Written by Irvin Schein and originally published at www.irvinschein.com

The area around Georgian Bay between Wasaga Beach and Meaford contains many interesting features. The beaches along Georgian Bay, the private ski clubs in the area, the pedestrian village of Blue Mountain, a lengthy cycling trail, and beautiful golf courses are only some of the many wonderful recreational features of the area. As idyllic as it may sound, however, weird things happen in that neighbourhood as evidenced by the recent Court of Appeal decision in a case between the Town of Meaford and a group of home and cottage owners along Georgian Bay and the Meaford area.

In this case, to quote the Court, the Town of Meaford quite literally “found a by-law in a box in its basement”. I am not kidding. The by-law was passed in August 1854 by the municipal council in place at the time. It was entitled By-law No. 11 for 1854 and established a lakeshore road along 4 adjoining lots. The road surface would have covered about 6,000 feet abutting Georgian Bay.

The by-law was never registered on title. Rather, it was lost to history for about 150 years. In fact, the road surface was largely lost to Georgian Bay when the area was washed out in a storm in 1986.

The by-law was discovered in the basement in 2004. The Town surveyed the area covered by the by-law and then passed a new by-law confirming the location of the purported road. It then directed the Town’s solicitor to do whatever was necessary to remove all obstructions from the area covered by the by-law.

As it happens, those lots are occupied by 10 cottage properties. The municipality sued the cottage owners for a Court Order declaring the road to be a public highway and finding that the cottage owners were trespassing on it.

The cottage owners brought motions for summary judgment. The motions were heard over the course of 5 days. The cottage owners were successful and the Town appealed to the Court of Appeal.

The Court noted first and foremost that there was absolutely no evidence that any public highway ever actually existed. The Court reviewed a variety of deeds and surveys prepared in the 1800’s, none of which made any reference to a road. In fact, there was no other township record in existence referring to either By-law 11 or any land that may have been covered by it. There were no records that the road was ever created or maintained by the Town and there were no records that the Town ever paid anyone any compensation for expropriating the roadway area. There was no survey and no evidence of the road on any map.

When the cottage owners built their cottages, they were built based on measurements commencing at the edge of the water. The Town was involved in granting the building permits and approvals for the cottages and certainly never asserted that there was a public roadway along the shoreline. This is not surprising given that the by-law appears to have been completely forgotten for 150 years.

The real basis for the Town’s position at the Court of Appeal was that the cottage owners knew or should have known of the existence of the road all along. Unfortunately for the Town, it did not seem to be able to provide any evidence to support that position. In fact, the Town consistently acted as if there was no road. As the Court put it:

“This was not a road not taken. There was simply no road to take.”

The appeal was dismissed with a substantial amount of costs.

This case represents yet another example of common sense triumphing over legal technicalities. How anyone at the Town could have imagined that a Court would permit the Town to prejudice the interests of 30 cottage owners in these circumstances is simply mindboggling. I cannot imagine a judge in the world going along with it, especially since the Town and its officials over many generations did not have a clue as to what otherwise might have been its own property rights.

Nevertheless, this case is a useful reminder of the fact that municipalities and the bureaucrats that run them are capable of doing some very strange things.

Incidentally, this does not mean that Meaford isn’t a nice place to visit. For example, there is a factory outlet store there that is not to be missed…