Is there alternative road access to the applicants’ land?

(ii) Is there alternative road access to the applicants’ land? At para. 28 of the decision Bogart v. Thompson 2002 WL 40186 (Ont. S.C.J.), 1 R.P.R. (4th) 199, Eberhard J. stated: “I find, on the weight of the authority before me, that the correct approach is to consider first whether the Road Access Act applies because there is no other access. The onus is on the access seeker who wishes to invoke the Act, to demonstrate that it applies because there is no alternate access. I find that the “no alternate access” consideration refers to the legal box around the parcel and not to physical inconveniences unless such physical impediments are insurmountable. It has been found to be impossible to create road access over water [FN15] but not over rough ground. [FN16]” The applicants argue that if the road across the respondents’ property is blocked or closed, they have no alternate route, within the meaning of the Road Access Act, to access their property. Counsel for the respondents argues that the test is whether there is a usable road in existence, within the meaning of the Act, which even if not convenient, nevertheless provides alternative access to the applicants. In short, the respondents argue that as the definition of a motor vehicle includes an all terrain or ATV vehicle, and as there is evidence to suggest that ATV’s have used the trail running along the hydro pole line, there in fact exists alternate road access for the applicants in this case.