) ) THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE Applicant – v. –, 2013 ONSC 1416

CITATION : Oro-Medonte (Township) v.

Warkentin, 2013 ONSC 1416 BARRIE COURT FILE NO.: 11-1101 DATE: 20130307 CORRIGENDA: 20130619 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE Applicant – and – HILDEGARD WARKENTIN, HAROLD JOHN AND SUSANNE MARIE REGAN, GERALD AND BRENDA PROSSER, EDWARD AND EDITH PALLISTER, DIANE JEAN AND JERRY POPIUK, THOMAS FOSTER, STEPHEN WELLS AND DIANE GERRARD, IVANKA WELYKANYCZ, BEVERLY JEANNE LE MAY, DAVID AND KRYSTYNA MACDONALD, CHARLES AND SHEILA MANLEY, MINA KORMAN, GIOVANNI DI VIZIO, KAREN BALDOCK, STEPHEN CRAWFORD AND ELEONORE HOYER, MARLEY GREENGLASS, JOSEPH AND PAULINE BOSSE, ANTHOULA AND CHRISTOPHER CHADJIMICHAELIDIS, STEWART GILLIS, VERNA SMITH, PATRICIA FERGUSSON, BRYAN FERGUSSON, AND MARGARET DYNES, JUSTIN FETTEROLFF, DIANE GILLIS, ARTHUR AND FRANCES BRENNAN, NOREEN AND JOHN SWALLOW, INGEBORG KUEHN, JENNIFER BYRNE, ALBERTO AND ANNA MARIA NOVELLI, KEVIN AND WENDY MOORE, DANIEL MURPHY AND JUDY CAVANAUGH, CHRISTA SCHNEIDER AND JEFFREY HUTCHINS, DENISE AND ROBERT GARDNER, RICHARD, WENDY, AND TAYLOR BROWN, RUTH BURLEIGH, JACQUELINE MARIE HAMMOND, GILDA MERCURI, ANTHONY VENERANDA, PAULA ANNE MERCURI FETTEROLFF, AND ANTHONY MERCURI Respondents ) ) ) ) ) ) ) ) ))))))))))))))))))))))))))))))))))))))) C.

Williams and J.E. Johnson, for the Applicant M. Green and B. Ogunmefun, for the Respondents ) HEARD: November 14 and 15, 2012 REVISED REASONS FOR DECISION The text of the original Reasons for Decision has been corrected with

text of corrigendum (released June 19, 2013) appended. HOWDEN J.: Introduction [ 1 ] The major issues in this case revolve around the status and ownership of a largely vacant and irregularly shaped piece of land within a large plan of subdivision located in Concession 11 of the County of Simcoe.

Named Lake Shore Promenade, this undulating strip of land follows the shoreline of Lake Simcoe in front of some forty of the lots, separating those lots from the lake. [ 2 ] According to the many photographs filed and graciously shared with me by residents, the Promenade has remained much the same over the past eight decades - an open grassy, natural area with some rock outcroppings, enclosed by magnificent trees and some bushy understory, that winds its way along beside the shore of Lake Simcoe, bordered for a substantial distance by a steep embankment that drops to the boulders and rocks at the water’s edge.

The Promenade varies in width greatly, ranging from 40 feet at its narrowest to 150 feet over an approximate length of 2,670 feet. Due to a changing elevation, the embankment adjoins the Promenade on the lake side for some 1,170 feet. [ 3 ] This plan and its registration hold several mysteries which counsel and the parties have faced and tried to address almost 100 years after it was drawn and registered. It all began with a meeting. [ 4 ] On October 22, 1914, Council for the Township of Oro met in urgent session.

The Reeve informed Council that the Kempenfelt Land Company Limited had requested the meeting in order to obtain Council’s approval to its draft plan of subdivision. The reason for urgency is not recorded in the Council minutes for that day. The minutes of council merely state that the plan was before council for approval and that the company had “requested that a meeting be called at the earliest possible date. And as their business was urgent, they agreed to cover the expense of this meeting.” According to the council minutes, the members of council examined the plan and approved it.

They resolved that “the Reeve and Clerk (were) instructed to sign and attach corporate seal thereto.” They did so. [App. Rec., Irwin aff., Ex G.] [ 5 ] Strangely, in view of the haste to get municipal approval, the plan was not immediately filed with the County Registry Office. It was not until November 24, 1914, that the plan of subdivision was accepted for registration as No. 626, more than three months after it was drawn. [ 6 ] The statutory time limit for registration then was three months from the plan’s completion. [The Registry Act , R.S.O. 1914, c. 124, s. 81(1)].

As the plan in this case was completed by the surveyor S.R. Crerar on July 30, 1914, the deadline for registration under this

section was fast approaching by October 22. But if the reason was this deadline, why did it take another month to register it? And when registered, the plan contained what appeared to be an after-thought: marked on the plan in a dark brown colour was a narrow band about 20 feet wide along part of the south edge of Lake Shore Promenade, the water side of it being identified as “bottom of bank”. This narrow band represents the horizontal width of the steep embankment. (Note: At and near its easterly limit, this embankment is marked on the plan as having a width of 20 feet.

About 60 to 70 feet to the west, the plan shows two points where the Promenade and the narrow strip representing the embankment were measured close together; the width of Promenade + embankment shows as 65 feet, and the width of the Promenade alone is given as 40 feet, meaning that the embankment width was about 25 feet there. I find that this dark brown strip of land is at least 20 feet wide and reaches 25 feet at times, for purposes of this judgment.) [ 7 ] From this point on in these Reasons for Judgment, registered plan 626 will be referred to as “R.P. 626”.

The applicant will be referred to as “the Township” or “Oro-Med.” Its predecessor will be referred to as “the Township” or “Oro”. The Kempenfelt Land Company Ltd., the owner and subdivision applicant, will be “KLC”. [ 8 ] The applicant Oro-Med. is the successor municipality to Oro. The respondents are many, but not all, of the present owners of the front tier of lots on R.P. 626 bordering Lake Shore Promenade. These lots are separated from the lake only by Lake Shore Promenade, and some additionally by the embankment.

They say that they and their predecessors in title have maintained the Promenade and the adjoining narrow bank as if it were part of their respective lots; some have built docks or stairs or boathouses wholly or partly over this intervening land. They say that they have done so to the knowledge of Township officials through the years and only now, almost 100 years after the first lots were sold, Oro-Med. has brought forward an application to resolve the ownership of the Lake Shore Promenade in its favour. [ 9 ] Oro-Med.’s position is that its ownership has been clear on title since 1914 on the face of R.P. 626.

It requests a declaration by the court that the Township is the owner of the Lake Shore Promenade. The Plan of Subdivision: Registered Plan 626

[ 10 ] R.P. 626 contains the usual surveyor’s certificate, his certificate of duplicate copy, the owner’s certificate signed under seal of the Kempenfelt Land Company Limited (“KLC”), the mortgagee’s certificate of consent, the affidavits of two witnesses and the record of receipt for registration by the Registry Office assigning the plan number in November 1914.

The owner’s certificate states, in part: The portions of this Plan coloured pink and brown have been laid out according to our instructions and the portions coloured brown are hereby dedicated as Public Highways. [ 11 ] Marked Exhibit B, the plan used by me, and that I refer to, is the certified duplicate copy of the surveyor’s original drawing which was filed with the Registry Office for the County of Simcoe. R.P. 626 lays out some seventeen streets, all of a uniform width of 66 feet, several large blocks at the rear, and lots numbered from 1 to 418.

Lots 1 to 17 are located toward the extreme south-westerly corner of the plan; they front directly on the lake. Lake Shore Promenade does not run between lots 1 to 17 and the lake. Those lots are not affected by the Township’s application. [ 12 ] Lake Shore Promenade commences at the easterly limit of lot 17 and follows the shore line for the most part, proceeding easterly to the west limit of lot 62.

The Promenade separates the following front-tier lots from the water’s edge of Lake Simcoe: lots 18 to 45, 52 to 57, and 63 to 70 (the lot numbers reverse at lot 70 and continue east to lot 62). [ 13 ] The very narrow sliver of land representing the embankment down to the water’s edge extends easterly beside the Promenade from lot 45 to the production southerly of the west boundary of lot 62. Beneath it on R.P. 626 are printed the words “bottom of bank”. [ 14 ] All of the lots and the blocks laid out on Plan 626 still retain their pink colour.

The embankment is coloured an obvious dark brown, except at the easterly extremity of plan 626 at lot 62 where it inexplicably changes to red. The colour that was applied to the streets and apparently to Lake Shore Promenade has faded badly on the duplicate plan filed in the Registry Office (Exhibit B). [ 15 ] The colour of Lake Shore Promenade and the streets was observed differently by two witnesses. Mr. Fountain, the title searcher retained by the respondents’ solicitors, swore that the roads have “no colour, or at least no discernible colour on the R.O. Copy.

At best, there might be a grey colour over these roads, but certainly not brown.” (Resp. App. Rec., Tab 4, Fountain aff., para. 8). Chuck Strongman O.L.S., the surveyor retained by the applicant, said that when he first saw the Plan, he identified the sliver between lots 45 and 70. He did not say directly, at first, what colour he observed for Lake Shore Promenade; he quoted the words of the owner’s certificate on R.P. 626 and then stated his conclusion that “the lands coloured in brown on that plan are dedicated as public highway.” (App. Rec., Strongman aff., paras. 4-5).

Later in the same affidavit, as a result of a second perusal of the Plan, he described the colour of the streets and Lake Shore Promenade directly as a “faded brown” (para. 10). [ 16 ] The surveyor retained by the respondents, Alan J. Worobec, reviewed R.P. 626 as well as other plans drawn by the same surveyor and additional plans prepared on behalf of KLC as well as other surveyor’s notes and plans registered in Simcoe County between 1911 and 1922. In his affidavit he expressed no opinion in opposition to Mr. Strongman’s.

This was because his retainer was limited to two questions, neither of which dealt directly with R.P. 626. Those questions were: (

i) prior to 1922, was there a pattern to how surveyors described parcels of land that were being dedicated to municipalities, and (ii) did surveyors in those days differentiate between public parcels that were to become highways, and those that were being dedicated for other public purposes including parks or walkways. When confronted in cross-examination with the question whether R.P. 626 specifically dedicates lands as public highways, he said: There are words of dedication on the face of the plan. Worobec, cr.-ex.

Q.96) And later, he was asked whether he found anything, apart from the words in the owners’ certificate, on the plan itself that modified or detracted from the dedication on the face of the plan, Mr. Worobec replied: I did not find any, no. Worobec, cr.-ex. Q.102) [ 17 ] The present colouring of the streets and Lake Shore Promenade has faded and any answer to the question concerning their present colour appears to some extent to lie in the eye of the beholder, if one takes the affidavits of Strongman and Fountain at face value.

The Proceeding [ 18 ] Over the years since registration of R.P. 626, the streets were completed and the lots sold. Many of the lots abutting the Promenade were sold two together in order to provide access other than via the Promenade. The Promenade itself was never developed

as a public roadway. Some of the abutting owners have erected structures which sit wholly or in part within the Promenade. Some ofthese structures have existed since the 1920s and earlier - at least one cottage belonging to Mr. S. Gillis is still in existence; it was inexistence on lot 71 by 1915, the year of its first sale. Docks and boat-houses and stairs came shortly after, built on (or partly on) thePromenade and/or the embankment land.

Neither the Township nor the abutting owners submitted the matter of title to the Promenadeor the right to maintain or remove such structures to mediation or to court before now. Between 2009 and 2011, there was an exchangeof correspondence between a lawyer for some owners, the Township and the Ministry of Natural Resources (“MNR”), and finally MNRtook the position that no further permits would issue to the Township for removal of shore structures until the ownership issue wasresolved.

Oro-Med. has now brought forward the application before me. [19] Oro-Med.’s application seeks the following relief pursuant to rule 14.05(3), Rules of Civil Procedure, R.R.O. 1990, Reg. 194: A declaration that the land forming Lake Shore Promenade, including the embankment south to the shoreline as shown on R.P. 626, is amunicipally owned public highway or road allowance dedicated by the owner for that purpose and accepted as part of R.P. 626. [20] The respondent owners of the lots abutting the Lake Shore Promenade filed their responding material and both sides havesince developed a voluminous record.

In June 2012, the respondent owners brought a motion before the court (otherwise constituted) inan attempt to convert this proceeding by way of application into an action requiring pleadings and trial to determine the factual issues.The motion was not argued.

The parties agreed through their counsel to the motion being withdrawn, without prejudice to bringing itback on with the required notice; they agreed that the parties would follow a precise time table for filing of material, mutual cross-examinations on affidavits, and other procedural matters; and that the application would be heard peremptorily on a date to be fixed bythe trial coordinator. All time deadlines have been met and the application was fully argued on Wednesday November 14 and ThursdayNovember 15, 2012. No further motion was made by the respondents.

However, the proposal for trial has returned in a different form,this time as an adjunct to the hearing of this application depending on the findings the court makes. [21] There are two matters of law with which counsel for the parties take no issue. First, if the court concludes that Lake ShorePromenade was dedicated as a public highway or road allowance, and the dedication was validly accepted, no claim can be made upon itor any part of it on grounds of adverse possession or prescriptive right. The law on this point was stated in Di Cenzo Construction Co.Ltd. v. Glassco (1977), (ON SC), 12 O.R. (2d) 677 (Ont.

H.C.) at p. 689: It is clear, therefore, that no prescriptive rights conferring title by adverse possession can be acquired with respect to, inter alia, anallowance for road whenever surveyed, since June 13, 1922. [22] It was on June 13, 1922, that an amendment to the Limitations Act, R.S.O. 1914, c. 75, s. 17, enacted by the Legislature ofOntario, came into force.

The Ontario Court of Appeal in Di Cenzo agreed with the conclusion of the High Court on this point, that s. 17as amended “prevent(ed) the acquisition of a prescriptive title in lands included in any allowance for roads theretofore or thereaftersurveyed and laid out”, (1978), (ON CA), 21 O.R. (2d) 186, at p.198, rev’g Keith J. on other grounds.

Because noneof the respondents can claim that possession by them and their predecessors on title began before 1914, they cannot satisfy the 10 yearsrequirement for acquiring ownership by adverse possession because there is only 8 years between 1914 and 1922 when the right to claimownership by adverse possession was removed for a road allowance or highway. [23] Second, R.P. 626 has been registered on title in the Registry Office in its gradually deteriorating condition over the years since1914 and the Township was accepted by the Master of Titles under the Land Titles Act, R.S.O. 1990, c.

L.5, s. 51 as the owner of LakeShore Promenade when this Plan was accepted into the Land Titles system on May 23, 2000. Lake Shore Promenade was given its ownparcel number and parcel registration number, showing Oro-Med. as the owner. The Plan has therefore been in a public property registersince the fall of 1914 when it was filed. The Land Titles Act states at s. 51: 51.

(1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in landregistered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed tohave been acquired heretofore by any length of possession or by prescription. R.S.O. 1990, c. L.5, s. 51 (1); 2002, c. 24, Sched. B,s. 40 (2).

(2) This

section does not prejudice, as against any person registered as first owner of land with a possessory title only, any adverse claimin respect of length of possession of any other person who was in possession of the land at the time when the registration of the firstowner took place. R.S.O. 1990, c. L.5, s. 51 (2). [24] When asked why this matter was not before the Master of Titles under the Land Titles Act, Mr. Williams stated, with apparentagreement by Mr. Green, that any decision by the Master was appealable to this Court and therefore it would end up in this court in anyevent, with a higher outlay of costs.

The Township did not rest its case on the Land Titles Act nor was it substantially argued and testedbefore me. In any event, s. 51 leaves open the issue of adverse possession prior to May 23, 2000. Position of the Applicant

[25] Mr. Williams’ first submission on behalf of Oro-Med. is that Lake Shore Promenade is a public highway or road allowance byreason of a valid dedication by the then owner KLC in R.P. 626 and acceptance by the Township.

He put forward the following groundsfor that submission: 1.the surveyor Chuck Strongman gave his opinion that Lake Shore Promenade was dedicated like all the other roads on R.P. 626 aspublic highways; the surveyor retained by the respondents did not disagree with that opinion and agreed under cross-examination thatthere is no extrinsic evidence to the contrary regarding the road dedication in R.P. 626 (Worobec cr-ex., Q. 96 and 102). 2.there is nothing on title to support the respondents’ position that they have some interest in the Promenade that derogates from Oro’sownership evidenced by R.P. 626, and the acceptance into the Land Titles system of the Promenade as a recognized parcel held by Oro-Med., without any interest established by the respondents through adverse possession, reinforces Oro-Med.’s position. 3.the certified linen copy of R.P. 626 in Oro-Med.’s possession (Ex C), found one day by the Township clerk in the course of thisproceeding, shows clearly on its face and on its back that Lake Shore Promenade was coloured brown as were all the other roads in 1914to evidence the intent to dedicate those lands for that purpose. 4.the fact that 28 lots on R.P. 626 would have been landlocked if Lake Shore Promenade were not a public road is another indicator ofthe intention to dedicate the Promenade land as a public road. 5.Oro council approved R.P. 626 as set out in the council minutes of October 22, 1914, and thus completed the dedication of the roadsshown on the plan by KLC’s certificate of dedication. 6.Oro and its successor, Oro-Med., have consistently recognized Lake Shore Promenade as a public road allowance owned by, and underthe jurisdiction of, the Township, as shown by the correspondence with the Department of Lands and Forests and MNR since 1938(App’s Compendium, tabs 16-37). 7.in law, the Municipal Act, 2001, S.O. 2001, c. 25 in s. 26(5), and the Surveys Act, R.S.O. 1990, c.

S.30, s. 57, both recognize andprovide that all road allowances shown on a registered plan of subdivision are roads or highways. This rule has retroactive effect. Thetitle to all roads, highways or road allowances on a registered plan vests in the municipality on the first sale of a lot on the plan, Bolandv. Baker, (ON SC), [1953] O.R. 239 (S.C.O.). The first sale of lots on R.P. 626 admittedly occurred shortly after itsregistration in 1914. There is evidence of at least one lot being sold off R.P. 626 as early as 1915; Stewart C.E.

Gillis, a solicitor, sworein his affidavit that the predecessor on title to his grandfather acquired title to lot 71 from the original owner KLC by deed dated Oct. 22,1915 and registered November 18, 1915. 8.dedication as a public road or highway requires the intention to dedicate it for that purpose by the owner and acceptance as a publicroad or highway by the municipality or the public, 1146726 Ontario Inc. v. National Trust Co. (2004), 48 M.P.L.R. (3d) 283 (Ont.

S.C.).The applicant has demonstrated in evidence that both intent and acceptance were satisfied in 1914 with the registration (including theowner’s certificate of dedication) of R.P. 626 and the Township’s acceptance recorded in the minutes of Council and with the sale oflots, title to the road allowances on the plan vested in the Township.

The fact that a road allowance fails to be within the maximum widthof 100 feet or to be at least 66 feet wide as mentioned in the Municipal Institutions Act, R.S.O. 1914, c. 192, s. 479 is irrelevant where theplan of subdivision was not laid out by the municipality and the road dedication were accepted by the municipality including the roadwidths on the plan. Those standards only apply to a road actually “laid out” by the municipality, Schraeder v. Grattan (Township), (ON SC), [1945] O. R. 657 (S.C.O.). [26] Mr.

Williams’ second basic submission was that as a public road allowance or highway, a claim of possessory title to LakeShore Promenade through adverse possession or prescriptive right is statute barred; but even if Lake Shore Promenade were found not tobe a public road allowance or highway, it is exempt from claims of that nature by virtue of its being held by the municipality for thebenefit of the public, Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.) at para. 13; Colchester South (Township) v.Hackett, (SCC), [1928] S.C.R. 255; Teis v.

Ancaster (Town) (1997), (ON CA), 35 O.R. (3d) 216(C.A.). [27] Finally, it is submitted on the Township’s behalf that if there is no statutory bar to a claim for possessory title, the respondentscannot meet the test for adverse possession in regard to Lake Shore Promenade in that they or any of them cannot show they have been inpossession for ten years continuously, or that such possession has been open, notorious, exclusive, actual, peaceful, or in the case of thosewho have signed encroachment agreements with the applicant, adverse, meaning without the consent of the true owner.

Position of the Respondents [28] The respondents take issue with the applicant on the status of Lake Shore Promenade as a public highway. The respondentssubmit that the colours on R.P. 626 have faded, especially the original colouring of the streets and the Promenade. Mr. Green queriedwhether it can be said with any conviction that the Promenade was not coloured green or something else in 1914, and in any event, thereis no certainty that it was coloured brown in 1914 and so formed part of the lands dedicated as public highways or road allowances. [29] Mr.

Green put forward the following scenario of what happened to R.P. 626 and the Promenade land during the flawedprocess of its registration. The owner KLC, having obtained Township approval on October 22, 1914, did not register the plan within thestatutory time limit because the Registry Office would not allow registration until the deficiency in the Promenade width of over 20 feetbelow the 66-foot minimum was remedied.

The sliver of land coloured dark brown was drawn next to the Promenade later to enable thewidth of the embankment to make up almost all of the deficit (except in one place where it remained 65 feet in width as measured by thesurveyor), not 66 feet. A different colour of brown which has proved more durable was used to colour it. This supposed additional widthwas a fiction. It was, in reality, the steep bank down to the shore, entirely unsuitable for a road or highway without substantialexpenditure. According to Mr.

Green, the result is that the embankment has never been accepted or approved by the Township and itspresent ownership remains to be determined.

[30] Furthermore, the respondents argue that until 1922 when the Limitations Act exempted road allowances and vacant Crownland from claims of ownership by adverse possession, no distinction was made between road allowances and other municipal lands suchas a “pleasure-spot and park for the public”, to quote Middleton J. in Batt v. Beaverton (Village), [1923] O.J. No. 98. There was until1922 no great concern with that kind of distinction other than to protect public areas as roads. [31] Mr. Green submits that, to properly interpret legislation of general application, the approach must be contextual andpurposive.

The Municipal Institutions Act, 1914, and the Registry Act, 1914 aimed at requiring expedition in registering plans ofsubdivision [Reg. Act, S. 81(1)] and, more importantly, setting clear standards for municipal road widths [ss. 479(1) and 81(14)] at atime when the provincial road system was in its very early days. He submitted that the Promenade could not meet the width requirementsestablished for a road allowance.

Where land such as that forming the Lake Shore Promenade fails to meet the plain meaning of astatutory law, having regard to the important purpose of that law; and where it is named a “Promenade”, with all that word`simplications as a place “for walking about” or “strolling” for the residents of the subdivision in Plan 626, not a street, crescent,boulevard or other recognized street name of the time as on R.P. 626; and where the Surveys Act, R.S.O. 1914, c. 166, s. 44(1) instructed surveyors to lay out on surveys “all allowances for roads, streets or commons”, the Township lacked statutory authority toaccept dedication of the Promenade as a public highway or road allowance: Municipal Institutions Act, 1914, s. 479; Registry Act, R.S.O.1914, c. 124, s. 81(1); Batt v.

Beaverton (Village), (ON CA), [1923] 3 D.L.R. 424 (Ont. S.C. App. Div.); Tonks v. Reid, (SCC), [1967] S.C.R. 81, at p. 4; 1146726 Ontario Inc. v. National Trust Co. (2004), 48 M.P.L.R. (3d) 283 (Ont. S.C.),at paras. 211-215; Meaford (Municipality) v. Grist (2011), 2011 ONSC 5195 , 87 M.P.L.R. (4th) 118, at para. 156. At best, itwas intended for use as a public common and as such, is subject to a claim of possessory title by adverse occupation. [32] To try to illustrate that the drawing of the sliver next to the Promenade was a questionable stop-gap measure to get the planthrough the registration procedure, Mr.

Green put up a composite set of four maps from different sources. Two appear to use a

section ofR.P. 626 as a template in order to show the location where boathouses were proposed for consideration by the provincial DLF. In neithercopy was the so-called sliver shown; the shore was simply shown as “below the bank” (Resps. Comp., tabs 21-2). He said that the dockswere built, no one objected and the DLF granted shore permits for them. In 1987-8, rights to use of the Lake Shore Promenade arose as alive issue between the back-lot and front-lot owners over the right of the former to use the Promenade, a suggestion opposed by the front-lot owners.

Yet, Mr Green pointed out, it was not until more than a decade later that the Township took some action despite promptingfrom the DLF over the years to clear up the ownership of, and right to use of, the Promenade. In September 2004, a letter from theClerk of the Township to a resident named James Lemay said that it had retained a legal opinion and that the Township owned thePromenade as a road allowance. This occurred only one month after an earlier Township letter to residents, written by a recreationdirector, had said that the Promenade was not a road but an area for common enjoyment (B.

Lemay aff., Resps’ App. Rec., Ex C and D). [33] The respondents through their counsel accept that in law, if land is dedicated to a municipality as a public highway or roadallowance and accepted by it, that land is immune from a claim based on prescription or adverse possession for over ten years under theReal Property Limitations Act, R.S.O. 1990, c. L.15. [34] They assert, however, that neither the owner of the land in 1914, KLC, nor Oro intended that the Promenade land be a publichighway.

They go further at one point and attempt to raise a doubt as to the owner of the Promenade and/or of the embankment land andits intended use based on six unproven documents from the 1940s and 1956. They point to a purported consent from KLC as to erectionof a boat-house on a water lot in front of the Promenade, letters from a lawyer representing two lot owners wanting to build boat-housesthere, and two letters from the Department of Lands and Forests (“DLF”) granting licenses of occupation for the purpose applied for.

Inboth letters, the DLF appears to have accepted a consent in 1944 and in 1950 from KLC purporting to be the owner of the “shoreline.The “consent”, signed by one officer of the company without a corporate seal affixed, refuses to warrant the title of KFC to the shorelineland.

The “consent” described the Promenade as having been intended for common beach use by lot owners and their “workmen,servants, and agents.” The respondents submit that these documents alone, all dealing with shoreline structures between 1940 and 1950,form evidence for KFC having retained title to the Promenade as late as 1944; at the very least, the respondents submit there is somereason to find that the Promenade is owned by an entity other than the Township. [35] The respondents further submit that the Township has failed to assert its right of ownership over the Lake Shore Promenadefor 98 years until this proceeding while the abutting owners have used, maintained and built on parts of it.

This court should follow thejudgment in Meaford (Municipality) v. Grist, supra, where principles of equity were applied to estop the Township from now “assertingits rights to a public roadway following an “extraordinary delay” of, in Meaford, 150 years. Meaford (Municipality), supra, at paras. 180-185. Mr. Green further submitted that for these past ten decades the respondents have been assessed with an added waterfrontadjustment on which they have been taxed.

He submitted that the only way that their lots could be considered on the waterfront is byassuming that the Promenade land between each lot and the lake is part of their lots. [36] The respondents therefore request: (

i) that the applicant’s request for a declaratory judgment finding Lake Shore Promenadeon R.P. 626 to be a public highway be denied; (ii) that the court find that the Promenade is held not as a public highway but as “othermunicipal property” and as such, it is subject to claims based on prescriptive rights and adverse possession; (iii) that the doctrine oflaches should apply here to leave in place the shoreline structures built years ago on parts of the Promenade; or (iv) if it is found to be apublic highway or road allowance, a trial be directed to determine compensation to abutting owners under the Conveyancing and Law ofProperty Act, R.S.O. 1990, c. C.34; and (

v) in the further alternative, that if the Promenade and/or the narrow sliver of land shown indark brown are found not to be municipal property, a reference be directed to determine its ownership in law. Exhibit C: Linen Copy of R.P. 626, Late Production by Township [37] Before I proceed further, I must interject here my strong reservation with respect to Exhibit C, the linen copy of R.P. 626

which materialized from the files of the Township well after this application and responding material had been filed. My problems withthis document are its sudden appearance during this litigation, not produced at the time that it commenced, and the lack of anyexamination of it by an independent document expert to establish when the colours that appear so clearly on its underside were applied. It is so unlike the faded quality of the plan filed with the Registry Office, of which it is supposed to be a duplicate copy, that I am mostconcerned with its authenticity.

It may well be that various people have had access to the area in the Township offices where thisdocument was filed and to the document itself. I cannot assume that over these many years in a small rural municipality, as Oro-Med.used to be, security was not exactly tight. It is, to me, a suspicious document of uncertain origin, the colours on which appear muchmore recently applied than those on Exhibit B. It is not a document on which I can safely place any significant weight. Analysis 1.

Is Lake Shore Promenade on R.P. 626 a public highway or road allowance in the ownership and jurisdiction of Oro-Med.? [38] This question breaks down into three distinct issues. They are: (

i) has Oro-Med. established that KLC intended to dedicate Lake Shore Promenade and the embankment next to it as a publicroad allowance or highway? (ii) if (yes) to (i), did the Township have jurisdiction or statutory authorization to accept and assume Lake Shore Promenade as apublic highway despite its deficiencies, in light of the law as it was in 1914 and now? (iii) if (ii) is answered in the negative, what should be the disposition of the Promenade land in the circumstances?

Is the intent todedicate exhausted by a void ruling on (ii)? [39] I will now turn to the first of those sub-issues. 1) Did KLC intend to dedicate Lake Shore Promenade as a public highway or road allowance in 1914? [40] The requirements for successful dedication of land for public use are set out by Mr. Justice Brooke in Gibbs v.

Grand Bend(Village) (1995), (ON CA), 26 O.R. (3d) 644 (C.A.), a case where ownership of beach land was involved: Where dedication of a use of land to the public is claimed or alleged, the onus is on that party to prove: (1) that there was, on the part of the owner, the actual intention to dedicate; and (2) it must appear that the intention was carried out, for example, by the subject land being thrown open to the public for that use, andthat it has been so accepted by the public: see Bailey v. Victoria (City), (1920), (SCC), 60 S.C.R. 38, 54 D.L.R. 50; andReed v.

Lincoln (Town), (1974), (ON CA), 6 O.R. (2d) 391, 53 D.L.R. (3d) 14 (C.A.). [41] In making this statement, the Ontario Court of Appeal was following Reed v. Lincoln, cited above, a judgment written byMartin J.A where a dedication specifically as a public road was in question. [42] Intention to dedicate for a public purpose such as a highway or public road allowance is a question of fact to be determined onthe evidence in each case. It is not a conclusion to be arrived at without careful consideration.

Where dedication is not proven as anactual fact, it may be inferred from evidence of use by the public for many years or years of expenditure of public funds on the road forrepair and maintenance. R. Russell, Russell on Roads, 2d ed. (Toronto: Carswell, 2008). In this case, Oro-Med. asserts that themunicipality has proven to the civil standard of proof actual dedication and acceptance. [43] The history of surveying practices and development of statutory rules relating to those practices indicate that 1914 was a keyyear, according to Alan Worobec.

According to his evidence, it was only in 1914 that the Surveys Act was amended to require surveyorsto set out roads, streets or commons on any plan of subdivision proposed for registration. At that time, a person could acquire apossessory title to any land held by a municipality, whether it was held for the purpose of a road allowance or a park. It was rare in 1914to state on subdivision plans or surveys that land was dedicated as a street or public highway. Mr. Worobec found that the surveyor ofR.P. 626, Mr. S.R.

Crerar, was the only one in Simcoe County, between 1911 and 1922, to indicate directly on a plan that certain lands ina particular colour were dedicated for public highways. [44] Mr. Worobec had reviewed other plans prepared for KLC and found that R.P. 626 was the only exception to KLC’s usualpractice. KLC tended to retain ownership of land near the lake, in Mr. Worobec’s opinion.

My review of the KLC plans attached to hisreport indicates that those other plans took the waterfront lots right to the water’s edge except for R.P. 606, where a piece of land wasleft stretching right across the water front called Lake Promenade, separate and distinct from the lots and much wider than, and not asuniform in width as, the streets laid out on the plan. Lake Promenade is coloured the same as the streets and all lands in that colour werededicated as public highways in the owner’s certificate including Lake Promenade.

In this, it was similar to R.P. 626; it was also similarin that, like Lake Shore Promenade, there is no evidence that it was ever “thrown open” to the public as a road or highway. [45] In this case, the evidence of the owner’s intent is, to some extent, clear. KLC, through its President and Secretary-Treasurerand under the formality of its corporate seal, certified that the lands coloured brown on R.P. 626 were dedicated to public use.

There isno dispute that, though the colours have faded, those lands that are streets, each having a uniform 66 feet in width, and the land markedas Lake Shore Promenade which is far from uniform in shape bear the same colour. Even now, they are in my observation a light tancolour, consistent with once having been brown. How the narrow embankment area became coloured a different shade of brown is notclear but, from its different colouring made by a different pencil or crayon and considering the road standards of the day, it is a

reasonable inference that that area was needed to show on the plan a minimum width of 66 feet for Lake Shore Promenade as a publicroad allowance. It does not follow, as Mr. Green has assumed, that the difference in brown colouring of the narrow embankment fromthe Promenade and the streets meant that the embankment land was coloured after approval of the plan by the municipality. We simplydo not know.

There are many scenarios one can come up with but none have any evidence behind them to substantiate that themunicipality was not aware of the problem with the Promenade’s irregular and non-complying width and the embankment’s very steeptopography down to the lake. I am satisfied that KLC did intend to dedicate Lake Shore Promenade to the public as an integral part of thesubdivision. [46] Taken alone, the Promenade narrows at several points to a width considerably below 65 feet. At several places it is only 40feet wide. Mr.

Strongman scaled the horizontal width of the Promenade plus the narrow strip of bank land and concluded that togetherthey make up a width at the narrowest point of 66 feet (Str. Aff., paras. 12-13). Mr. Strongman’s conclusion - that Lake ShorePromenade plus the narrow embankment down to the lake were dedicated by the owner KLC as a public road allowance - was notshaken, nor was it seriously disagreed with by Mr. Worobec.

That conclusion, however, was not informed by the effect of the overage inmaximum width, the deficiency at other points in width of the Promenade, and the fact that the legislated minimum width of 66 feetcould only be met by adding to it on the plan the width of the steep embankment that ends at the water’s edge, a fiction as it was asolution totally unsuitable for a road allowance. Most importantly, it was also uninformed by the contemporary meaning of thedescriptive word chosen, “Promenade”, and the uncertainties of surveyors over the treatment of lands meant for either common use orvehicular passage. [47] Mr.

Worobec’s evidence from his review of the plans approved and registered in Simcoe County between 1911 and 1922 isnot seriously challenged that the period including 1914 was a time of changing rules for surveyors in Ontario and there was a markedreluctance in most cases to provide an owner’s dedication of land for highways or other public use along waterfront areas. And while s.19 of the Surveys Act, 1914 is not directly applicable to this plan, it shows the ambivalence that dedicatory language could carry despiteuse of the term “public highway”.

Section 19 provides that in every city, town, or village, “all allowances for any road, street, lane orcommon shall be public highways and commons (emphasis added)”. The meaning of the word “commons” in the period I am dealingwith, when not qualified in some way, was held to include lands not ear-marked for road use, land held for use as, for instance, a picnicground or park or for other uses for general public enjoyment, Lorne Park (Re) (1913), (ON SC), 18 D.L.R. 595 (Ont.S.C. H.C. Div.); aff’d (1914), (ON CA), 22 D.L.R. 350 (Ont. S.C. App. Div.). Mr.

Worobec is of the opinion, resultingfrom his review of surveyors’ field and survey notes of the period, that they were grappling with how to deal with the new rules fortreatment of waterfront lands in particular, and that there was uncertainty in the profession during the period 1911 to 1922 on this issue. [48] Mr. Williams points out that there would be a resulting loss of public access to several of the waterfront lots if Lake ShorePromenade and the embankment were not so dedicated at the time.

But that access could and obviously has been provided by othermeans using the open space Promenade traversable on foot or on horseback or other recreational means, not necessarily by vehicleswhich were still relatively rare in 1914.

This subdivision was, after all, for seasonal use, and as it has turned out, the lots were developedwith cottages for which access was accomplished in many informal ways. [49] In any event, I find the evidence to be compelling that KLC intended to dedicate the lands on R.P. 626 named Lake ShorePromenade and the embankment for the purpose of a public road allowance but it remains to be seen what that might include andwhether municipal acceptance and approval by the Township was validly accomplished within the law of the time.

It is clear thatdedication of the Promenade as a public road was never impliedly accepted by use and municipal maintenance. Despite the words usedin the owner’s certificate that give an appearance of certainty, the unique shape, the intent from use of the word “Promenade” for a morepassive use near the lake, and the divergences of size from the legal minimum and maximum standards for highway width in force at thetime leave some doubt and ambiguity on the face of the plan as to the precise purpose for which its owner was really dedicating thePromenade.

And after all, dedication is to the public, not the corporate entity. Gibbs v. Grand Bend, supra, paras. 102-109. 2) Did the Township have the statutory authority and jurisdiction to accept and assume Lake Shore Promenade as a publichighway or road allowance? [50] The respondents submit first that Lake Shore Promenade was never intended by the owner to be used as a roadway forvehicular traffic; rather, it was intended to provide access to the lake, a waterfront walkway, and an open area beside the lake for the useof the lot owners on R.P. 626.

They further submit that, in the alternative, if the Township is found to be the owner for non-roadpurposes, it was to be used by lot owners and members of the public at large for passive purposes and quiet enjoyment in a lakesidesetting. They point to the meaning of “Promenade”, the fact that only this waterfront land (including the bank) bore that name, its use tothis day as open space land and never a road, its severe variation in width from 150 feet to 45 feet, and the steepness of the bank land thatis coloured quite distinctly brown.

The topography of the steep bank would make the Promenade, which must include the bank to getclose to the 66 feet road minimum in several places, unlikely for use then or in future as a road. The road standards at the time are foundin the Municipal Institutions Act, 1914 and the Registry Act, 1914: Municipal Institutions Act 479(1) No municipal council or owner of land shall lay out any highway less than 66 feet in width or, except in the case of a city or town,more than 100 feet in width.

(3) No highway shall be laid out in any municipality by any owner of land without the sanction of the council of the municipality...... And s. 432 of the same Act states:

Except in so far as they have been stopped up...all roads dedicated by the owner of the land to public use...shall be common and publichighways. Registry Act 81(14) - The Registrar shall not register a plan which does not comply with the provisions of this Act; nor shall he register a plan onwhich a road or street less than sixty-six feet wide is laid out unless the assent of the proper municipal council is registered therewith. [51] R.P. 626 states on its face that Lake Shore Promenade, even with the embankment land added to it, measured a width of only65 feet at one point. Mr.

Strongman says now that he scaled off the width as drawn and found that there is 66 feet in width throughout. However, to municipal councillors reviewing the plan, the deficiency would be obvious from the width noted on Lake Shore Promenadeof 40 feet (without including the embankment) and, if it is included without considering its difficult if not impossible topography forroad use, the Promenade continued to be deficient.

In addition, there is no doubt of its unique location on the shoreline and its unusualshape as a proposed road, widening substantially to 150 feet, well in excess of the municipal standard of 100 feet maximum in width. [52] One Ontario case considered the meaning of the word “Promenade” on a registered plan or survey as being relevant to theintent of the owner when dedicating a piece of land to a municipality. I am well aware in citing this case that it differs on the facts fromthis case in that there was a 1-foot reserve around the subdivision.

However, Flynn J. of the Superior Court did consider the meaning of“Promenade” on the issue of intent to dedicate land for a public highway in 1146726 Ontario Inc. v. National Trust Co. (2004), 48 M.P.L.R. (3d) 283 (Ont. S.C.). He held that the contemporary meaning of the word, circa the turn of the century[1], was a walking pathor park, a place for strolling, not a public road or street.

At paras 211-13 he wrote: A Rose is a Rose 211 Surely in 1893, the word "Promenade" was much more closely understood in accordance with the dictionary definition as a placefor strolling - for "walking about" - not as a public road or street.

I find that it was not the intention of the surveyor or of the developers todedicate that Lakefront Promenade to the public in the sense of the Municipality - but rather to create a beachfront strolling area for theresidents of the private cottage enclave that was Plan 311 (Plan 9). 212 That may have changed by the time of the introduction of the current wording of s. 57 of Surveys Act (1990): Every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road,highway, street, lane, walk and common. 213 But that can hardly be an intent retrospectively visited upon Messrs.

Woods, Martin and Carroll.

While the legislature hasrecognized "lane" as a kind of public highway, Carroll, a seasoned surveyor by the time the plan was prepared, avoided words like "lane"or "commons" and used in one case, the exotic "Lakefront Promenade" and in the other the word "Avenue", which in 1893 could well beunderstood by the Oxford dictionary definition employed since the mid-seventeenth century to import the chief approach to a countryhouse usually bordered by trees. [53] In a case decided in 1923, the word “promenade” was not used but the case dealt with land that had never been used as ahighway and was described by the trial judge Middleton J. as being within the same category of use as Flynn J. held to be encapsulatedin the word” promenade”: 29 On the whole case the situation here resembles that dealt with in the Stonehenge case, Attorney-General v.

Antrobus, [1905] 2 Ch.188. …They came for the sight and the pleasure. The passing over the land was not by way of using it for a road, but as a mere matter ofconvenience. ... The village fathers do not seriously regard this as a road and say the intention is not to use it as a highway, but as apleasure-spot and park for the public. 30 All this is the strongest evidence that it is not a highway. Batt v.

Beaverton (Village), (ON CA), [1923] 3 D.L.R. 424. [54] While I have found that this land was dedicated on the plan as a public highway, the substantial discrepancies beyond themaximum statutory standard of 100 feet, the non-road connotation of the name Lake Shore Promenade, its undulating shape uniqueamong the “roads” on R.P. 626, and the necessity of adding the steep bank to make the horizontal minimum road width of 66 feet

without which the Promenade would be sorely deficient by some 20 feet, all go more to the respondents’ submission that the Townshiphad no jurisdiction or authority in law to accept and assume the Promenade as a public highway. The evidence is clear that ever since1914, the Township has never opened it for use as a public road or highway nor could it meet the required minimum width of 66 feetwithout expenditure of a serious amount of money to fill, stabilize an entire new shoreline well above the lake, provide for retainingwalls, and build a road on an allowance of at least 66 feet in width.

This is something never contemplated by Oro’s or Oro-Med.’scouncillors in the 98 years that have passed, on the evidence before me. [55] Mr. Williams submits on Oro-Med.’s behalf that the excessive width of well over the statutory maximum of 100 feet is of noconsequence, that the right of way including the bank land measures at least 66 feet throughout the Promenade’s length and the latenessof registration is a mere irregularity which does not go to the competence of the Township to assume it as a public highway.

Mr.Williams submits that the maximum width standard in the Municipal Institutions Act, 1914 is coupled with words that indicate theyapply to a municipality or landowner that lays out a highway; in this case, he argues, the highway is established by dedication andacceptance by the municipality pursuant to s. 19 of the Surveys Act, 1914 to which the width provisions of s. 479 of the MunicipalInstitutions Act, 1914 do not apply. He says that only where a highway is established through “the other applicable sections of the...Act”do the maximum and minimum widths apply.

The “other applicable sections” that he referred to were not cited or explained by him. [56]

Section 19 of the Surveys Act, 1914 reads, in the relevant parts: In every city, town and village, or any part thereof, which has been surveyed by the authority mentioned in s. 16, all allowances for anyroad, street, lane or common laid out in the original survey of such city, town or village, shall be public highways and commons...; andevery surveyor employed to make a survey in such city, town or village, or any part thereof shall follow and pursue the same rules andregulations in respect of such survey as are required of him when employed to make a survey in a township. [57] I do not accept Mr.

Williams’ submission that the deeming provision of s. 19 of the Surveys Act, 1914 has any application tothis purported highway.

Section 19 deems what are public highways and commons in the original survey of a city, town or village. Thismunicipality was a township then and remains one today, not a city, town or village. As well, s. 19 only applies to the original survey ofthe city, town or village. R.P. 626 is merely a plan of subdivision of privately owned lands in Concession 11 of the Township. There isno evidence demonstrating that it forms part of the original survey even if this municipality were a city, town or village.

The last part ofs.19 applies to the rules surveyors are to follow in drawing a survey for a township; by itself, it does not deem anything to be a publichighway. Therefore, the Promenade as enlarged in width was not impacted by that provision and no other ground was presented to mefrom which one could conclude that this plan was not subject to the maximum and minimum width standards set by provincial legislationin force at that time. [58] I acknowledge the evidence referred to by Mr.

Williams that the surveyor retained by the Township was able to determinethat the minimum width provision of 66 feet was met along the whole length of the Promenade according to the layout and the scale onthe plan.

But on its face, the plan clearly shows to any person or councillor examining it in 1914 that it was only 65 feet wide at onepoint and therefore on its face was deficient; without the added embankment land which was obviously unsuitable for a roadway, thePromenade’s width was well below 66 feet for most of its length and no assent by the Township to that deficiency was registered asrequired by s. 81(14) with the plan.

It also clearly never met the maximum width standard in s. 479, Municipal Institutions Act, 1914. [59] Did the Township possess the jurisdiction and authority in 1914 to accept and assume a divergence along a considerable partof its length of up to 50 feet above the 100-foot maximum for a public highway as well as what is a fictional attempt by KLC to cover up a 20-foot deficiency below the statutory standard? It clearly had the authority to accept the plan of subdivision as a whole.

But could itaccept a roadway on that plan so divergent from recently enacted legislated standards and of a shape and location more suited to act as aplace for strolling or a lakeside park as its name suggests, as well as its use for almost 100 subsequent years by lot owners on R.P. 626,and the public? [60] The only two authorities cited to me which suggest an answer to this question are Meaford (Municipality) v. Grist, supra, andTonks v. Reid, (SCC), [1967] S.C.R. 81. As Meaford comes from a judge of co-ordinate authority in this court, it is, ofcourse, not binding on me.

However, it has persuasive authority as well as the principle in the doctrine of res judicata that decisions froma co-ordinate court of the same jurisdiction, in so far as they outline a principle of law, should be followed in the absence of strongauthority to the contrary. R. v. Northern Electric Co. Ltd., (ON SC), [1955] O.R. 431 (Ont. H.C.J.). Tonks is from theSupreme Court of Canada, though the facts are not on all fours with this case; it involves the sale of highway land, not its establishmentas the applicant’s counsel points out (App.’s Factum, para. 1 (f)).

But for the general principle that it is cited for, it is consistent withother authorities holding that municipalities are creatures of the province and must act within the authority granted them by provincialstatute law. [61] In the Meaford case, Daley J. was considering a motion under rule 20 to dismiss a claim by the Town of Meaford that a publicroad had been established by By-law 11 in 1854 and by a confirming by-law passed in 2003. He dealt with the claim in the historic andpresent context. In the

section dealing with the 1854 era, he considered the effect of the plaintiff municipality’s claim that the road hadbeen reserved in private deeds. One such deed reserved 33 feet of part of the claimed By-law 11 road along a lakeshore. In that context hegave the following reasons: 74 No survey has ever been completed of the By-Law 11 Lands.

The only survey plan prepared was done in 2007 and it only covers aportion of the By-Law 11 Lands referred to as the "McDowall Plan," where the properties of the defendants Grist and Seaman et. al. arelocated. 75 There is no evidence depicting a road on the lakeshore on any maps from 1855 onward. While there is evidence of the appointmentof "pathmasters" pursuant to various by-laws enacted during the period 1863 to 1874, there is no evidence that a "pathmaster" wasappointed with respect to any road running through Lots 22, 23 or 24 of Concession 6.

76 Although the plaintiff's surveying expert offers the opinion that a municipal road was established pursuant to By-Law 11, the recordof conveyancing of properties subsequent to the enactment of the by-law does not support this conclusion. 77 Noteworthy is a conveyance in 1878 from William Stokes to Lane Murphy which involved the conveyance of 10 acres from thesouthern boundary of Lot 23, Concession 6. Mr.

Stokes granted lands rights to the water's edge, but with a reservation of lands: Over the quantity reserved for a two rods [33 feet] road along waters edge of said broken front lot and in the front of the 10 acres nowsold and reserved by Mr. Stokes for his use and if properly established for the use of the public also. 78 The reservation of title to the grantor, William Stokes, was limited in width to the "two rods road" or 33 feet.

The Municipal Act inforce at the time precluded the creation of a public highway with a width less than 66 feet and this restriction remained in force until after1925. 79 The reservation of title retained by William Stokes did not appear in the earlier chain of title with respect to this property which iswithin the By-Law 11 Lands. ( Emphasis added.) [62] Daley J. was considering the claim by a municipality that a road had been established over private property due to a pre-confederation municipal by-law and the historic use since 1854.

In stating his conclusion that a municipality was precluded fromestablishing a road of a width deficient by half from the standard in s. 479, he was recognizing the fundamental principle in municipallaw that a municipality is a creature of the legislature of Ontario and lacks the competence to enact laws which conflict with, or lack theauthority of, a statute enacted by the legislature of Ontario. In short, a municipality is a creature of statute and cannot act beyond itslegislative competence which is defined by the statute law of Ontario. [63] In Tonks v.

Reid, supra, at p.4, the municipality had closed a highway and sold part of it to the defendant who was not one ofthose eligible to receive a transfer under the Municipal Act, R.S.O. 1960, c. 249. In agreeing with the Ontario Court of Appeal, Judson J.ruled for the Supreme Court panel that failure to observe the provisions of the Act regarding sale of a roadway meant that the council acted without authority and the by-law authorizing sale is void... Words could not be plainer. The council was under nocompulsion to sell, but if it determined to sell, it had to sell in accordance with these provisions.

It fixed no price and it made nooffer to the abutting owners. Council had no authority whatever to make this sale to Tonks. [64] The principle of the pre-eminence of statute law governing municipal authority to act and to legislate was stated more recentlyby the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342 at para. 17: The first step is to consider the approach the courts should take when construing municipal legislation.

As noted by Iacobucci J. in R. v.Sharma, (SCC), [1993] 1 S.C.R. 650, at p. 668: ... as statutory bodies, municipalities “may exercise only those powers expressly conferred by statute, those powers necessarily or fairlyimplied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation ofthe purposes of the corporation”. [65] In Shell Canada Products Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231 at para. 17, McLachlin J., asshe then was, referred to the approach to municipal powers in this way: In R. v.

Greenbaum, (SCC), [1993] 1 S.C.R. 674, in a passage cited on this appeal by Sopinka J., Iacobucci J., speakingfor the Court, commented (at p. 687) that: Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitlyconferred upon them by a provincial statute. However, the same reasons (at p. 688) advocated a "benevolent construction" of the provincial enabling legislation, quoting theforegoing passage from City of Hamilton v. Hamilton Distillery Co.

[66] And later in the Shell decision, in a dissent which has been cited by the Supreme Court since as the law now, McLachlin J. didnot alter the fundamental principle that municipalities must act within provincial statutory authority but stated that the courts must take adeferential approach to the way in which municipal governments exercise their powers within that statutory authority: Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve thepeople who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipalcouncils.

Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases wherepowers are not expressly conferred but may be implied, courts must be prepared to adopt the "benevolent construction" which theSupreme Court referred to in Greenbaum, and confer the powers by reasonable implication.

Whatever rules of construction are applied,they must not be used to usurp the legitimate role of municipal bodies as community representatives. [67] Dealing now with non-compliance of the Promenade as a roadway with s. 479(1) of the Municipal Institutions Act, 1914 ands. 81(14) of the Registry Act, 1914, the purpose of those enactments was obviously to set basic standards for highways laid out by privateowners or by municipalities at a time when the municipal and provincial road systems north of Toronto were still in their infancy.

Inapproving a public highway with a width well beyond the maximum standard established in the recently enacted provision and at anotherpoint, a width below the minimum without registration of council’s assent to it, the Township acted beyond its authority and directlycontrary to provincial legislation. Therefore the approval and assumption of Lake Shore Promenade as a public highway by Oro councilwas void and of no effect. 3) What should be the disposition of the Promenade/embankment land in the circumstances? [68] Where does this leave the issue of ownership or title to the Promenade land?

The Township was precluded from establishingor accepting it as a public highway because it exceeded the maximum width for a highway of 100 feet and was not at least 66 feet inwidth. The owner’s intent to dedicate the Promenade to the public, and public acceptance of it as an integral part of the subdivision,remain intact.

It means that its use as an access way to the lake and a common area would be simply brought into line with the intentimplied by its name, its topography, and its uniquely irregular shape and statutorily deficient status as a roadway on a registered plan. [69] Lake Shore Promenade including the abutting embankment to the shoreline was dedicated by KLC, like the other landsmarked in the same colour, as a public highway but the approval of the municipal council as it applied to Lake Shore Promenade wasvoid.

The council acted beyond its powers by purporting to approve and assume a public roadway that did not comply with therequirements of provincial legislation. The owner’s intent for this uniquely shaped land, as shown by the name it was given, itsinadequacies as a roadway, and the steepness and extent of the vertical drop down to the lake, was for it to serve the subdivision and thepublic interest as an access way and as a common area for the enjoyment of the lot owners and the public. It was lumped in with thestreets by colour in circumstances that I described in the previous section.

Its functions vis-a-vis the subdivision of which it was a partremained, as access to the lake and as a public common area or lakeside park. As such, Lake Shore Promenade remained within thededicatory intention of the owner and the acceptance by the public. It was only insofar as the Township`s approval included a purporteduse as a highway that the municipality exceeded its powers and to that extent was void. [70] Furthermore, the Promenade was never “thrown open” as a road for use as a highway by the public, and there has beenpublic acceptance of the dedication over many years.

For it ever to have become an actual roadway, a large amount of fill andreshaping of the embankment and the shoreline for a distance of some 1,170 feet would have been required, a capital work neverconsidered by the Council. In 98 years, no money has ever been set aside by the Township for that purpose. But its use for many yearsby the public including all owners, their families, and others, as a public trail or park constituted, I find, acceptance of the owner’sdedication. [71] I am supported in this conclusion by the following authorities. Kerans J.A. in Foothills Mun. Dist. No. 31 v.

Stockwell, 1985ABCA 229 , [1985] A.J. No. 752 (C.A.) wrote, in enlarging on the second part of the test for dedication: An actual intention to dedicate may be inferred from the circumstances and, in particular, from long, uninterrupted public use.Acceptance by the public may be inferred from the same circumstance. See Williams & Wilson Ltd. v. Toronto, (ONSC), [1946] O.R. 309. [72] Also, in Gibbs v.

Grand Bend (Village) (1995), (ON CA), 26 O.R. (3d) 644 (C.A.), a case of implieddedication of land for public beach use, Brooke J.A. wrote: 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...Once a dedication is complete, neither the owners nor their successors in title could revoke it: seeHunsinger v. Simcoe (Tn.) (ON CA), [1946] O.R. 203.

Neither the dedicator nor his successors in title can resumecontrol of or convey the land free from the public rights to its use, nor can anything be done by the present owners to take back thatwhich had been previously given away: see Gion v. Santa Cruz, 2 Cal. 3d 29 at pp. 52-53 and 60. [73] For these reasons, I find that as of 1914, the approval and purported assumption by the Township of this one portion of R.P.626 as a highway is ultra vires the municipality and therefore void.

The dedication by KLC to the public for use by lot owners and thepublic as common open space and an access way to and along the lake shore remains effective. There is clear evidence of acceptance by

the public as land held for these public purposes.

In addition, the Township has maintained a virtually constant stance from the 1920s to now as evidenced by the position of the Township as the Promenade owner whenever the status of this land came before the provincial Department of Lands and Forests (DLF) during the process for applications to erect private shore structures and when that same status came before council itself as outlined in the Township’s Factum in paragraphs 20 (1.) to (12.). [ 74 ] I find that the respondents’ counsel’s use of the copies of four unofficial maps drawn without reference to the embankment land lacks any proof of authenticity.

These are maps used as base drawings by someone unknown for purposes of a private application. They are not evidence of anything regarding when the embankment land was coloured brown on the actual plan. As for the suggestion that ownership of the Promenade/embankment lands may be unknown or held still by KLC, the consent purportedly signed by an officer of KLC decades after the subdivision plan was registered containing KLC’s dedication under seal, is not under seal nor is there any other proof of its authenticity or that it was authorized by the company.

In any event, the consent expressly did not warranty that KLC owned these lands, no doubt because the person knew the Township still held title to these lands. With due respect, these are smoke and mirrors. [ 75 ] I find that the Township’s continuous position over the years has been that the Promenade land was held as public land for the use and benefit of all lot owners on R.P. 626 and the public. To say that the Township has ignored the Promenade is overstating reality. It has not developed a public road from the Promenade lands.

It has also not exhibited any consistent leadership and responsibility over the years toward the use of these lands as lands held for the benefit of the public, such as installing waste bins, marking the Promenade limits more clearly, and establishing some directional signage regarding no use by motor vehicles and notice of public use restricted to passive activities. [ 76 ] Be that as it may, the Township’s ownership has been a matter of public record in the land registry system and now Land Titles since 1914, as Mr. Williams submitted.

And it has maintained its public position as the owner of the Promenade lands throughout the intervening years, for instance, with residents who applied for provincial shore licenses to build a structure or to create a water lot; and with the Department of Lands and Forests (DLF) and its successor, the Ministry of Natural Resources (MNR) and with all R.P. 626 owners when internal disagreements arose between front and back lot owners. [ 77 ] The respondents’ evidence confirms that Lake Shore Promenade has never been used as a municipal roadway and that the public in the sense of the community of owners and their families and friends on R.P. 626 and members of the public at large have been using and have accepted Lake Shore Promenade years ago as an amenity for strolling and resting and enjoying generally a walkway beside the lake.

I will deal with the respondents’ evidence on this point in detail shortly. [ 78 ] Mr. Williams argued that as of 1999, the requirement that a road meet certain provincial width standards was deleted from the legislation. As well, s. 26(5) of the Municipal Act, 2001 states that all road allowances or highways shown on a registered plan of subdivision are highways unless they have been formally closed. He submits that this provision must be given retrospective effect if it is to have any meaning.

In 1914, s. 432 of the Municipal Institutions Act , R.S.O. 1914, c. 192 stated that all roads dedicated to public use shall be common and public highways. [ 79 ] These provisions have no effect on what I have ruled. I have found that the Township had no authority to assume and accept Lake Shore Promenade as a public highway according to the law in 1914 and as such its purported acceptance as a highway is void. Therefore as of 1914, it was not a public highway. It constituted land dedicated to the municipality for public use other than as a highway.

Therefore for purposes of s. 432, Lake Shore Promenade was not a road and it no longer came within S. 432. As for s. 26(5) of the Municipal Act, 2001 , while no doubt it has retroactive effect, it cannot make into a highway land on a registered plan of subdivision that the court has ruled was not, and could not be, accepted as a road allowance or a highway. It remains an integral part of the plan as municipally owned shoreline land for use for access by owners to the lake and as a common area for the general use and enjoyment of those in the subdivision and the public. [ 80 ] Mr.

Williams argued on the Township’s behalf that the decision of council was merely voidable and not void and therefore the Limitations Act prevents such an attack now on the municipal decision. On these facts, I do not accept that submission. I have no problem accepting the Township’s submission that the late registration is merely an irregularity and that this plan has been relied on for almost 100 years by the residents themselves as evidence of the land to which each holds title.

However, the decision of the 1914 Township council to accept Lake Shore Promenade as a public highway, rather than a block of waterfront public land or commons for non-vehicle use as its name and dimensions imply, clearly flies in the face of the provincially enacted road standards that the Promenade alone on this Plan clearly violated from the day the plan was prepared.

The decision to accept and assume it as a public road by the Township in 1914, within a year after the road standards were enacted, is void ab initio, i.e. from the beginning (both the Registry Act , R.S.O. 1914, c. 124 and the Municipal Institutions Act , R.S.O. 1914, c. 192 were bought into effect on March 1, 1914, only seven months before the Oro council meeting with KLC). That status did not rely on some subsequent event. [ 81 ] Finally, current provisions in the Surveys Act , s. 57, as well as in the Municipal Act, 2001 , s. 26(5), in my view have no effect on this ruling.

As land on R.P. 626 held by the Township for a public, non-road purpose, those sections simply do not apply to the Promenade and the accompanying embankment land. The effect of this ruling is that from 1914 on, the Township’s acceptance of it as a highway being void, it is not a road allowance, street, or highway shown on a registered plan and therefore cannot be deemed now by those provisions to be a highway. [ 82 ] The subdivision approval process in 1914 was not the multi-layered process it is today. However the kernel of the concept for what it has become was firmly planted by 1914.

Pursuant to s.81(18) of the Registry Act , 1914, no plan of subdivision could be registered unless it received the approval of the municipal council for the locality where the land was situated. This was required so that the municipal council could ensure, among other things, that the lots being created would be served adequately and not isolated from the lake or from the provincial road system.

In other words, the legislature saw from the beginning that the addition of multiple lots raised servicing concerns that the public interest required local governments to address through an approval process. [ 83 ] The present intent, as I understand it, is for continued use of the Promenade as a public trail or lakeside park and for access by lot owners and families to the shore of the lake. Between 2000 and 2003, the Township conducted a series of meetings with owners of

lots on R.P. 626 to discuss options for Lake Shore Promenade. The options put forward were: (

i) to close the Promenade and offer it for sale to abutting owners under the Municipal Act , R.S.O. 1990, c. M. 45, or (ii) maintain it as public land closed it to all vehicular traffic. A Working Group was established in 2003 that made various suggestions all involving the Promenade being maintained as a passive walkway or trail or park. The only tangible result from this process was a “direction” by council to: (

i) prohibit vehicular traffic between Blackman Blvd. and Myrtle Avenue, and (ii) to better define the boundaries between the Promenade and the abutting properties. [ 84 ] By-law 2004-119 was passed later to accomplish the first of these directions. By-law 2004-119 prohibits the use of motorized vehicles and snow vehicles on a substantial portion of the Promenade. The only parts excepted from that prohibition are at each end where some owners use small parts of it for access to their lots.

Its use by lot owners and their families as well as by the public as a natural open space area has continued for the last 98 years. [ 85 ] From the photographs filed by the residents, the Promenade has been allowed to remain as a natural and continuous open grassy area forming a pleasant walkway between statuesque trees, as well as a means for cottage owners to access the lake and their boat-houses, docks, stairways and decks by the lake.

It has never been sectioned off by individual owners as part of their lots in the way that the respondents’ submissions at times have implied. [ 86 ] Usage of the Lake Shore Promenade is evidenced by the affidavits and cross-examinations of R.P. 626 owners like Beverley Lemay and Diane Gerrard. Ms. Lemay supports the claims of the respondents to ownership by adverse possession.

In her evidence, she states that over the 54 years of association and use of her family property on R.P. 626, the owners of lots abutting Lake Shore Promenade have maintained the landscaping, placed structures on parts of it and generally have treated those parts of it between their respective lots and the lake as their own. At no time does she claim that anyone enclosed a part, or parts, of it to others or to the public or that at any time the public was consistently and continuously excluded except for those parts where they have built boathouses and docks.

And none of this was done without the knowledge of the Township as owner of the Promenade. [ 87 ] Ms. Lemay’s overall conclusion in her evidence, after reviewing her extensive knowledge of the area’s history, was expressed this way: 15. It is my opinion and belief that the property shown as the Promenade has never been and was not intended to be a public road allowance. At the very worst, it was first set out as a public walkway, or a park. However, through usage over a hundred years it has always been used as the private property of the landowners abutting same… [ 88 ] In her later affidavit, Ms.

Lemay added to her prior evidence on the history of public usage of the Promenade. She corrected a statement made in a letter from one of the residents that owners of lots abutting the Promenade have objected to members of the public using any part of it. Ms. Lemay made it quite clear that the property owners have in fact not taken this position. To the contrary, Ms.

Lemay’s evidence was that, according to her understanding, property owners and their predecessors on title on R.P. 626 have only objected to members of the public walking on or using the private structures they have built on the Promenade including their docks, decks, boat-houses, and sheds. (B. Lemay, Supp. Aff., Aug.7, 2012, para. 6). [ 89 ] It is, of course, not the law in Ontario that mere entry or usage periodically, or seasonally, of a property is sufficient to claim ownership as against the true owner. I will return to that aspect in

section 3 of this judgment. My point in citing her evidence here is that, based on her knowledge of the history of this area, Lake Shore Promenade was never opened as a public road and was kept open and used as a passive amenity for the public, which included front and back tier lot owners on R.P. 626 and their families. [ 90 ] Ms.

Gerrard stated in her affidavit that, given her experience as a practicing landscape architect involving several waterfront projects, the Promenade shoreline cannot be naturalized without the commitment of large amounts of money and that removal of the docks built adjacent to the Promenade “will have no environmental benefit and will likely have a negative effect.” She was not put forward as an expert witness but neither was she shown to lack practical experience in this area. On the aspect of public access, Ms. Gerrard was quite forthcoming and her evidence was credible.

She admitted that in an email to a councillor, she referred to the Promenade as “a public right of way”, and that “I think we’ve always seen the middle part as being a public right of way”. She agreed that she has seen quite a few members of the public use the Promenade. At one point she apologized to the Towns

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