Ronville Lodge Ltd. v. Franklin (Township), [1977] 1 SCR 101

Supreme Court of Canada

Ronville Lodge Ltd. v. Franklin (Township), [1977] 1 S.C.R. 101

Date: 1975-10-07

The Ronville Lodge Limited (Plaintiff) Appellant;

and

The Corporation of the Township of Franklin (Defendant) Respondent.

1975: May 8; 1975: October 7.

Present: Laskin C.J. and Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Highways—Closing of highways—Power to stop up and sell original road allowance—Conveyance to an individual—Right of Crown to stop up a travelled road—Consolidated Municipal Act, 1903 (Ont.), c. 19, s. 600 as amended by 1905 (Ont.), c. 22, s. 30.

Municipal law—Highways—Closing—Conveyance to an individual—Private ownership of the fee inconsistent with public right of passage—Conveyance of travelled road ultra vires—Consolidated Municipal Act, 1903 (Ont.), c. 19, s. 600, as amended by 1905 (Ont.), c. 22, s. 30.

Section 600 of the Consolidated Municipal Act, 1903 (Ont.), c. 19 as amended by 1905 (Ont.), c. 22, s. 30, empowered the Lieutenant-Governor in Council to stop up any original road allowance or any part or parts thereof in unorganized territory. Appellant’s claim of unqualified title was founded on a 1912 conveyance to a predecessor in title who was then the owner under a Crown Grant in 1887 of two lots out of which a 66 foot road allowance was reserved. The lots were in unorganised territory, the respondent township only having been incorporated in 1929. The question was whether appellant had title to a portion of an original road allowance about 600 feet in length, to the exclusion of a public right of passage over a 13 foot travelled road which arced through it. Both the trial judge and the Court of Appeal found, but on different grounds, that the appellant’s claim to restrain the respondent municipality and its servants or agents from entering, going on or over or along the disputed portion of the road allowance failed.

Held (Spence and Pigeon JJ. dissenting): The appeal should be dismissed.

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Per Laskin C.J. and Judson and Ritchie JJ.: Section 600 referred only to the stopping up or sale of original road allowances. Such a power to convey an original road allowance does not carry with it a power to include a travelled road so as to deprive the public of its right of passage. It is not consistent with the law governing public highways in Ontario to make a distinction between private ownership of the fee and the public right of passage.

Per Spence and Pigeon JJ. dissenting: The words ‘stop up’ as used in s. 600 apply to the road and not to the land on which the road lies or will lie. By that section as amended in 1903 and as it was in effect in 1912 the Crown had the power to stop up any road which existed and to grant the fee in the road allowance to appellant’s predecessor in title.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of Thomas D.C.J. rejecting appellant’s claim to restrain the respondent municipality and its servants or agents from entering, going on or over or through a disputed portion of road allowance. Appeal dismissed, Spence and Pigeon JJ. dissenting.

J. T. Weir, Q.C., for the appellant.

Peter B. Tobias, Q.C., and Robert D. Peck, for the respondent.

The judgment of Laskin C.J. and Judson and Ritchie JJ. was delivered by

THE CHIEF JUSTICE—The question in this appeal is whether the appellant has title to a portion of an original road allowance, about 600 feet in length, to the exclusion of a public right of passage over a 13 foot travelled road which arcs through it almost crescent-wise as part of a highway route which is otherwise not in issue here. Both the trial judge, His Honour Judge Thomas, and the Ontario Court of Appeal, speaking through Schroeder J.A., found, but on different grounds, that the appellant’s claim to restrain the respondent municipality and its servants or agents from entering, going on or over or along the disputed portion of the road allowance failed.

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The reasons for judgment at trial contain the following passage:

There was no evidence to indicate that the defendant has gone beyond the bounds of the Birkendale and Fox Point public road with its construction work and accordingly I find that the plaintiff is not entitled to succeed.

I understood counsel for the respondent in this Court to concede that the fee simple title to the disputed portion of the road allowance, 66 feet in width, was not in issue and that the public right of passage over the alleged 13 foot public road was the sole matter which concerned him. In my view, it would not be consistent with the law governing public highways in the Province of Ontario to make a distinction between private ownership of the fee and the public right of passage. If the 13 foot strip, running for some 600 feet, is a public road as alleged and not caught by the grant to the appellant’s predecessor in title (a grant hereinafter referred to), then it is my view that the fee in that strip is likewise not in the appellant but in the Crown. There is no claim to the fee by the respondent, but it does assert jurisdiction over the road under applicable legislation.

The appellant’s claim of unqualified title is founded on a conveyance of March 22, 1912 to a predecessor in title who was then the owner, under a Crown grant of July 15, 1887, of two lots, numbered 11 and 12, out of which a 66 foot road allowance was reserved. The lots lay at all material times in unorganized municipal territory. The present respondent was not organized and incorporated until 1929.

It is common ground that the legislation relevant to the disposition of this appeal was that in force between 1903 and 1912, being The Consolidated Municipal Act, 1903 (Ont.), c. 19, as amended during that period. The provisions variously relied upon by counsel in this case were ss. 598, 599, 600 (as amended by 1905 (Ont.), c. 22, s. 30), 627, 629 and 632. Section 598 declares what roads shall be deemed to be public highways; they include roads laid out by Crown surveys or by virtue of any statute, roads on which public money has been expended for opening them or on which

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statute labour has been usually performed. By s. 599, unless otherwise provided for, “the soil and freehold of every highway or road altered, amended or laid out according to law and every road allowance reserved under original survey along the bank of any stream or the shore of any lake or other water shall be vested in [the Crown]”. Section 600 as it stood in 1903 was as follows:

Subject to the exceptions and provisions hereinafter contained, the municipal council of every municipality shall have jurisdiction over the original allowances for roads and highways and bridges within the municipality.

As amended in 1905, it read differently and was in these terms:

Subject to the exceptions and provisions hereinafter contained, the municipal council of every municipality shall from and after the date of the formation of such municipality, have jurisdiction over the original allowances for roads and highways and bridges within the municipality and until such date, the Lieutenant-Governor in Council shall have power to stop up, alter, widen, divert, lease or sell any original allowance for road or any part or parts thereof in unorganized territory.

The position of the appellant is that the grant of March 22, 1912 was made under the power conferred by s. 600 as amended, that in its terms it covered the entire area in dispute and that the scope of those terms is verified by a previous report of the Road Commissioners for the then unorganized township who under date of January 22, 1912, wrote as follows:

We, the undersigned Road Commissioners for the Township of Franklin, District of Muskoka, hereby consent that The Marine Road allowance around The Shore of The Lake of Bays, immediately facing lots number 10, 11, 12 and 13 on the fourth concession of the said Township of Franklin, (the said four lots containing 198 acres) be conveyed to Chas J.C. Crump, the owner of the said lots.

The said Lake Shore Road is virtually impracticable as a road, for nearly its entire distance, on account of rocky shores and precipitous bluffs, and in addition there is a travelled road already running through the whole width of the said lots.

There is no doubt that this document, upon whose authenticity no doubt was cast, rejects any sugges-

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tion that there was a travelled road on or within the original, the marine road allowance, part of which is the subject matter of this litigation. In speaking of a then existing travelled road, the report clearly imports that that road exists elsewhere than on or in the marine road allowance.

Counsel for the respondent challenged both the validity and the scope of the grant of March 22, 1912 in so far as it purported to close up and sell the 13 foot strip or in so far as it purported to exclude the public right of passage thereon. As a matter of law alone, he founded himself on ss. 629 and 632 of The Consolidated Municipal Act, 1903 (Ont.), as amended. Neither provision has any application here. Section 629 is addressed to municipal councils in its injunction to them against closing up any public road or highway so as to prevent persons from having ingress to and egress from their lands; it is not an injunction against the Crown nor do its substantive terms apply here. The contention under s. 632 was that its provisions for notice, publication and hearing before a municipal council may stop up or sell any original road allowance apply to the Crown when it exercises its powers under s. 600, as amended. I see no possible ground upon which this can be urged; indeed, s. 632(2) requires the approval of the Lieutenant-Governor in Council to any action taken by a municipal council under s. 632 to stop up or sell a marine road allowance. Section 632 is not in any way addressed to the Crown when acting under independent powers conferred upon it, nor does it qualify the exercise of authority conferred by s. 600, as amended.

As a combined matter of fact and law, counsel for the respondent relied on the trial judge’s finding that there was only one travelled road in the area and part of it went through the road allowance, being the part here in dispute. It was a road that, on the trial judge’s finding, existed at least since 1902, and at the area here in issue it was cut through rock at or near the shore of The Lake of Bays. In making his finding, the trial judge appears to have treated the Road Commissioners’ report of January 22, 1912 as if it verified his conclusion that the road he was speaking of was that which arced through the road allowance. This

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is not a permissible inference from the report, but it cannot be said that the trial judge made that the pivot of his finding that a travelled road in fact existed on which public money had been spent.

As a matter of law, the trial judge asserted that “once the road had acquired the legal status of a highway, it was not within the power of the Crown by grant of the soil and freehold thereof to a private person to deprive the public of their right to use the road”. What counsel for the appellant relied on here was not a mere executive or proprietary authority of the Crown to divest itself of land which was vested in it, but rather on its power to make the grant of March 22, 1912 under the amended s. 600 already referred to. That provision, however, refers only to the stopping up or sale of original road allowances, and, like the Ontario Court of Appeal, I am not persuaded that a power to convey an original road allowance carries with it a power to include a travelled road so as to deprive the public of its right of passage.

It follows that I would dismiss the appeal, and with costs. A motion to quash in this matter had been brought by the respondent and was dismissed with costs reserved. The appellant should have the costs of the motion.

The judgment of Spence and Pigeon JJ. was delivered by

SPENCE J. (dissenting)—I have read the reasons for judgment written by the Chief Justice of this Court and I, therefore, need not repeat the statement of facts or the decisions of the trial court and Court of Appeal for Ontario.

I am in respectful agreement with the Chief Justice in his conclusion that we must accept the findings of fact made by the learned trial judge His Honour Judge Thomas. I share the Chief Justice’s difficulty in understanding the effect given by the learned trial judge to the report of the Road Commissioners dated January 22, 1912, and marked at trial as exhibit 42 but the learned trial judge pointed out he had the evidence of many witnesses as to the existence of a more or less

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travelled road over at least a part of the marine allowance and in addition the most important postscript in W.G. Burk’s letter to the Superintendent of Roads received on October 15, 1902, which read:

P.S.

I might just say that I had the worst kind of a road to build. It had to be done with Picks, Bars Shovels and Dynamite and Powder following around the Lake Shore and nothing but bluff rock. Starting on Lot 12 Ending on Lot 13, going across the lot and lengthwise.

W.G. Burk.

Therefore, I address myself to the consideration of this appeal on the basis that a portion of the marine road allowance along the front of Lots 11 and 12 did bear a road of sorts. The problem, therefore, is whether the existence of that road was terminated by a patent granted by the Crown on March 22, 1912, to the appellant’s predecessor in title Charles Crump wherein the lard patented was described as a

Road allowance one chain in perpendicular width along the shore of the Lake of Bays in front of Lots Numbers Ten containing Two and One-half Acres Eleven containing Two acres Twelve containing Three acres and Thirteen containing Two and One-half acres in the Fourth Concession of the said Township of Franklin, Saving excepting and reserving unto Us Our heirs and successors all pine trees standing or being on the said lands together with the right to enter upon said lands to remove said timber

It would seem quite plain from the provisions of s. 599 of The Municipal Act, R.S.O. 1897, c. 223, which was in effect at the date of the patent in 1912, that the marine road allowance reserved in the original patent of the lands was vested in the Crown. The said s. 599 provided:

599. Unless otherwise provided for, the soil and freehold of every highway or road altered, amended or laid out according to law, and every road allowance reserved under original survey along the bank of any stream or the shore of any lake or other water, shall be vested in Her Majesty, Her Heirs and Successors.

Section 600 of the same statute prior to the year 1905 provided:

600. Subject to the exceptions and provisions hereinafter contained, the municipal council of every municipality shall have jurisdiction over the original allowances

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for roads and highways and bridges within the municipality.

In 1905 that statute was amended and as amended read as follows:

600. Subject to the exceptions and provisions hereinafter contained, the municipal council of every municipality shall from and after the date of the formation of such municipality, have jurisdiction over the original allowances for roads and highways and bridges within the municipality and until such date, the Lieutenant-Governor in Council shall have power to stop up, alter, widen, divert, lease or sell any original allowance for road or any part or parts thereof in unorganized territory.

That amendment was enacted by the Legislature immediately after the judgment in Fraser v. Diamond[2], a decision of Street J. in which he held, inter alia, that the Crown had no power to grant a road allowance. In that case, the Crown had granted a patent to lands part of which had been established as a road many years before and upon which road public moneys had been spent. The said patent made no mention of a reservation for a road and the question was therefore whether the Crown had granted the road to the patentee free of the public’s right of user. At p. 92, Street J. said:

In my opinion, the road in question had become established as a public highway, the plaintiff [the Crown patentee] had no right to close it, and the defendant, as one of the public, had a right to remove the obstructions and travel upon the road, and is not liable in trespass for having done so.

That decision was rendered on March 15, 1905 and it is significant that immediately thereafter on May 25, 1905 the Legislature enacted the amendment to s. 600. By the amendment, the Lieutenant-Governor in Council had the power to “stop up, alter, widen, divert, lease or sell any original allowance for road or any part or parts thereof in unorganized territory”.

In Fraser v. Diamond, it was attempted to assert that the patent gave a right to stop persons proceeding along an actual roadway and the judgment of the Court denied that right.

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It would seem perfectly plain, therefore, that the amendment was enacted to grant that very right, i.e., to prevent travel along what had been a roadway when the Crown had granted a patent to the lands upon which that roadway lay. In my view, the words “stop up” must be given their natural and ordinary meaning and one does not “stop up” a road allowance, the road allowance is simply a piece of property upon which a road lies or will lie when constructed in the future. The words “stop up” apply to the road and not to the land upon which the road lies or will lie and therefore clearly the said 1905 amendment to s. 600 is properly understood by interpreting the phrase “original allowance for road” to include a road or highway constructed thereon.

I therefore cannot say that we are aided in our interpretation of the statute by reference to an apparent contrast of the words “roads and highways” and the word “allowances” which appear in s. 599.

Surely, the existence of the report of the Road Commissioners to which I have referred, Ex. 42, gives a plain indication of the intent of the Crown in giving the patent. Before doing so, the Crown obtained a report from the Road Commissioners to show that any road upon the lands to be granted by patent was not necessary and only granted the patent when the Road Commissioners so certified. There would have been no purpose whatsoever in the grant of a patent which would have carried the fee in the road allowance unless whatever road lay on the lands was stopped up. Nor would the report of the Road Commissioners have been relevant to such a limited grant.

Had the Township of Franklin been organized at the time then the Township Council could have stopped up the highway. But by virtue of s. 640(11) (a) of The Consolidated Municipal Act of 1903 that power could only have been exercised with the sanction of the Lieutenant‑Governor in Council. I think it illogical to conclude that a municipality which is solely the creature of the province could have closed such a road as this only with the approval of the Lieutenant-Governor in Council but that the Lieutenant-Governor in

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Council had not such a power as to roads or allowances in unorganized territories.

Section 496 of The Consolidated Municipal Act, 1913 (Ont.), has been advanced as an argument in favour of the respondent. That section provided:

496. (1) The Lieutenant-Governor in Council may stop up, alter, widen or divert any highway or part of a highway in a Provisional Judicial District not being within an organized municipality, and may sell or lease the soil and freehold of any such highway or part of a highway which he has stopped up or which in consequence of an alteration or diversion of it no longer forms part of the highway as altered or diverted.

(2) The council of a township in unorganized territory surveyed without road allowance, but in which 5 per cent, of the area is reserved for highways, may pass by-laws for opening and making highways where necessary and the provisions of this Act as to compensation for lands taken or injuriously affected by the exercise of the powers conferred by this section shall not apply.

It is true that that section does give to the Crown most specifically the right which the appellant seeks to find in the Crown under the earlier section 600. I am of the opinion, however, that it cannot be inferred from the existence of s. 496 in 1913 that the power was not granted in earlier years by the amendment to s. 600. As its name implies, The Consolidated Municipal Act of 1913 was a consolidation and I think that the canon of interpretation works exactly opposite to such a contention, i.e., it cannot be inferred that there was intention to alter the legislation upon its consolidation.

For these reasons, therefore, I am of the opinion that the Crown did have the power by s. 600 of the Municipal Act as it was in effect in the year 1912, at the date of the patent and which I have cited above, to stop up any road which did exist and to grant the fee in the road allowance to the predecessor in title of the appellant. I am, therefore, of the view that the appellant should succeed in the appeal and in its action.

I would grant the appeal with costs throughout and direct the issuance of an injunction restraining

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the respondent, its officers, servants and agents from entering, going over, along and upon and using for any purpose the appellant’s lands in those parts of Lots 11 and 12, Concession IV, in the Township of Franklin with which this appeal is concerned, that is, the original road allowance which was conveyed to the appellant’s predecessor in title.

Appeal dismissed with costs, SPENCE and PIGEON JJ. dissenting.

Solicitors for the appellant: Weir & Foulds, Toronto.

Solicitors for the respondent: MacKinnon, McTaggart, Toronto.