The Road Access Act was passed in 1978 to address confrontations that may arise between neighbours who use private roads to reach their property and neighbours who own the private roads. The Honourable Mr. D. McKeough introduced the legislation stating that the government intended “to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property.” The Act is a short statute containing only eight sections but the court decisions over the years have not always been clear and helpful. In 2007, two decisions have been decided by the Ontario Court of Appeal providing authoritative meaning to the Act. The Act applies to prevent a property from being landlocked. The Court of Appeal has held that, where there is an “alternate road access” to the property, the second road access may be closed by the owner. A user may have only one road access over the owner’s property. The Court made it clear that the alternate road access must be a usable, existing road. For example, it cannot be a road that has been abandoned for 40 or 50 years and has become overgrown with brush, and it cannot be an unopened road allowance, of which there are many in cottage counrty.
The Court also emphasized that the Act confers on users of an access road only a very limited, temporary right to use the road. The Court adopted, with approval, the following summary from a trial judgment describing this limited statutory right:
“In the end, and in the narrow situations to which it does apply, it creates no proprietary right or interest in the land over which the access road passes. It provides an interim status to the access user whereby the access user is immunized from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only (see Deluca; Cook’s Road Maintenance). He or she may not walk on it, use it for their own purposes (except vehicular passage for access purposes only), play on it, or disrupt it. The access user cannot grant the use of the road to others. The access user cannot convey any right to the road on a sale of the parcel of land; Whitmell v. Ritchie, supra. The Road Access Act does not affect property rights, but subjects them to the continued limited use of the road unless and until the owner obtains, after proper notice and hearing, a court order closing the road on whatever conditions are imposed; Cooks Road Maintenance, at para. 45. And, if another access road is subsequently provided, the access user’s continuing status under s. 2 ceases because alternate access would then exist.”