Claim For Road Access Act And Prescriptive Easement To Landlocked Property Dismissed

• Published date: 15 June 2021
• Subject Matter: Real Estate and Construction, Transport, Rail, Road & Cycling, Real Estate
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

In Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 (CanLII), the Court of Appeal for Ontario affirmed that the appellants had no right to cross the respondents' land to get to their otherwise landlocked property.

In 2014, the appellants purchased a piece of land adjacent to the respondents' property. The appellants' land, on which a lumber mill may have been located in the 19^th century, had water access, but the only way to access the land by vehicle was to use what was once a private road (referred to as "the red track"), across the respondents' property. The respondents objected to the appellants' attempt to use the red track, which was overgrown and long in disuse in 2014.

At trial the appellants asserted a right to use the red track over the respondents' property on two grounds: firstly because it was an access road under the Ontario Road Access Act; and secondly because the appellants' predecessors in title had acquired a prescriptive easement in accordance with the doctrine of lost modern grant.

The Road Access Act prevents landowners from closing off an access road on their property except with a court order or in other specified, and limited, circumstances. The Road Access Act was enacted to prevent "self-help" measures by landowners trying to stop others from using an access road to get to their properties (especially in rural areas and "cottage country"). The definition of "access road" in the Road Access Act refers to a road that is not located on land owned by a municipality, or that is not a public highway, and that "serves as a motor vehicle access route to one or more parcels of land."

At trial, the judge reasoned that the use of the word "serves" in the definition of "access road," in the present tense, means that an access road must be one that exists contemporarily, and that an access road can lose its status through disuse or overgrowth. The evidence at trial was that a fence had been erected across the red track in 2005 and that it was not used as an access road at that time or thereafter until the landlocked property was purchased by the appellants in 2014.

At the time of the purchase of the landlocked property, the appellants had to trim back overgrowth on the red track so that it was driveable for a truck. It was clearly not serving as a contemporaneous access road for cars or trucks.

Creatively, however, the appellants argued that the trial judge erred by failing to recognize that the red track could serve as an access road for...