My Way or the Highway? Two New Cases on Section 42 Roads

Take a drive around any municipality in British Columbia, and in all likelihood you will come across at least one stretch of highway that has never been formally dedicated, whether by subdivision plan, notice in the BC Gazette, or otherwise – but you may not realize it.  From behind the windshield, all roads look more or less the same as one another, and their legal status is not usually apparent.  Hence the problem that gave rise to two cases recently considered by the courts: 452195 B.C. Ltd. v. Abbotsford (City), 2013 BCSC 2055 (“Abbotsford”) and Chemainus Park Holdings Ltd. v Island Timberlands GP Ltd., 2013 BCSC 2271 (“Chemainus Holdings”).

In the Abbotsford case, the plaintiff discovered that a portion of Clearbrook Road ran through a portion of what was, or at some point had been, a portion of the plaintiff’s five acre parcel.  This area, referred to by the court as the “Disputed Land”, constituted slightly more than a quarter acre.  The fact that the Disputed Land had never been formally dedicated as highway was discovered in 2010 when the City of Abbotsford commissioned an appraisal as part of its plans to widen Clearbrook Road.  After discovering this fact, and giving some consideration to the matter, the City of Abbotsford took the position that the Disputed Land formed a part of the public highway by virtue of section 42 of the Transportation Act.  That section (which for many years was, in almost identical form, section 4 of the Highway Act) provides as follows:

“42 (1)            Subject to subsection (2), if public money is spent on a travelled road that is not a highway, the travelled road is deemed and declared to be a highway.

(2)            Subsection (1) does not apply to any road or class of roads, or to any expenditure or class of expenditures, that is prescribed by the Regulations.”

The City’s position was based on evidence (including aerial photographs, maps, and land title plans, as well as the recollections of long time residents) which indicated that for at least a century prior to 2010 the Disputed Lands formed part of Clearbrook Road, a well-travelled public highway.  Public expenditures on Clearbrook Road over that period totaled more than $2,000,000.  In addition, prior to 2010, the plaintiff believed the Disputed Land to be part of Clearbrook Road, and there was no evidence that any previous owners believed otherwise.

The plaintiff disagreed with the City, and took the position that unless an owner of land intends to dedicate the land as a public highway, section 42 of the Transportation Act does not apply.  The plaintiff denied an intention to dedicate, and therefore the plaintiff claimed that the City was in trespass on the Disputed Lands.

The court held in favour of the City of Abbotsford, and declared that the Disputed Lands form part of the public highway known as “Clearbrook Road” pursuant to section 42 of the Transportation Act.  What makes the decision noteworthy is the court’s review of the previous case law respecting section 42, as well as the concept of highway dedication at common law, and in particular the court’s discussion of the concept of “intention” as it relates to the application of section 42.

The concept of highway dedication at common law existed prior to section 42 of the Transportation Act and its predecessors.  It continues to be recognized as part of the law in British Columbia, alongside other methods of dedication.  The legal test for dedication at common law requires two elements to be satisfied.  The first element is that there must be an intention of the part of the owner of land to dedicate land to the public for use as a highway.  The second element is that there must be acceptance by the public of that highway.  Most often, evidence of the public’s acceptance comes in the form of public use.

Section 42 of the Transportation Act, on the other hand, makes no explicit mention of the concept of intention.  The elements it sets out are that the road be “travelled”, and that “public money” be spent upon it.  The courts have clarified that the expenditure of public money must be more than trifling, and the regulations under the Transportation Act exempt snow and ice removal from the class of expenditures that will satisfy the requirements of section 42.  A straight reading of section 42 might therefore suggest that intention is irrelevant.

However, there is some inconsistency in the existing case law as to whether an element of intention is necessary in order for section 42 to apply.  Some cases have suggested that the intention of the owner plays no part in the analysis under section 42, while some cases have indicated that while evidence of an express intention to dedicate is not necessary, some degree of “acquiescence or concurrence” is necessary.

In the Abbotsford case, it boiled down to a question of whether the plaintiff’s objection to the use of the Disputed Lands as a highway, once it became aware of the facts in 2010, was enough to prevent the application of section 42.  The court decided that the lack of any objection over the period of time preceding 2010 was sufficient to demonstrate acquiescence or concurrence in the dedication of the Disputed Land.  The court relied, in part, upon the common law maxim “once a highway, always a highway”.  In other words, Clearbrook Road, including the Disputed Lands, had long been travelled by the public, a considerable amount of public money had been expended upon it, and over a period of a century or more, the owners of the land had not raised any objection to the use of the Disputed Lands as a public highway.  Therefore section 42 applied, and the Disputed Lands were deemed and declared to be a highway.

In the end, the court in Abbotsford did not have to reach a final conclusion one way or the other on the question of whether an owner’s intention plays any part in the analysis under section 42 of the Transportation Act.  The court was able to conclude that if the law requires evidence of such an intention, there was sufficient evidence in the case, and if intention was not relevant, then the other two elements of section 42 were met.  Perhaps, in future, the BC Court of Appeal will have an opportunity to finally resolve the question one way or the other. Until then, the implication of the Abbotsford case, as well as previous case law, seems to be that the “travelled road” and “public money” elements under section 42 should be considered first.  If those elements are satisfied, then it will be important to look at whether there is any evidence that demonstrates a lack of acquiescence or concurrence in the dedication of the road as a highway.  Periodic gating of the road would be one example of evidence demonstrating a lack of acquiescence.  Where evidence of objection exists, it will be necessary to examine the nature and extent of the objections, as well as their timing, in light of all the circumstances, in order to determine whether they may be sufficient to prevent the application of section 42.  Whether a road is “my way”, or a “highway”, will depend on the facts in every case.

Abbotsford can be contrasted to the case of Chemainus Holdings, where the same law is applied but the facts of the case lead to a different result.  In brief, the facts are that Chemainus Park Holdings Ltd. (CPHL) purchased a property near Chemainus. The property is accessed by “Haul Road”, which is owned by Island Timberlands. Island Timberlands charged CPHL an annual user fee for the use of Haul Road, a fee which Island Timberlands increased when CPHL began developing the property. CPHL, in an attempt to avoid paying this fee, applied to the court for a declaration that Haul Road was a highway and not the property of Island Timberlands. CPHL’s claim was based on the fact that the Province used public money to improve the intersection of the Vancouver Island Highway and Haul Road, and had also entered into an agreement where the Province paved a portion of Haul Road in exchange for gravel.

The crucial step in the court’s analysis was the consideration of the context in which the Province decided to improve the intersection.  The court found that the improvements were undertaken to provide logging trucks with a safe entrance and exit to the highway.  Applying a measure of common sense, the court’s reasons for judgment recognized, at paragraph 112, that “it does not take much thought to see the potential public danger to ordinary motorists of huge, slow moving logging trucks trying to traverse a public highway and the need to control the traffic”.

From this recognition it was a small step to the determination that although public money was used to improve the electrical facilities, including the installation of detection loops, which required some paving of Haul Road, this was not enough for a declaration that Haul Road should be declared a highway.

However, the Province had paved approximately 800 metres of Haul Road over and above the paving required for the detection loops.  Beyond the paved portion, the remainder of the Haul Road was undisputedly an unimproved, private logging road.  The court determined that this additional paving was done under what it described as a “barter agreement”, whereby in exchange for “a huge amount of gravel for the Island Highway project” the Province agreed to pave a portion of Haul Road for the landowner. The reasons rhetorically asked: If the Province purchased the gravel, and the landowner used those proceeds to pay a paving company to pave Haul Road, would Haul Road be deemed a highway? The answer is clearly no, and the court applied this logic to determine, at paragraph 125,that the paving of the 800 metres was not “a direct expenditure of public monies” sufficient to find the entire Haul Road a public highway. Underlying this decision is the court’s reluctance to declare bits and pieces of roads to be public highways, where only portions of them have been improved.

A fundamental principle in our society is that public money should be spent for the public good and not used for improvements that would only benefit an individual. A good deal of public money is spent each year on transportation infrastructure by the Province and by local governments, and the public should have the benefit of money spent on highway improvements.  Section 42 of the Transportation Act, combined with the legal maxim that “once a highway, always a highway”, means that when a landholder acquiesces to the expenditure of public money to improve a travelled road on their property, they have effectively given that road to the Province, as was the result in Abbotsford.

Chemainus Holdings is an important decision because its explicit endorsement of a contextual approach to determining a government’s intention in improving highway infrastructure may help prevent the proliferation of overly technical and disingenuous claims.