Road Access – Overview of the Road Access Act

Brief Introduction

 The Road Access Act 1978 (“the Act”) came into force in an attempt to resolve disputes regarding the access to roads typically found in areas which are considered cottage country. In simple terms, an “access road” may be defined as a road which is located on land that is not owned by a municipality, but serves as a vehicle’s route of access from one piece of land to another.  The Act aims to frustrate one landowner from frivolously blocking access to a road which another landowner must rely on to gain access to their property.

When an Access Road may be Closed

While Section 2 of the Act stipulates that blocking an access road is generally forbidden, there are certain instances where doing so is deemed to be lawful. It is crucial to note that the language in the Act states that blocking an access road must “prevent all road access” to a piece of land; in other words, if there are alternative roads one may use to access a piece of land, the access road in question may be lawfully closed without a court order. Generally, in order for a landowner to lawfully obstruct an access road, one of the following elements should be satisfied:

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;
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 commenced for a single period not exceeding a 24-hour period in a given year for the purpose of preventing the acquisition of prescriptive rights.

Case Law

In addition to the elements listed immediately above, 2008795 Ontario Inc. v Kilpatrick [2006] set out additional considerations for the courts when determining whether to grant an order for the closure of an access road. This particular case is interesting in that it deals with the closure of an access road on land ceased after a property had been sold. These considerations are as follows:

1. Whether the access road was commenced by the consent of the previous owner of the land;
2. Evidence that there is no other access to the property other than the access road; and
3. Evidence that the closing of the access road restricts vehicle access to the property.

Notice of an Application

Notice of an application to close an access road is governed by Section 2(3) of the Act. Notice shall either be personally served or served via mail on the owner of land who will be affected by the road closure. Where the owner is not occupying the land, notice must also be given to a tenant or occupier of the land in one of two ways:

1. By handing the notice personally to an adult who is either a tenant or who is occupying the land; or
2. Posting the notice on the land in a way that makes the notice obvious to a tenant or occupier of the land.

In addition to the above, notice of an application must be mailed to the clerk of the local municipality. In other words, a landowner who attempts to close an access road must not only inform those whose land access would be affected, but must also inform the municipal government of the closure.

When a Judge may Grant Order of Closure

            A judge may grant an Order for the closure of 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 interest of the applicant; or
2. That the closure is reasonably necessary for some purpose in the public interest.

The Act has seemingly taken a subjective approach here and has essentially given the courts the power to determine, on a case-by-case basis, what is to be considered “reasonably necessary” with respect to the granting of an order for the closure of an access road.

If you have questions or concerns regarding the closure of an access road or the Road Access Act, it is imperative to seek proper legal advice from a trained professional who specializes in municipal law.

If you require more information with respect to the above, please contact our office 705-809-0930.