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...