The Case of the Driveway that was a Highway

Today we will investigate another interesting case, the Case of the Driveway that was a Highway, or, to use its correct legal name, the case of British Columbia v. Querin. It is a case that revolves around a property dispute between two neighbours who disagreed over a stretch of road that both used to access their homes, with one arguing it was a private driveway and the other arguing that it was a public road. The dispute escalated, with one neighbour blocking the other from being able to access their property and ended up drawing in the provincial government. The case was decided in the Supreme Court of British Columbia in 2023 but the story begins decades earlier.

In 1991, Mr. Curtis Querin purchased a parcel of land in a rural area of northeastern British Columbia, just outside the village of Pouce Coupe. Mr. Querin and his wife, Deanne Querin, then proceeded to build a home and live on the property. At the time Mr. Querin made his purchase, there already existed a roadway which crossed over the property, providing access to their new homesite. Other landowners in the area, and some members of the public looking for places to ski or hunt, would sometimes use the road as well.

When the Querins took ownership of the land in 1991, the neighbouring property to the north was owned by the Callahan family, although they did not live on the land. It was not until 1995, when Dale and Barbara Callahan took possession of the property to the north of the Querins, that a house began to be built on that land. Over the course of the next year, the Callahans constructed their home on the land, living in a motorhome in the meantime until it was ready.

For twenty years, from 1995 to 2015, the Callahans accessed their land using the roadway which crossed over the Querin property. It was used daily by the Callahans, to go to and from work, and by their family and friends who came to visit them. During this time, the Querins did not object to this use of the road and the Callahans stated they were under the impression that the road was open to the public. Other persons in the area would also sometimes use the road too, though it was mostly the Querins and the Callahans.

Problems began to arise in 2015, when the Querins became aware of plans by the Callahans to subdivide their property. The Callahans intended to divide their property up into smaller parcels, keeping the piece of land their house was located on and selling the others. As they believed it to be a public road, the Callahans intended that the road crossing the Querin property would be used by the people who purchased these new lots.

The Querins were adamantly opposed to this plan to use the roadway to access these new lots, fearing the increase in traffic would negatively impact them. As far as they were concerned, the road that crossed over their land was their private driveway. They had been allowing the Callahans to use it, but they did not want to see a multitude of new users. To express their displeasure with the Callahans’ plans and reinforce their claim of ownership, the Querins posted signage reading “Keep Out” and “Private Drive” alongside the roadway.

In 2017, the dispute reached a whole new level when Mr. Querin installed several barriers. A locking gate was constructed at the eastern end of the roadway and a wall of concrete blocks was laid across the western end, blocking entry by vehicles to the Callahan property entirely, although still allowing access to the Querins’ house. This was particularly concerning to the Callahans because Mrs. Callahan had a heart condition, and they were worried this would result in emergency services being unable to reach them.  In fact, on the day the concrete blocks were laid down, Mrs. Callahan missed a medical appointment she had scheduled because she was unable to exit from her property due to the barrier.

The Callahans took their concerns to the Royal Canadian Mounted Police (the RCMP) and the provincial Ministry of Transportation and Infrastructure, asserting that the road was public and asking for their assistance in having the blockages removed. In response, the RCMP stated the dispute between the two neighbours was a dispute over property rights and not a criminal offence, thus refusing to get involved. The Ministry also was not willing to compel the Querins to remove their barriers, although they did help the Callahans build an alternate road to enter their property via a route that did not cross the Querin property. However, the Callahans found this alternate road inadequate because it would turn to impassable mud in the spring, and it also was not in good enough condition to allow delivery trucks carrying water or propane to reach the Callahan property.

In January 2018, the Querins decided to appeal to a higher authority and wrote a letter to the British Columbia Attorney General, again arguing the roadway across the Querin property was public and asking for help. After this, the Ministry of Transportation and Infrastructure acted, having employees and contractors attend and remove the concrete blocks and gate that obstructed access. That same year the provincial government also began a court action in the Supreme Court of British Columbia seeking a declaration that the road was a public road and not a private driveway, as the Querins claimed. Additionally, the provincial government sought, and received, a temporary injunction from the court prohibiting the Querins from blocking the road again until the court case regarding ownership was settled.

The case then began winding its way through the legal system, slowly, as cases often do. While it was navigating its way through the court, the dispute between the two neighbouring families continued to simmer away and it flared up again in the summer of 2022. In July 2022, Mr. Querin installed two posts on either side of the disputed road, approximately 10 to 11 feet apart from one another. Mr. Querin stated the reason for doing this was because Mr. Callahan had been driving his loader and tractor onto the Querins’ property to turn around and he wanted to stop this practice; and he argued there should be no problem with it because the law stated vehicles wider than that weren’t supposed to be on public roads anyways.  Unfortunately, these poles had the effect of making the roadway too narrow for the Callahans to drive their motorhome through; something they found out to their dismay when they returned from vacation in the summer of 2022.

Eventually, in the fall of 2023, the case went before Justice F. Matthew Kirchner of the Supreme Court of British Columbia for a decision on whether the road in question was public (or a “highway” if one is to use the correct legal terminology for a public road in British Columbia law) or a private driveway.  If it was a highway, then the Callahans could continue using it to access their property; indeed, anyone could use it. If it were a private driveway on private land, as the Querins insisted, then the Callahans would be out of luck.

The provincial government of British Columbia’s legal team took the position at trial that the road was indeed a highway under British Columbia law, and they based this argument on Section 42 of the Transportation Act. It was a clause of the provincial legislation which had been in existence for many decades, albeit in slightly different forms. It declared that, if the provincial government spent money on a road located on private land – and that road was travelled by the public – then the road automatically became publicly owned.

Arguments and submissions were made about whether enough public funds had been spent on the road, and whether enough members of the public had travelled on the road, to trigger Section 42 and thereby make it a highway. The Querins argued that any work done by the province on the road was minor and, in fact, it was Mr. Querin who had done the bulk of the work to maintain the road. However, the province was able to produce records showing various government employees and contractors had done work to build and/or maintain the road for decades and, despite some irregularities with these records, the justice was satisfied they proved that significant government funds had been expended on the road.

With regards to whether enough members of the public had traveled the road to make it public, the case was a little less clear. The justice remarked that, despite some occasional usage by members of the public, most of the road users had been either the Querins or their visitors, up until the 1990’s when the Callahans had moved in on the neighbouring lot. From then on, the Callahans and their various guests had been using the road daily. This was, in the justice’s opinion, sufficient to meet the threshold of making it public, although he noted the case would have been stronger if there was a greater diversity of persons who used the road regularly.

Having made these findings, Justice Kirchner made a declaration that the road was a public highway within the meaning of Section 42 of the Act and therefore belonged to the provincial government. Consequently, the Callahans and all other members of the public could continue to use this throughfare. However, the justice did refuse to grant the provincial government’s request to order the Querins to pay for the costs of removing the concrete block wall and gate they had built in 2017. The justice also declined to make an order declaring how wide the public highway was – the province had requested that he declare the publicly owned road to be a two-lane one – and instead the justice left that matter unresolved for the time being.

And there ends our story of how what, on its surface, looked to be a private driveway but was found to be a highway. It was a contentious one, stirring up animosity between neighbours, and resulting in the government having to step in to reach a resolution. And surprisingly, it’s a story that is more common than one might think.

The British Columbia Ombudsperson – an official responsible for investigating complaints made against the provincial government and other public bodies in the province – recently released a report called “On the Road Again: Fixing a Longstanding Injustice in Section 42 of the Transportation Act” detailing how disputes of this kind have been occurring for decades. The report criticized how Section 42 of the Transportation Act has been used over the years, creating scenarios where property owners end up losing portions of their land to the government without even realizing it and fueling uncertainty over who owns what. Amongst other recommendations, the Ombudsperson has called on the government to take action to resolve this uncertainty over which roads actually are public by creating a public registry of roads that they believe have become public due to Section 42, and also by registering this information against the land titles of the properties in question.  The government has accepted five of the seven recommendations made by the Ombudsperson, but the final two, regarding the public registry and the registry against land titles, may or may not be implemented.

SOURCES:

British Columbia v Querin, 2023 BCSC 1994 (CanLII). https://canlii.ca/t/k15d7

British Columbia v Querin, 2024 BCSC 197 (CanLII). https://canlii.ca/t/k2ql8

Office of the Ombudsperson (British Columbia). (2024). On the Road Again: Fixing a Longstanding Injustice in Section 42 of the Transportation Act (Special Report No. 55). https://bcombudsperson.ca/assets/media/OMB-Roads_Report_WEB.pdf

Summer, T. (2023, November 22). It's a public road, not a driveway, B.C. justice rules. CTVNews. https://bc.ctvnews.ca/it-s-a-public-road-not-a-driveway-b-c-justice-rules-1.6655891

The Canadian Press. (2024, March 5). B.C. ombudsperson calls rules that allow private roads to be made public ‘unjust’. Energeticcity.ca. https://energeticcity.ca/2024/03/05/b-c-ombudsperson-calls-rules-that-allow-private-roads-to-be-made-public-unjust/

Transportation Act, SBC 2004, c. 44. https://canlii.ca/t/566fd

Transportation Act Regulation, BC Reg 546/2004. https://canlii.ca/t/563zn

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