Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs Russell Hilderley and Catherine Bonin-Hilderley alleged that the replacement of a 12-inch culvert with a 24-inch culvert under Goulais Mission Road caused flooding and erosion damage to their property beginning in 2015.
• Both defendants moved under Rule 21.01(1)(b) to strike the statement of claim on the ground that it disclosed no reasonable cause of action due to statutory immunity under the Local Roads Board Act (LRBA) and the Public Lands Act (PLA), or alternatively that the claim was barred by the Limitations Act, 2002.
• Central to the motion was whether a culvert qualifies as part of a "road" under s. 18 of the LRBA, and whether its replacement constitutes "maintenance" within the meaning of that provision.
• Statutory interpretation of s. 18 of the LRBA led the court to conclude that a culvert running beneath a road surface is an integral component of the road, and that its repair or replacement falls within the scope of road maintenance.
• Plaintiffs argued that their claim arose from positive acts of construction — not mere non-feasance — placing it outside the immunity provision, but the court rejected this characterization as inconsistent with the language of the statement of claim.
• Leave to amend was denied, as no amendment could cure the legal deficiency: all pleaded allegations arose from the defendants' replacement of the culvert during road maintenance, an activity squarely covered by the LRBA immunity.

Facts of the case

Russell Hilderley and Catherine Bonin-Hilderley are spouses who own property at 1943 Goulais Mission Road, Goulais River, Ontario. Prior to 2015, they managed heavy rains and snowmelt through a private ditch extending across their property and draining into Goulais Bay. At that time, a 12-inch culvert crossed underneath Goulais Mission Road and opened near their property without interfering with their land or private ditch. During 2015, the defendants — His Majesty the King, represented by the Minister of Transportation for the Province of Ontario, and the Goulais Mission Local Roads Board (GMLRB) — undertook structural repair and replacement work and replaced the existing 12-inch culvert with a 24-inch culvert. From the spring of 2015 onward, the plaintiffs experienced significant annual flooding on the north side of their property. The floodwater overflowed their ditch and, upon receding, carried away substantial soil, causing erosion that damaged the foundation of a large workshop, destabilized trees, and threatened a large propane tank. By 2023, the plaintiffs concluded that approximately 30% of their property had been rendered unusable. Russell Hilderley sent 10 emails between November 3, 2020 and September 13, 2022 to various individuals including the defendants, MPPs, and the Ombudsman. The only replies received were from the Ontario Ministry of Agriculture, Food and Rural Affairs dated August 12, 2022 and from the MTO dated September 22, 2022. On October 16, 2024, the plaintiffs commenced an action seeking general damages of $150,000.00, punitive damages of $50,000, and an order requiring the defendants to remove or seal the culvert.

Policy terms and statutory provisions at issue

The defendants relied on s. 18 of the Local Roads Board Act, R.S.O. 1990, c. L.27 (LRBA), which provides that no action shall be brought against the Crown, a board, or any trustee for damage caused by any default in the maintenance of a local road in a local roads area, and that neither the Crown nor a board nor any such trustee is liable for any damage sustained by any person using such local road. The parties agreed that Goulais Mission Road falls within the local roads area serviced by the GMLRB and that the words "no action" are broad enough to cover any action pleaded. The defendants also raised s. 50 of the Public Lands Act, R.S.O. 1990, c. P.43 (PLA), which bars civil actions against the Crown or any person for misfeasance, non-feasance, nuisance, or negligence in connection with the construction, maintenance, or repair of a road — with "road" under s. 48 of the PLA explicitly defined to include culverts, but expressly excluding roads under the jurisdiction of a local roads board. The plaintiffs additionally alleged a violation of s. 15 of the Drainage Act, R.S.O. 1990, c. D.17, for failure to ensure the drainage system was continued to a sufficient outlet, and advanced a nuisance/strict liability claim under the principle in Rylands v. Fletcher, (1868) L.R. 3 H.L. 330.

Court's reasoning and analysis

Justice Tysick applied the Rule 21.01(1)(b) standard, which requires the court to determine whether, assuming all pleaded facts are true, it is plain and obvious that the claim discloses no reasonable cause of action. The court drew on the principles recently restated by the Ontario Court of Appeal in Hartman v. Canada (Attorney General), 2026 ONCA 270, including that the claim must be read generously and that leave to amend should be denied only where deficiencies cannot be cured.

On the question of whether a culvert is part of a "road" under s. 18 of the LRBA, the court applied the modern approach to statutory interpretation from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, reading the words in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act. The Oxford English Dictionary definition of "road" as a wide way between places, especially one surfaced for use by vehicles, was found to be broad enough to include elements below the surface. "Culvert" was defined as a tunnel carrying a stream or open drain under a road or railway. The court also cited Consumers' Gas Co. v. City of Barrie (1980) 31 O.R. (2d) 242, in which a culvert was found to be an integral and necessary component of a highway, and CNR v. Weyerhaeuser, 2018 ONSC 2056, in which claims related to the design, maintenance, and installation of culverts were held to constitute claims in connection with the repair of a road. The court further reasoned that reading s. 18 of the LRBA alongside s. 50 of the PLA — which explicitly includes culverts in its definition of road — supported a consistent legislative purpose. It would be unreasonable for the Crown to enjoy immunity when replacing a culvert on a road outside a local roads board's jurisdiction but face broad liability for the same work on a road within one.

On whether the replacement constituted "maintenance," the court relied on the dictionary meaning of "maintain" — to keep something in good condition by checking or repairing it regularly — and on s. 1 of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, which states that maintenance includes repair. The Crown's statement of defence, while not presumed true for Rule 21 purposes, provided context: the GMLRB had observed that the existing culvert had collapsed and was no longer transferring water, causing water to run over the road during spring thaw and heavy rain, prompting the replacement as part of routine spring maintenance. The court concluded that repair is necessarily included within maintenance, and that any default in maintaining the road — including its culvert — falls within the immunity provided by s. 18.

Turning to whether leave to amend should be granted, the court rejected the plaintiffs' argument that their claim was based on positive acts of construction rather than maintenance defaults. The court found this characterization inconsistent with the statement of claim itself: all eight particulars of negligence in paragraph 16 related to the installation of the new culvert system and the defendants' alleged failure to design, maintain, install, inspect, or repair it properly. The nuisance/strict liability claim in paragraph 25 also sought recovery for damage caused by the redesign and/or repair/replacement of the culverts. The proposed amendment — to add the word "positively" before "constructed" — would not change the fundamental nature of the claim, which remained one for damages arising from culvert replacement during road maintenance.

Ruling and overall outcome

The court granted the motions filed by both defendants and struck the plaintiffs' statement of claim in its entirety, finding it plain and obvious that the claim disclosed no reasonable cause of action. Section 18 of the LRBA operated as a complete bar because all pleaded allegations arose from the defendants' replacement of the culvert as part of road maintenance, a matter squarely within the immunity provision. Leave to amend was denied, as no amendment could cure the legal deficiency. The court found it unnecessary to consider the immunity defence under the PLA or the limitations defence under the Limitations Act, 2002. The defendants were the successful parties. As agreed by the parties, the plaintiffs were ordered to pay the defendants collectively $10,000 inclusive of HST in costs.