Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416

 

HOWDEN J.:

Introduction

 

[1]               The major issues in this case revolve around the status and ownership of a largely vacant and irregularly shaped piece of land within a large plan of subdivision located in Concession 11 of the County of Simcoe.  Named Lake Shore Promenade, this undulating strip of land follows the shoreline of Lake Simcoe in front of some forty of the lots, separating those lots from the lake.

[2]               According to the many photographs filed and graciously shared with me by residents, the Promenade has remained much the same over the past eight decades - an open grassy, natural area with some rock outcroppings, enclosed by magnificent trees and some bushy understory, that winds its way along beside the shore of Lake Simcoe, bordered for a substantial distance by a steep embankment that drops to the boulders and rocks at the water’s edge.  The Promenade varies in width greatly, ranging from 40 feet at its narrowest to 150 feet over an approximate length of 2,670 feet. Due to a changing elevation, the embankment adjoins the Promenade on the lake side for some 1,170 feet.

[3]               This plan and its registration hold several mysteries which counsel and the parties have faced and tried to address almost 100 years after it was drawn and registered.  It all began with a meeting.

[4]               On October 22, 1914, Council for the Township of Oro met in urgent session.  The Reeve informed Council that the Kempenfelt Land Company Limited had requested the meeting in order to obtain Council’s approval to its draft plan of subdivision. The reason for urgency is not recorded in the Council minutes for that day.  The minutes of council merely state that the plan was before council for approval and that the company had “requested that a meeting be called at the earliest possible date. And as their business was urgent, they agreed to cover the expense of this meeting.”  According to the council minutes, the members of council examined the plan and approved it. They resolved that “the Reeve and Clerk (were) instructed to sign and attach corporate seal thereto.”  They did so.  [App. Rec., Irwin aff., Ex G.]

[5]               Strangely, in view of the haste to get municipal approval, the plan was not immediately filed with the County Registry Office. It was not until November 24, 1914, that the plan of subdivision was accepted for registration as No. 626, more than three months after it was drawn.

[6]               The statutory time limit for registration then was three months from the plan’s completion.  [The Registry Act, R.S.O. 1914, c. 124, s. 81(1)].  As the plan in this case was completed by the surveyor S.R. Crerar on July 30, 1914, the deadline for registration under this section was fast approaching by October 22.  But if the reason was this deadline, why did it take another month to register it?  And when registered, the plan contained what appeared to be an after-thought: marked on the plan in a dark brown colour was a narrow band about 20 feet wide along part of the south edge of Lake Shore Promenade, the water side of it being identified as “bottom of bank”.  This narrow band represents the horizontal width of the steep embankment.

(Note: At and near its easterly limit, this embankment is marked on the plan as having a width of 20 feet.  About 60 to 70 feet to the west, the plan shows two points where the Promenade and the narrow strip representing the embankment were measured close together; the width of  Promenade + embankment shows as 65 feet, and the width of the Promenade alone is given as 40 feet, meaning that the embankment width was about 25 feet there.  I find that this dark brown strip of land is at least 20 feet wide and reaches 25 feet at times, for purposes of this judgment.)

 

[7]               From this point on in these Reasons for Judgment, registered plan 626 will be referred to as “R.P. 626”. The applicant will be referred to as “the Township” or “Oro-Med.”  Its predecessor will be referred to as “the Township” or “Oro”.  The Kempenfelt Land Company Ltd., the owner and subdivision applicant, will be “KLC”.

[8]               The applicant Oro-Med. is the successor municipality to Oro. The respondents are many, but not all, of the present owners of the front tier of lots on R.P. 626 bordering Lake Shore Promenade. These lots are separated from the lake only by Lake Shore Promenade, and some additionally by the embankment. They say that they and their predecessors in title have maintained the Promenade and the adjoining narrow bank as if it were part of their respective lots; some have built docks or stairs or boathouses wholly or partly over this intervening land. They say that they have done so to the knowledge of Township officials through the years and only now, almost 100 years after the first lots were sold, Oro-Med. has brought forward an application to resolve the ownership of the Lake Shore Promenade in its favour.

[9]               Oro-Med.’s position is that its ownership has been clear on title since 1914 on the face of R.P. 626. It requests a declaration by the court that the Township is the owner of the Lake Shore Promenade.

 

The Plan of Subdivision:  Registered Plan 626

 

[10]           R.P. 626 contains the usual surveyor’s certificate, his certificate of duplicate copy, the owner’s certificate signed under seal of the Kempenfelt Land Company Limited (“KLC”), the mortgagee’s certificate of consent, the affidavits of two witnesses and the record of receipt for registration by the Registry Office assigning the plan number in November 1914.  The owner’s certificate states, in part:

The portions of this Plan coloured pink and brown have been laid out according to our instructions and the portions coloured brown are hereby dedicated as Public Highways.

 

[11]           Marked Exhibit B, the plan used by me, and that I refer to, is the certified duplicate copy of the surveyor’s original drawing which was filed with the Registry Office for the County of Simcoe. R.P. 626 lays out some seventeen streets, all of a uniform width of 66 feet, several large blocks at the rear, and lots numbered from 1 to 418. Lots 1 to 17 are located toward the extreme south-westerly corner of the plan; they front directly on the lake.  Lake Shore Promenade does not run between lots 1 to 17 and the lake.  Those lots are not affected by the Township’s application. 

[12]           Lake Shore Promenade commences at the easterly limit of lot 17 and follows the shore line for the most part, proceeding easterly to the west limit of lot 62. The Promenade separates the following front-tier lots from the water’s edge of Lake Simcoe: lots 18 to 45, 52 to 57, and 63 to 70 (the lot numbers reverse at lot 70 and continue east to lot 62).

[13]           The very narrow sliver of land representing the embankment down to the water’s edge extends easterly beside the Promenade from lot 45 to the production southerly of the west boundary of lot 62.  Beneath it on R.P. 626 are printed the words “bottom of bank”. 

[14]           All of the lots and the blocks laid out on Plan 626 still retain their pink colour.  The embankment is coloured an obvious dark brown, except at the easterly extremity of plan 626 at lot 62 where it inexplicably changes to red.  The colour that was applied to the streets and apparently to Lake Shore Promenade has faded badly on the duplicate plan filed in the Registry Office (Exhibit B). 

[15]           The colour of Lake Shore Promenade and the streets was observed differently by two witnesses. Mr. Fountain, the title searcher retained by the respondents’ solicitors, swore that the roads have “no colour, or at least no discernible colour on the R.O. Copy. At best, there might be a grey colour over these roads, but certainly not brown.” (Resp. App. Rec., Tab 4, Fountain aff., para. 8). Chuck Strongman O.L.S., the surveyor retained by the applicant, said that when he first saw the Plan, he identified the sliver between lots 45 and 70.  He did not say directly, at first, what colour he observed for Lake Shore Promenade; he quoted the words of the owner’s certificate on R.P. 626 and then stated his conclusion that “the lands coloured in brown on that plan are dedicated as public highway.” (App. Rec., Strongman aff., paras. 4-5). Later in the same affidavit, as a result of a second perusal of the Plan, he described the colour of the streets and Lake Shore Promenade directly as a “faded brown” (para. 10).

[16]           The surveyor retained by the respondents, Alan J. Worobec, reviewed R.P. 626 as well as other plans drawn by the same surveyor and additional plans prepared on behalf of KLC as well as other surveyor’s notes and plans registered in Simcoe County between 1911 and 1922. In his affidavit he expressed no opinion in opposition to Mr. Strongman’s. This was because his retainer was limited to two questions, neither of which dealt directly with R.P. 626. Those questions were: (i) prior to 1922, was there a pattern to how surveyors described parcels of land that were being dedicated to municipalities, and (ii) did surveyors in those days differentiate between public parcels that were to become highways, and those that were being dedicated for other public purposes including parks or walkways. When confronted in cross-examination with the question whether R.P. 626 specifically dedicates lands as public highways, he said:

There are words of dedication on the face of the plan.

 

Worobec, cr.-ex. Q.96)

 

And later, he was asked whether he found anything, apart from the words in the owners’ certificate, on the plan itself that modified or detracted from the dedication on the face of the plan, Mr. Worobec replied:

 

I did not find any, no.

 

Worobec, cr.-ex. Q.102)

 

[17]           The present colouring of the streets and Lake Shore Promenade has faded and any answer to the question concerning their present colour appears to some extent to lie in the eye of the beholder, if one takes the affidavits of Strongman and Fountain at face value.

The  Proceeding

 

[18]           Over the years since registration of R.P. 626, the streets were completed and the lots sold.  Many of the lots abutting the Promenade were sold two together in order to provide access other than via the Promenade. The Promenade itself was never developed as a public roadway. Some of the abutting owners have erected structures which sit wholly or in part within the Promenade.  Some of these structures have existed since the 1920s and earlier - at least one cottage belonging to Mr. S. Gillis is still in existence; it was in existence on lot 71 by 1915, the year of its first sale. Docks and boat-houses and stairs came shortly after, built on (or partly on) the Promenade and/or the embankment land.  Neither the Township nor the abutting owners submitted the matter of title to the Promenade or the right to maintain or remove such structures to mediation or to court before now.  Between 2009 and 2011, there was an exchange of correspondence between a lawyer for some owners, the Township and the Ministry of Natural Resources (“MNR”), and finally MNR took the position that no further permits would issue to the Township for removal of shore structures until the ownership issue was resolved. Oro-Med. has now brought forward the application before me.

[19]           Oro-Med.’s application seeks the following relief pursuant to rule 14.05(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

A declaration that the land forming Lake Shore Promenade, including the embankment south to the shoreline as shown on R.P. 626, is a municipally owned public highway or road allowance dedicated by the owner for that purpose and accepted as part of R.P. 626.

 

[20]           The respondent owners of the lots abutting the Lake Shore Promenade filed their responding material and both sides have since developed a voluminous record. In June 2012, the respondent owners brought a motion before the court (otherwise constituted) in an attempt to convert this proceeding by way of application into an action requiring pleadings and trial to determine the factual issues. The motion was not argued. The parties agreed through their counsel to the motion being withdrawn, without prejudice to bringing it back on with the required notice; they agreed that the parties would follow a precise time table for filing of material, mutual cross-examinations on affidavits, and other procedural matters; and that the application would be heard peremptorily on a date to be fixed by the trial coordinator. All time deadlines have been met and the application was fully argued on Wednesday November 14 and Thursday November 15, 2012. No further motion was made by the respondents. However, the proposal for trial has returned in a different form, this time as an adjunct to the hearing of this application depending on the findings the court makes.

[21]           There are two matters of law with which counsel for the parties take no issue. First, if the court concludes that Lake Shore Promenade was dedicated as a public highway or road allowance, and the dedication was validly accepted, no claim can be made upon it or any part of it on grounds of adverse possession or prescriptive right. The law on this point was stated in Di Cenzo Construction Co. Ltd. v. Glassco (1977), 1976 CanLII 853 (ON SC), 12 O.R. (2d) 677 (Ont. H.C.) at p. 689:

It is clear, therefore, that no prescriptive rights conferring title by adverse possession can be acquired with respect to, inter alia, an allowance for road whenever surveyed, since June 13, 1922.

 

[22]           It was on June 13, 1922, that an amendment to the Limitations Act, R.S.O. 1914, c. 75, s. 17, enacted by the Legislature of Ontario, came into force.  The Ontario Court of Appeal in Di Cenzo agreed with the conclusion of the High Court on this point, that s. 17 as amended “prevent(ed) the acquisition of a prescriptive title in lands included in any allowance for roads theretofore or thereafter surveyed and laid out”, (1978), 1978 CanLII 1472 (ON CA), 21 O.R. (2d) 186, at p.198, rev’g Keith J. on other grounds.  Because none of the respondents can claim that possession by them and their predecessors on title began before 1914, they cannot satisfy the 10 years requirement for acquiring ownership by adverse possession because there is only 8 years between 1914 and 1922 when the right to claim ownership by adverse possession was removed for a road allowance or highway.

[23]           Second, R.P. 626 has been registered on title in the Registry Office in its gradually deteriorating condition over the years since 1914 and the Township was accepted by the Master of Titles under the Land Titles Act, R.S.O. 1990, c. L.5, s. 51 as the owner of Lake Shore Promenade when this Plan was accepted into the Land Titles system on May 23, 2000.  Lake Shore Promenade was given its own parcel number and parcel registration number, showing Oro-Med. as the owner. The Plan has therefore been in a public property register since the fall of 1914 when it was filed. The Land Titles Act states at s. 51:

 

51.  (1)  Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.  R.S.O. 1990, c. L.5, s. 51 (1); 2002, c. 24, Sched. B, s. 40 (2).

 

(2)  This section does not prejudice, as against any person registered as first owner of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of the land at the time when the registration of the first owner took place. R.S.O. 1990, c. L.5, s. 51 (2).

 

[24]           When asked why this matter was not before the Master of Titles under the Land Titles Act, Mr. Williams stated, with apparent agreement by Mr. Green, that any decision by the Master was appealable to this Court and therefore it would end up in this court in any event, with a higher outlay of costs. The Township did not rest its case on the Land Titles Act nor was it substantially argued and tested before me.  In any event, s. 51 leaves open the issue of adverse possession prior to May 23, 2000.

Position of the Applicant

 

[25]           Mr. Williams’ first submission on behalf of Oro-Med. is that Lake Shore Promenade is a public highway or road allowance by reason of a valid dedication by the then owner KLC in R.P. 626 and acceptance by the Township. He put forward the following grounds for that submission:

1.the surveyor Chuck Strongman gave his opinion that Lake Shore Promenade was dedicated like all the other roads on R.P. 626 as public highways; the surveyor retained by the respondents did not disagree with that opinion and agreed under cross-examination that there is no extrinsic evidence to the contrary regarding the road dedication in R.P. 626 (Worobec cr-ex., Q. 96 and 102).                   

2.there is nothing on title to support the respondents’ position that they have some interest in the Promenade that derogates from Oro’s ownership evidenced by R.P. 626, and the acceptance into the Land Titles system of the Promenade as a recognized parcel held by Oro-Med., without any interest established by the respondents through adverse possession, reinforces Oro-Med.’s position.

3.the certified linen copy of R.P. 626 in Oro-Med.’s possession (Ex C), found one day by the Township clerk in the course of this proceeding, shows clearly on its face and on its back that Lake Shore Promenade was coloured brown as were all the other roads in 1914 to evidence the intent to dedicate those lands for that purpose. 

4.the fact that 28 lots on R.P. 626 would have been landlocked if Lake Shore Promenade were not a public road is another indicator of the intention to dedicate the Promenade land as a public road.

5.Oro council approved R.P. 626 as set out in the council minutes of October 22, 1914, and thus completed the dedication of the roads shown on the plan by KLC’s certificate of dedication.

6.Oro and its successor, Oro-Med., have consistently recognized Lake Shore Promenade as a public road allowance owned by, and under the jurisdiction of, the Township, as shown by the correspondence with the Department of Lands and Forests and MNR since 1938 (App’s Compendium, tabs 16-37).

7.in law, the Municipal Act, 2001, S.O. 2001, c. 25 in s. 26(5), and the Surveys Act, R.S.O. 1990, c. S.30, s. 57, both recognize and provide that all road allowances shown on a registered plan of subdivision are roads or highways.  This rule has retroactive effect. The title to all roads, highways or road allowances on a registered plan vests in the municipality on the first sale of a lot on the plan, Boland v. Baker, 1952 CanLII 106 (ON SC), [1953] O.R. 239 (S.C.O.). The first sale of lots on R.P. 626 admittedly occurred shortly after its registration in 1914.  There is evidence of at least one lot being sold off  R.P. 626 as early as 1915; Stewart C.E. Gillis, a solicitor, swore in his affidavit that the predecessor on title to his grandfather acquired title to  lot 71 from the original owner KLC by deed dated Oct. 22, 1915 and registered November 18, 1915.

8.dedication as a public road or highway requires the intention to dedicate it for that purpose by the owner and acceptance as a public road or highway by the municipality or the public, 1146726 Ontario Inc. v. National Trust Co. (2004), 48 M.P.L.R. (3d) 283 (Ont. S.C.). The applicant has demonstrated in evidence that both intent and acceptance were satisfied in 1914 with the registration (including the owner’s certificate of dedication) of R.P. 626 and the Township’s acceptance recorded in the minutes of Council and with the sale of lots, title to the road allowances on the plan vested in the Township. The fact that a road allowance fails to be within the maximum width of 100 feet or to be at least 66 feet wide as mentioned in the Municipal Institutions Act, R.S.O. 1914, c. 192, s. 479 is irrelevant where the plan of subdivision was not laid out by the municipality and the road dedication were accepted by the municipality including the road widths on the plan. Those standards only apply to a road actually “laid out” by the municipality, Schraeder v. Grattan (Township), 1945 CanLII 81 (ON SC), [1945] O. R. 657 (S.C.O.).

[26]           Mr. Williams’ second basic submission was that as a public road allowance or highway, a claim of possessory title to Lake Shore Promenade through adverse possession or prescriptive right is statute barred; but even if Lake Shore Promenade were found not to be a public road allowance or highway, it is exempt from claims of that nature by virtue of its being held by the municipality for the benefit of the public, Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.) at para. 13; Colchester South (Township) v. Hackett, 1928 CanLII 8 (SCC), [1928] S.C.R. 255; Teis v. Ancaster (Town) (1997),1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.).

[27]           Finally, it is submitted on the Township’s behalf that if there is no statutory bar to a claim for possessory title, the respondents cannot meet the test for adverse possession in regard to Lake Shore Promenade in that they or any of them cannot show they have been in possession for ten years continuously, or that such possession has been open, notorious, exclusive, actual, peaceful, or in the case of those who have signed encroachment agreements with the applicant, adverse,  meaning without the consent of the true owner.

Position of the Respondents

 

[28]           The respondents take issue with the applicant on the status of Lake Shore Promenade as a public highway. The respondents submit that the colours on R.P. 626 have faded, especially the original colouring of the streets and the Promenade. Mr. Green queried whether it can be said with any conviction that the Promenade was not coloured green or something else in 1914, and in any event, there is no certainty that it was coloured brown in 1914 and so formed part of the lands dedicated as public highways or road allowances.

[29]           Mr. Green put forward the following scenario of what happened to R.P. 626 and the Promenade land during the flawed process of its registration. The owner KLC, having obtained Township approval on October 22, 1914, did not register the plan within the statutory time limit because the Registry Office would not allow registration until the deficiency in the Promenade width of over 20 feet below the 66-foot minimum was remedied. The sliver of land coloured dark brown was drawn next to the Promenade later  to enable the width of the embankment  to make up almost all of the deficit (except in one place where it remained 65 feet in width as measured by the surveyor), not 66 feet. A different colour of brown which has proved more durable was used to colour it. This supposed additional width was a fiction. It was, in reality, the steep bank down to the shore, entirely unsuitable for a road or highway without substantial expenditure. According to Mr. Green, the result is that the embankment has never been accepted or approved by the Township and its present ownership remains to be determined.

[30]            Furthermore, the respondents argue that until 1922 when the Limitations Act exempted road allowances and vacant Crown land from claims of ownership by adverse possession,  no distinction was made between road allowances and other municipal lands such as a “pleasure-spot and park for the public”, to quote Middleton J. in Batt v. Beaverton (Village), [1923] O.J. No. 98.  There was until 1922 no great concern with that kind of distinction other than to protect public areas as roads.

[31]           Mr. Green submits that, to properly interpret legislation of general application, the approach must be contextual and purposive. The Municipal Institutions Act, 1914, and the Registry Act, 1914 aimed at requiring expedition in registering plans of subdivision [Reg. Act, S. 81(1)]  and, more importantly,  setting clear standards for municipal road widths [ss. 479(1) and 81(14)] at a time when the provincial road system was in its very early days. He submitted that the Promenade could not meet the width requirements established for a road allowance.  Where land such as that forming the Lake Shore Promenade fails to meet the plain meaning of a statutory law, having regard to the important  purpose of that law; and where it is named a “Promenade”, with all that word`s implications as a place “for walking about” or “strolling” for the residents of the subdivision in Plan 626, not a street, crescent, boulevard  or other recognized  street name of the time as on R.P. 626; and where the Surveys Act, R.S.O. 1914, c. 166, s. 44(1)  instructed surveyors to lay out on  surveys “all allowances for roads, streets or commons”, the Township lacked statutory authority to accept dedication of the Promenade as a public highway or road allowance: Municipal Institutions Act, 1914, s. 479; Registry Act, R.S.O. 1914, c. 124, s. 81(1); Batt v. Beaverton (Village), 1923 CanLII 479 (ON CA), [1923] 3 D.L.R. 424 (Ont. S.C. App. Div.); Tonks v. Reid, 1966 CanLII 16 (SCC), [1967] S.C.R. 81, at p. 4; 1146726 Ontario Inc. v. National Trust Co.(2004), 48 M.P.L.R. (3d) 283 (Ont. S.C.), at paras. 211-215; Meaford (Municipality) v. Grist (2011), 2011 ONSC 5195 (CanLII), 87 M.P.L.R. (4th) 118, at para. 156. At best, it was intended for use as a public common and as such, is subject to a claim of possessory title by adverse occupation.

[32]           To try to illustrate that the drawing of the sliver next to the Promenade was a questionable stop-gap measure to get the plan through the registration procedure, Mr. Green put up a composite set of four maps from different sources. Two appear to use a section of R.P. 626 as a template in order to show the location where boathouses were proposed for consideration by the provincial DLF. In neither copy was the so-called sliver shown; the shore was simply shown as “below the bank” (Resps. Comp., tabs 21-2).  He said that the docks were built, no one objected and the DLF granted shore permits for them. In 1987-8, rights to use of the Lake Shore Promenade arose as a live issue between the back-lot and front-lot owners over the right of the former to use the Promenade, a suggestion opposed by the front-lot owners.  Yet, Mr Green pointed out, it was not until more than a decade later  that the Township took some action despite prompting from the DLF over the years to clear up the ownership of,  and right to use of,  the Promenade.  In September 2004, a letter from the Clerk of the Township to a resident named James Lemay said that it had retained a legal opinion and that the Township owned the Promenade as a road allowance. This occurred only one month after an earlier Township letter to residents, written by a recreation director, had said that the Promenade was not a road but an area for common enjoyment (B. Lemay aff., Resps’ App. Rec., Ex C and D).

[33]           The respondents through their counsel accept that in law, if land is dedicated to a municipality as a public highway or road allowance and accepted by it, that land is immune from a claim based on prescription or adverse possession for over ten years under the Real Property Limitations Act, R.S.O. 1990, c. L.15.

[34]           They assert, however, that neither the owner of the land in 1914, KLC, nor Oro intended that the Promenade land be a public highway. They go further at one point and attempt to raise a doubt as to the owner of the Promenade and/or of the embankment land and its intended use based on six unproven documents from the 1940s and 1956. They point to a purported consent from KLC as to erection of a boat-house on a water lot in front of the Promenade, letters from a lawyer representing two lot owners wanting to build  boat-houses there,  and two letters from  the Department of Lands and Forests (“DLF”) granting licenses of occupation for the purpose applied for. In both letters, the DLF appears to have accepted a consent in 1944 and in 1950 from KLC purporting to be the owner of the “shoreline. The “consent”, signed by one officer of the company without a corporate seal affixed, refuses to warrant the title of KFC to the shoreline land. The “consent” described the Promenade as having been intended for common beach use by lot owners and their “workmen, servants, and agents.” The respondents submit that these documents alone, all dealing with shoreline structures between 1940 and 1950, form evidence for KFC having retained title to the Promenade as late as 1944; at the very least, the respondents submit there is some reason to find that the Promenade is owned by an entity other than the Township.

[35]           The respondents further submit that the Township has failed to assert its right of ownership over the Lake Shore Promenade for 98 years until this proceeding while the abutting owners have used, maintained and built on parts of it. This court should follow the judgment in Meaford (Municipality) v. Grist, supra, where principles of equity were applied to estop the Township from now “asserting its rights to a public roadway following an “extraordinary delay” of, in Meaford, 150 years. Meaford (Municipality), supra, at paras. 180-185.  Mr. Green further submitted that for these past ten decades the respondents have been assessed with an added waterfront adjustment on which they have been taxed. He submitted that the only way that their lots could be considered on the waterfront is by assuming that the Promenade land between each lot and the lake is part of their lots.

[36]           The respondents therefore request: (i) that the applicant’s request for a declaratory judgment finding Lake Shore Promenade on R.P. 626 to be a public highway be denied; (ii) that the court find that the Promenade is held not as a public highway but as “other municipal property” and as such, it is subject to claims based on prescriptive rights and adverse possession;  (iii) that the doctrine of laches should apply here to leave in place the shoreline structures  built years ago on parts of the Promenade; or (iv) if it is found to be a public highway or road allowance, a trial be directed to determine compensation to abutting owners under the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34; and (v) in the further alternative, that if the Promenade and/or the narrow sliver of land shown in dark brown  are found not to be municipal property, a reference be directed to determine its ownership in law.

 

 

Exhibit C: Linen Copy of R.P. 626, Late Production by Township

 

[37]           Before I proceed further, I must interject here my strong reservation with respect to Exhibit C, the linen copy of R.P. 626 which materialized from the files of the Township well after this application and responding material had been filed. My problems with this document are its sudden appearance during this litigation, not produced at the time that it commenced, and the lack of any examination of it by an independent document expert to establish when the colours that appear so clearly on its underside were applied.  It is so unlike the faded quality of the plan filed with the Registry Office, of which it is supposed to be a duplicate copy, that I am most concerned with its authenticity. It may well be that various people have had access to the area in the Township offices where this document was filed and to the document itself. I cannot assume that over these many years in a small rural municipality, as Oro-Med. used to be, security was not exactly tight.  It is, to me, a suspicious document of uncertain origin, the colours on which appear much more recently applied than those on Exhibit B. It is not a document on which I can safely place any significant weight.

Analysis

 

1.   Is Lake Shore Promenade on R.P. 626 a public highway or road allowance in the ownership and jurisdiction of Oro-Med.?

[38]           This question breaks down into three distinct issues. They are:

(i)                 has Oro-Med. established that KLC intended to dedicate Lake Shore Promenade and the embankment next to it as a public road allowance or highway?

(ii)               if (yes) to (i), did the Township have jurisdiction or statutory authorization to accept and assume Lake Shore Promenade as a public highway despite its deficiencies, in light of  the law as it was in 1914 and now?

(iii)            if (ii) is answered in the negative, what should be the disposition of the Promenade land in the circumstances? Is the intent to dedicate exhausted by a void ruling on (ii)? 

[39]           I will now turn to the first of those sub-issues.

1)  Did KLC intend to dedicate Lake Shore Promenade as a public highway or road   allowance in 1914? 

[40]           The requirements for successful dedication of land for public use are set out by Mr. Justice Brooke  in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), a case where ownership of beach land was involved:

Where dedication of a use of land to the public is claimed or alleged, the onus is on that party to prove:

(1)  that there was, on the part of the owner, the actual intention to dedicate; and

(2)  it must appear that the intention was carried out, for example, by the subject land being thrown open to the public for that use, and that it has been so accepted by the public: see Bailey v. Victoria (City), (1920), 1920 CanLII 367 (SCC), 60 S.C.R. 38, 54 D.L.R. 50; and Reed v. Lincoln (Town), (1974), 1974 CanLII 513 (ON CA), 6 O.R. (2d) 391, 53 D.L.R. (3d) 14 (C.A.).

 

[41]           In making this statement, the Ontario Court of Appeal was following Reed v. Lincoln, cited above, a judgment written by Martin J.A where a dedication specifically as a public road was in question.

[42]           Intention to dedicate for a public purpose such as a highway or public road allowance is a question of fact to be determined on the evidence in each case. It is not a conclusion to be arrived at without careful consideration.  Where dedication is not proven as an actual fact, it may be inferred from evidence of use by the public for many years or years of expenditure of public funds on the road for repair and maintenance. R. Russell, Russell on Roads, 2d ed. (Toronto: Carswell, 2008). In this case, Oro-Med. asserts that the municipality has proven to the civil standard of proof actual dedication and acceptance.

[43]           The history of surveying practices and development of statutory rules relating to those practices indicate that 1914 was a key year, according to Alan Worobec.  According to his evidence, it was only in 1914 that the Surveys Act was amended to require surveyors to set out roads, streets or commons on any plan of subdivision proposed for registration. At that time, a person could acquire a possessory title to any land held by a municipality, whether it was held for the purpose of a road allowance or a park. It was rare in 1914 to state on subdivision plans or surveys that land was dedicated as a street or public highway. Mr. Worobec found that the surveyor of R.P. 626, Mr. S.R. Crerar, was the only one in Simcoe County, between 1911 and 1922, to indicate directly on a plan that certain lands in a particular colour were dedicated for public highways.

[44]           Mr. Worobec had reviewed other plans prepared for KLC and found that R.P. 626 was the only exception to KLC’s usual practice. KLC tended to retain ownership of land near the lake, in Mr. Worobec’s opinion. My review of the KLC plans attached to his report indicates that those other plans took the waterfront lots right to the water’s edge except for R.P. 606, where a piece of land was left stretching right across the water front called Lake Promenade, separate and distinct from the lots and much wider than, and not as uniform in width as, the streets laid out on the plan. Lake Promenade is coloured the same as the streets and all lands in that colour were dedicated as public highways in the owner’s certificate including Lake Promenade. In this, it was similar to R.P. 626; it was also similar in that, like Lake Shore Promenade, there is no evidence that it was ever “thrown open” to the public as a road or highway.

[45]           In this case, the evidence of the owner’s intent is, to some extent, clear. KLC, through its President and Secretary-Treasurer and under the formality of its corporate seal, certified that the lands coloured brown on R.P. 626 were dedicated to public use. There is no dispute that, though the colours have faded, those lands that are streets, each having a uniform 66 feet in width, and the land marked as Lake Shore Promenade which is far from uniform in shape bear the same colour. Even now, they are in my observation a light tan colour, consistent with once having been brown. How the narrow embankment area became coloured a different shade of brown is not clear but, from its different colouring made by a different pencil or crayon and considering the road standards of the day, it is a reasonable inference that that area was needed to show on the plan a minimum width of 66 feet for Lake Shore Promenade as a public road allowance. It does not follow, as Mr. Green has assumed, that the difference in brown colouring of the narrow embankment from the Promenade and the streets meant that the embankment land was coloured after approval of the plan by the municipality. We simply do not know. There are many scenarios one can come up with but none have any evidence behind them to substantiate that the municipality was not aware of the problem with the Promenade’s irregular and non-complying width and the embankment’s very steep topography down to the lake. I am satisfied that KLC did intend to dedicate Lake Shore Promenade to the public as an integral part of the subdivision.  

[46]           Taken alone, the Promenade narrows at several points to a width considerably below 65 feet. At several places it is only 40 feet wide. Mr. Strongman scaled the horizontal width of the Promenade plus the narrow strip of bank land and concluded that together they make up a width at the narrowest point of 66 feet (Str. Aff., paras. 12-13). Mr. Strongman’s conclusion - that Lake Shore Promenade plus the narrow embankment down to the lake were dedicated by the owner KLC as a public road allowance - was not shaken, nor was it seriously disagreed with by Mr. Worobec.  That conclusion, however, was not informed by the effect of the overage in maximum width, the deficiency at other points in width of the Promenade, and the fact that the legislated minimum width of 66 feet could only be met by adding to it on the plan the width of the steep embankment that ends at the water’s edge, a fiction as it was a solution totally unsuitable for a road allowance. Most importantly, it was also uninformed by the contemporary meaning of the descriptive word chosen, “Promenade”, and the uncertainties of surveyors over the  treatment of lands meant for either common use or vehicular passage.

[47]           Mr. Worobec’s evidence from his review of the plans approved and registered in Simcoe County between 1911 and 1922 is not seriously challenged that the period including 1914 was a time of changing rules for surveyors in Ontario and there was a marked reluctance in most cases to provide an owner’s dedication of land for highways or other public use along waterfront areas. And while s. 19 of the Surveys Act, 1914 is not directly applicable to this plan, it shows the ambivalence that dedicatory language could carry despite use of the term “public highway”. Section 19 provides that in every city, town, or village, “all allowances for any road, street, lane or common shall be public highways and commons (emphasis added)”. The meaning of the word “commons” in the period I am dealing with, when not qualified in some way, was held to include lands not ear-marked for road use, land held for use as, for instance, a picnic ground or park or for other uses for general public enjoyment, Lorne Park (Re) (1913), 1913 CanLII 519 (ON SC), 18 D.L.R. 595 (Ont. S.C. H.C. Div.); aff’d (1914), 1915 CanLII 621 (ON CA), 22 D.L.R. 350 (Ont. S.C. App. Div.). Mr. Worobec is of the opinion, resulting from his review of surveyors’ field and survey notes of the period, that they were grappling with how to deal with the new rules for treatment of waterfront lands in particular, and that there was uncertainty in the profession during the period 1911 to 1922 on this issue.

[48]           Mr. Williams points out that there would be a resulting loss of public access to several of the waterfront lots if Lake Shore Promenade and the embankment were not so dedicated at the time. But that access could and obviously has been provided by other means using the open space Promenade traversable on foot or on horseback or other recreational means, not necessarily by vehicles which were still relatively rare in 1914. This subdivision was, after all, for seasonal use, and as it has turned out, the lots were developed with cottages for which access was accomplished in many informal ways.

[49]           In any event, I find the evidence to be compelling that KLC intended to dedicate the lands on R.P. 626 named Lake Shore Promenade and the embankment for the purpose of a public road allowance but it remains to be seen what that might include and whether municipal acceptance and approval by the Township was validly accomplished within the law of the time. It is clear that dedication of the Promenade as a public road was never impliedly accepted by use and municipal maintenance.  Despite the words used in the owner’s certificate that give an appearance of certainty, the unique shape, the intent from use of the word “Promenade” for a more passive use near the lake, and the divergences of size from the legal minimum and maximum standards for highway width in force at the time leave some doubt and ambiguity on the face of the plan as to the precise purpose for which its owner was really dedicating the Promenade. And after all, dedication is to the public, not the corporate entity.  Gibbs v. Grand Bend, supra, paras. 102-109. 

2)  Did the Township have the statutory authority and jurisdiction to accept and   assume Lake Shore Promenade as a public highway or road allowance?

 

[50]           The respondents submit first that Lake Shore Promenade was never intended by the owner to be used as a roadway for vehicular traffic; rather, it was intended to provide access to the lake, a waterfront walkway, and an open area beside the lake for the use of the lot owners on R.P. 626. They further submit that, in the alternative, if the Township is found to be the owner for non-road purposes, it was to be used by lot owners and members of the public at large for passive purposes and quiet enjoyment in a lakeside setting.  They point to the meaning of “Promenade”, the fact that only this waterfront land (including the bank) bore that name, its use to this day as open space land and never a road, its severe variation in width from 150 feet to 45 feet, and the steepness of the bank land that is coloured quite distinctly brown. The topography of the steep bank would make the Promenade, which must include the bank to get close to the 66 feet road minimum in several places, unlikely for use then or in future as a road. The road standards at the time are found in the Municipal Institutions Act, 1914 and the Registry Act, 1914:

Municipal Institutions Act

 

479(1) No municipal council or owner of land shall lay out any highway less than 66 feet in width or, except in the case of a city or town, more than 100 feet in width.

(3)  No highway shall be laid out in any municipality by any owner of land without the sanction of the council of the municipality......

And s. 432 of the same Act states:

           

Except in so far as they have been stopped up...all roads dedicated by the owner of the land to public use...shall be common and public highways.

 

Registry Act

 

81(14) - The Registrar shall not register a plan which does not comply with the provisions of this Act; nor shall he register a plan on which a road or street less than sixty-six feet wide is laid out unless the assent of the proper municipal council is registered therewith.

 

[51]           R.P. 626 states on its face that Lake Shore Promenade, even with the embankment land added to it, measured a width of only 65 feet at one point. Mr. Strongman says now that he scaled off the width as drawn and found that there is 66 feet in width throughout.  However, to municipal councillors reviewing the plan, the deficiency would be obvious from the width noted on Lake Shore Promenade of 40 feet (without including the embankment) and, if it is included without considering its difficult if not impossible topography for road use, the Promenade continued to be deficient. In addition, there is no doubt of its unique location on the shoreline and its unusual shape as a proposed road, widening substantially to 150 feet, well in excess of the municipal standard of 100 feet maximum in width.

[52]           One Ontario case considered the meaning of the word “Promenade” on a registered plan or survey as being relevant to the intent of the owner when dedicating a piece of land to a municipality. I am well aware in citing this case that it differs on the facts from this case in that there was a 1-foot reserve around the subdivision. However, Flynn J. of the Superior Court did consider the meaning of “Promenade” on the issue of intent to dedicate land for a public highway in  1146726 Ontario Inc. v. National Trust Co. (2004), 48 M.P.L.R. (3d) 283 (Ont. S.C.). He held that the contemporary meaning of the word, circa the turn of the century[1], was a walking path or park, a place for strolling, not a public road or street. At paras 211-13 he wrote:

A Rose is a Rose

 

211  Surely in 1893, the word "Promenade" was much more closely understood in accordance with the dictionary definition as a place for strolling - for "walking about" - not as a public road or street. I find that it was not the intention of the surveyor or of the developers to dedicate that Lakefront Promenade to the public in the sense of the Municipality - but rather to create a beachfront strolling area for the residents of the private cottage enclave that was Plan 311 (Plan 9).

 

212  That may have changed by the time of the introduction of the current wording of s. 57 of Surveys Act (1990):

Every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road, highway, street, lane, walk and common.

 

213  But that can hardly be an intent retrospectively visited upon Messrs. Woods, Martin and Carroll. While the legislature has recognized "lane" as a kind of public highway, Carroll, a seasoned surveyor by the time the plan was prepared, avoided words like "lane" or "commons" and used in one case, the exotic "Lakefront Promenade" and in the other the word "Avenue", which in 1893 could well be understood by the Oxford dictionary definition employed since the mid-seventeenth century to import the chief approach to a country house usually bordered by trees.

 

[53]           In a case decided in 1923, the word “promenade” was not used but the case dealt with land that had never been used as a highway and was described by the trial judge Middleton J. as being within the same category of use as Flynn J. held to be encapsulated in the word” promenade”:

29  On the whole case the situation here resembles that dealt with in the Stonehenge case, Attorney-General v. Antrobus, [1905] 2 Ch. 188.  …They came for the sight and the pleasure. The passing over the land was not by way of using it for a road, but as a mere matter of convenience. ... The village fathers do not seriously regard this as a road and say the intention is not to use it as a highway, but as a pleasure-spot and park for the public.

 

30  All this is the strongest evidence that it is not a highway.

Batt v. Beaverton (Village), 1923 CanLII 479 (ON CA), [1923] 3 D.L.R. 424.

 

[54]           While I have found that this land was dedicated on the plan as a public highway, the substantial discrepancies beyond the maximum statutory standard of 100 feet, the non-road connotation of the name Lake Shore Promenade, its undulating shape unique among the “roads” on R.P. 626, and the necessity of adding the steep bank to make the horizontal minimum road width of 66 feet without which the Promenade would be sorely deficient by some 20 feet, all go more to the respondents’ submission that the Township had no jurisdiction or authority in law to accept and assume the Promenade as a public highway. The evidence is clear that ever since 1914, the Township has never opened it for use as a public road or highway nor could it meet the required minimum width of 66 feet without expenditure of a serious amount of money to fill, stabilize an entire new shoreline well above the lake, provide for retaining walls, and build a road on an allowance of at least 66 feet in width. This is something never contemplated by Oro’s or Oro-Med.’s councillors in the 98 years that have passed, on the evidence before me.

[55]           Mr. Williams submits on Oro-Med.’s behalf that the excessive width of well over the statutory maximum of 100 feet is of no consequence, that the right of way including the bank land measures at least 66 feet throughout the Promenade’s length and the lateness of registration is a mere irregularity which does not go to the competence of the Township to assume it as a public highway.  Mr. Williams submits that the maximum width standard in the Municipal Institutions Act, 1914 is coupled with words that indicate they apply to a municipality or landowner that lays out a highway; in this case, he argues, the highway is established by dedication and acceptance by the municipality pursuant to s. 19 of the Surveys Act, 1914 to which the width provisions of s. 479 of the Municipal Institutions Act, 1914 do not apply. He says that only where a highway is established through “the other applicable sections of the...Act” do the maximum and minimum widths apply. The “other applicable sections” that he referred to were not cited or explained by him.

[56]           Section 19 of the Surveys Act, 1914 reads, in the relevant parts:

In every city, town and village, or any part thereof, which has been surveyed by the authority mentioned in s. 16, all allowances for any road, street, lane or common laid out in the original survey of such city, town or village, shall be public highways and commons...; and every surveyor employed to make a survey in such city, town or village, or any part thereof shall follow and pursue the same rules and regulations in respect of such survey as are required of him when employed to make a survey in a township.

           

[57]           I do not accept Mr. Williams’ submission that the deeming provision of s. 19 of the Surveys Act, 1914 has any application to this purported highway. Section 19 deems what are public highways and commons in the original survey of a city, town or village. This municipality was a township then and remains one today, not a city, town or village. As well, s. 19 only applies to the original survey of the city, town or village. R.P. 626 is merely a plan of subdivision of privately owned lands in Concession 11 of the Township. There is no evidence demonstrating that it forms part of the original survey even if this municipality were a city, town or village. The last part of s.19 applies to the rules surveyors are to follow in drawing a survey for a township; by itself, it does not deem anything to be a public highway.  Therefore, the Promenade as enlarged in width was not impacted by that provision and no other ground was presented to me from which one could conclude that this plan was not subject to the maximum and minimum width standards set by provincial legislation in force at that time. 

[58]           I acknowledge the evidence referred to by Mr. Williams that the surveyor retained by the Township was able to determine that the minimum width provision of 66 feet was met along the whole length of the Promenade according to the layout and the scale on the plan.  But on its face, the plan clearly shows to any person or councillor examining it in 1914 that it was only 65 feet wide at one point and therefore on its face was deficient; without the added embankment land which was obviously unsuitable for a roadway, the Promenade’s width was well below 66 feet for most of its length and no assent by the Township to that deficiency was registered as required by s. 81(14) with the plan. It also clearly never met the maximum width standard in s. 479, Municipal Institutions Act, 1914.

[59]           Did the Township possess the jurisdiction and authority in 1914 to accept and assume a divergence along a considerable part of its length of up to 50 feet above the 100-foot maximum for a public highway as well as what is a fictional attempt by KLC to cover up  a 20-foot deficiency below the statutory standard? It clearly had the authority to accept the plan of subdivision as a whole. But could it accept a roadway on that plan so divergent from recently enacted legislated standards and of a shape and location more suited to act as a place for strolling or a lakeside park as its name suggests, as well as its use for almost 100 subsequent years by lot owners on R.P. 626, and the public? 

[60]           The only two authorities cited to me which suggest an answer to this question are Meaford (Municipality) v. Grist, supra, and Tonks v. Reid, 1966 CanLII 16 (SCC), [1967] S.C.R. 81. As Meaford comes from a judge of co-ordinate authority in this court, it is, of course, not binding on me. However, it has persuasive authority as well as the principle in the doctrine of res judicata that decisions from a co-ordinate court of the same jurisdiction, in so far as they outline a principle of law, should be followed in the absence of strong authority to the contrary.  R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431 (Ont. H.C.J.).  Tonks is from the Supreme Court of Canada, though the facts are not on all fours with this case; it involves the sale of highway land, not its establishment as the applicant’s counsel points out (App.’s Factum, para. 1 (f)).  But for the general principle that it is cited for, it is consistent with other authorities holding that municipalities are creatures of the province and must act within the authority granted them by provincial statute law.

[61]           In the Meaford case, Daley J. was considering a motion under rule 20 to dismiss a claim by the Town of Meaford that a public road had been established by By-law 11 in 1854 and by a confirming by-law passed in 2003. He dealt with the claim in the historic and present context.  In the section dealing with the 1854 era, he considered the effect of the plaintiff municipality’s claim that the road had been reserved in private deeds. One such deed reserved 33 feet of part of the claimed By-law 11 road along a lakeshore. In that context he gave the following reasons:

74  No survey has ever been completed of the By-Law 11 Lands. The only survey plan prepared was done in 2007 and it only covers a portion of the By-Law 11 Lands referred to as the "McDowall Plan," where the properties of the defendants Grist and Seaman et. al. are located.

 

75  There is no evidence depicting a road on the lakeshore on any maps from 1855 onward. While there is evidence of the appointment of "pathmasters" pursuant to various by-laws enacted during the period 1863 to 1874, there is no evidence that a "pathmaster" was appointed with respect to any road running through Lots 22, 23 or 24 of Concession 6.

 

76  Although the plaintiff's surveying expert offers the opinion that a municipal road was established pursuant to By-Law 11, the record of conveyancing of properties subsequent to the enactment of the by-law does not support this conclusion.

 

77  Noteworthy is a conveyance in 1878 from William Stokes to Lane Murphy which involved the conveyance of 10 acres from the southern boundary of Lot 23, Concession 6. Mr. Stokes granted lands rights to the water's edge, but with a reservation of lands:

 

Over the quantity reserved for a two rods [33 feet] road along waters edge of said broken front lot and in the front of the 10 acres now sold and reserved by Mr. Stokes for his use and if properly established for the use of the public also.

 

78  The reservation of title to the grantor, William Stokes, was limited in width to the "two rods road" or 33 feet. The Municipal Actin force at the time precluded the creation of a public highway with a width less than 66 feet and this restriction remained in force until after 1925.

 

79  The reservation of title retained by William Stokes did not appear in the earlier chain of title with respect to this property which is within the By-Law 11 Lands.  ( Emphasis added.)

 

[62]           Daley J. was considering the claim by a municipality that a road had been established over private property due to a pre-confederation municipal by-law and the historic use since 1854. In stating his conclusion that a municipality was precluded from establishing a road of a width deficient by half from the standard in s. 479, he was recognizing the fundamental principle in municipal law that a municipality is a creature of the legislature of Ontario and lacks the competence to enact laws which conflict with, or lack the authority of, a statute enacted by the legislature of Ontario. In short, a municipality is a creature of statute and cannot act beyond its legislative competence which is defined by the statute law of Ontario.

[63]           In Tonks v. Reid, supra, at p.4, the municipality had closed a highway and sold part of it to the defendant who was not one of those eligible to receive a transfer under the Municipal Act, R.S.O. 1960, c. 249. In agreeing with the Ontario Court of Appeal, Judson J. ruled for the Supreme Court panel  that failure to observe the provisions of the Act regarding sale of a roadway meant that

the council acted without authority and the by-law authorizing sale is void... Words could not be plainer. The council was under no compulsion to          sell, but if it determined to sell, it had to sell in accordance with these provisions. It fixed no price and it made no offer to the abutting owners.             Council had no authority whatever to make this sale to Tonks.

           

[64]           The principle of the pre-eminence of statute law governing municipal authority to act and to legislate was stated more recently by the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 (CanLII), [2000] 1 S.C.R. 342 at para. 17:

The first step is to consider the approach the courts should take when construing municipal legislation.  As noted by Iacobucci J. in R. v. Sharma, 1993 CanLII 165 (SCC), [1993] 1 S.C.R. 650, at p. 668:

 

... as statutory bodies, municipalities “may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation”.

 

[65]           In Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231 at para. 17, McLachlin J., as she then was, referred to the approach to municipal powers in this way:

In R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, in a passage cited on this appeal by Sopinka J., Iacobucci J., speaking for the Court, commented (at p. 687) that:

 

Municipalities are entirely the creatures of provincial statutes.  Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute.

 

However, the same reasons (at p. 688) advocated a "benevolent construction" of the provincial enabling legislation, quoting the foregoing passage from City of Hamilton v. Hamilton Distillery Co.

 

[66]           And later in the Shell decision, in a dissent which has been cited by the Supreme Court since as the law now, McLachlin J. did not alter the fundamental principle that municipalities must act within provincial statutory authority but stated that the courts must take a deferential approach to the way in which municipal governments exercise their powers within that statutory authority:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils.  Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold.  In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which the Supreme Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

 

[67]           Dealing now with non-compliance of the Promenade as a roadway with s. 479(1) of the Municipal Institutions Act, 1914 and s. 81(14) of the Registry Act,1914, the purpose of those enactments was obviously to set basic standards for highways laid out by private owners or by municipalities at a time when the municipal and provincial road systems north of Toronto were still in their infancy. In approving a public highway with a width well beyond the maximum standard established in the recently enacted provision and at another point, a width below the minimum without registration of council’s assent to it, the Township acted beyond its authority and directly contrary to provincial legislation. Therefore the approval and assumption of Lake Shore Promenade as a public highway by Oro council was void and of no effect.

3)  What should be the disposition of the Promenade/embankment land in the circumstances? 

 

[68]           Where does this leave the issue of ownership or title to the Promenade land?  The Township was precluded from establishing or accepting it as a public highway because it exceeded the maximum width for a highway of 100 feet and was not at least 66 feet in width. The owner’s intent to dedicate the Promenade to the public, and public acceptance of it as an integral part of the subdivision, remain intact. It means that its use as an access way to the lake and a common area would be simply brought   into line with the intent implied by its name, its topography, and its uniquely irregular shape and statutorily deficient status as a roadway on a registered plan.  

[69]           Lake Shore Promenade including  the abutting embankment to the shoreline was dedicated by KLC, like the other lands marked in the same colour, as a public highway but the approval of the municipal council as it applied to Lake Shore Promenade was void. The council acted beyond its powers by purporting to approve and assume a public roadway that did not comply with the requirements of provincial legislation. The owner’s intent for this uniquely shaped land, as shown by the name it was given, its inadequacies as a roadway, and the steepness and extent of the vertical drop down to the lake, was for it to serve the subdivision and the public interest as an access way and as a common area for the enjoyment of the lot owners and the public. It was lumped in with the streets by colour in circumstances that I described in the previous section.  Its functions vis-a-vis the subdivision of which it was a part remained, as access to the lake and as a public common area or lakeside park.  As such, Lake Shore Promenade remained within the dedicatory intention of the owner and the acceptance by the public. It was only insofar as the Township`s approval included a purported use as a highway that the municipality exceeded its powers and to that extent was void.

[70]           Furthermore, the Promenade was never “thrown open” as a road for use as a highway by the public, and   there has been public acceptance of the dedication over many years.  For it ever to have  become an actual roadway,  a large amount of fill and reshaping of the embankment and the shoreline for a distance of some 1,170 feet would have been  required, a capital work never considered by the Council. In 98 years, no money has ever been set aside by the Township for that purpose. But its use for many years by the public including all owners, their families, and others, as a public trail or park constituted, I find, acceptance of the owner’s dedication.

[71]           I am supported in this conclusion by the following authorities. Kerans J.A. in Foothills Mun. Dist. No. 31 v. Stockwell, [1985] A.J. No. 752 (C.A.) wrote, in enlarging on the second part of the test for dedication:

An actual intention to dedicate may be inferred from the circumstances and, in particular, from long, uninterrupted public use. Acceptance by the public may be inferred from the same circumstance.  See Williams & Wilson Ltd. v. Toronto, 1946 CanLII 62 (ON SC), [1946] O.R. 309.

 

[72]           Also, in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), a case of implied dedication of land for public beach use, Brooke J.A. wrote:

Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance...Once a dedication is complete, neither the owners nor their successors in title could revoke it: see Hunsinger v. Simcoe (Tn.) 1946 CanLII 106 (ON CA), [1946] O.R. 203. Neither the dedicator nor his successors in title can resume control of or convey the land free from the public rights to its use, nor can anything be done by the present owners to take back that which had been previously given away: see Gion v. Santa Cruz, 2 Cal. 3d 29 at pp. 52-53 and 60.

 

[73]           For these reasons, I find that as of 1914, the approval and purported assumption by the Township of this one portion of R.P. 626 as a highway is ultra vires the municipality and therefore void.  The dedication by KLC to the public for use by lot owners and the public as common open space and an access way to and along the lake shore remains effective. There is clear evidence of acceptance by the public as land held for these public purposes. In addition, the Township has maintained a virtually constant stance from the 1920s to now as evidenced by the position of the Township as the Promenade owner whenever the status of this land came before the provincial Department of Lands and Forests (DLF) during the process for applications to erect private shore structures and when that same status came before council itself as outlined in the Township’s Factum in paragraphs 20 (1.) to (12.). 

[74]           I find that the respondents’ counsel’s use of the copies of four unofficial maps drawn without reference to the embankment land lacks any proof of authenticity.  These are maps used as base drawings by someone unknown for purposes of a private application.  They are not evidence of anything regarding when the embankment land was coloured brown on the actual plan.  As for the suggestion that ownership of the Promenade/embankment lands may be unknown or held still by KLC, the consent purportedly signed by an officer of KLC decades after the subdivision plan was registered containing KLC’s dedication under seal, is not under seal nor is there any other proof of its authenticity or that it was authorized by the company.  In any event, the consent expressly did not warranty that KLC owned these lands, no doubt because the person knew the Township still held title to these lands.  With due respect, these are smoke and mirrors. 

[75]           I find that the Township’s continuous position over the years has been that the Promenade land was held as public land for the use and benefit of all lot owners on R.P. 626 and the public. To say that the Township has ignored the Promenade is overstating reality. It has not developed a public road from the Promenade lands.  It has also not exhibited any consistent leadership and responsibility over the years toward the use of these lands as lands held for the benefit of the public, such as installing waste bins, marking the Promenade limits more clearly, and establishing some directional signage regarding no use by motor vehicles and notice of public use restricted to passive activities.   

[76]           Be that as it may, the Township’s ownership has been a matter of public record in the land registry system and now Land Titles since 1914, as Mr. Williams submitted. And it has maintained its public position as the owner of the Promenade lands throughout the intervening years, for instance, with residents who applied for provincial shore licenses to build a structure or to create a water lot; and with the Department of Lands and Forests (DLF) and its successor, the Ministry of Natural Resources (MNR) and with all R.P. 626 owners when internal disagreements arose between front and back lot owners.

[77]           The respondents’ evidence confirms that Lake Shore Promenade has never been used as a municipal roadway and that the public in the sense of the community of owners and their families and friends on R.P. 626 and members of the public at large have been using and have accepted Lake Shore Promenade years ago as an amenity for strolling and resting and enjoying generally a walkway beside the lake. I will deal with the respondents’ evidence on this point in detail shortly. 

[78]           Mr. Williams argued that as of 1999, the requirement that a road meet certain provincial width standards was deleted from the legislation. As well, s. 26(5) of the Municipal Act, 2001 states that all road allowances or highways shown on a registered plan of subdivision are highways unless they have been formally closed. He submits that this provision must be given retrospective effect if it is to have any meaning. In 1914, s. 432 of the Municipal Institutions Act, R.S.O. 1914, c. 192 stated that all roads dedicated to public use shall be common and public highways.

[79]           These provisions have no effect on what I have ruled. I have found that the Township had no authority to assume and accept Lake Shore Promenade as a public highway according to the law in 1914 and as such its purported acceptance as a highway is void. Therefore as of 1914, it was not a public highway. It constituted land dedicated to the municipality for public use other than as a highway.  Therefore for purposes of s. 432, Lake Shore Promenade was not a road and it no longer came within S. 432.  As for s. 26(5) of the Municipal Act, 2001, while no doubt it has retroactive effect, it cannot make into a highway land on a registered plan of subdivision that the court has ruled was not, and could not be, accepted as a road allowance or a highway. It remains an integral part of the plan as municipally owned shoreline land for use for access by owners to the lake and as a common area for the general use and enjoyment of those in the subdivision and the public.

[80]           Mr. Williams argued on the Township’s behalf that the decision of council was merely voidable and not void and therefore the Limitations Act prevents such an attack now on the municipal decision. On these facts, I do not accept that submission. I have no problem accepting the Township’s submission that the late registration is merely an irregularity and that this plan has been relied on for almost 100 years by the residents themselves as evidence of the land to which each holds title. However, the decision of the 1914 Township council to accept Lake Shore Promenade as a public highway, rather than a block of waterfront public land or commons for non-vehicle use as its name and dimensions imply, clearly flies in the face of the provincially enacted road standards that the Promenade alone on this Plan clearly violated from the day the plan was prepared. The decision to accept and assume it as a public road by the Township in 1914, within a year after the road standards were enacted, is void ab initio, i.e. from the beginning (both the Registry Act, R.S.O. 1914, c. 124 and the Municipal Institutions Act, R.S.O. 1914, c. 192 were bought into effect on March 1, 1914, only seven months before the Oro council meeting with KLC). That status did not rely on some subsequent event.

[81]           Finally, current provisions in the Surveys Act, s. 57, as well as in the Municipal Act, 2001, s. 26(5), in my view have no effect on this ruling.  As land on R.P. 626 held by the Township for a public, non-road purpose, those sections simply do not apply to the Promenade and the accompanying embankment land. The effect of this ruling is that from 1914 on, the Township’s acceptance of it as a highway being void, it is not a road allowance, street, or highway shown on a registered plan and therefore cannot be deemed now by those provisions to be a highway.

[82]           The subdivision approval process in 1914 was not the multi-layered process it is today. However the kernel of the concept for what it has become was firmly planted by 1914. Pursuant to s.81(18) of the Registry Act, 1914, no plan of subdivision could be registered unless it received the approval of the municipal council for the locality where the land was situated. This was required so that the municipal council could ensure, among other things, that   the lots being created would be served adequately and not isolated from the lake or from the provincial road system. In other words, the legislature saw from the beginning that the addition of multiple lots raised servicing concerns that the public interest required local governments to address through an approval process.

[83]           The present intent, as I understand it, is for continued use of the Promenade as a public trail or lakeside park and for access by lot owners and families to the shore of the lake. Between 2000 and 2003, the Township conducted a series of meetings with owners of lots on R.P. 626 to discuss options for Lake Shore Promenade. The options put forward were: (i) to close the Promenade and offer it for sale to abutting owners under the Municipal Act, R.S.O. 1990, c. M. 45,  or (ii) maintain it as public land closed it to all vehicular traffic. A Working Group was established in 2003 that made various suggestions all involving the Promenade being maintained as a passive walkway or trail or park.  The only tangible result from this process was a “direction” by council to:

 

(i) prohibit vehicular traffic between Blackman Blvd. and Myrtle Avenue, and

       

(ii) to better define the boundaries between the Promenade and the abutting properties.

 

[84]           By-law 2004-119 was passed later to accomplish the first of these directions. By-law 2004-119 prohibits the use of motorized vehicles and snow vehicles on a substantial portion of the Promenade. The only parts excepted from that prohibition are at each end where some owners use small parts of it for access to their lots. Its use by lot owners and their families as well as by the public as a natural open space area has continued for the last 98 years.

[85]           From the photographs filed by the residents, the Promenade has been allowed to remain as a natural and continuous open grassy area forming a pleasant walkway between statuesque trees, as well as a means for cottage owners to access the lake and their boat-houses, docks, stairways and decks by the lake. It has never been sectioned off by individual owners as part of their lots in the way that the respondents’ submissions at times have implied.

[86]           Usage of the Lake Shore Promenade is evidenced by the affidavits and cross-examinations of R.P. 626 owners like Beverley Lemay and Diane Gerrard.  Ms. Lemay supports the claims of the respondents to ownership by adverse possession. In her evidence, she states that over the 54 years of association and use of her family property on R.P. 626, the owners of lots abutting Lake Shore Promenade have maintained the landscaping, placed structures on parts of it and generally have treated those parts of it between their respective lots and the lake as their own. At no time does she claim that anyone enclosed a part, or parts, of it to others or to the public or that at any time the public was consistently and continuously excluded except for those parts where they have built boathouses and docks. And none of this was done without the knowledge of the Township as owner of the Promenade.

[87]           Ms. Lemay’s overall conclusion in her evidence, after reviewing her extensive knowledge of the area’s history, was expressed this way:

15. It is my opinion and belief that the property shown as the Promenade has never been and was not intended to be a public road allowance. At the very worst, it was first set out as a public walkway, or a park. However, through usage over a hundred years it has always been used as the private property of the landowners abutting same…

 

[88]           In her later affidavit, Ms. Lemay added to her prior evidence on the history of public usage of the Promenade. She corrected a statement made in a letter from one of the residents that owners of lots abutting the Promenade have objected to members of the public using any part of it.  Ms. Lemay made it quite clear that the property owners have in fact not taken this position. To the contrary, Ms. Lemay’s evidence was that, according to her understanding, property owners and their predecessors on title on R.P. 626 have only objected to members of the public walking on or using the private structures they have built on the Promenade including their docks, decks, boat-houses, and sheds. (B. Lemay, Supp. Aff., Aug.7, 2012, para. 6).

[89]           It is, of course, not the law in Ontario that mere entry or usage periodically, or seasonally, of a property is sufficient to claim ownership as against the true owner. I will return to that aspect in section 3 of this judgment.  My point in citing her evidence here is that, based on her knowledge of the history of this area, Lake Shore Promenade was never opened as a public road and was kept open and used as a passive amenity for the public, which included front and back tier lot owners on R.P. 626 and their families.

[90]           Ms. Gerrard stated in her affidavit that, given her experience as a practicing landscape architect involving several waterfront projects, the Promenade shoreline cannot be naturalized without the commitment of large amounts of money and that removal of the docks built adjacent to the Promenade “will have no environmental benefit and will likely have a negative effect.” She was not put forward as an expert witness but neither was she shown to lack practical experience in this area.  On the aspect of public access, Ms. Gerrard was quite forthcoming and her evidence was credible. She admitted that in an email to a councillor, she referred to the Promenade as “a public right of way”, and that “I think we’ve always seen the middle part as being a public right of way”. She agreed that she has seen quite a few members of the public use the Promenade.  At one point she apologized to the Township for using the Promenade without Township approval when a contractor had left ruts in it. Finally, Ms. Gerrard accepted that she had stated to Township Council during a deputation that front and back lot owners agreed on the principle that the Promenade should remain public.  (D. Gerrard cr-ex. pp. 4-5, 14, 21-5).

[91]           Stewart C. E. Gillis provided an affidavit that, in addition to a substantial amount of personal opinion, contained three observations which are useful. One, I have already mentioned - the first recorded sale of a lot off R.P. 626 in 1915. The other two refer to his description of the embankment and to a site survey of structures:

7.  At the time my grandfather acquired lot 71, the present cottage structure was completely built. In addition, there were wooden steps from the top of bank down to the bottom of the bank. There was also a large wooden boat-house built over the rocks at the bottom of the cliff.

 

8.  The cliff is approximately 30 feet or more in height, at the bottom of which are large granite boulders. It was upon the boulders and lower bank upon which the boathouse and attached dock were built. Attached to this my affidavit is a series of 10 photographs that demonstrate the steepness of the bank, the type of vegetation…, and the structures that are today on these lands.

 

18.  Attached to this my affidavit as exhibit D, is a portion of a survey by P.J. Mansfield, O.L.S. The survey is dated October 1, 1997 and I understand was completed for the Township. It clearly shows the number of encroachments at that time on the Promenade, both above and below the bank. Many of these had been there for years, even decades, prior to 1997. The Township appears to have done nothing by way of a claim to this land until at least 3 years later than this survey.

 

[92]           The survey shows something in the area of 15 to 17 structures built on the Promenade across some 2,670 feet of lake frontage by a depth ranging between 40 and 150 feet.

[93]           The Township’s assertion of ownership of the Promenade as shown on title since 1914 has been consistent. In 1938, the Township did not consent to the adding of a structure requested by an abutting landowner because it was held for public use as a road allowance. (App`.s Supp. Rec., Tab 23). Mr. Williams listed a number of similar instances since then, as I outlined earlier. In 1964, the Township granted permission for a stairway to be built down the Promenade bank to the lake because it would be of benefit to the public. (App.’s Supp. Rec., Tab 29). In 1949, on another shore permit application to the DLF, the Township considered it and determined that no further consents to water rights would be granted by council in front of the Promenade because the shore lands should be left open to all.

[94]           In 1973 when some abutting landowners were attempting to prevent back lot owners from using the Promenade, the Council gave written notice to all lot owners that the Promenade was not solely for the use of owners of abutting lots as it was dedicated as a public roadway to serve the whole subdivision. (App.’s Compendium, Tab 29, Ex 1E to cr.-ex of J.D. Irwin, Township Clerk Sept. 13, 2012.). In 1983, the Clerk-Treasurer wrote on the Township’s behalf to the same effect to abutting landowners who expressed interest in purchasing a portion of it:

As a matter of policy, Council has not, and does not, intend to convey (or sell) any portion of these lands which have been dedicated for public purposes.

 

[95]           It is only because of letters by a solicitor for a number of abutting property owners (not the firm of solicitors now representing the respondents) to the MNR asserting that ownership of the Promenade does not lie with the Township in 2010 and 2011 that the ministry began to take the position that it would not issue more shoreline removal licenses to the Township until the title issue was resolved. The Township brought this application as a result. The solicitor in question submitted no evidence for the assertion on behalf of her clients; she gave only a one-sided version of the status of the Township’s title to the Promenade sufficient to raise doubts in some minds in the provincial ministry.

[96]           I find, on the evidence from the Township and from the residents themselves, that the Promenade lands including the embankment as shown on R.P. 626 are lands that were dedicated to the Township for a public purpose, i.e. a public highway. They have been accepted and used by the residents of the subdivision and members of the public as shoreline open space for walking, for access to the lake and to dockage and other shore-related structures, as well as occasional access to lots from the road system by a few owners near either end of the Promenade, at least for the last 93 years.  I was informed by counsel that most owners have added another lot or lots to their holding, thus providing access via one of the subdivision streets.  The final position taken by Township Council before this hearing was that the Promenade would be left undeveloped and would remain in its shoreline open-space state for the use and enjoyment of the lot owners of the subdivision and the public, except for those structures whose owners have entered encroachment agreements. These agreements recognize the existence of the structures referred to and grant Oro-Med.’s permission to maintain those structures as they are, for a temporary time until permission is withdrawn.   

[97]           As shoreline open space lands, the Promenade provides  a substantial benefit to the lot owners and to the public for purposes of quiet enjoyment as park land or a trail  along the lakeshore,  or as access to the lake and to a few of the cottage lots. The evidence filed on behalf of the resident cottagers underlines the value it has to all owners in the subdivision for purposes of non-road access to and from their properties and the lake and as shoreline open space for quiet walks and other passive purposes. Shoreline open space use beside Lake Simcoe is not a common occurrence in Simcoe County. Usually the only public access to the lake beyond the urban beaches is through the butt-ends of road allowances that terminate at the lake. This is a notorious fact and as such, one of which I can properly take judicial notice.

2. Is the Promenade Subject to Claims Based on Prescriptive Rights or Adverse Possession?

             

[98]           The respondents claim that they own parts of the Lake Shore Promenade and the embankment by reason of long-time possession well beyond the statutory ten years. The issue arises therefore as to whether municipally held land which is not a public highway or road allowance is subject to claims of possessory title. The respondents allege that they and their predecessors in title have treated it as their own for, in some cases, over 80 years. They each claim possessory title to that part of Lake Shore Promenade between their lot frontage and the water’s edge. For this purpose, they ask that I direct a trial of an issue of individual claims under rule 38.10.  However, there is some question as to whether municipally owned land can be subject to such private claims for exclusive possession. It is that question to which I now turn.

[99]           In the cases cited by counsel on this issue, three judges at the appellate level have at different times expressed some acceptance of, or concern for, the principle that municipally owned land used for the public’s benefit should be protected in law from claims of possessory title, as in the case of public highways. And in two recent cases, two  judges at the trial level in Ontario held that municipally owned land  held for a public purpose that was of a  high public interest could not in law be subject to adverse possession claims.

[100]      In Hackett v. Colchester South (Twp.), 1928 CanLII 8 (SCC), [1928] S.C.R. 255, Duff J., writing for the Supreme Court in a one-page judgment, was “much impressed” by the proposition that lands dedicated to public use and duly accepted by a municipality give rise to rights of enjoyment by the general public  “closely analogous to the rights of the public in respect of a public highway”, and the title of the municipality in such lands should not be capable of being nullified by claims of adverse possession. However he concluded that the case did not call for a decided opinion on this point. He referred with some enthusiasm to a judgment of Hodgins J. at the court of appeal level [61 OLR 77] which put forward the proposition Duff J. had expressed sympathy with.

[101]      In Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216, the Ontario Court of Appeal had occasion to consider a case of a neighbouring landowner claiming to have possessory title to a strip of land on the edge of a municipal park. The Town of Ancaster owned the paper title to the strip of land. The court upheld the finding of the trial judge that the claimant had been in possession of the strip of land for more than 10 years, that his possession of this land met all the requirements in law for a finding that it was adverse, and therefore ordered that he held possessory title subject to a right of way over part of it. Laskin J.A. expressed at the conclusion of the judgment his discomfort with finding that land that otherwise would have formed an extension of a public park could be lost by reason of adverse possession. However, because the case was presented and argued at trial as a typical adverse possession case without regard for the purpose for which it was held by the municipality, the court did not rule on this aspect. Laskin J.A. stated at pp. 228-9:

Most adverse possession claims involve disputes between private property owners. In this case, the Teises claim adverse possession of municipally owned land… This case was argued before the trial judge and in this court on the footing that the ordinary principles of adverse possession law applied. The application of those principles to the evidence and the trial judge's findings of fact justify extinguishing the Town's title to the ploughed strip and the laneway.

 

Several American states have legislation that prevents a limitation period from running against "municipal property devoted to public use": see 3 Am. Jur. (2d), para. 271. Even at common law, some American courts have decided that municipally owned land used for a public purpose, such as a park, cannot be acquired by adverse possession: see, for example, Meshberg v. Bridgeport City Trust Co., 429 A.2d 865 and Schmitt v. Carbondale (City), 101 A. 755 (1917).

 

Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue.

 

[102]      The Township’s counsel Mr. Williams submitted on the basis of two recent Ontario cases, and the obiter comment of Duff J. in Colchester South, that municipally owned land is no longer subject to loss due to claims based on adverse possession. Both were decided at the trial level. The two cases are Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.) and Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.).

[103]      In Woychyshyn, the court considered an application that land registered to the City of Ottawa and forming part of McNab Park was owned by the applicant because he had established adverse possession for 10 years commencing in 1967.  Ray J. wrote at para. 13-4:

13  In any event I have serious doubts that municipally owned land can be subject to a claim for possessory title.  ...The Respondent's evidence included a description of the complex procedures and processes required before municipal property can be disposed of. It suggests there is a high public interest in the preservation of municipal property. It should not be disposed of easily. A loss of property through adverse possession would be contrary to this high public interest. This concern has been expressed several times: see Teis, supra at para. 35; Colchester South (Township) v. Hackett, 1928 CanLII 8 (SCC), [1928] S.C.R. 255, Duff J.; and Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.) at paras. 19-22, Charbonneau J.

 

[104]      Ray J. then referred to the comment of Laskin J.A. in Teis and held that, in the case before him, the issue was squarely argued. He found that “McNab Park, being municipally owned land, is exempt from claims for possessory title (paras.14-5, emphasis added).

[105]      In Prescott & Russell, counsel agreed to address the following issue of law: are the respondents barred from acquiring a possessory title to municipally owned land? The land in question in that case came within the perimeter of the Larose Forest, which covers an extensive area of 26,000 acres. Like Laskin J.A. and Ray J., Charbonneau J. cited Thorson J. A. in Household Realty Corp. Ltd. v. Hilltop Mobile Home Sales Ltd. (1982), 1982 CanLII 2257 (ON CA), 37 O.R. (2d) 508 (C.A.) where Thorson J.A. appeared to accept that the immunity of lands dedicated to highway use from possessory claims was capable of wider application. Thorson J.A. wrote:

The property vested in the municipality (assuming that it was the owner) would have been only a "qualified property, to be held and exercised for the benefit of the corporation in accordance with the powers conferred upon it by the legislature and not otherwise" (Re Ogilvie and City of Winnipeg,1927 CanLII 283 (MB QB), [1927] 2 D.L.R. 606, [1927] 1 W.W.R. 833 at 845, 36 Man. R. 412).

 

I agree with this latter statement as it applies to property that is a public street or highway. There is of course the well-established maxim ‘once a highway always a highway' which comprehends essentially the same principle. As Rogers points out in his Law of Canadian Municipal Corporations, 2d ed. (1971) vol. 2 at 1096:

 

The right of ownership in real property, such as a highway, a market or a public wharf, held by a municipality for the common benefit or use of its inhabitants and of the Queen's subjects in general, is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period.  [Emphasis added.]

 

[106]      Charbonneau J. went on to find that land held for the general public benefit is immune from claims of adverse possession. His reasoning is contained in paras 21-3:

 

21  When a municipality acquires lands for forestry purposes a very high public interest purpose arises as can be seen by the meaning the legislature has ascribed to that expression. It makes eminent sense that, in order to protect this vital public interest and as a matter of public policy, lands held by a municipality in such circumstances cannot be the subject of a claim for adverse possession.

 

22  When part 9 was acquired and incorporated into the totality of Larose Forest, it could not be lost by adverse possession anymore than the rest of Larose Forest could. I therefore conclude that the respondents cannot make a claim for possessory title over part 9.

 

23  The Counties are therefore entitled to an order for the vacant possession of part 9. Leave is granted for the issuance of a writ of possession should the respondents not vacate part 9 within forty-five (45) days.

 

[107]      Counsel for the respondents submitted that both Woychyshyn and Prescott and Russell were distinguishable on the facts. He argued that the Promenade was not acquired for any high public interest.  Secondly, he stated that the Promenade was not purchased but was received by the municipality by dedication of the owner KLC.  Thirdly, the submission for the respondents is that “they have obtained ownership, or an interest, by virtue of adverse possession, and/or by virtue of the improvements made thereto, the maintenance of same, and the assessment of taxes on same, made and paid for by them and their predecessors for almost 100 years.”(Resps.’ Factum, para. 2).

[108]      I do not accept that whether the land held by a municipality for the public benefit was purchased, or was received by dedication on approval of a plan of subdivision, is a significant distinguishing factor. In either case, the municipality provided the owner with a substantial benefit and the municipality, in this case, was vested with land for access by abutting lot owners and others to the lake and as public park land beside the lake.

[109]      This issue has attracted the attention of several legal commentators recently.  Quinto M. Annibale, Municipal Lands: Acquisition, Management and Disposition, looseleaf (Toronto: Thomson Reuters Canada Ltd., 2012); Andrew Gage, Highways, Parks and the Public Trust Doctrine, (2007) 18 J. Env. L. & Prac. 1; Sandra Petersson, Something for Nothing: The Law of Adverse Possession in Alberta, (1992) 30 Alta. L. Rev. 1291.

[110]      Mr. Annibale addresses the idea that was referred to by Thorson J.A. in an excerpt cited in both Teis and  Prescott and Russell, that is, that municipalities have been said by the courts to “hold land for the benefit of or in trust for, or as custodian on behalf of the public”.  He refers to an authority from the Supreme Court of Canada  that adopted the ‘public trust’  rationale; that is Vancouver v. Burchill, 1932 CanLII 29 (SCC), [1932] S.C.R. 620 and it adds  an important difference between property owned by a municipality and property owned by a private landowner.  Although Vancouver was a case concerning a municipal street and the municipality’s liability with respect to streets, it implies the capability of wider application beyond public highway law. Rinfret J. wrote for the Supreme Court as follows:

Under statutes where the fee simple is vested in them, the municipalities are in a sense owners of the streets. They are not, however, owners in the full sense of the word, and certainly not to the extent that a proprietor owns his land. The land-owner enjoys the absolute right to exclude anyone and to do as he pleases upon his own property. It is idle to say that the municipality has no such rights upon its streets. It holds them as trustee for the public. The streets remain subject to the right of the public to "pass and repass"; and that character, of course, is of the very essence of a street. So that the municipality, in respect of its streets, does not stand in the same position as a land-owner with regard to his property...  [Emphasis added.]

 

[111]      In Sarnia v. Great Western Railways Co. (1861), 21 U.C.R. 59 (U.C.C.Q.B.), also cited by Q. Annibale, Justice McLean  made essentially the same point, that a municipality has no right to exclusive possession of its streets because the property vested in the municipality is to be held and exercised for the whole body of the municipality, both those who govern and the public who reside within it.

[112]      In Andrew Gage’s article, Highways, Parks and the Public Trust Doctrine, (2007) 18 J. Env. L. & Prac. 1, at pages 33-34 he also deals with the concept of public trust in approaching the quality of ownership of property held by governments. He examined the interesting judgment of Lamer C.J. in Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 SC.R. 139. In that case, the issue was the degree to which the government, in this case the federal government, could control conduct in public airports where a group were disseminating political material. In the course of his judgment, Lamer C.J. dealt with the concept of how government owns property in order to demonstrate why an analytical approach equating public ownership with private ownership will not work. He wrote the following:

 In my opinion, this analytical approach [which equates government ownership of land with private ownership] contains inherent dangers. First, it ignores the special nature of government property. The very nature of the relationship existing between citizens and the elected government provides that the latter will own places for the citizens' benefit and use, unlike a private owner who benefits personally from the places he owns.

 

[113]      This approach goes beyond municipal ownership of streets and illustrates that unlike an individual owner, governmental ownership of property open to the public carries no private benefit to the owner but it does carry with it the duty to deal with such property as property held for the benefit of the public and for their use.

[114]      A second rationale for the special nature of governmental ownership of property in relation to the issue of immunity from adverse possession claims is suggested by the Petersson article. In Alberta, Crown and public lands are immune to claims of adverse possession by statutory fiat and this article suggests the rationale for that law. She writes:

The rationale is twofold. Crown and public lands are held for the benefit of all citizens and it would be unjust for one to deprive all of part of this benefit. Secondly, given the vast acreage of such land it is impossible to patrol against adverse possessors. Similar protection is extended to municipal lands in section 437 of the Municipal Government Act, R.S.A. 1980, c. M-26.

 

[115]      This rationale stems from, and adds to the trust rationale found in the cases cited earlier. It consists of the idea that because governmental ownership of property is a qualified property ownership whereby the public is the beneficiary of its use, it would be unjust to deprive the public of part of that benefit in favour of one or two or a number of private individuals who are after all a part of that public body. This rationale for holding that municipal land should be protected from adverse possession claims would appear to be equally applicable using common law concepts already developed in Ontario by Rinfret J. and Lamer C.J. of the Supreme Court, and Thorson J.A., Charbonneau J. and Ray J. in Ontario, where municipal ownership of property bears the same badges of trust and public benefit.

[116]      The authorities cited above and additional to those cited by counsel came from a general field search which was not limited to any one view or side of the issue. They were equally available to counsel at the hearing of this application. The issue of immunity of municipally owned lands from claims of possessory title was fully argued before me by counsel of experience and special competence in municipal law and adverse possession issues.

[117]      The judicial development of the law in this area  as indicated by  the authorities I have reviewed  demonstrate that  an explicit finding should again be made on this issue based on a wider data base than was before Ray J. and Charbonneau J. in Woychyshyn and Prescott and Russell respectively. The concepts are already developed in the common law that suggest the next step in the history of publicly, and in particular municipally, owned property in relation to the right of a private landowner to claim entitlement on grounds of adverse possession. 

[118]      In my view, land acquired by a municipality and used for public purposes is held in trust for the benefit of the public and cannot be lost, or the municipality’s title extinguished, by reason of ordinary acts or omissions within the meaning of the law of adverse possession. The preservation of municipally owned land has been regarded by the legislature as imbued with special public significance as illustrated by the elaborate processes necessary for a municipal council to undergo in order to sell or convey municipally owned land. In addition, given that property that is owned by a municipality is held by way of a qualified title for public benefit, the interests of fairness and justice require that no one or two individuals should be allowed to deprive others of part of that benefit.

[119]      In finding in favour of the municipality on this issue, I am following the reasoning of Thorson J.A. and the Supreme Court as expressed by Rinfret J. inVancouver, the expression of agreement in principle by Duff J. of the Supreme Court in Colchester South and the holdings in Woychyshyn and Prescott and Russell save for the subjective comments about a “high” public interest purpose. I find that lands held by a municipality other than as public road allowances which meet the following factors are immune from claims of neighbouring landowners based on prescriptive rights or adverse possession:

(ii)     the land was purchased by or dedicated to the municipality for the use  or benefit of the public, or as here, for the use or benefit of an entire subdivision as well as the public at large; and

 

(iii)   since its acquisition by the municipality, the land has been used by and of benefit to the public.

 

[120]      On the evidence before me, I find that the Promenade including the embankment from top of bank down to the lake (as shown on R.P. 626) was dedicated and accepted for public use. The public in this context includes all lot owners on R.P.626, their families, and the public at large as a lakeside park and access to the lake. I also find that it has been used since acquisition as publicly accessible land.

[121]      I note that the constitutionality of holding that municipal lands are protected from adverse possession claims has been determined in one case at the trial level in Alberta.  As noted above, Alberta’s Municipal Government Act, R.S.A. 1980, c. M-26 prohibits anyone from obtaining an interest in municipally owned land through adverse possession. The case Mund v. Medicine Hat (1985), 1985 CanLII 1413 (AB QB), 67 A.R. 11 (Q.B.) established that this legislation is not unconstitutional. The Charter of Rights and Freedoms does not address rights of property or economic rights.

3.  Claims by the Respondents to Possessory Title

 

[122]      The following are the provisions of the Real Property Limitations Act, R.S.O. 1990 c. L.15, which allow claims for possessory title to be considered including the length of time required for adverse possession:

4.  No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

 

8.  No person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon. R.S.O. 1990, c. L.15, s. 8.

 

9.  No continual or other claim upon or near any land preserves any right of making an entry or distress or of bringing an action. R.S.O. 1990, c. L.15, s. 9.

 

15.  At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. R.S.O. 1990, c. L.15, s. 15.

 

[123]      In case I am later found to be in error in finding that Lake Shore Promenade is immune from claims based on prescriptive rights or adverse possession, I will record my findings with respect to those claims by the respondents on the evidence before me. They claim that each of the owners of lots abutting Lake Shore Promenade have possessory title to that portion of the Promenade between the front of the lot and the lake.

[124]      First, what is the “possession” required in law that comes within the meaning of adverse possession for ten years?  It must be adverse, open, exclusive, actual, continuous and notorious.  All of these factors are required to be proven by a claimant in order to acquire possessory title to land by 10 years’ possession, (Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567).  These facets of adverse possession are for the respondents to prove on a balance of probabilities. Counsel has requested that if the court permits, the individual claims should be considered later by way of trial held by order made under rule 38.10 of the Rules of Civil Procedure. I agree. However, an order under 38.10 is only made where the court sees some evidentiary basis for making the order. Therefore at this stage, the court must be able to conclude that the respondents have made a prima facie case for adverse possession of the portions of the Promenade between the front-tier lots and the lake.

[125]      I have reviewed the evidence by affidavit of Ms. B. Lemay, Ms. D. Gerrard and Mr. S.C.E. Gillis. From that evidence in their several affidavits, as well as the evidence of Mr. Irwin, the Township Clerk, I  find that the Lake Shore Promenade or parts thereof not built on  has never been set aside for the exclusive, continuous, open, adverse and notorious  use of  individual  respondent abutting lot owners. The Promenade and embankment land that is not occupied by shore –related structures have been left as more or less natural open grassy areas with some rock outcroppings.  Moreover, the respondents’ affidavit evidence on this subject consists of general statements without any specific detail that could satisfy the factors of adverse possession.

[126]      None of the Promenade, for instance, has been fenced or enclosed to indicate open and exclusive possession, nor was there evidence of any gate or other structure used to exclude the public or the Township, its servants and agents from using the Promenade. Apart from perhaps areas close to the Promenade boundary where a garden may have strayed into the Promenade land, there is no evidence of continuous cultivation or other similar acts of exclusive and notorious possession to the exclusion of other lot owners or the public for any period of one year let alone the 10 years required, of which I was made aware in evidence. There is absolutely no evidence of that sort which could qualify as establishing a prima facie case for possession adverse to the Township and the public including the back lot owners.

[127]      The factors of exclusivity of use and open continuous possession adverse to the Township were not conceded by the respondents but they certainly were not established by them and they have the burden of proof on this issue. Apart from the structures built on the Promenade by individual owners, some have maintained portions of it as open grass land,  but never to the exclusion of other lot owners  or  of the Township or the public generally (which includes other lot owners of non-abutting lots),  continuously and openly for any 10-year period in the evidence before me. In their minds, certain abutting owners may have regarded portions of it near their lots as their own but that kind of subjective reasoning cannot affect the status of land. The Promenade as a whole or in parts, has never been fenced off or entry obstructed to Township officials or personnel or the general public, nor has there been some other clear assertion of exclusive and open continuous possession for the required period.

[128]      In addition, the Township has accepted and impliedly agreed to whatever maintenance work that was done by respondents over the years to the Promenade or any part of it. The Promenade was dedicated initially as land for public use and through the years the Township position to individual owners, and at times all of them, has been that the Promenade land is held by the municipality for public use and not for the use of a few individual lot owners.

[129]      The respondents referred several times in their evidence and counsel’s representations to their having been taxed as waterfront land. Ms. Lemay stated in her affidavit evidence that the lots of her family and of other lot owners have been assessed for municipal taxation as “waterfront dwelling(s)” (Ex F and G, B. Lemay aff., para. 14). This categorization on the notices in ex F and G is, in the strictest sense, not true; their lots do not take in Lake Shore Promenade between these lots and the lake. They are not waterfront lots in the strict sense that the “lots front(ing) directly on to the lake” are, i.e. lots 1 to 17, that I mentioned at the beginning. However, if, as Ms. Lemay states in para 14, the similar properties to which they are compared for assessment purposes do not include lots 1 to 17, this categorization may not be in error for assessment purposes.  All I can add on that point is that I have evidence that no owner has appealed successfully from the assessment of the lots abutting Lake Shore Promenade and that the cottage lots abutting the Promenade have no other private lots between them and the lake; they are front-tier lots separated from the water only by public land and the bank and to that extent could be described as waterfront dwelling lots depending on the fairness and equity of doing so by using assessments of similar lots and cottages. That issue is for the tribunal hearing assessment appeals to deal with.

[130]      The respondents themselves in their factum, para. 40(a), seemed to suggest that the Promenade is at best a public commons. In para. 40(c)(ii) the respondents say, in connection with s. 19 of the Surveys Act, 1914, that roads, streets and lanes are lumped together as highways and ‘commons’, “which we argue is the best that the Township can qualify the Promenade as, is a ‘commons...’ (sic), which still stands apart, even in 1914”. It has been perhaps unavoidable in view of the position the respondents have taken on this application that throughout their case, their position on adverse possession has seemed  ambivalent, wavering between  assertions of possession   by the respondents of the parts in front of their lots adverse to the Township right of possession for the public benefit,  and at other times , an acceptance that the Promenade is and has been kept an open area for good reason, i.e. the common benefit and use of the public including the front and  back lot owners as a lakeside park and trail.

[131]      I find  that the Township is correct in asserting that there is a strong evidentiary base for finding that the respondents collectively have accepted Lake Shore Promenade as land subject to the right of the public to use and enjoy it for passive recreational purposes. In her affidavit, Beverley Lemay stated that while a few abutting owners may have tried on occasion to prevent others from walking across the Promenade, in general it was understood that this was land that the public had a right to walk over or otherwise traverse and enjoy beside the lake. Ms. Lemay and her family have a long history of ownership on this plan and knowledge of usage of the Promenade and I regard her evidence as highly significant.  As well, use of the Promenade by the public was acknowledged by Diane Gerrard at questions 71-125 of her cross-examination. She accepted that the Promenade is a public right of way, that historically it was dedicated as a public road allowance, and that members of the public have used it. She even expressed an apology for using it without municipal approval.

[132]      I have reviewed the evidence of Mr. S.C.E. Gillis and his cross-examination. I have indicated what was useful and relevant, rather than merely a repetition, to this hearing from his affidavit in the previous section. His cross-examination was unfortunate for both his credibility and for counsel for the applicant and the respondents who largely engaged in sniper attacks against each other and frankly produced a record which should be an embarrassment to them all. Examinations are to assist the court by providing a means to find out the case against a party and to test that evidence. It is defeated by constant and for the most part needless interjections by counsel for the examinee, in this case Mr. Green. It is also not assisted by inane questions that merely repeat assertions in other documents.  As for the present, Mr. Gillis’s credibility, it was in my view damaged severely by his refusal to deal with a document which his father had presented in 1964 as secretary of the cottagers association. The fact that the content of that presentation did not agree with what the junior Mr. Gillis now wants to impart as his evidence does not excuse him from answering the questions put to him on that subject. This unfortunate cross-examination was rendered a waste of time as shown by counsel’s complete failure to use it in their submissions to me.  This will be taken into account on the issue of costs at the end of this proceeding.

[133]      The document associated with Mr. S.C.E. Gillis’ father came out of a group formed as the Cottagers’ Association. That document says in plain terms why the respondents’ case is a difficult one to make.  The Association recognized in 1964 that the Promenade was held by the Township and represented land for use by the public.  I set  out the relevant portions of the document, a letter addressed to Taxpayers, Simcoeside Beach:

Dear Taxpayer:

           

            The executive committee of the Simcoeside Cottagers’ Association have for some time been concerned with a crisis in human relations between the front and back lot taxpayers on plan 626.

     Your committee has sought to establish these rights by discussing apparently contradictory viewpoints with top level officials in the DLF, both legal and lands sections, the Department of Municipal Affairs, the Ontario Planning Board and Township Council.

            THE RIGHTS FOR USE OF LAND & WATER

(1)   The portion of plan # 626 designated as “Promenade” is the property of Oro Township and is intended for the use of all taxpayers in the sub-division. Such use to be restricted to walking, bathing, and general beach activities.

(2)   The lake to the high-water line (defined as the end of (v)egetation) is Crown property and the installation of any dock or other structure on the lake bottom, is controlled by the Department of Lands and Forests….

(4) Persons who attempt to deter anyone from using the Promenade are not acting within their rights….

 

(5) The construction of boat-houses, steps to the lake or any other type of construction on township property, should receive the permission of Council.

                                                (signed by Jack Gillis, Secretary)

 

[134]      In summary, I find that no prima facie case has been established by the respondents for possession of the Lake Shore Promenade by them as being either adverse ( ie. without the Township’s tacit consent or acquiescence ), or open and  exclusive (i.e. meaning with the intention of excluding the true owner and of having that effect), or actual, continuous and notorious. All of these factors are required aspects for acquiring possessory title to land by 10 years adverse possession, (Masidon Investments Ltd. v. Ham, supra). All the facets of adverse possession are for the respondents to prove on a balance of probabilities if a trial of individual claims were held. But without even a prima facie case established, I see no need or basis on which to order a trial of an issue of individual claims to portions of the Promenade lands.

[135]      I do however find otherwise with respect to those structures built by several owners which are now of many years’ standing and continue to exist to the Township’s knowledge.  My reasons and order regarding the structures built on the Promenade and the embankment and how they are to be dealt with will be found in section 4 on the doctrine of laches.                           

4.  Does the doctrine of laches apply to this case and if so, what is its effect on the facts of this case?

 

[136]      Laches is a doctrine from the former courts of equity. It provides an equitable defence to a claim under certain circumstances and within certain limits. One expression of the doctrine of laches is from Halsbury’s Laws of Canada, at HLM-50 under equitable doctrines and limitation of actions:

If a proceeding is not subject to a limitation period, or if the limitation period has not yet expired after a lengthy period, the equitable doctrine of laches may apply as a defence to the claim. Laches permits a defendant to avoid an equitable (although not a legal) claim made against him or her if one can demonstrate that the plaintiff, by delaying the institution of his case, has either (i) acquiesced in the defendant’s conduct; or (ii) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.

 

[137]      Until recently, it was thought that a defendant could not take advantage of the doctrine where a municipality was the claimant.  This assumed that immunity stemmed from the public nature of municipal rights and powers. The Township’s basic submission in law on the issue of laches was that the law is clear – a municipality cannot lose rights of a public nature by acquiescence, laches or estoppel.  (App.’s Reply Factum, para. 1 (dd).)  That blanket perception of disqualification  no longer exists, if it ever did in fact, after the decisions in M(K) v. M(H), 1992 CanLII 31 (SCC), [1992] S.C.J. No. 85 and Manitoba Métis Federation Inc. v. Canada (Att. Gen.), 2010 MBCA 71 (CanLII), [2010] M.J. No. 219 Man. C.A.).

[138]      In the Manitoba Métis Federation, the Manitoba Court of Appeal  cited the Supreme Court’s adoption of the following definition of the doctrine of laches in M(K) v. M(H):

The Supreme Court quoted with approval from R. P. Meagher, W. M.C. Gummow & J. R. F. Lehane, Equity, Doctrines and Remedies, 2nd ed. (Sydney: Butterworths, 1984) at 755, and summarized the law as follows (at pp. 77-78):

 

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant's conduct or (b) caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.

                                                 

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

 

[139]      Whether a claim for declaratory relief is considered a claim in equity was considered in  Hongkong Bank of Canada v. Wheeler Holdings Ltd., 1993 CanLII 148 (SCC), [1993] 1 S.C.R. 167 by the Supreme Court of Canada. The result from that decision is that the doctrine of laches, based as it is on the conduct of the party seeking relief, may be applied to claims seeking declaratory relief such as this one.

[140]      In Meaford (Municipality) v. Grist, supra, the court held that applications of the doctrine of laches must be subject to statutorily imposed duties. Daley J. held in Meaford that the municipality was not acting to enforce its legislative powers and therefore there was no public duty or law which the municipality was seeking to enforce. In so stating, the court was following the ruling in Kenora (Tn.) Hydro-Electric Commission v. Vacationland Dairy Co-operative Ltd., 1994 CanLII 105 (SCC), [1994] 1 S.C.R. 80, where the equitable doctrine in issue was estoppel rather than laches. The Supreme Court held that where a statute imposes a public duty which the plaintiff seeks to enforce, it is not open to the defendant to use estoppel to prevent the applicant from doing what the statute requires of it. This would equally apply to the use of laches.

[141]      Unlike Meaford and Kenora, in a case where to invoke equitable principles would conflict with the relevant legislation and the statutory duty of Canada Post, an agent of the Crown, the defendant G3 could not avail itself of those principles to extinguish the purpose of the legislation due to passage of time.  Canada Post Corp. v. G3 Worldwide (Canada) Inc., 2007 ONCA 348 (CanLII), 85 O.R. (3d) 241 (C.A.)

[142]      In the interesting case of 3163083 Canada Ltd. v. St. John’s (City), 2004 NLCA 42 (CanLII), 132 A.C.W.S. (3d) 208, Welsh J.A. provided  assistance with the question of approach in the municipal context to the application of equitable principles such as estoppel or laches.  Welsh J.A. was dealing with a defence based on estoppel.  First, he set out the factor added to the court’s consideration where a municipality is involved:

When the issue of estoppel arises in the municipal context, an additional factor must be considered. The general principle is stated in Rogers, The Law of Canadian Municipal Corporations, 2nd edition, looseleaf (Toronto: Carswell, 1999), at page 388.1:

 

As a general rule municipal rights and powers are of such a public nature that they cannot be lost or vitiated by mere acquiescence, laches or estoppel.... It has also been said that the doctrine can never interfere with the proper carrying out by local authorities of the provisions of a statute and that there can be no estoppel or waiver of their public rights and duties. The doctrine of estoppel has no application to the law governing assessment and taxation of a property for municipal purposes.

 

            34  However, the text goes on to qualify these broad            statements, at page 389:

 

These are statements of the general rule and there is authority to the contrary that a municipal corporation may be bound by acquiescence the same as an individual may but that the rule should not be enforced against them as strictly and to the same extent as against other corporations and individuals.

                       

 

Judicial authority for this last proposition, cited in the Rogers' text, is Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co-operative Ltd., 1994 CanLII 105 (SCC), [1994] 1 S.C.R 80.

 

[143]      Welsh J.A. went on to propose a two-stage analysis where an equitable doctrine like estoppel, the one invoked in his case, is raised. I see no reason why his analytical construct should not apply where the equitable doctrine of laches is raised. He suggested  a 2-stage analysis at para 41: 

41  It follows ...that, when the doctrine of estoppel is raised in the municipal context, a two stage analysis is engaged. The first step is to determine whether estoppel is established on the facts of the particular case. The second step is to analyse the circumstances, with particular attention to the legislation, to determine whether operation of the    doctrine of estoppel is prohibited or permitted.

 

[144]      Is there a basis for the doctrine of laches to apply in this case?  When the respondents first raised this issue, they relied only on what they referred to in their factum as “90 years of delay in the Township taking this action”.  (Resps’s Factum, para. 37). They later recognized that delay alone is not sufficient. The respondents then submitted that the conduct of the party seeking relief must be considered and that, paraphrasing Meaford, the applicant and its predecessor have “slept on their rights for over (90) years,” and the respondents have acted in reliance on the Township’s apparent acquiescence in the erection and maintaining of shore-related structures such as docks, stairs, or boat-houses on parts of the Promenade land down to the water’s edge.  

[145]      In dealing with the submissions on this issue, clearly the respondents cannot merely rely on Meaford (Municipality) v. Grist as direct authority for determining this case. They have not shown, and cannot show, that the factual base in Meaford v. Grist has any application to the facts in this case.  In Meaford, the road alleged by the Town was authorized by by-law 11 passed in 1854 by Meaford’s predecessor in tile the Township of St. Vincent.  Unlike R.P.626 and Lake Shore Promenade, it was never registered on title.  The alleged road was never even surveyed nor did it appear on a registered plan of subdivision or any other deed or registrable instrument.  The trial judge referred to By-law 11 as having been forgotten for 150 years; it was never referred to by anyone in an official position with the Township or the Town for over 150 years. Meanwhile, the land was developed and the defendants on the disputed land took title without any notice on the public land registry system of the existence of this road. Then in 2004, By-law 11 was discovered in a box in the basement of the Town of Meaford offices. The Town passed a new by-law to establish the road and to authorize the Town solicitor to bring on legal proceedings to establish the Town as the owner of the road. The court held that there was no dedication or other establishment of a municipal road, either in the 19th century or in the modern era. 

[146]      The only similarity of Meaford v. Grist to this case is that no road has been established by the Township over the Lake Shore Promenade land in 98 years since its dedication. However, on numerous occasions as cited by both counsel since the 1930s, the Township, as the owner of the Promenade  land to the water’s edge, has granted or withheld consent to DLF and MNR granting permits for shoreline structures applied for by some of the owners on R.P.626.  Lake Shore Promenade and the embankment land has appeared since 1914 on R.P.626 as part of the public title registry as land owned by the Township. The cottagers’ own association and individual owners on R.P.626 have met Township officials as part of a public process to study what should be done with Lake Shore Promenade as publicly owned land. The Township, as I stated earlier in the prior section, has taken the position over the years on numerous occasions that this is publicly owned land subject to use by the public and all lot owners on R.P. 626.  It has never been limited to use only by those few lot owners abutting the promenade.

[147]      For these reasons I do not accept the respondents’ position that this case has more than a tangential relationship to Meaford on the facts.

[148]      For the reasons stated in section 3, I cannot accept the respondents’ position that the Township has somehow recognized possession and control by individual lot owners abutting the Promenade to the exclusion of all others, or that such possession was ever open or exclusive of other lot owners for any period approaching 10 years for the respondents.  In other words, adverse possession for ten years by the respondents cannot be established in view of the evidence before me including their own.  However, the issue is different when it comes to considering the structures erected over nine decades by some lot owners on R.P.626. Some of the respondents and other R.P.626 owners have built docks, decks, and boathouses for their exclusive use during much of this lengthy period. The evidence of Ms. Lemay that these structures have been known to Township officials over the years and the Township took no action to remove them until recently, appears to be credible and was not seriously opposed by the Township’s evidence.

[149]      So, do these structures come within the first branch of the laches doctrine, that is, has the Township acquiesced in their erection and continued presence and use? The law is clear that delay is not sufficient to establish acquiescence. Acquiescence has been interpreted by the Supreme Court in M(K) v. M(H)  in the following terms: 

Acquiescence is a fluid term, susceptible to various meanings depending upon the context in which it is used. Meagher, Gummow and Lehane, supra, at pp. 765-66, identify three different senses, the first being a synonym for estoppel, wherein the plaintiff (or applicant) stands by and watches the deprivation of (its) rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches — after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived.

 

[150]      The position with regard to the structures built over the years by lot owners of R.P. 626  on parts of the Promenade appear to me to represent a problem for the Township on this application. I cannot find on the evidence before me specifically when each of the shore-related structures was built and how long the Township has known of them. However, I am able to find there to be a prima facie case that most structures have been in place on parts of the Promenade to the knowledge of the Township and its officials under permits issued by the DLF and by MNR for decades since the 1920s and the Township, knowing of their existence and knowing its rights as owner,  has never asserted its right to have them removed. And now, as I understand it, any owner who wants to, may enter an encroachment agreement whereby the municipality grants permission to allow the structure to remain. Some have entered such agreements. Others have not, concerned as to whether by doing so they were jeopardizing their position in this action.

[151]      In the circumstances as I find them to be, have the respondents established that laches applies to the structures in place on the Promenade? Have they established to the civil standard of proof  that the Township’s failure  to take  any action, with knowledge of their existence on municipally owned land, amounts to acquiescence in the structures’ continuance, or has the Township’s delay in all the circumstances caused the respondents or some of them to change  their position in reliance on the Township not enforcing its ownership rights of removal, or is it fair and just to now find they have no right to maintain the structures in place?

[152]      The Township does not deny its knowledge of the shore-related structures that have been built over the years. The evidence of Mr. Gillis, Ms. Lemay and others establishes that they have been known by , and in fact some were observed being built by, officials of the Township. Some were consented to or not opposed by the Township when DLF or MNR was considering applications for shoreline occupation permits. I have received no organized  table to indicate which received approval and which did not, nor was it ever put before me whether any license granted by the DLF or MNR retained any significance in law. The main point is that as I read the evidence from the Township as well as the respondents, there appeared to be no real issue over the Township’s knowledge of these structures or awareness of its position and rights as owner of the Promenade with respect to them.  

[153]      In my view the respondents have made out a prima facie case that the Township has been well aware throughout of its position as the owner of this land for the benefit of the public, and it has done nothing to enforce its right to remove such structures and therefore that the Township has acquiesced in their continuance.

[154]      On the second branch of the laches doctrine as summarized above in M(K) v. M(H), again I find there to be a case that it may be unreasonable and unjust to allow the Township to use the ruling on this application to found a right to enforce removal of structures that fall into the category I have outlined.

[155]      As for the second stage of the analysis of the application of laches suggested by Welsh J.A., I find that nowhere does the Township suggest that there is any statutory duty with which the application of laches principles would interfere. I also see none on the evidence before me.

[156]      The Township tries to meet this issue of delay and laches by suggesting that it always treated the Promenade as a public highway.  This is not an issue of loss of property held for the public benefit but rather one of the legitimate use of one right of an owner, that of causing  removal of unauthorized structures on the owner’s land, in circumstances where it may be unjust in view of the owner’s knowledge and inaction over years.  I have found that the Promenade was never accepted lawfully by the municipality or by the public as a public highway.  It was never opened or maintained as a roadway.  The Township cannot claim now that it is exempt from all equitable principles.  As well, in my view, the Township has delayed in asserting its right to remove such structures; there is credible evidence that it has done so in full knowledge of their existence for over 20 years and in some cases up to five to nine decades, and knowing well its rights that it chose not to exercise.

[157]      That removal is the Township’s ultimate intent if this application succeeds, is apparent to me from the submission of the Township in the factum filed on its behalf, para. 51 and paras. 22 to 25 regarding the thwarting of its intent to carry out a shoreline “naturalization project” as the reason for this application finally being brought. The “naturalization process” appears to me to be a policy of the Township to remove one by one shore line structures including those built on or attached to the Promenade lands. That is how I understand it.

[158]      I find that there is a prima facie case for application of the doctrine of laches in this case where the facts of individual claims come within the principles as I have cited them. Therefore, counsel for the respondents may, when ready, request a date from the Trial Coordinator before December 2014 for determination of individual claims by respondents to retain structures built by them on the Promenade or the embankment. For this purpose, trial of the issue is directed under rule 38.10.

5.  Can the Respondents Claim for Compensation pursuant to sections 37 of the Conveyancing and Law of Property Act against the Township?

 

[159]      This claim is for a lien securing monetary compensation where it has been found that a person has built something of lasting value on another’s land, genuinely and honestly believing that the land was theirs.  The problem for the respondents is that honest or genuine belief involves not only subjective belief but most importantly it involves proof of some reasonable basis for the belief and whether or not due diligence was exercised by the claimant.  Byron v. Hilton Beach (Village), [2000] O.J. No. 50 (Ont. S.C.), Halton Hills (Town) v. Rowe Estate, [1993] O.J. No. 1222 (Ont. Gen.Div.).  Because even a cursory look at the title would take one to R.P. 626 showing the applicant Township as the owner and because for years, the Township, as the owner of Lakeshore, was a party to the applications for shore permits to the DLF and given the public conclusion reached by the Cottagers’ Association in 1964 once they did their due diligence, I do not see how a claim under the Conveyancing and Law of Property Act could succeed. 

[160]      In any event, counsel for the respondents showed no grounds on which the elements of such a claim were open to the respondents.  Furthermore, it will be open to persons who have built structures years ago on the Promenade lands to make a claim on laches principles to retain them and those principles, in the end, come down to considerations of fundamental justice.  Therefore, I see no basis on which a trial or reference should be ordered on this head. 

6.  Conclusions

 

[161]      For the reasons given I have reached the following conclusions.

(a)               Lake Shore Promenade, including the embankment land down to the water’s edge, was dedicated by its owner for public use in 1914, as part of the approval process of R.P.626.

(b)               However, due to discrepancies below provincial standards established by statute for public highways in 1914 and due to lack of uniformity in shape and topography and the implied non-road intent from its name as understood circa 1914, the Township’s acceptance of Lake Shore Promenade as a public highway was ultra vires, or beyond the powers of, the Township and therefore void. This finding and order is made nunc pro tunc. The dedication as an access way and park as an integral part of the subdivision was accepted by public usage which has continued to this day. Therefore, since 1914, title to Lake Shore Promenade has been vested in Oro, now Oro-Med., for the uses referred to. It was never used as a public highway, nor realistically could it have been within the law. Its usage has been for access from the lots to the lake and as open space land beside the lake for the general enjoyment of lot owners of R.P. 626 and the public.

(c)               My finding is that the Lake Shore Promenade lands down to the lake were dedicated for use by and for the benefit of the public including all the lot owners on R.P.626 and since acquisition, these lands have been vested in the municipality in trust for the benefit of lot owners and the public generally as a walkway and as an open space, passive park by the lake. As such, this land is not subject to, and is immune from, claims by the respondents for possessory title. 

(d)               In case my finding under clause (c) is found to be in error, no prima facie case has been made out by the respondents on the civil standard of proof for possessory title based on ten years’ adverse possession. The evidence does not at any time meet the necessary requirements in law for adverse possession, particularly continuous, open, and notorious possession adverse to and excluding the true owner, the municipality, and the public for whom it is held.  Therefore there is no basis for an order under rule 38.10 for trial of an issue in that regard. 

(e)               There is a prima facie case made out by the respondents for the hearing of individual claims to retain shore-related structures built a substantial time ago on laches principles. Trial of the issue is directed for the adjudication of such claim or claims by individual respondents on a date to be set by the Trial Coordinator on the request of the respondents’ counsel, when ready, the adjudication to be conducted on laches principles as I have cited them.  All such claims shall be expected to be dealt with in one trial. 

(f)               The order requested by the respondents for a trial or reference to determine claims for compensation under the Conveyancing and Law of Property Act is denied for the reasons given.   

 

[162]      Accordingly, the declaratory order requested by the applicant Oro-Med. is granted.  It is declared by this court that Lake Shore Promenade, including the embankment land, coloured in faded brown and darker brown on R.P.626 is owned by the Township of Oro-Medonte as open space land for the passive use, benefit and enjoyment of the lot owners, their families and the public generally, subject to trial of the issue as to the retention of shore-related structures built some years ago on laches principles on a date to be set as I have directed. For that purpose, the issue of the right to retain a structure built on the Promenade or the embankment is adjourned sine die, to be brought on before December 2014. 

[163]      If costs cannot be agreed upon, I will receive submissions in writing from counsel within 60 days. Submissions on behalf of the Township are to be filed first, to my attention, at my chambers in Barrie within 30 days hereof

[164]      I thank counsel and the parties, especially the respondents, for acting as they have on a difficult and somewhat complex case. Their combined submissions, as well as those on the Township’s behalf, have assisted me greatly in understanding their positions and have saved significant time and costs. The contribution of all parties to the development of the law in this area has been an important one.

 

HOWDEN J.

 

Released:  June 19, 2013

 

C O R R I G E N D A

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1416/2013onsc1416.html 

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