The municipality of Meaford has had its lawsuit against property owners on Georgian Beach Road dismissed by Ontario Superior Court Justice J. Daley.
In his 28 page ruling, Justice Daley said that “the defendants' motions for summary judgment are granted and the plaintiff's action as against all defendants is dismissed.”
The case which began in 2007, has pitted the municipality against some of the property owners on Georgian Beach Road who the municipality claimed had blocked access along the water side of their properties angering some residents who maintained that the area in question is a public road access.
The municipality filed a lawsuit that has in large part hinged on a bylaw from 1854 that they say proves that the road exists and has never been officially closed off.
Though the initial lawsuit was brought against just a few property owners, when the case finally reached a courtroom last year, the judge ordered that the municipality must include all property owners along the stretch of road which expanded the case to some 70 properties.
In his ruling which is dated September 21, Justice Daley said that the 1854 bylaw is not sufficient proof that a road existed.
“There is no evidence that the purported public road was created by any of the means listed in s.26 of the Municipal Act, 2001. In particular, even if a public road or highway had been lawfully established, whether by dedication and acceptance or otherwise, the evidence is clear that the road ceased to exist after it was washed out in 1986 particularly in the location of the properties belonging to the Grist and Seaman et al. Defendants,” wrote Justice Daley.
The ruling goes on to say that even if a road had existed, the municipality did not exercise their rights to the road for more than 150 years.
“In this case, Meaford and its predecessor have slept on their rights for over 150 years. As a result, the defendants and their predecessors have acted in reliance on their justifiable belief, which was confirmed by the municipality’s actions, that the subject lands were their private property. Thus, even if By-Law 11 was held to be valid and enforceable, so as to allow the plaintiff to take title to a portion of the defendants' properties, such a result would greatly prejudice the defendants and be unjust,” wrote Justice Daley, “Further, the plaintiff municipality is not acting for the purpose of enforcing any legislation but rather it is seeking to take away land rights held by the defendants and their predecessors over many years. In my view, the doctrines of laches and acquiescence should be applied. The public interest is not served by allowing the municipality to favour the non-proprietary interests of some ratepayers or citizens over the private property interests of the defendants.”
Justice Daley also pointed to the testimony of municipal staff and Mayor Francis Richardson to support his ruling that there is no reason to believe that the disputed roadway was owned by the municipality.
“The Mayor of Meaford, Francis Richardson agreed that there would be no maintenance agreement with the Cottage Owner’s Association if the subject lands were in fact a public road. In 1984, the Cottage Owner’s Association paid 35% of the cost of maintaining the Disputed Road, however, since the road was washed out in 1986, Meaford has no longer maintained that area.,” Justice Daley also said that “Steven Vokes, the Director of Operations for Meaford, acknowledged that nothing on the subject lands indicates that there is a road present which was established by By-Law 11.”
Justice Daley also ruled that the property owners on Georgian Beach Road had no reason to believe that the municipality had any rights to their properties.
“The record is clear that the defendants’ cottages have all been built or renovated with Meaford's permission on the basis that they were in conformity with the provisions of the applicable zoning by-laws. This conformity was judged in relation to the set back from the water's edge and not from the Disputed Road. Permits were issued by Meaford's Chief Building Official, who would have known of the existence and location of all streets and roads in order to ensure compliance with the applicable zoning by-laws.”
The accuracy of municipal records dating back to the mid-1800's was also called into question by Justice Daley.
“However, the plaintiff has produced no records which make reference to the By-Law 11 Lands in any of the years following its passage. Nor has it produced any records of work done on those lands or any records of money expended for the creation or maintenance of a public highway. Further, Meaford has not produced any record showing that any compensation was paid for the expropriation of the By-Law 11 Lands,” wrote Justice Daley, “As to record keeping, Meaford’s clerk confirmed that there are many by-laws missing from the records stored from the 1860s and 1870s.”
It is as yet unknown how much if anything the municipality will have to pay toward the costs incurred by the defendants in the case.
“In the event that counsel are unable to resolve the issue of costs, counsel on behalf of the defendants shall serve and file written submissions of no longer than three pages, plus a bill of costs within 20 days from the date of release of these reasons, followed by similar submissions from counsel for the plaintiff within 20 days thereafter,” wrote Justice Daley in the closing of his conclusions.
A message left with Meaford CAO Frank Miele Tuesday morning requesting comment had not been returned at the time of publication.
Meaford Mayor Francis Richardson told The Independent Tuesday morning when contacted by telephone that he was not aware of the ruling.
“I don't know anything about it. I haven't heard anything yet,” said Richardson adding that he would not likely be able to make comment due to his declared conflict of interest with regard to the lawsuit.
Deputy Mayor Harley Greenfield, and Meaford's Director of Corporate Services/Deputy CAO David Kennedy also could not be reached by phone Tuesday morning.
The full ruling can be viewed online by clicking here.
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