In the realm of municipal law, the term “common and public highway” takes center stage as defined by the Municipal Act, 2001. This exploration navigates through historical roots, legal precedents, and contemporary considerations to elucidate the concept of highways.

Tracing back to Roman law, the term “highway” has maintained a respected status. In English common law, a highway transcends a mere strip of land.

At law, a public “highway” embodies a public thoroughfare where individuals possess the right to travel, pass, and repass, regardless of the landowner’s title. Many cases, including Toronto (City) v Consumers’ Gas Co. (1940), have solidified this definition by affirming the principle that a highway is a route where every member of the public is entitled to pass and repass.

In Ontario, the classification, establishment and management of public highways is governed by the Municipal Act, 2001 and common law principles. Historically, public highways were set out and established in a number of different manners with many (but not necessarily all) being set out on original road allowances reserved and laid out on original Crown surveys during the creation and organization of the lots and concessions that form Ontario today. Roadways deemed to be public highways have also commonly been identified in original surveys and old registered plans in which illustrated roadways were dedicated by the land owner to and accepted by the municipality as a public highway. In general, public highways today are owned by and fall within the jurisdiction of local municipalities subject to any rights that may have been reserved by the person who originally dedicated the highway or any interests held in the underlying land by another person.

The criteria for what constitutes a “public highway” have evolved over time. At a very high level, roads established or transferred after January 1, 2003, qualify as public highways if:

1. They existed as a highway on December 31, 2002.
2. They are highways established by a by-law on or after January 1, 2003.
3. They are highways transferred to a municipality by the Public Transportation and Highway Improvement Act.
4. They are road allowances made by Crown surveyors and located in local municipalities.
5. They are road allowances, highways, streets, and lanes shown on the registered plans of subdivision.

This criteria catches a wide range of roads/highways. In many cases, it is not apparent from the outset whether a given road qualifies as a public highway without investigation into the historical establishment, use and treatment of the road by the public, by the Crown and/or by the local municipality.

Furthermore, while a municipality may own the soil of a highway, “assumption” of the highway for maintenance purposes is a separate matter. Many non-urban municipalities have several kilometers unopened road allowances laid out in original Crown surveys or on registered plans of subdivision. Municipalities are not obligated to open or assume original road allowances or roads on registered plans of subdivision. Furthermore, municipalities are not necessarily obligated to maintain these roads unless and until they have been assumed by by-law for public use.

Understanding the complexities of roads and highways is no small feat. The reality is that this article has barely scratched the surface on the many types of roads that exist in Ontario and the principles that govern them. When it comes to questions or disputes involving access roads, forced roads, trespass roads, public highways and more, we’re here to guide you through every twist and turn. Our legal team has vast experience with the establishment of public highways, road access and maintenance disputes and other matters affecting the legal ownership and status of roads and highways.

Don’t let the intricacies overwhelm you – reach out to us today for personalized assistance tailored to your unique situation. Contact us now to pave the way for a resolution that puts you back in the driver’s seat. Your road to clarity starts with us!

Written by Alex Cockburn and Nahal Golmohammadi