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Many drives to cottages in Ontario start on a 400 series highway before eventually ending at a quaintly marked driveway off a dirt road that confuses your GPS system. Some of these modest roads are defined as “access roads” under Ontario’s Road Access Act. This means that these roads are “on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway” but that serve as a motor vehicle access route to one or more parcels of land.
If you find a road that you commonly use to access your cottage blocked or you are considering blocking other motorists from using an access road which crosses your property, you should understand the effect of the Road Access Act.
The Road Access Act requires anyone wishing to block an access road (that would prevent all road access to land not owned by them) to bring an application to a judge for a closing order. The application must be made on at least 90 days’ notice to the affected parties. The Act makes it an offence to block an access road without obtaining a court order first.
The Court of Appeal has written that the obvious purpose of the Road Access Act “is to avoid self-help measures and potentially violent confrontations among neighbours” (2008795 Ontario Inc v Kilpatrick, 2007 ONCA 586, para 17.)
The Road Access Act provides a mechanism for neighbours to resolve disputes over road access. However, importantly, the Act does not grant any property rights in a road. Section 6(1) of the Act states that:
Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person.
Bringing or responding to an application for a closing order under the Road Access Act will often involve an assessment of whether one party has an existing legal right to use the road, for example under an easement. Sometimes the road in question is not an “access road” at all but rather a public highway, on which motorists also have a right to travel.
The tests under which a judge may grant an order closing the access road involve assessing whether it is “reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest” and whether the persons deprived of motor vehicle access have a (pre-existing) legal right to use the road (via easement etc.).
These questions are not the only consideration for the Court. On an application for an order to close an access road under the Road Access Act, the presiding judge has residual discretion whether or not to grant the order (Margettie v Snell, 2009 ONCA 838, para 42).
If you are faced with a dispute over a road access issue, give our firm a call to discuss how we can help you resolve it.