Viceversa Developments Inc. v. Winnipeg Date:, 2015 MBCA 38

Citation: Viceversa Developments Inc. v. Winnipeg Date: 20150420 (City), 2015 MBCA 38 Docket: AI14-30-08115 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) C. R. Huband and ) J. S. Michaels VICEVERSA DEVELOPMENTS INC. ) for the Appellant ) (Plaintiff) Appellant ) M.

Buchart ) for the Respondent - and - ) ) ) Appeal heard: THE CITY OF WINNIPEG ) October 27, 2014 ) (Defendant) Respondent ) Judgment delivered: ) April 20, 2015 BURNETT J.A. [ 1 ] The plaintiff appeals the trial judge’s finding that certain roadways have been dedicated to the public use. The issue on appeal is whether the trial judge erred in determining that an intention to dedicate can be inferred from the evidentiary record. For the reasons which follow, I am of the view that the appeal must be dismissed.

Background Introduction [ 2 ] This matter proceeded in the court below as a special case (Queen’s Bench Rule 22, Man. Reg. 553/88 ). The parties filed an agreed statement of facts and documents, and the agreed facts were reproduced verbatim in the trial judge’s decision (see 2013 MBQB 312 ). To provide context for this appeal, a

summary of the agreed facts and relevant documents is set out below. [ 3 ] In December 2003, the plaintiff purchased a railway bridge and two parcels of land located in the City of Winnipeg, in Manitoba (collectively, the Property) from the Canadian National Railway Company (the CNR). One parcel is on the south side of the Assiniboine River (the First Parcel). The First Parcel lies between Academy Road to the south and the Assiniboine River to the north and is adjacent to a major traffic bridge (the St. James Bridge) over the Assiniboine River.

The other parcel is on the north side of the Assiniboine River (the Second Parcel). The two parcels are connected by the railway bridge. [ 4 ] Prior to the CNR owning the Property, it had been owned by the Canadian Northern Railway Company (Northern).

At the appeal hearing, the defendant agreed that, at all relevant times, the CNR was the sole owner and shareholder of Northern and its direct successor. [ 5 ] Because the Property had been part of a railway right-of-way, its use had been subject to regulation by the Board of Railway Commissioners for Canada, its successor, the Board of Transport Commissioners for Canada, and its successor, the Transport Board of Canada, which regulation included the issuing of orders (the Board Orders).

At some point in time before the sale to the plaintiff, the CNR ceased to use the railway line on the Property and completed the necessary steps to abandon it. [ 6 ] Three roadways (the Roadways), including sidewalks and a bicycle/pedestrian path, are located on the two parcels of

land. In particular: 1) a turnoff and approach to the St.

James Bridge is located at the extreme south end of the First Parcel (the Academy Road turnoff); 2) Wellington Crescent and a bicycle/pedestrian path cross the north end of the First Parcel under the south approach to the railway bridge (the Wellington Crescent extension); and 3) Wolseley Avenue crosses the south end of the Second Parcel under the north approach to the railway bridge (the Wolseley Avenue extension). 1) The Academy Road Turnoff [ 7 ] On September 1, 1936, Northern and the defendant entered into an agreement (the 1936 Agreement) which permitted the defendant to encroach on the right-of-way and to construct slopes for an existing roadway approaching the St.

James Bridge. [ 8 ] The 1936 Agreement specifically provides: [5] That no dedication to the public use of the portion of [Northern]’s right of way occupied by the said slopes shall arise or be presumed from the permission hereby granted. [6] That should [Northern] at any time during the continuance hereof, desire to resume for its own purposes, any portion of the lands encroached upon by the said road slopes , [Northern] shall be entitled to resume, without compensation, such portion thereof as may be specified by notice in writing addressed to the [defendant] and at the expiration of two months from the date of such notice all rights hereunder of the [defendant] shall terminate and be at an end. [emphasis added] [ 9 ] The 1936 Agreement did not contain any term providing that the rights and obligations of Northern would enure to the benefit of its successors in title, and it was not registered against former or current titles. [ 10 ] On November 22, 1962, the Board of Transport Commissioners for Canada authorized the defendant to “widen, at its own expense, Academy Road where it crosses at grade the right of way and track” of the CNR, “at mileage 1.92 Oak Point Subdivision, to provide for a one-way bridge access road ” (emphasis added) (the 1962 Order).

The 1962 Order indicates that the defendant shall bear 26 per cent of the future maintenance costs of the widened crossing and that “[b]efore the said bridge access road is opened for use by the general public , the [CNR] shall make revisions to the existing protection” (emphasis added) by installing an additional signal light and cross-arm, the cost of which was to be paid by the defendant.

The 1962 Order also indicates that the defendant shall pay 75 per cent of the costs of maintaining the revised signal lights and cross-arm, and all costs of synchronizing traffic lights. [ 11 ] The plaintiff maintains that the 1936 Agreement provides important evidence negating an intention to dedicate the Roadways to the public use. As discussed later in these reasons, it is my view that the 1936 Agreement is concerned with slopes for a roadway constructed prior to September 1, 1936, and does not relate to the Academy Road turnoff.

Accordingly, the only relevant document relating to the Academy Road turnoff is the 1962 Order. 2) The Wellington Crescent Extension [ 12 ] On June 10, 1929, the Board of Railway Commissioners for Canada authorized the defendant to construct and maintain, at its own expense, a roadway (also referred to as a “subway”) underneath the CNR tracks to connect Wellington Crescent and Assiniboine Drive, as shown on filed plans (the 1929 Order).

The 1929 Order specifically indicated that it was made with the consent of the CNR. 3) The Wolseley Avenue Extension [ 13 ] On September 24, 1963, the Board of Transport Commissioners for Canada authorized the defendant to construct a highway (Wolseley Avenue) across the railway right-of-way at mileage 2.2 Oak Point Subdivision, under the north approach of the railway bridge (the 1963 Order). The 1963 Order also authorized the CNR to reconstruct the north approach of the railway bridge to accommodate the new road.

The cost of the authorized work was to be borne by the defendant, although the future maintenance of the reconstructed approach to the railway bridge was to be borne by the CNR. Additional Background [ 14 ] The Roadways were built and are maintained by the defendant and have been continuously used by the general public for more than 50 years. In this regard, the parties agree that: … the streets, sidewalks and paths have existed and been used by the public since shortly after the dates of the respective Board Orders

and the 1936 Agreement. They have been freely open for travel to all members of the general public continuously and with uninterrupted access since their construction at least since about 1963. They have been well-used by the general public since their construction. The streets are “highways”, and the sidewalks and paths are “sidewalks”, within the meaning of The Highway Traffic Act , C.C.S.M. c. H40 and The City of Winnipeg Charter , S.M. 2002, c. 39, and they have been used by the general public as such.

The streets, sidewalks and paths have been under the sole control of the [defendant] as the “traffic authority” under The Highway Traffic Act since their construction. As well, The City of Winnipeg Charter , S.M. 2002, c. 39, Sections 136 and 137 , make the [defendant] responsible for the direction, control and management of its streets, sidewalks and paths, and

Section 475 makes the [defendant] responsible for keeping them in repair. [ 15 ] The plaintiff acquired title to the Property in May 2004, and thereafter took the position that the defendant was trespassing without lawful right “with respect to” the Roadways.

On October 8, 2009, the plaintiff wrote to the defendant and advised that it was invoking cl. 6 of the 1936 Agreement and that it was giving two months’ notice that all of the defendant’s rights under the Agreement would terminate and be at an end. [ 16 ] The plaintiff commenced the present action on October 4, 2012, claiming an injunction and general damages for trespass and nuisance.

In response to a request for particulars, the plaintiff said that the defendant is trespassing on “the portion of land adjacent to Academy Road” in the First Parcel, the Wellington Crescent extension and the Wolseley Avenue extension, and that: The trespass and nuisance … both relate to making access to the Plaintiff’s properties impossible, and preventing the Plaintiff from developing his properties and bridge. [ 17 ] The defendant has defended the claim on the basis that it obtained the right to use portions of the Property from previous owners, that it was authorized to construct the Roadways by other agreements which were embodied in various Board Orders, and that the Roadways are public highways at common law and are therefore lawful and do not constitute trespass or nuisance.

The Trial Judge’s Decision [ 18 ] The trial judge observed that the two parcels of land have been used by the public from as early as 1936, and he concluded (at paras. 51-52): This action was commenced in October 2012, almost nine years after Katz had acquired the property. During that period of time, he took no steps to assert what he claims are his rights to prevent the alleged trespass over those portions of his land. It is difficult to imagine why he would not have asserted those rights immediately upon acquiring the property.

There has been such long, uninterrupted public user of those portions of [the First Parcel] and [the Second Parcel] in question that I am prepared to infer an intent to dedicate from that fact. The land has been used as roadways and/or sidewalks and public funds have been expended to maintain the land for those purposes. [The defendant] has treated the land as though it were the owner for a significant period of time and has maintained it for the benefit and use of the public. Moreover, there has clearly been an acceptance of the land by the public, which I infer from the long, uninterrupted public user.

In my view, the fact of long public user outweighs any other evidence which might cast ambiguity on that question. As well, the expenditure of public funds in the construction and maintenance of roadways and sidewalks adds support to my conclusion of an intention on the part of [the CNR] or its predecessor, [Northern], to dedicate those lands in question for the purpose which they serve. [ 19 ] The trial judge dismissed the plaintiff’s claim on the basis that the Roadways were public highways at common law.

The Parties’ Positions [ 20 ] The parties agree that if there was a dedication of the Roadways to the public use, the dedication occurred while the Property was owned by the CNR or Northern (collectively, the Railways). [ 21 ] The plaintiff argues that the trial judge made two errors, namely: 1. in finding that the Railways dedicated the Roadways to the public; and 2. in finding that the plaintiff took no steps to assert its right to prevent the trespass from the time it acquired the Property. [ 22 ] With respect to the first error, the plaintiff acknowledges that an intention to dedicate can be inferred, but says that there can be no inference here given cls. 5 and 6 of the 1936 Agreement, that obedience to Board Orders cannot be evidence of an intention to dedicate, and that when the Property was sold to the plaintiff, the CNR did not disclose any easement, encroachment, encumbrance,

agreement or other continuing claim in relation to the Roadways.

In the plaintiff’s submission, there is no evidence from which aninference can be drawn that the CNR intended a dedication of the lands in question while title stood in its name. [23] With respect to the second error, the plaintiff says that the trial judge’s finding that no steps were taken by the plaintiffto prevent a trespass contradicts para. 23 of the agreed statement of facts and documents. [24] The defendant’s position is that the 1936 Agreement provides no assistance in determining whether an intention todedicate the Roadways can be inferred.

The 1936 Agreement related to only one portion of the Property, and it did not enure to thebenefit of the successors in title to Northern.

According to the defendant, an intention to dedicate can be inferred from the Board Ordersbecause it was agreed that the Board Orders embody the terms of earlier agreements made between the Railways and the defendant, andthere is no suggestion that Northern or the CNR objected to the Board Orders. [25] The defendant relies heavily on the agreed facts that it constructed the Roadways (commencing as early as 1929), that ithas contributed to the costs for construction and maintenance, and that the Roadways have existed, have been freely open to, and havebeen well used by the public since at least 1963.

As the Ontario Court of Appeal observed in Gibbs et al. v. Grand Bend (Village) et al.(1995), (ON CA), 86 O.A.C. 321 (at para. 111): 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 inferboth dedication and acceptance. This principle seems to have been generally accepted: see O’Neil v. Harper (1913), (ON CA), 28 O.L.R. 635 (C.A.); Hunsinger v. Simcoe (Town), (ON CA), [1946] O.R. 203 (C.A.), affd. (SCC), [1948] 3 D.L.R. 224 (S.C.C.); Foothills No. 31 (Municipal District) v.

Stockwell, [(1985), 1985 ABCA 229 , 64A.R. 335], at 669. …. [26] The defendant concedes that the plaintiff objected to the streets, sidewalks and paths after it acquired the Property in2004, but says that the plaintiff did not bring any action until the present proceedings were commenced on October 4, 2012. Thedefendant’s position is that, to the extent the trial judge erred, it had no effect on his conclusion that the Railways intended to dedicatethe Roadways for public use.

The Law Relating to Dedication to Public Use [27] Two conditions must be met at common law to establish that land has been dedicated to the public use, namely: (1) anactual intention on the part of the owner of the land to dedicate; and (2) acceptance by the public of the land: Bailey v. City of Victoria(1920), (SCC), 60 S.C.R. 38 (Bailey), at p. 40 (Idington J.), p. 48 (Duff J.), p. 55 (Anglin J.), and p. 65 (Mignault J.). As stated by Duff J. (at pp. 52-53): The substantive question for decision is … whether in the locus in question a public highway has been established by dedication.

Forthis purpose two concurrent conditions must be satisfied, 1st, there must be on the part of the owner the actual intention to dedicate,(Folkstone v. Brockman), [[1914] A.C. 338], and 2nd, it must appear that the intention was carried out by the way being thrown open tothe public and that the way has been accepted by the public (Attorney General v. Biphosphated Guano Co.) [11 Ch. D. 327, at p. 340]. …. [28] Also see: Dunstan v. Hell’s Gate Ent. Ltd. (1987), (BC CA), 20 B.C.L.R. (2d) 29 at 40 (C.A.)(Hell’s Gate); Brady et al. v.

Zirnhelt et al. (1998), (BC CA), 111 B.C.A.C. 299 at para. 37 (Brady); Foothills No. 31(Municipal District) v. Stockwell (1985), 1985 ABCA 229 , 64 A.R. 335 at para. 4 (C.A.) (Foothills); Nelson et al. v. 1153696Alberta Ltd., 2011 ABCA 203 at para. 16, 510 A.R. 153 (Nelson); Reed v. Town of Lincoln (1974), (ON CA), 6 O.R.(2d) 391 at 395 (C.A.) (Reed); Skerryvore Ratepayers’ Assn. v. Shawanaga Indian Band (1993), (ON CA), 16 O.R.(3d) 390 at 397 (C.A.) (Skerryvore); Attorney-General of New Brunswick ex rel. University of New Brunswick v.

City of Fredericton(1967), (NB CA), 68 D.L.R. (2d) 45 at 53-54 (N.B.S.C. (A.D.)) (UNB); and MacNabb v. Walmsley (1991), (PE SCAD), 89 Nfld. & P.E.I.R. 124 at paras. 14, 17-18 (Sup. Ct. (A.D.)). [29] In the present case, there is no question that the Roadways were thrown open to and accepted by the public. The onlyissue is whether there was an actual intention on the part of a prior owner of the Property to dedicate. [30] A long line of authority confirms that the person asserting a dedication bears the onus of proving it on a balance ofprobabilities (see Reed; and F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (McDougall)); that the burden of proof does not shift,although an inference or presumption of dedication may be drawn from evidence of long-time user; and that a court must consider all ofthe surrounding facts and circumstances, including evidence about long-time user, to decide whether dedication was more probable thannot. See Folkestone Corporation v. Brockman, [1914] A.C. 338 at 354-55, 375 (H.L.) (Folkestone); Nelson at paras. 17-20; Reed;Skerryvore; MacNabb; Macoomb et al. v. Town of Welland (1907), 13 O.L.R. 335 at 344-45, 347 (C.A.) (Macoomb); O’Neil v.

Harper(1913), (ON CA), 28 O.L.R. 635 at 643-44 (S.C. (A.D.)) (O’Neil); Taylor v. Clanwilliam, (MB CA),[1924] 34 Man.R. 319 at 332 (C.A.); and Gibbs at paras. 110-29. [31] The authorities also make it clear that each case depends on its facts, and that, in all cases, the trial judge mustscrutinize the evidence with care to determine whether dedication has been proven on a balance of probabilities. Ultimately, as stated byRothstein J. in McDougall (at paras. 46, 48):

… evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is noobjective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are allegedto have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the taskmay be, the judge must make a decision.

If a responsible judge finds for the plaintiff, it must be accepted that the evidence wassufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. …. It will be for the trial judge to decide to what extent, if any, the circumstances suggest that an allegation is inherently improbable andwhere appropriate, that may be taken into account in the assessment of whether the evidence establishes that it is more likely than notthat the event occurred. ….

Standard of Review [32] Whether an owner of a piece of land has dedicated it to the public use is a question of fact, which may be inferred fromthe surrounding circumstances. See, for example, Folkestone; Grand Trunk Railway Co. v. City of Toronto (1906), (SCC), 37 S.C.R. 210; Fulton v. Creelman, (SCC), [1931] S.C.R. 221; Macoomb; and O’Neil. [33] More recent Canadian appellate decisions confirm that the issue of whether there has been a dedication of land forpublic use is a question of fact that will frequently be inferred from the other facts in evidence.

For example in Skerryvore, the OntarioCourt of Appeal stated that, “The intention to dedicate is a matter of fact that may be inferred from the surrounding circumstances” (at p.397). Also see UNB at p. 52; Reed at p. 395;. Industrial Glass Co. Ltd. v. City of Lachine (1975), 20 N.R. 322 at 333 (Q.C.C.A.)(Lachine); Hell’s Gate at p. 41; MacNabb at para. 18; Cook’s Road Maintenance Association v. Crowhill Estates (2001), (ON CA), 140 O.A.C. 370 at para. 23 (Cook’s Road Maintenance); Prince Edward Island (Minister of Transportation and PublicWorks) v.

Gillis, 2006 PESCAD 14 at para. 26, 256 Nfld. & P.E.I.R. 324 (PEI); and Nelson at para. 18. [34] The standard of review when assessing findings of fact and findings of fact based on inferences is that of palpable andoverriding error and its functional equivalents, including “clearly wrong”, “unreasonable” and “not reasonably supported by” theevidence (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; and H.L. v.

Canada (Attorney General), 2005 SCC 25 at para. 110,[2005] 1 S.C.R. 401). [35] The issue in this case, being whether the trial judge erred in determining that the CNR or Northern dedicated the subjectlands to the public, is therefore a question of fact which must be reviewed on a standard of palpable and overriding error. The Evidentiary Record [36] In Osoyoos Indian Band v.

Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746, Iacobucci J., speaking for the majority,expressed his unease with making an important determination on the basis of an incomplete record (at para. 38): The determination of the rights and entitlements at issue in this case will significantly affect the interests of the parties. Yet, the factualbasis upon which that determination must be made is somewhat unsatisfactory. I share the view of the Court of Appeal that theevidentiary record in this case is demonstrably incomplete. Important relevant evidence that could assist the Court in the

interpretationand application of the Order in Council may be available but does not form part of the record of this case. [37] The evidentiary record in this case is similarly limited and unsatisfactory, and the issue of intention to dedicate must bedetermined in the absence of important relevant evidence. The agreed statement of facts, and the agreed documents forming part of thatstatement, make it clear that there are other important facts and documents that should have formed part of the special case.

By way ofexample, copies of all title documents have not been provided, and para. 20 of the agreed statement refers to “other agreements with theCNR which were embodied in various Board Orders,” including the 1929 Order, the 1962 Order and the 1963 Order. The absence ofsome of this material was explained by the trial judge on the basis that the parties “filed all relevant documentation they were able tolocate” (at para. 5) However, this does not explain the parties’ failure to provide a full and complete history of the title to the Property,including copies of all title documents from the land titles office.

Analysis [38] The plaintiff says that an inference of dedication to the public use is not possible for three reasons: 1) the only direct evidence of intention is found in the 1936 Agreement which clearly provides that no dedication to the publicuse is to “be presumed from the permission hereby granted”; 2) compliance by the Railways with Board Orders cannot constitute evidence of an intention to dedicate; 3) if the CNR believed that there had been a dedication, it would have disclosed it in the sale agreement and closing documents. I will address each of these submissions in turn.

1) The 1936 Agreement [ 39 ] To address the plaintiff’s first submission, it is essential to understand the purpose and scope of the 1936 Agreement. A careful review of that Agreement reveals that:

i) prior to September 1, 1936, the defendant had constructed a roadway adjacent to the right-of-way to provide access to the St. James Bridge; ii) the defendant was applying to Northern for permission to encroach on the right-of-way to construct slopes for that roadway; iii) Northern agreed that the defendant could encroach and could construct, at its own expense, slopes for a “public roadway” (approaching the St.

James Bridge) adjacent to the right-of-way at or near Mile 2 of the Oak Point Subdivision in a location shown on the attached blueprint; iv) the content of the 1936 Agreement related almost exclusively to the construction and maintenance of the slopes and to the right-of-way occupied by the slopes, and the encroachment contemplated by the 1936 Agreement related solely to the slopes. (Phrases such as “Easement required for slope only”, “Toe of slope intersects RW at 0.50S” and “Toe of slope intersects RW at 1.00N” are clearly shown on the blueprint);

v) the only reference to Academy Road is in cl. 3, which contemplates the possibility of a catch basin on the south side of Academy Road (which does not form part of the Property); vi) the location of the slopes is far removed from Academy Road. (The 1962 Order refers to widening Academy Road at mileage 1.92 while the slope encroachment is at or near Mile 2. Mile 2 is shown on the blueprint attached to the 1936 Agreement and on

Schedule “A” to the original offer to purchase between the CNR and Alec Katz. It is located roughly midway between Academy Road and the Assiniboine River in the First Parcel.) [ 40 ] In para. 14 of the agreed statement of facts and documents, the parties say that initially the defendant constructed the turnoff as an approach to the St. James Bridge under the authority of the 1936 Agreement. This statement would appear to be inaccurate given the plain and unambiguous wording of the 1936 Agreement and the detail depicted on the attached blueprint.

Queen’s Bench Rule 22.03(1) permits the court to draw reasonable inferences from the facts agreed to by the parties and the documents referred to in the special case, and to the extent that there is an inconsistency between the agreed statement of facts and the agreed documents which form the basis for that statement, the source of the fact (i.e., the 1936 Agreement) provides the best evidence. Clearly the defendant constructed only slopes (not a turnoff) for an existing roadway/approach to the St.

James Bridge under the authority of the 1936 Agreement. [ 41 ] Significantly, there is no evidence that the slopes contemplated by the 1936 Agreement were constructed or continue to exist, and there is no evidence that the plaintiff has objected to the slope encroachments.

It is the Roadways, and not the slopes, which the plaintiff says make access to the Property impossible and which are the source of the plaintiff’s real complaint in these proceedings. [ 42 ] Clause 5 of the 1936 Agreement provides that no dedication to the public use of the portion of the right-of-way occupied by the slopes shall arise or be presumed from the permission granted by the Agreement, and cl. 6 permits the railway upon notice to resume occupation of the lands encroached upon by the slopes.

To the extent that the 1936 Agreement provides any evidence of intention, it can surely only provide evidence in relation to the encroachment created by slopes far removed from the Academy Road turnoff. [ 43 ] Given my conclusion regarding the scope of the 1936 Agreement, it is not necessary to consider whether the rights and obligations of that Agreement enured to the plaintiff’s benefit. However, if I was required to decide that question, I would have serious reservations about the plaintiff’s ability to avail itself of the benefit of the 1936 Agreement in the absence of a specific enurement clause.

Clause 6 specifically permits the “Railway” to resume “for its own purposes” any portion of the Railways’ right-of-way encroached upon by the slopes, and as noted by the plaintiff in its factum: “The CNR ceased using the land for railway purposes” prior to the sale to the plaintiff. [ 44 ] In my view, the 1936 Agreement provides no assistance in resolving whether the CNR or Northern intended to dedicate the Roadways to the public use. 2) Compliance with Board Orders [ 45 ] The plaintiff’s second submission is that the Roadways were built pursuant to Board Orders and that compliance with such Orders cannot be evidence of an intention to dedicate.

I do not agree.

The Roadways were not built pursuant to Board Orders, they were built pursuant to agreements between the defendant and the Railways. [ 46 ] In the present case, it is an agreed fact that the defendant was authorized to construct the Roadways “by other agreements with the CNR which were embodied in various Board Orders.” This is entirely consistent with subss. 256(1) and (2) of the Railway Act , R.S.C. 1927, c. 170, as amended, and subss. 259(1) and (2) of the Railway Act , R.S.C. 1952, c. 234, as amended, which allowed the Board to grant “leave to construct” a highway along or across a railway, but which did not give the Board the ability to require a party to build a roadway.

While there is no evidence as to the precise nature of, or reason for, these “other agreements”, which could suggest the lack of an intention to dedicate the Roadways for public use, the fact remains that there was agreement between the defendant and the CNR prior to the defendant’s application for the 1929 Order, the 1962 Order and the 1963 Order. There is also no evidence that the Railways appealed or requested a reconsideration of these Board Orders.

And the Board Orders themselves provide some evidence supporting an inference that a dedication was intended: the 1929 Order was made with the consent of the CNR; the 1962 Order refers to the Academy Road turnoff being “opened for use by the general public”; and the 1963 Order authorizes the construction of a “highway”.

[ 47 ] In all of these circumstances, it cannot reasonably be said that the Railways were forced to comply or simply acquiesced in the public use of the Roadways because of the Board Orders.

On the contrary, I am of the view that the evidence relating to the Board Orders supports an inference that the Railways intended to dedicate the lands in question to the public use. 3) No Disclosure in the Sale Documents [ 48 ] The plaintiff’s third submission is that the CNR did not disclose that the Roadways had been dedicated to the public use when the Property was sold to it in 2003, and that this is strong evidence that there was never any intention to dedicate. [ 49 ] In his decision, the trial judge identified the specific portions of the sale documents that form part of the evidentiary record and which bear on this submission.

Once again, it is apparent that the evidentiary record is incomplete in that only some of the sale documents were provided to the trial judge. [ 50 ] In

Schedule “C” to the offer to purchase and agreement of sale accepted June 23, 2003, under the heading “PERMITTED ENCUMBRANCES” there is reference to: 2. License No. PR 3696 in favor of The City of Winnipeg for roadway bridge encroachment. There is also a handwritten notation on

Schedule “C” next to this quotation which reads “1936 agreement”. A copy of License No. PR 3696 was not part of the evidentiary record, and there is no explanation for the handwritten notation. [ 51 ] In addition, the Roadways are depicted in

Schedule “A” to both the offer to purchase and an amending agreement dated November 27, 2003. [ 52 ] The plaintiff does not suggest that it was misled by the CNR, and it is apparent from a review of the sale documents forming part of the evidentiary record that the existence of the Roadways and an encroachment were made known to the plaintiff at or before the time of sale.

I agree with the trial judge that, while there was no direct evidence adduced as to the plaintiff’s knowledge of the use of the Roadways as public highways and sidewalks, there is no difficulty in concluding that the plaintiff had such knowledge. In addition, the plaintiff agreed to accept title subject to “all registered or unregistered agreements, easements, rights, covenants and/or restrictions in favour of municipalities, publicly or privately regulated utilities or adjoining owners; or that otherwise run with the land”. And finally, s. 58(2) of The Real Property Act , C.C.S.M., c.

R30, provides that public highways are deemed to be excluded from the description of land in a certificate of title. [ 53 ] For all of these reasons, I am of the view that the sale documents provide no assistance in determining whether there was an intention to dedicate the Roadways to the public use. Evidence of Intention to Dedicate [ 54 ] The trial judge was required to scrutinize the whole of the evidence to determine whether dedication had been proven on a balance of probabilities.

Here the trial judge was of the view that “the fact of long public user outweighs any other evidence which might cast ambiguity on that question” (at para. 52). In Nelson , Paperny J.A. observed (at para. 25): …. … although it is open to a trier of fact to consider evidence of public use and an owner’s acquiescence in that use to infer intent, it is only evidence.

It should not be relied on to the exclusion of better evidence to the contrary. [ 55 ] In the present case, with the exception of cls. 5 and 6 of the 1936 Agreement (which relate to slopes for an existing public roadway on the Property), there is no evidence that the Railways intended to retain the right to use the Roadways. There is, however, considerable evidence which supports the inference that the Railways intended to dedicate the Roadways to the public use. That evidence includes:

i) There was long, uninterrupted public user as well as acquiescence by the owners prior to the plaintiff, and there was no objection to the user until the plaintiff became the owner of the Property. (It is conceded that the trial judge erred when he found that the plaintiff took no steps to assert its alleged rights after it acquired the Property.) The Roadways have existed and have been used by the public since shortly after the dates of the respective Board Orders, and they have been freely open for travel and well used by members of the general public continuously and with uninterrupted access since their construction, and at least since about 1963. ii) The Roadways were built, maintained and controlled by the defendant.

The trial judge found that the defendant had treated the Roadways as though it were owner for a significant period of time, and the defendant had used public funds to maintain the Roadways for the benefit and use of the public. In addition, a careful examination of the 1929 Order, the 1962 Order and the 1963 Order confirm that the defendant, and not the CNR, was required to maintain the new roads and safety measures contemplated by these Board Orders. iii) The Academy Road turnoff was constructed to permit public access to the St.

James Bridge, a major motor vehicle/pedestrian bridge over the Assiniboine River, and it is unlikely that the owner only intended to permit the road to be used for a temporary purpose ( O’Neil at p. 647). iv) Wellington Crescent was extended to connect two public roads, namely Wellington Crescent and

Assiniboine Drive.

As Kearns J.A. said in Foothills : “ It is difficult to see how one could connect two public roads without having the idea that the connection itself would be a public road” ( at para. 10). [ 56 ] Although the evidentiary record was incomplete, I am satisfied that the trial judge carefully considered the whole of the evidence, that there is sufficiently clear, compelling and cogent evidence to support an inference of dedication and that his finding of fact that there was an intention to dedicate the lands in question “was one that he was entitled to reach on the evidence viewed in its totality” ( Reed at pp. 402-403).

More specifically, the trial judge did not make any palpable and overriding error when he concluded that there was sufficient evidence of an intention on the part of the Railways to dedicate the Roadways to the public use. Conclusion [ 57 ] For all of the above reasons, I am satisfied that the trial judge was entitled to conclude, on the whole of the evidence, that the Railways intended to dedicate the Roadways to the public use and that there was an acceptance of the Roadways by the public. [ 58 ] The appeal is, therefore, dismissed with costs to the defendant. J.A. I agree: J.A. I agree: J.A.