Road Access – Overview of the Road Access Act

Overview

Ontario’s Road Access Act was enacted in 1978 to minimize disputes over access to the types of roads typically found in cottage country. An “access road” is defined in the Act as a road which is located on land that is not owned by a municipality nor is a public highway, and which serves as a vehicle access route to one or more parcels of land.  The Road Access Act makes it a chargeable offence for any person to block an access road in a way that prevents all road access to one or more parcels of land or boat docking facilities therefor, not owned by that person except in limited circumstances. The Act does not create any property rights (as per s. 6(1)), but rather subjects property that meets the definition of an “access road” to the continued limited use of the road by vehicles until or if certain conditions (discussed below) have been met. This procedure ensures that any disputes over road access are resolved under the supervision of the Courts without property owners acting unilaterally against drivers.

While the vast majority of court cases under the Road Access Act involve road access entirely over land, in a 2019 case, Justice Fitzpatrick confirmed that the Road Access Act was also intended to “cover the scenario where a particular parcel of land is only accessible by water, and it is necessary to drive over another person’s private land to get to a shoreline ‘docking facility’. (Adey v Caccamo, 2019 ONSC 3297 (CanLII))

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When an Access Road may be Blocked

While Section 2 of the Road Access Act stipulates that blocking an access road is generally prohibited, there are certain instances were doing so is permitted under the Act. It is crucial to note that the language in the Road Access Act states that the prohibition on blocking an access road under the Act only applies if the result is to “prevent all road access” to another parcel of land. In other words, if there are alternative roads one may use to access the parcel of land which is served by the access road, the access road in question may be blocked without offending the Road Access Act. However, one should obtain legal advice before blocking any access road as there are wider considerations, including whether the blocking of the road might be infringing on a right of way or easement, which courts have found in the past is a basis for awarding damages against a party blocking the road. There may be additional implications under tort law for the blockage of access roads if harm results to an abutting landowner due to the blockage.  That said, the Road Access Act does provide for four situations in which an access road may be blocked:

1. The landowner seeking to obstruct the access road has commenced an application to a judge for an order closing the road and has given 90 days’ notice of the application to all parties who may be affected and the judge has in fact granted the the application to close the road;
2. The closure is made by agreement, in writing, with the owners who will be affected by said closure;
3. The closure is merely temporary so that maintenance can be commenced on the access road; or
4. The closure is made for a single period not exceeding a 24-hour period in a given year for the purpose of preventing the acquisition of prescriptive rights.

When a Judge May Grant a Closing Order

The Road Access Act states that a judge may grant an order closing an access road if they are satisfied with any of the following:

1. That the closure is reasonably necessary to prevent substantial damage or injury to the interests of the applicant;
2. That the closure is reasonably necessary for some purpose in the public interest; or
3. The persons that own property that is served by the road do not have a legal right to use the road.

It is important to note that the Court has discretion to refuse a closing order even if the applicable road user does not otherwise have a legal right to use the road. The Courts have found that “It does not automatically follow, absent a legal interest to an easement to the access road, that the Applicant is entitled to a closing order” (Thompson v Lidtkie, 2019 ONSC 6613 (CanLII).

There is significant body of law on the circumstances in which a Court will grant or refuse to grant an order that an access road be closed, and on what conditions. For a discussion of the factors a Court will assess in considering a request for a closing order, see for example the Court’s decision at para 45-52 of Krogh v Fairchild, 2018 ONSC 2711 (CanLII) in which the Court refused to grant a closing order but imposed conditions of the continued use of the road.

Conclusion

If you have questions or concerns regarding the closure of an access road or the application of the Road Access Act, please contact our office at 705-809-0930 for a consultation.