What would you do if, on your way to your cottage, you noticed that the only road you always used to get there has been closed?
In 1978, Ontario enacted the Road Access Act to settle disputes concerning access roads in cottage country. The purpose of the Act is to prevent landowners from arbitrarily closing a road that provides a motor vehicle access to another landowner's property if doing so will prevent all road access to that property.
According to the Act, the owner of the access road is generally forbidden from closing it without a court's approval. However, if there is "alternative road access" to the landlocked property, the Act implicitly permits the owner to close the road without a court order. As such, a landowner who wants to close an access road must initiate legal action, notify the access user, and show that either the access user lacks the legal right to use the road, or that closing the access road is reasonably required to protect the landowner's interests. As per Section 2 of the Act:
No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefore, not owned by that person unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days’ notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights. R.S.O. 1990, c. R.34, s. 2 (1).
Therefore, if your neighbour has forbidden you from accessing the road or sued you for trespass, under the Act you will need to demonstrate that:
(a) there is an access road in accordance with the Road Access Act, meaning a road that is not a highway and provides motor vehicle access to one or more properties;
(b) the used of the road is for motor vehicle access;
(c) the land to which the road is located, is not owned by the municipality and is not a public highway; and
(d) the road is used to access one or more properties.
In 2008795 Ontario Inc. v. Kilpatrick, 2006, Justice Laskin decided the dispute between cottagers and their use of an access road on abutting land that ceased after the property was sold. The cottagers used to pay a reasonable fee ($500/year) to the previous owner to use the access road. The fee was used for maintenance and repairs of the access road. Following the sale of the land, the new owner, knowing the use of the access road, unreasonably increased the fee charged to the cottagers ($2,000/year) and, with their refusal to pay such an unreasonable amount, the new owner, without notice, ceased the road access preventing the cottagers from accessing their own cottages. The Road Access Act was considered and the following were additional points addressed by the court when analyzing the closure of an access road:
(a) Whether the access to the road commenced by the consent of the previous landowner;
(b) If the access road has been closed, evidence that there is no alternative access to the property;
(c) Evidence that the access road closure prevented all motor vehicle access to the property; and
(d) Evidence demonstrating that closure of the access road will prevent landowners from accessing their cottages.
In this case, the court decided in favour of the cottagers, as they were able to demonstrate all the elements noted above. Therefore, the court ruled that the new landowner had violated the terms of the Road Access Act by denying the cottagers access to their properties.
The decision was later affirmed by the Court of Appeal in 2008795 Ontario Inc. v. Kilpatrick, 2007. It is important to remember that an Order refusing the closure of an access road does not provide the access user with the legal right of way over the property. It simply allows for someone to access the property without being regarded as a trespasser.
If you are concerned that your access road has been wrongfully closed and would like to discuss your options, contact our team of skilled and experienced lawyers.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.