain persons or purposes? How and in what circumstances may it be closed?

The Ontario Court of Appeal recently considered these issues in connection with an application by a landowner under the Road Access Act for a declaration that the road to its property across neighbouring lands constituted an “access road” and a cross-application by the neighbouring landowners that the road be closed. The trial judge had declared the road to be an “access road” but limited its use to the applicant entering or leaving the property and refused the request for its closure. The appellate court agreed with the trial judge that the road constituted an “access road” within the meaning of the Act.  The court stated:

“In our view, … the status of a road as an access road does not depend on the use of the road by the party claiming that the road is an access road. The definition of access road set out in s.1 of the Act requires only that “a road located on land not owned by a municipality … serv[e] as a motor vehicle access route to one or more parcels of land”; there is no requirement that a specific party use a road in order for it to be an access road.”

However the appellate court determined that, once a road is declared to be an access road, the court has no authority under the Act to limit its use to specific individuals or for particular purposes. The court held:

“ … We see no statutory basis for declaring that the Road is an access road to or for the benefit of particular parties … similarly, we see no statutory basis for imposing conditions either permitting or restricting the use of an access road … in our view, the Act authorizes neither specifying individuals who are entitled to use an access road nor imposing conditions permitting or restricting the use of the road.”

With respect to the request by neighbouring landowners that the access road be closed, the appellate court noted that the Act prohibits closing an access road without a court order where closing the access road “prevents all road access to one or more parcels of land.” In this case, the neighbouring landowners asserted that there was an unopened road allowance adjacent to the northern boundary of the applicant’s property which could provide viable alternate access. Although the appellate court agreed with the trial judge that alternate access might be impossible because of water from various sources (beaver dams, marshlands and other large ponds) covering the unopened road allowance, the appellate court determined that the request for road closure should not have been denied by the trial judge without first determining the existence of parties who have legal right to its use. The court concluded:

“ … a judge may grant a closing order upon being satisfied that the persons described in … the Act (i.e. persons who would be deprived of motor vehicle access to and from their land if a road closing order was made and who are therefore entitled to notice of an application to close an access road) do not have a legal right to use the access road … In this case, the trial judge made no finding concerning whether the persons entitled to be served with notice of the application to close the Road have a legal right to use it … The trial judge’s finding that the road is an access road does not give persons whose property is served by the Road a legal right to use it within the meaning of (the Act) … Rather, at its highest, the trial judge’s finding that the road is an access road establishes only that parties whose road access to other parcels of land would be prevented by an obstruction of the Road are entitled to the privilege of not being treated as trespassers.”

The appellate court directed a new trial on the issue of road closure.

If a road across private lands providing motor vehicle access to other lands is determined to be an “access road”, its use cannot be restricted to specific individuals or for particular purposes. While such a road may be closed if there is alternate viable access, a decision with respect to road closure should only be made after consideration of who has a legal right to use the road and a balancing of their interests with those of neighbouring landowners.