Public on paper, private on title: The curious case of a road that never was

This story was originally published by Law360™ Canada, (www.law360.ca) a division of LexisNexis Canada.

By Kavita Pandya

Can a road be a public highway even if nobody has ever driven on it, the municipality has never maintained it, and a private company is its registered owner? A recent Ontario Court of Appeal decision suggests the answer may be yes.

Imagine purchasing a property only to discover that a road shown on the original subdivision plan was never actually built. There is no pavement, no traffic, no streetlights and no snowplows. Instead, the land has been used by a neighbouring golf course for decades.

Surely, this cannot be a public road? According to the Ontario Court of Appeal, it can be.

In Lecuyer v. Essex (Town), 2026 ONCA 729, the court considered whether a road shown on a registered plan of subdivision could qualify as a public highway even though it had never been constructed, used by the public or assumed by the municipality.

The road that existed only on paper

The dispute concerned a narrow strip of land known as Lakeview Drive, separating two properties owned by Jodi Lynn Lecuyer in the Town of Essex.

The strip formed part of a proposed roadway depicted on a registered subdivision plan from 1959. However, the subdivision was never fully developed, and Lakeview Drive never materialized as an actual street. Instead, a neighbouring golf course had used the land for decades, including for its irrigation infrastructure.

When Lecuyer attempted to purchase the strip from the Town, she discovered that the Town was not its registered owner. Title was held by a numbered company operating the golf course.

Lecuyer argued that the strip was nevertheless a public highway under the Municipal Act, 2001 (the Act), and that ownership vested in the Town. The Town disagreed.

Two courts, two different conclusions

In May 2025, the Ontario Superior Court of Justice sided with the golf course.

Applying the common law principles of dedication and acceptance, the application judge concluded that simply showing a road on a registered subdivision plan was insufficient to establish it as a public highway. Lakeview Drive had never been constructed, used by the public or accepted by the Town.

However, in October 2026, the Ontario Court of Appeal reversed that decision.

The court focused on s. 26(5) of the Act, which provides that all road allowances, highways, streets and lanes shown on a registered plan of subdivision are highways unless they have been closed.

The court held that s. 26(5) operates independently of the common law principals of dedication and acceptance. Where land falls within that provision, neither physical contribution nor municipal acceptance is a prerequisite to its status as a highway.

In reaching its conclusion, the court relied on longstanding Ontario authorities interpreting predecessor legislation, confirming that the statutory recognition of roads shown on registered subdivision plans does not depend on municipal assumption.

Under s. 30 of the Act, ownership of the disputed property vested in the Town. Although the golf course was the registered owner, the court found that its registration did not establish an interest capable of defeating the Town's statutory ownership in the circumstances. Notably, the parcel register itself identified the land as being subject to the municipality's interest.

The outcome was striking: a road that had never physically existed was nevertheless a public highway owned by the municipality. The court ordered the Land Titles Register be amended accordingly.

Although s. 31(2) of the Act generally requires a municipal bylaw to establish a highway after Jan. 1, 2003, s. 31(3) expressly exempts highways described in s. 26, including road allowances, streets and lanes shown on registered plans of subdivision. Accordingly, the bylaw requirement does not override the statutory recognition of such roads as public highways.

Why does this matter for real estate development?

Consider a developer purchasing an older property for redevelopment. The only apparent access is across a narrow lane registered in the name of a private owner. There is no registered easement benefiting the development property, potentially creating a significant access issue.

Does the developer need to negotiate an easement? Could the neighbouring owner prevent access?

Before reaching those conclusions, Lecuyer suggests that the original subdivision plan deserves a closer look.

If the lane is shown as a road allowance, a street or lane on a registered plan of subdivision, it may already qualify as a public highway under s. 26(5), notwithstanding the ownership reflected in the current parcel register.

However, an important distinction remains between a road's legal status as a public highway and the municipality's responsibility for its maintenance.

The Court of Appeal specifically distinguished the question of whether the land is legally a highway from the separate question of whether a municipality has assumed responsibility for maintaining or repairing it.

A public highway is not necessarily an open or maintained road. Its legal status does not automatically require the municipality to construct, maintain or make it suitable for vehicular access.

Nor does the decision mean that every road shown on an old survey is automatically public. Lawyers must still establish that the disputed lands are shown as a road allowance, highway, street or lane on a registered plan of subdivision, determine whether the highway has subsequently been legally closed, and investigate any competing interest disclosed by the title history.

The takeaway

Lecuyer is a reminder that registered title does not always tell the complete story when determining the legal status of a road.

A road shown on a registered plan of subdivision may qualify as a public highway under s. 26(5) of the Act, even if it has never been constructed, used by the public or assumed by the municipality.

For developers, purchasers, lenders and real estate lawyers, historical subdivision plans can therefore be critical when investigating legal access and ownership. However, establishing that a road is legally a public highway does not necessarily establish that it is physically accessible, maintained or suitable for intended development.

Sometimes, the answer lies not in the current parcel register, but in a subdivision plan registered decades earlier.