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Friday, August 16, 2019 @ 8:11 AM  

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Appeal by the plaintiffs, the Blanchards, from a summary judgment dismissing their action against the defendants, the Tripps and Lavalle. In 2009, the plaintiffs purchased two adjoining parcels of land. A dispute arose with the defendants over access to the lands. In 2013, the plaintiffs applied seeking unimpeded access to their lands via Trussler Road with declaratory and injunctive relief. The Road was situated on both public lands and on lands owned by the defendants. The plaintiffs submitted that the Road was a public highway, or alternatively, a common road or access road pursuant to the Road Access Act. In 2017, the plaintiffs' application was converted into an action and the parties each sought summary judgment. An initial decision dismissed the plaintiffs' claims made under the Road Access Act. A subsequent decision found that the Road had not become dedicated and accepted as a public road and dismissed the action in its entirety. The plaintiffs appealed the subsequent decision.

HELD: Appeal dismissed. The motion judge correctly stated the law respecting dedication and acceptance. The evidence supported the finding that historical instances of use of the Road were situations of neighbourly tolerance rather than dedication to public use. There was no authority supporting the plaintiffs' contention that longtime use by various people constituted proof of implied dedication and acceptance. No misapprehension of the evidence was established with respect to severance of the Trussler lands. Any purported error in finding contradictions in the affidavits regarding access did not impugn the determinative finding that intention to dedicate the road to public use, or public acceptance as such was not established. There was no need to resolve the issue of whether the concept of dedication and acceptance of a public road had no application to an unorganized township.

Blanchard v. Tripp, [2019] O.J. No. 3525, Ontario Court of Appeal, P.D. Lauwers, K.M. van Rensburg and G.T. Trotter JJ.A., July 4, 2019. Digest No. TLD-August12019011