Many municipalities struggle with encroachments on municipal
highways, particularly in the circumstance where private property
abuts on an unopened road allowance (such as a lane), which,
through the installation of patios, barbeque pits and gardens, gets
treated by the property owner as part of his or her private
In Liu, the District sought an order for the removal of a
living room, retaining walls, decorative ponds, hedges and a fence
(the "Encroachments") constructed on the
District's highway adjacent to Ms. Liu's
The legal basis for the order was that the Encroachments had
been installed contrary to section 46(1) of the Community
Charter and the District's traffic and parking bylaw. Ms.
Liu brought her own petition for a declaration that she was
entitled to an easement over the District's highway pursuant to
section 36 of the Property Law Act.
The Court found that as the District could not prove that
permits had not been issued for the Encroachments, Ms. Liu was
entitled to a declaration for an easement over the District's
highway pursuant to section 36 of the Property Law
In our view, the court in Liu failed to consider and
address several key issues. In particular:
The court did not undertake any analysis of whether the
Encroachments contravened section 46(1) of the Community
Charter, which provides that "[e]xcept as
permitted by bylaw or another enactment, a person must not excavate
in, cause a nuisance on, obstruct, foul or damage any part of a
highway or other public place".
The court did not acknowledge that municipalities hold title to
their highways in trust for the benefit of the public and that the
public's right to pass and repass over a highway without
obstruction cannot be infringed by anyone except under express
statutory power. In this regard, the Court did not undertake any
analysis of whether section 36 of the Property Law Act,
which does not expressly mention highways, grants the court express
statutory power to infringe on the public's right to pass and
repass over a municipal highway without obstruction by granting a
private party like Ms. Liu an easement over a municipal
The court appears to have granted Ms. Liu an easement at least
in part on the basis that the District did not object to the
Encroachments. It is unclear how this is any different from an
easement acquired by prescription, a right which is specifically
prohibited by the Land Title Act and prohibited with
respect to a municipality's interest in a highway by virtue of
section 35(4) of the Community Charter.
The court appears to have put the onus on the District to prove
that the encroachments were not authorized. In our view, the onus
should have been on Ms. Liu to prove that the encroachments were
authorized. This is because section 35(11) of the Community
Charter, which permits a municipal council to grant a licence
of occupation, easement, or encroachment on a municipal highway,
arguably places the onus on a property owner to prove that the
encroachments are authorized by the appropriate municipal
The District has appealed the decision to the Court of Appeal.
It will be interesting to see whether any of the issues discussed
herein will be stated as grounds for appeal and, if so, whether
such grounds will be acceded to by the Court of Appeal.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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