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Real Property - Dedication Doctrine. Lecuyer v. Essex (Town)
In Lecuyer v. Essex (Town) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against the dismissal of "an application to amend the Land Titles Register" where the applicant sought a finding that "the disputed property is a “highway” pursuant to s. 26 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Municipal Act, 2001”), and as a result, is owned by the Town pursuant to s. 30 of the Municipal Act, 2001".
Here the court considers the legal establishment of 'highways', including the doctrine of 'dedication':[5] The appellant’s application for a declaration that the disputed property is a “highway” owned by the Town is based on the following two sections of the Municipal Act, 2001:26 The following are highways unless they have been closed:1. All highways that existed on December 31, 2002.
2. All highways established by by-law of a municipality on or after January 1, 2003.
3. All highways transferred to a municipality under the Public Transportation and Highway Improvement Act.
4. All road allowances made by the Crown surveyors that are located in municipalities.
5. All road allowances, highways, streets and lanes shown on a registered plan of subdivision.
...
30 A highway is owned by the municipality that has jurisdiction over it subject to any rights reserved by a person who dedicated the highway or any interest in the land held by any other person. The application judge’s decision
[6] The application judge concluded that the disputed property is not a highway within the meaning of the Municipal Act, 2001 because it was neither dedicated for public use as a highway nor accepted as such by the Town. First, she determined that it was not a highway pursuant to s. 26, para. 1 because it was not a highway that “existed on December 31, 2002.” It had never been used or accepted for use by the public or the Town. The appellant does not appeal this determination.
[7] Second, the application judge determined the disputed property was not a highway pursuant to s. 26, para. 5. In her view, the mere designation or labelling of a property as a road on a registered plan of subdivision is not enough to make it a highway. She relied on Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44, and Scott v. City of North Bay (1997), 1977 CanLII 1221 (ON CA), 18 O.R. (2d) 365 (C.A.), for the proposition that, absent a by-law, the court must review the history of the lands to determine the owner’s actual intention to dedicate and the municipality’s acceptance of the lands as a highway, even where they are shown as a road on a registered plan of subdivision. In this case, the application judge was not satisfied that the owner who registered the plan of subdivision intended to dedicate the disputed property for public use “as a highway”, nor was she satisfied the Town accepted or assumed the road for public use. As a result, the disputed property was not a highway and title did not vest in the Town.
DISCUSSION
The disputed property is a highway
[8] Paragraph 5 of s. 26 of the Municipal Act, 2001 means what it says: “all road allowances, highways, streets and lanes shown on a registered plan of subdivision” are highways unless they have been closed. The application judge erred by treating the common law doctrine of dedication and acceptance as a basis for departing from the clear meaning of s. 26.
[9] The application judge noted she did not have the benefit of case law about the operation of this section in a case where property is identified as a road on a registered plan of subdivision but never developed as such. Following the hearing of this appeal, the parties were asked to provide further submissions in this regard.
[10] As the appellant notes, the language of s. 26, para. 5 is consistent with historical provisions of the Municipal Act and the Surveys Act that have existed since at least the 1950s. Section 56(1) of the Surveys Act, 1958, S.O. 1958, c. 107, which would have been operative at the time Plan 1598 was registered, reads as follows:Subject to The Land Titles Act or The Registry Act as to the amendment or alteration of plans, 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, respectively. [11] The operation of this section did not depend on whether the municipality had assumed the road allowances, streets or lanes for public use. Rather, the allowances became public highways when the plan of subdivision became binding on the owner: Boland v. Baker and The Township of North York, 1952 CanLII 106 (ON HCJ), [1953] O.R. 239 (H.C.), aff’d 1953 CanLII 355 (ON CA), [1953] 4 D.L.R. 442 (Ont. C.A.), citing Re Westwood Addition, Hamilton, 1945 CanLII 109 (ON CA), [1945] O.R. 257 (C.A.), and Re Plan 69, Dunneville, 1950 CanLII 67 (ON CA), [1950] O.R. 350 (C.A.).
[12] Although the statutory language has changed somewhat over the years, the principle remains the same: road allowances, streets and lanes shown on a registered plan of subdivision are “highways” within the meaning of s. 26, para. 5. Accordingly, it was an error to treat the common law doctrine of dedication and acceptance as qualifying this section of the Municipal Act, 2001.
[13] Neither of the cases relied on by the application judge is binding authority for her treatment of the doctrine of dedication and acceptance. The court in Oro-Medonte referred to Boland when summarizing the parties’ positions but did not justify its interpretation in light of that case or the Court of Appeal authorities on which that decision relied. The issue in Scott was whether the municipality had assumed liability to repair the public street in issue, not whether the street had become a highway within the meaning of s. 26. These are different issues: liability to maintain a road was governed by provisions of the Municipal Act then in force, which applied only once the municipality passed a by-law or otherwise assumed the road for public use.
[14] The application judge accepted that a common sense reading of the registered plan of subdivision indicated that the disputed property was a continuation of the road allowance labelled Lakeview Drive. The parties have proceeded in this court on the basis that Lakeview Drive is shown as a planned road on Plan 1598. The disputed property is a road allowance, street or lane shown on a registered plan of subdivision. No other statutory requirement is in dispute, and the disputed property is therefore a “highway” within the meaning of the section.
The Town is the owner of the disputed property
[15] Section 30 of the Municipal Act, 2001 vests ownership of the disputed property in the Town. As the respondent golf course points out, that ownership is “subject to … any interest in the land held by any other person.” The respondent golf course argues its status on title to the disputed property is an interest to which the municipality’s ownership is subject. It is not clear this argument was made before the application judge. The respondent golf course candidly acknowledged it does not know how its predecessors came to be on title to Lakeview Drive. Additionally, the property description in the parcel register describes the property as “subject to the interest of the municipality”. In these circumstances, the respondent golf course has not established that its presence on title is an “interest” to which the municipality’s ownership is subject.
DISPOSITION
[16] The appeal is allowed.
[17] A declaration shall issue that the disputed property is a highway pursuant to s. 26 of the Municipal Act, 2001. The Land Titles Register shall be amended to enter the Town as the registered owner of the property pursuant to s. 30 of the Municipal Act, 2001. . Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
The trial court cited authority on the doctrine of 'dedication', here where a defendant sought "a declaration that the Disputed Beach was subject to a public right of recreational use under the doctrine of dedication.":[61] .... Further, following this court’s decision in Hopton v. Pamajewon (1993), 1993 CanLII 198 (ON CA), 16 O.R. (3d) 390 (C.A.), at pp. 400-1, leave to appeal refused, [1994] S.C.C.A. No. 63, the trial judge held that the doctrine of dedication cannot apply to reserve lands because of the sui generis nature of these Aboriginal rights.
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