Protecting your path – What every cottager should know.
Picture this: long weekends, summer holidays, an escape from the city; themes that all share one common element, a cottage owner getting ready to visit their home away from home. June 30th eventually rolls around; you pack up everything but the kitchen sink, the kids, the family pets and make the trek up north to enjoy some much-needed vacation, however, you’re met with an unpleasant surprise. Just as you’re about to arrive at your destination, you find that the only road which permits access to your property has been closed by the owner of the land your road crosses. Not only is your weekend potentially ruined, but you begin to wonder what this means for your access rights, and how you can ever return to your slice of paradise.
Believe us, you’re not alone.
In the absence of any easements, right of way, or legal entitlement to use the road, the court has attempted to develop an answer to this issue via their judicial interpretation of the Road Access Act (the “Act”). However, before we get to that, we must first turn our attention to the Act, which provides a number of useful definitions and procedural responses to access road closure. Essentially, the Act aims to provide an alternative means to resolve disputes, and more specifically to prevent landowners to resort to self-help measures to resolve such disputes. The Act outlines when and how a person can close an access road. Generally speaking, the owner of an access road cannot close an access road without a court order unless there’s alternative road access. A reasonable question at this juncture would then be, well what’s stopping my neighbor from getting a court order to close my road and restrict my cottage access?
The Ontario Court of Appeal addressed this concern in 2008795 Ontario Inc. v. Kilpatrick 2007 ONCA 586, where they confirmed, generally, that absent alternative access they will not order the closing of a road where no other road access exists. On the other hand, if alternative access does indeed exist, the landowner can unilaterally close the road. So, while the jurisprudence surrounding road access notes that the court will likely protect your access, it will not necessarily protect your convenience, if there is alternative road access in the form of a currently used and maintained road, i.e., a road that is traversable by a motor vehicle (including ATV’s)and is not overgrown and impassable, you may be required to use the alternative road in the event your neighbor decides to block your preferred route. While in some cases this may be a relatively minor inconvenience, it is important to note that it may add substantial travel time in the case that you have alternative road access to your property that may be less direct.
The concept of a currently used and maintained road was recognized in Balough v. R.C. Yantha Electric Ltd., 2021 ONCA 266 where the court of appeal founds that since the Act specifically uses the phrase “Serves” that the road must currently exist and be used. The consequences of this finding suggest that for someone to assert that they should be able to utilize an access road, they must establish consistent use over a period of time, and the road must be currently used by motor vehicles for access to the property. On the other hand, if the road is not traversable by motor vehicles, you may have a legitimate claim to prevent the closure of the access road in question.
If you or someone you know owns a cottage or home with precarious access and are interested in learning more about your access rights, please contact an experienced lawyer at HGR Graham Partners LLP with your questions.
“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land