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Easement - Road Access Act

. Balogh v. R.C. Yantha Electric Ltd.

In Balogh v. R.C. Yantha Electric Ltd. (Ont CA, 2021) the Court of Appeal considered the Road Access Act:
[19] Under the Road Access Act, landowners cannot close off an access road on their property except with a court order (or in other, limited, enumerated circumstances). The purpose of the Road Access Act is to prevent self-help measures by landowners, especially in rural and cottage areas, who may want to prevent others from using an access road to get to their properties.

[20] “Access road” and “road” are defined in s. 1 of the Road Access Act as follows:
“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land; and

“road” means land used or intended for use for the passage of motor vehicles.
[21] The trial judge referred to this court’s decisions in 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, 86 O.R. (3d) 561 at para 32, and Blais v. Belanger, 2007 ONCA 310, 282 D.L.R. (4th) 293, and found that because the definition of access road uses the word “serves”, in the present tense, an access road must be one that exists contemporarily, i.e., in the present, and that a former access road can lose its status by disuse or overgrowth.

....

[27] The answer to this argument is that this court has already held in Blais and in Kilpatrick, that in order to be an access road, it must exist contemporarily, i.e., it must serve as “a motor vehicle access road to one or more parcels of land” at the relevant point in time. In this case, the trial judge found that at the relevant points in time, 2008 and 2014, the red track was not in use. Because it was overgrown, it was also not, at those points in time, intended for use for the passage of motor vehicles. We see no error in the trial judge’s approach to the law or to her findings of fact and mixed fact and law.



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