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Easements - Similar Doctrines. Roalno Inc. v. Schaefer
In Roalno Inc. v. Schaefer (Ont CA, 2024) the Ontario Court of Appeal considered an appeal of a dismissal of a purchaser's action for "specific performance with an abatement" in an APS breach case, here involving a dispute over a perceived easement.
Here the court distinguishes limited Road Access Act rights from a prescriptive easement:[30] I am also not persuaded that Roalno can retroactively justify its refusal to close by invoking the possibility of the Freiburger brothers relying on the Road Access Act. I reach this conclusion for two main reasons.
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[32] Second, even if Mr. Semple had been aware of the Road Access Act, I am not persuaded that this knowledge would have justified Roalno’s refusal to close the transaction.
[33] As a starting point, the parties now agree that the roadway at issue is an “access road” within the meaning of s. 1 the Road Access Act, since it provides the only vehicular access to the Freiburger brothers’ Surprise Lake property.
[34] Importantly, however, the Road Access Act does not create “any right in respect of ownership of land on persons using an access road to get to their property”: Whitmell v. Ritchie (1994), 1994 CanLII 858 (ON CA), 20 O.R. (3d) 424 at p. 427. Rather, it restricts property owners’ ability to close access roads without first obtaining a court order, with notice to any landowners “who would, if the road were closed, be deprived of motor vehicle access to and from [their] land”: Road Access Act, s. 2(3).
[35] In short, if Roalno had proceeded with the purchase and acquired the Vendors’ land, it would not have been able to close the road without first applying to the court for a closing order, on notice to the Freiburger brothers, unless they agreed to the closure in writing: Road Access Act, s. 2(1). The application judge would then have been required to apply the test in s. 3(1) of the Act, which provides:3. (1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or
(c) in the case of a common road, the persons who use the road do not have a legal right to do so. [36] Since the road at issue here was not a “common road”, the governing provisions in this case would have been ss. 3(1)(a) and (b).[1] These provisions operate disjunctively: see Margettie v. Snell, 2009 ONCA 838, 256 O.A.C. 69, at paras. 23-32. It would accordingly have been open to the application judge to make a closing order under s. 3(1)(b), on the basis that the Freiburger brothers did not have a “legal right” to use the road. However, the application judge would also have had the discretion to decline to make a closing order even though the Freiburger brothers had no legal right to use the road: Margettie v. Snell, at para. 42.
[37] In summary, the Freiburger brothers’ statutory rights under the Road Access Act were limited. At most, the Act gave them a statutory right to keep using the road until such time as Roalno obtained a closing order. If Roalno had applied for such an order, the Freiburger brothers could have tried to persuade the application judge not to make the order even though they had no legal right to use the road.
[38] In my view, these limited statutory rights did not engage the representation and warranties in either paras. 28.2 or 28.4 of the APS. They fall short of granting the Freiburger brothers an “easement, encroachment or right-of-way” within the meaning of para. 28.2 of the APS. Moreover, in the absence of a court decision declining to make a closing order, I do not think the Freiburger brothers can be said to have had any “entitlement” to use the road that engaged para. 28.4 of the APS.
[39] In summary, even if Mr. Semple had been aware of the Road Access Act in April 2018, I am not persuaded that any concern he might have had about the Freiburger brothers possibly blocking a future attempt by Roalno to close the road would have entitled Roalno to refuse to complete the transaction.
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