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The Corporation of the Municipality of Meaford v Grist,
2011 ONS C 5195 (Released September 21, 2011)
The Superior Court granted summary judgment dismissing the
Township's action for declaratory relief against its residents
in a dispute over the ownership of a strip of land running along
the Georgian Bay shoreline. Although the motions for summary
judgment were brought by only some of the defendants, the Court
dismissed the plaintiff's action as against all defendants.
The defendants owned cottage lots located on Georgian Bay. The
disputed road, which the Township asserted had been established by
a pre-Confederation by-law in 1854 ("By-law
11") ran through the defendants' properties
immediately adjacent to the water's edge. By-law 11 was not
registered on title in respect of any land until after 2004, when
it was discovered by the Township in the basement of the municipal
offices. Upon discovery of By-law 11, the Township passed By-law
80-2007 which purported to accept the location of the public road
as determined by a partial survey of the By-law 11 lands.
The Township asserted that the public road was established over
the defendants' properties on several grounds: (1) the
enactment of By-law 11; (2) as a result of the doctrine of
dedication and acceptance of road, as evidenced by the expenditure
of public funds on the road and the historic use of the road by
members of the public; and (3) that the Township had acquired title
to the land along the waterfront by virtue of a public highway that
existed in the location prior to the enactment of By-law 11 in
1854. In the alternative, the Township asserted that By-law 11 gave
it title to the disputed lands despite it not being registered on
title until 2007. Moreover, the Township argued that it had
acquired title in modern times by a presumption of dedication and
acceptance.
The Court rejected all of the Township's arguments. The
Court found no evidence to suggest that there was a shoreline road
in existence prior to the enactment of By-law 11 in 1854. The
Township also produced no records referring to the By-law 11 lands
in the years following the passage of the by-law. The Court found
that the Township had not met the test required to establish
dedication and acceptance in the modern era. At its highest, the
Township's evidence only suggested that persons who were using
the disputed road were predominantly friends, visitors and
invitees.
As By-law 11 had not been registered on title before the
defendants took title to their properties, By-law 11 was
unenforceable as against them. Prior to the 1865 amendments of the
Registry Act, there was no requirement to register a by-law. While
the Township was not required to register By-law 11 on title at the
time of its enactment, actual notice of a prior interest in title
was still required by the law of equity in order for any ownership
interest created by the by-law to prevail over a subsequent
registered transfer. In this case, the property owners occupying
the disputed lands were only required to search title to their
properties back 40 years prior to the date of purchase to identify
any encumbrances on the title they were acquiring.
In passing By-law 80-2007, the Township preferred "the
wishes of a small group of citizens to the concerns raised by its
town planner" (para 177). It failed to carry out all proper
inquiries and to give timely and adequate notice to affected
property owners before the enactment of the by-law. By-law 80-2007
was void as it was not passed for a proper municipal purpose.
Finally, the Court noted that the Township had "slept on
their rights for over 150 years" (para 184). The defendants
acted in reliance on their justifiable belief the disputed lands
were part of their private property. Given that the Township was
not acting for the purpose of enforcing any legislation but rather
was seeking to take away property rights, laches and acquiescence
should apply in favour of the defendants.
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